UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2008
OR
¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
COMMISSION FILE NO. 1-10308
AVIS BUDGET GROUP, INC.
(Exact name of Registrant as specified in its charter)
| DELAWARE | 06-0918165 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | |
| 6 SYLVAN WAY PARSIPPANY, NJ |
07054 | |
| (Address of principal executive offices) | (Zip Code) | |
973-496-4700
(Registrant’s telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
| TITLE OF EACH CLASS | NAME OF EACH EXCHANGE ON WHICH REGISTERED | |
| Common Stock, Par Value $.01 | New York Stock Exchange |
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No þ
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No þ
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities and Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes þ No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definition of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer þ |
Accelerated filer ¨ | Non-accelerated filer ¨ |
Smaller reporting company ¨ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No þ
The aggregate market value of the Registrant’s common stock held by non-affiliates of the Registrant on June 30, 2008 was $844,109,411. All executive officers and directors of the registrant have been deemed, solely for the purpose of the foregoing calculation, to be “affiliates” of the registrant.
The number of shares outstanding of the Registrant’s common stock was 101,570,563 as of January 30, 2009.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant’s definitive proxy statement to be mailed to stockholders in connection with our annual stockholders’ meeting scheduled to be held on June 12, 2009 (the “Annual Proxy Statement”) are incorporated by reference into Part III hereof.
TABLE OF CONTENTS
FORWARD-LOOKING STATEMENTS
The forward-looking statements contained herein are subject to known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. These forward-looking statements are based on various facts and were derived utilizing numerous important assumptions and other important factors that could cause actual results to differ materially from those in the forward-looking statements. Forward-looking statements include the information concerning our future financial performance, business strategy, projected plans and objectives. Statements preceded by, followed by or that otherwise include the words “believes”, “expects”, “anticipates”, “intends”, “projects”, “estimates”, “plans”, “may increase”, “may fluctuate” and similar expressions or future or conditional verbs such as “will”, “should”, “would”, “may” and “could” are generally forward-looking in nature and not historical facts. You should understand that the following important factors and assumptions could affect our future results and could cause actual results to differ materially from those expressed in such forward-looking statements:
| • | the high level of competition in the vehicle rental industry and the impact such competition may have on pricing and rental volume; |
| • | an increase in our fleet costs as a result of an increase in the cost of new vehicles and/or a decrease in the price at which we dispose of used vehicles either in the used vehicle market or under repurchase or guaranteed depreciation programs; |
| • | the results of operations or financial condition of the manufacturers of our cars, which could impact their ability to perform their payment obligations under repurchase and/or guaranteed depreciation arrangements they have with us, and/or their willingness or ability to make cars available to us or the rental car industry as a whole on commercially reasonable terms or at all; |
| • | weakness in travel demand, including the downturn in airline passenger traffic in the United States and in the other international locations in which we operate; |
| • | the decline in general economic conditions and weakness in the housing market, which could lead to a disruption or decline in rental activity, and the impact such a disruption or decline may have on us, particularly during our peak season or in key market segments; |
| • | a disruption in our ability to obtain financing for our operations, including the funding of our vehicle fleet via the asset-backed securities and lending market as a result of the significant disruption in the credit markets or other factors, which could result in a significant increase in borrowing costs and impact our capital requirements; |
| • | an occurrence or threat of terrorism, pandemic disease, natural disasters or military conflict in the locations in which we operate; |
| • | our dependence on third-party distribution channels; |
| • | our ability to successfully implement our cost-savings and efficiency improvement initiatives and business strategy; |
| • | the impact of our derivative instruments, which can be affected by fluctuations in interest rates; |
| • | our ability to accurately estimate our future results; |
| • | a major disruption in our communication or centralized information networks; |
| • | our exposure to uninsured claims in excess of historic levels; |
| • | our failure or inability to comply with regulations or any changes in regulations, including with respect to personally identifiable information; |
| • | any impact on us from the actions of our licensees, dealers and independent contractors; |
| • | substantial increases in the cost, or decreases in the supply, of fuel, vehicle parts, energy or other resources on which we depend to operate our business; |
| • | risks related to our indebtedness, including our substantial amount of debt and our ability to incur substantially more debt; |
| • | our ability to meet the financial and other covenants contained in our senior credit facilities, our outstanding unsecured senior notes and certain asset-backed funding arrangements; |
| • | the terms of agreements among us and the former real estate, hospitality and travel distribution businesses following the separation of those businesses from us during third quarter 2006, when we were known as Cendant Corporation (the “Separation”), particularly with respect to the allocation of assets and liabilities, including contingent liabilities and guarantees, commercial arrangements, the ability of each of the separated companies to perform its obligations, including its indemnification obligations, under these agreements, and the former real estate business’ right to control the process for resolving disputes related to contingent liabilities and assets; |
| • | the continuation of a low trading price of our stock, which could limit our access to capital, be an indicator that our goodwill or other intangible assets are impaired and/or result in a future charge to earnings for an impairment of our goodwill or other intangible assets; |
| • | our ability to meet and continue to meet the New York Stock Exchange’s continuing listing standards, including the minimum share price requirement; |
| • | our exposure to fluctuations in foreign exchange rates; and |
| • | other business, economic, competitive, governmental, regulatory, political or technological factors affecting our operations, pricing or services. |
Other factors and assumptions not identified above, including those described under “Risk Factors” set forth in Item 1A herein, were also involved in the derivation of these forward-looking statements, and the failure of such other assumptions to be realized, as well as other factors, may also cause actual results to differ materially from those projected. Most of these factors are difficult to predict accurately and are generally beyond our control.
You should consider the areas of risk described above, as well as those described under “Risk Factors” set forth in Item 1A herein and those that may be disclosed from time to time in filings with the Securities and Exchange Commission, in connection with any forward-looking statements that may be made by us and our businesses generally. Except for our ongoing obligations to disclose material information under the federal securities laws, we undertake no obligation to release any revisions to any forward-looking statements, to report events or to report the occurrence of unanticipated events unless required by law. For any forward-looking statements contained in any document, we claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995.
Except as expressly indicated or unless the context otherwise requires, the “Company”, “Avis Budget”, “we”, “our” or “us” means Avis Budget Group, Inc., a Delaware corporation, and its subsidiaries and “Avis Budget Car Rental” or “ABCR” means Avis Budget Car Rental, LLC, a Delaware limited liability company and its subsidiaries, the companies that comprise our vehicle rental operations. “Avis” and “Budget” refer to our Avis and Budget operations, respectively, and do not include the operations of Avis Europe and its affiliates, as further discussed below.
We operate two of the most recognized brands in the global vehicle rental industry through Avis and Budget. Avis is a leading rental car supplier to the premium commercial and leisure segments of the travel industry and Budget is a leading rental car supplier to the price-conscious segments of the industry. We believe we are the largest general-use vehicle rental operator in each of North America, Australia, New Zealand and certain other regions we serve, based on published airport statistics. We maintain the leading share of airport car rental revenue and operate one of the leading consumer truck rental businesses in the United States.
Our car rental operations generate significant benefits from operating two distinct brands that target different industry segments but share the same fleet, maintenance facilities, systems, technology and administrative infrastructure. We believe that Avis and Budget both enjoy complementary demand patterns with mid-week commercial demand balanced by weekend leisure demand. In 2008, we generated total revenues of $5,984 million. The Avis, Budget and Budget Truck brands accounted for approximately 62%, 32% and 6% of our revenue, respectively, in 2008.
Our operations have an extended global reach that includes approximately 7,000 car and truck rental locations in the United States, Canada, Australia, New Zealand, Latin America, the Caribbean and parts of Asia. On average, our rental fleet totaled more than 424,000 vehicles, and we completed more than 27 million vehicle rental transactions worldwide in 2008. Domestically, in 2008 we derived approximately 80% of our nearly $4.7 billion in total car rental revenue from on-airport locations and approximately 20% of our domestic car rental revenue from off-airport locations, which we refer to as our local business. We expanded our local business in 2008, which included an increase in our insurance replacement revenue by approximately 24%. We rent our fleet of approximately 29,700 Budget trucks through a network of approximately 2,500 dealer-operated, 300 company-operated and 75 franchisee-operated locations throughout the continental United States. We also license the use of the Avis and Budget trademarks to multiple licensees in areas in which we do not operate. The Avis and/or Budget vehicle rental systems in Europe, Africa, the Middle East and parts of Asia are operated at approximately 3,800 locations by subsidiaries and sub-licensees of an independent third party primarily under royalty-free trademark license agreements.
We categorize our operations in three operating segments: domestic car rental, consisting of our Avis and Budget U.S. car rental operations; international car rental, consisting of our international Avis and Budget vehicle rental operations; and truck rental, consisting of our Budget truck rental operations in the United States. In 2008:
| • | our domestic car rental business generated approximately 92 million rental days and average time and mileage revenue per day of $39.41 with an average rental fleet of approximately 338,000 vehicles; |
| • | our international car rental business generated approximately 14 million rental days and average time and mileage revenue per day of $43.40 with an average rental fleet of approximately 56,700 vehicles; and |
| • | our truck rental business generated approximately 4.1 million rental days and average time and mileage revenue per day of $73.66 with an average rental fleet of approximately 29,700 trucks. |
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In 2008, our business was significantly impacted by the economic downturn, the disruption in the credit markets and ongoing concerns about the domestic auto manufacturers. As a result, pricing and volumes declined and fleet costs and borrowing costs increased, particularly in the second half of 2008. In response, in third quarter 2008, we eliminated more than 700 employee positions to reduce costs and streamlined infrastructure in our headquarters, sales, contact center and field operations, and in November 2008, we implemented a five-point plan to reduce annual expenses in addition to our Performance Excellence process improvement initiative. The five-point plan is intended to enable the Company to realize cost savings through the following specific actions:
| • | Significant reductions in operating costs, fleet costs and selling, general and administrative expenses, including the elimination of 2,300 additional positions; |
| • | A thorough review of station, segment and customer profitability to identify and respond appropriately to unprofitable aspects of the business; |
| • | Targeted increases in pricing and changes to our sales, marketing and affinity programs in order to improve revenue per day and overall profitability; |
| • | Further consolidation of purchasing programs and streamlined procurement practices; and |
| • | Further consolidation of customer-facing, and back-office functions and locations across our operations, which is expected to provide considerable synergies. |
For 2009, our objective is to enhance profitability and our position as a leading provider of vehicle rental services as well as to realize cost savings and efficiencies through process improvement and other actions. We expect to achieve our goals by focusing our efforts on the following core strategic initiatives:
| • | Optimizing Our Two-Brand Strategy. We plan to continue to position our two distinct and well-recognized brands to capture different segments of customer demand. With Avis as a premium brand preferred by corporate and upscale leisure travelers, and Budget as a value brand preferred by cost-conscious travelers, we believe we are able to target a broad range of demand, particularly since the two brands share the same operational and administrative infrastructure while providing differentiated though consistently high levels of customer service. We aim to provide products, service and pricing, and to maintain marketing affiliations and corporate account contracts, which complement each brand’s positioning. In addition, we use various marketing channels as appropriate for each of our brands and seek to continue to increase the share of our reservations that we generate through our avis.com and budget.com websites, which are among our least-expensive sources of advance bookings. |
| • | Expanding Our Revenue Sources. We plan to continue to expand our ancillary revenues by offering additional products and services to on- and off-airport customers and by increasing, where appropriate, our recovery from our customers of costs imposed on us by third parties. Opportunities for ancillary revenue growth include adding sales of additional insurance coverages and insurance-related and other ancillary products and services, such as electronic toll collection services and our upgraded where2 GPS navigation product, to the rental transactions of an increasing percentage of our renters. In addition, we seek to grow off-airport revenue by continuing our efforts to identify and attract local demand and increasing our revenues in the insurance replacement sector. |
| • | Capturing Incremental Profit Opportunities. We plan to continue our focus on yield management and pricing optimization and seek to increase the time and mileage rental fees we earn per rental day. We have implemented technology that strengthens our yield management and that enables us to tailor our product/price offerings to specific customer segments. We have also implemented retail price increases periodically, and we expect to continue to adjust our pricing as conditions warrant. In addition, we believe the expansion of our revenue sources (discussed above) should permit us to generate incremental profits from our customer base, while at the same time enhancing their vehicle rental experience. |
| • | Reducing Costs and Promoting Efficiencies. We have redoubled our efforts to rigorously control costs. We have developed and implemented our Performance Excellence process improvement initiative to |
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| increase efficiencies, reduce operating costs and create sustainable cost savings. This initiative generated substantial savings in 2008 and should provide significant incremental benefits in 2009. In addition to the Performance Excellence initiative, we are taking aggressive action to reduce expenses throughout the organization, in large part through a five-point strategy for realizing cost savings, including: (i) significant reductions in operating and fleet costs and in selling, general and administrative expenses; (ii) a thorough review of station, segment and customer profitability to identify and respond appropriately to aspects of the business that are or have become unprofitable; (iii) targeted increases in pricing, price optimization initiatives and changes in our sales, marketing and affinity programs in order to improve revenue per day and overall profitability; (iv) further consolidation of purchasing programs and streamlined procurement practices; and (v) further consolidation of customer-facing, and back-office functions and locations. We believe these steps should have a significant impact on our financial performance. |
| • | Mitigating Risks. We expect to face a challenging operating environment in 2009 due to relatively weak demand for travel services, ongoing disruption in the credit markets and continuing concerns about the domestic auto manufacturers. We seek to mitigate our exposure to these risks in numerous ways, including the actions described above, continued adjustment of staffing and fleet levels to reflect changes in demand for vehicle rentals, actions to increase our access to capital, particularly to fund our fleet, and adjustments in the size, nature and terms of our relationships with vehicle manufacturers. |
In 2008, we not only completed more than 27 million rental transactions worldwide, but also made significant progress toward our strategic objectives. We retained approximately 97% of our commercial contracts and maintained or expanded our marketing alliances with key marketing partners. Budget entered into a multi-year agreement with Expedia, the largest online travel booking portal, increasing its exposure to additional customers. Avis was named “North America’s Leading Car Hire” in the prestigious World Travel Awards, and Budget grew its award-winning small business program. We opened 90 new off-airport locations in 2008, and off-airport revenues represented 20% of our domestic car rental revenues. We are an “approved” or “preferred” provider for customers of a majority of the largest auto insurance companies in the United States. In 2008, we continued to increase revenue related to rentals of where2 GPS navigation system units, loss damage waivers and insurance products, and other ancillary services.
In December 2008, we successfully renewed our two U.S. asset-backed rental car conduit facilities to provide financing of our fleet in 2009. We have continued to diversify our fleet purchases, and we have implemented strategies from our Performance Excellence program and elsewhere to realize cost savings throughout our business. We are utilizing sophisticated yield-management technology to optimize our pricing and fleet planning, and we continue to analyze and streamline our operations to gain efficiencies. And, most importantly, our more than 26,000 employees continue to provide reliable, high-quality vehicle rental services that foster customer satisfaction and customer loyalty.
* * *
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Company Information
Our principal executive office is located at 6 Sylvan Way, Parsippany, New Jersey 07054 (telephone number: (973) 496-4700). We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and in accordance therewith, we file reports, proxy and information statements and other information with the Commission and certain of our officers and directors file statements of changes in beneficial ownership on Form 4 with the Commission. Such reports (including our annual reports on Form 10-K, our quarterly reports on Form 10-Q, our current reports on Form 8-K and any amendments to such reports), proxy statements, other information and Form 4s can be accessed on our website at www.avisbudget.com as soon as reasonably practicable after we electronically file such material with, or furnish it to, the Commission. A copy of our Codes of Conduct and Ethics, as defined under Item 406 of Regulation S-K, including any amendments thereto or waivers thereof, Corporate Governance Guidelines, Director Independence Criteria and Board Committee Charters can also be accessed on our website. We will provide, free of charge, a copy of our annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, Codes of Conduct and Ethics, Corporate Governance Guidelines and Board Committee Charters upon request by phone or in writing at the above phone number or address, attention: Investor Relations. In accordance with New York Stock Exchange (NYSE) Rules, on June 18, 2008, we filed the annual certification by our Chief Executive Officer certifying that he was unaware of any violation by us of the NYSE’s corporate governance listing standards at the time of the certification.
Company History
We were created through a merger with HFS Incorporated in December 1997 with the resultant corporation being renamed Cendant Corporation. On August 23, 2006, Cendant completed a separation into four separate companies (the “Cendant Separation”), one for each of its former Real Estate Services businesses (Realogy Corporation), its former Hospitality Services businesses (Wyndham Worldwide Corporation), its former Travel Distribution Services businesses (Travelport) and its Vehicle Rental businesses (Cendant, now Avis Budget Group). Following completion of the Cendant Separation, Cendant changed its name to Avis Budget Group, Inc. and our common stock began to trade on the New York Stock Exchange under the symbol “CAR.” Avis Budget Group’s operations consist of two of the most recognized brands in the global vehicle rental industry through Avis Budget Car Rental, LLC, the parent of Avis Rent A Car System, LLC, Budget Rent A Car System, Inc. and Budget Truck Rental, LLC.
Founded in 1946, Avis is believed to be the first company to rent cars from airport locations. Avis expanded its geographic reach throughout the United States in the 1950s and 1960s. In 1963, Avis introduced its award winning “We try harder” advertising campaign, which is considered one of the top ten advertising campaigns of all time by Advertising Age magazine. Budget was founded in 1958. The company name was chosen to appeal to the “budget-minded” or “value-conscious” vehicle rental customer. Avis possesses a long history of using proprietary information technology systems in its business, and its established, but continually updated, Wizard System remains the backbone of our operations. We acquired the Avis brand in 1996, Avis’ capital stock in 2001, and the Budget brand and substantially all of the domestic and certain international assets of Budget’s predecessor in 2002.
In addition to our vehicle rental operations, we continue to manage the administration of certain legacy items which remain following the completion of the Cendant Separation. In connection with the Cendant Separation, we entered into certain agreements, including the Separation and Distribution Agreement dated as of July 27, 2006 (the “Separation Agreement”), with Realogy, Wyndham and Travelport governing our relationships following the separation, including the assumption by Realogy and Wyndham of 62.5% and 37.5%, respectively, of certain contingent and other liabilities of Cendant.
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Car rental business
Operations—Avis
We operate or franchise approximately 2,200 of the approximately 5,100 rental locations that comprise the Avis car rental system (the “Avis System”) throughout the world, which represents one of the largest car rental systems in the world, based on total revenue and number of locations, and encompasses locations at most of the largest airports and cities in the United States and internationally. The Avis System in Europe, Africa, the Middle East and parts of Asia is primarily operated under royalty-free license agreements with Avis Europe Holdings, Limited (“Avis Europe”), an independent third party, and is comprised of approximately 2,900 locations operated by Avis Europe and its sub-licensees.
We own and operate approximately 1,300 Avis car rental locations in both the on-airport and local rental segments in North America, Australia, New Zealand, Latin America and the Caribbean. In 2008, Avis generated total revenue of approximately $3.7 billion, of which approximately 83% (or $3.1 billion) was derived from U.S. operations. In addition, we franchise the Avis System to independent business owners in approximately 900 locations throughout the United States, Canada, Latin America, Australia, New Zealand and parts of Asia. In 2008, approximately 95% of the Avis System total domestic revenue was generated by our locations and the remainder was generated by locations operated by franchisees. Franchisees generally pay royalty fees to us based either on total time and mileage charges or total revenue.
The table below presents the total number of locations that make up the Avis System:
Avis System Locations*
| U.S. | International | Total | ||||
| Our Avis company-owned locations (includes agency-operated locations) |
1,000 | 300 | 1,300 | |||
| Our Avis franchisee locations |
300 | 600 | 900 | |||
| Our total Avis company-owned and franchisee locations |
1,300 | 900 | 2,200 | |||
| Avis Europe locations** |
- | 2,900 | 2,900 | |||
| Total Avis System Locations |
1,300 | 3,800 | 5,100 | |||
| * | Location counts are approximate. |
| ** | Obtained from Avis Europe website. |
In 2008, Avis derived approximately 60% and 40% of its domestic time and mileage revenue from commercial and leisure customers, respectively, and 77% and 23% of its domestic revenue from customers renting at airports and locally, respectively.
The Avis brand provides high-quality car rental services at price points generally above non-branded and value-branded national car rental companies. We offer Avis customers a variety of premium services, including:
| • | Avis Preferred, a counter bypass program, which is available at major airport locations; |
| • | where2, a navigation system with real-time traffic alerts, that can suggest alternative routes and features Bluetooth hands-free calling and MP3 playback capability as well as directions in multiple languages; |
| • | Avis Cool Cars, a line of fun-to-drive vehicles such as the Cadillac CTS, Chevrolet Corvette, Chrysler Crossfire and Hummer H3, as well as eco-friendly Nissan Altima and Toyota Prius “hybrid” vehicles; |
| • | Roving Rapid Return, wireless technology which permits customers who are returning vehicles to obtain a printed charge record from service agents at the vehicle as it is being returned; |
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| • | Avis Access, a full range of special products and services for drivers and passengers with disabilities; |
| • | Avis Interactive, a proprietary management tool that allows select corporate clients to easily view and analyze their rental activity via the Internet allowing these clients to better manage their travel budgets and monitor employee compliance with applicable travel policies; |
| • | The Avis First Program, a customer loyalty program that rewards customers with additional benefits for frequent rentals; and |
| • | Chauffeur Drive, a premium service which allows customers to hire a professional driver to drive their Avis rental car through an arrangement with a third party provider. |
Operations—Budget
The Budget vehicle rental system (the “Budget System”) is one of the largest car rental systems in the world, based on total revenue and number of locations. We operate or franchise approximately 1,850 of the approximately 2,750 car rental locations in the Budget System throughout the world, including locations at most of the largest airports and cities in the United States and certain other regions. The Budget System in Europe, Africa and the Middle East is operated under a royalty-free trademark license agreement with an independent third party, which is an affiliate of Avis Europe and is comprised of approximately 900 additional company-operated and sub-licensee locations.
We own and operate approximately 825 Budget car rental locations in the United States, Canada, Puerto Rico, Australia and New Zealand. In 2008, our Budget car rental operations generated total revenue of approximately $1.9 billion, of which 86% (or $1.6 billion) was derived from U.S. operations. We also franchise the Budget System to independent business owners who operate approximately 1,025 locations throughout the United States, Canada, Latin America, the Caribbean and parts of Asia. In 2008, approximately 86% of the Budget System domestic total revenue was generated by our locations with the remainder generated by locations operated by independent franchisees. Independent franchisees generally pay royalty fees to us based on gross rental revenue.
The table below presents the total number of locations that make up the Budget System:
Budget System Locations*
| U.S. | International | Total | ||||
| Our Budget company-owned locations (includes agency-operated locations) |
650 | 175 | 825 | |||
| Our Budget franchisee locations |
225 | 800 | 1,025 | |||
| Our total Budget company-owned and franchisee locations |
875 | 975 | 1,850 | |||
| Avis Europe locations** |
- | 900 | 900 | |||
| Total Budget System Locations |
875 | 1,875 | 2,750 | |||
| * | Location counts are approximate. |
| ** | Obtained from Avis Europe website. |
In 2008, Budget derived 28% and 72% of its domestic time and mileage car rental revenue from commercial and leisure customers, respectively, and 75% and 25% of its domestic car rental revenue from customers renting at airports and locally, respectively.
Budget is a leading rental car supplier to the price-conscious segments of the industry. Budget offers its customers Fastbreak, an expedited rental service for frequent travelers, which operates much like Avis Preferred, as well as where2 navigation systems and Roving Rapid Return, as described above. Budget also offers the Budget Small Business Program, a program for small businesses that offers discounted rates and central billing options, and Unlimited Budget, a loyalty program for travel professionals established by Budget over ten years ago.
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Reservations
Customers can make Avis and Budget reservations through our Avis and Budget websites at avis.com and budget.com, through our reservation centers (also referred to as contact centers) toll-free at 1-888-777-AVIS and 1-800-BUDGET7, respectively, through online travel portals, through selected partners, including many major airlines utilizing direct connect technology, through their travel agent, or by calling a location directly. Travel agents can access our reservation systems through all major global distribution systems (GDSs) and can obtain information with respect to rental locations, vehicle availability and applicable rate structures through these systems.
Marketing
Avis and Budget support their premium and value brand positions through a range of marketing channels and campaigns, including traditional media, such as television, radio and print advertising, as well as Internet and direct marketing. Avis focuses its marketing around its industry-leading customer loyalty and its award-winning “We try harder” campaign. Budget builds its marketing around retail advertising, key partnerships and online marketing campaigns.
We maintain strong links to the travel industry. Avis and Budget offer customers the ability to earn frequent traveler points with most major airlines’ frequent traveler programs. Avis and Budget are also affiliated with the frequency programs of major hotel companies, including Hilton Hotels Corporation, Hyatt Corporation, Starwood Hotels and Resorts Worldwide, Inc. and Wyndham Worldwide. These arrangements provide incentives to program participants and cooperative marketing opportunities, including call transfer programs and online links with various partners’ websites. Avis has an agreement with Wyndham Worldwide’s lodging brands whereby lodging customers making reservations by telephone may be transferred to Avis if they desire to rent a vehicle.
In 2008, approximately 79% of domestic vehicle rental transactions from our owned and operated Avis locations in the United States were generated by travelers who rented from Avis under contracts between Avis and the travelers’ employers or through membership in an organization with whom Avis has a contractual affiliation (such as AARP). Avis also has marketing relationships with organizations such as American Express Company and Sears, Roebuck & Co., through which we are able to provide customers of these entities with incentives to rent from Avis. Avis franchisees also have the option to participate in these affiliations. For commercial and leisure travelers who are unaffiliated with any of the employers or organizations that we contract with, Avis solicits business through media, direct mail, e-mail and Internet advertising. Avis conducts various loyalty programs through direct marketing campaigns, including Avis Preferred, which allows customers to bypass the counter, and Avis First, which offers our customers enhanced benefits for frequent rentals.
Additionally, Budget offers “Unlimited Budget”, a loyalty incentive program for travel agents which had approximately 21,000 travel agents actively enrolled as of December 31, 2008, and the Budget Small Business Program, a program for small businesses that offers discounted rates and central billing options. Budget also has contractual arrangements with American Express Company and other organizations which offer members of these groups incentives to rent from Budget. In connection with its focus on price-conscious customers, Budget primarily relies on retail advertising, including Internet advertising, and on value pricing to drive customers to our Budget website, our call centers and other distribution channels. Budget also offers proprietary marketing programs such as Fastbreak, an expedited rental service for frequent renters. Our international Avis and Budget operations maintain close relationships with the travel industry through participation in several non-U.S. based frequent traveler programs with airlines such as Air Canada and Qantas Airways Limited, as well as participation in Avis Europe’s programs with British Airways Plc, Deutsche Lufthansa AG and other carriers.
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Franchising
Of the approximately 2,200 Avis and approximately 1,850 Budget car rental locations we operated and/or franchised at December 31, 2008, approximately 41% and 56%, respectively, were owned and operated by franchisees. Revenue derived from our car rental franchisees in 2008 totaled approximately $34 million. Franchised locations range from large operations at major airport locations to franchise territories encompassing an entire country to relatively small operations in suburban locations. Fleets of our franchisees range from fleets in excess of 3,000 vehicles to fleets of fewer than 50 vehicles. Franchising provides us with a source of high margin revenue as there are relatively limited additional fixed costs associated with fees paid by franchisees to us. Although franchised locations represent approximately half of the locations that we own or franchise, they represent only approximately 8% of total domestic revenue generated by the Avis and Budget Systems, as the average franchised operation is significantly smaller than the average owned location. Generally, we do not actively seek new franchisees in the United States or Canada.
We enjoy good relationships with our franchisees and meet regularly with them at regional, national and international meetings. Our relationships with Avis and/or Budget franchisees are governed by franchise agreements that grant the franchisees the right to operate Avis and/or Budget vehicle rental businesses in certain exclusive territories. These franchise agreements impose obligations on the franchisee regarding the operations of each franchise and most restrict the franchisee’s ability to transfer its franchise agreement and the franchisee’s capital stock. Each franchisee is required to adhere to our system standards for each brand as updated and supplemented by our policy bulletins, brand manuals and service programs.
We maintain the right to monitor the operations of franchisees and, when applicable, can declare a franchisee to be in default under its franchise agreements, which default may or may not be curable. We can terminate these franchise agreements for certain defaults, including failure to pay franchise fees and failure to adhere to our operational standards.
Our franchise agreements grant the franchisees the exclusive right to operate an Avis and/or Budget car and/or truck rental business in a particular geographic area. Under agreements that predate our ownership of Avis or Budget, a limited number of franchisees in the United States are also separately franchised exclusively to sell used cars under the Avis and/or Budget brand. Our current franchise agreements provide for a 20-year term. Certain existing franchise agreements do not contain a fixed term, or provide for renewal terms for no additional fee so long as the franchisee is not in default. Upon renewal, the terms and conditions of the franchise agreement may generally be amended from those contained in the expiring franchise agreements, while language in certain older franchise agreements may limit our ability to do so. The car rental royalty fee payable to us under franchise agreements is generally 5% to 8% of gross rental revenue but certain franchisees of each brand, both internationally and domestically, have franchise agreements with different royalty fee structures.
Pursuant to their franchise agreements, some franchisees must meet certain requirements relating to the number of rental locations in their franchised territory, the number of vehicles available for rental and the amount of their advertising and promotional expenditures. In general, each franchise agreement provides that the franchisee must not engage in any other vehicle rental business within the franchised territory during the term of such agreement and, in the Budget franchise agreement, for 12 months thereafter. Upon termination of a franchise, the franchisee is also prohibited from using the Avis or Budget name and related marks in any business.
Other revenue
In addition to revenue from vehicle rentals and franchisee royalties, we generate revenue from Avis and Budget customers through the sale and/or rental of optional products and services such as supplemental equipment (for example, child seats and ski racks), loss damage waivers, additional/supplemental liability insurance, personal accident/effects insurance, fuel service options, fuel service charges, electronic toll collection and other ancillary products and services as described above, such as rentals of where2 GPS navigation units which in 2008
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contributed more than $75 million to revenue. In 2008, approximately 4% of our vehicle rental operations revenue was generated by the sale of loss damage waivers under which we agree to relieve a customer from financial responsibility arising from vehicle damage incurred during the rental period if the customer has not breached the rental agreement. In addition, we receive reimbursement from our customers for certain operating expenses we incur, including gasoline and vehicle licensing fees, as well as airport concession fees, which we pay in exchange for the right to operate at airports and other locations.
Websites
Avis and Budget have strong brand presence on the Internet through their websites, avis.com and budget.com, as well as third party websites. Direct bookings via our websites are one of our least-expensive sources of bookings, so the use of Internet bookings generates cost savings for us. In addition, both Avis and Budget have agreements to promote their car rental services with major Internet portals and have a strong advertising presence on various search engines. Bookings over the Internet accounted for 55% of Budget’s 2008 domestic reservations, with 33% of reservations derived from bookings on budget.com. Bookings over the Internet accounted for 35% of Avis’ 2008 domestic reservations, with 28% derived from bookings on avis.com.
The Wizard System
We own the Wizard System, our worldwide reservation, rental, data processing and information management system. The Wizard System enables us to process over one million incoming customer inquiries each day, providing our customers with accurate and timely information about our locations, rental rates and vehicle availability, as well as the ability to place or modify reservations. Additionally, the Wizard System is linked to all major travel distribution networks worldwide and provides real-time processing for travel agents, travel industry partners (such as airlines), corporate travel departments and individual consumers through our websites or calls to our contact centers. The Wizard System also provides personal profile information to our reservation and rental agents to better service our customers. Among the principal features of the Wizard System are:
| • | Roving Rapid Return, wireless technology which permits customers who are returning vehicles to obtain a printed charge record from service agents at the vehicle as it is being returned; |
| • | Preferred Service, Avis’ expedited rental service that provides enrolled customers with a printed Preferred Service rental record in their pre-assigned vehicle and a fast, convenient check-out; |
| • | Fastbreak, Budget’s expedited rental service which allows for a faster processing of rentals and service for enrolled customers; |
| • | Wizard on Wheels, which enables us to assign vehicles and complete rental agreements while customers are being transported to the rental vehicle; |
| • | Flight Arrival Notification, a system that alerts rental locations when flights have arrived so that vehicles can be assigned and paperwork prepared automatically; |
| • | Avis Link, which automatically identifies when a customer with a profile on record is entitled to special rental rates and conditions, and therefore sharply reduces the number of instances in which we inadvertently fail to give Avis renters the benefits of negotiated rate arrangements to which they are entitled; |
| • | Credit Card Link, which allows both brands to verify all major credit cards through a real-time connection during the rental processing; |
| • | interactive interfaces through third party computerized reservation systems such as Galileo and Sabre; |
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| • | Avis Interactive, which allows select corporate clients to easily view and analyze their rental activity via the Internet through account analysis and activity reports, allowing these clients to better manage their travel budgets and monitor employee compliance with applicable travel policies; |
| • | Direct Connect, a service offered to business to business partners that allows them to easily connect their electronic systems to the Wizard System, and to obtain Avis or Budget rate, location and fleet information as well as book reservations for their customers; and |
| • | operations management programs that, among other things, enable field personnel to manage which vehicles will be rented next. |
We also use data supplied from the Wizard System and airline reservation systems in certain proprietary information management systems to maintain centralized control of major business processes such as fleet acquisition and logistics, sales to corporate accounts and determination of rental rates. The principal components of the systems we employ include:
| • | Fleet planning model. We have created a comprehensive decision tool to develop fleet plans and schedules for the acquisition and disposition of our fleet, along with fleet age, mix, mileage and cost reports based upon these plans and schedules. This tool allows management to monitor and change fleet volume and composition on a daily basis and to optimize our fleet plan based on estimated business levels and available repurchase and guaranteed depreciation programs. |
| • | Yield management. We have created a yield management system which is designed to enhance profits by providing greater control of vehicle availability and rate availability changes at our rental locations. The system monitors and forecasts supply and demand to support our efforts to optimize volume and rate at each location. Integrated into this yield management system is a fleet distribution module that takes into consideration the costs as well as the potential benefits associated with distributing vehicles to various rental locations within a geographic area to accommodate rental demand at these locations. The fleet distribution module makes specific recommendations for movement of vehicles between locations. |
| • | Pricing decision support system. Pricing in the vehicle rental industry is highly competitive and complex. To improve our ability to respond to rental rate changes in the marketplace, we have developed sophisticated systems to gather and report competitive industry rental rate changes every day. The system, using data from third party reservation systems as its source of information, automatically scans rate movements and reports significant changes to a staff of pricing analysts for evaluation. The system greatly enhances our ability to gather and respond to rate changes in the marketplace. |
| • | Business mix model. We have developed a strategic planning model to evaluate discrete components of our business relative to each other. The model considers revenue and costs to determine the potential margin contribution of each discrete segment. The model develops business mix and fleet optimization recommendations by using data from our financial systems, the Wizard System and the fleet and revenue management systems along with management’s objectives and targets. |
| • | Customer profitability model. We have developed a sophisticated model which analyzes a corporate customer’s rental pattern to estimate the fleet costs, operations costs and division overhead expenses associated with that customer’s vehicle rentals. We use this profitability model to determine the financial merit of individual corporate contracts. |
| • | Enterprise data warehouse. We have developed a sophisticated and comprehensive electronic data storage and retrieval system which retains information related to various aspects of our business. This data warehouse allows us to take advantage of comprehensive management reports, query capability and easy access to data for strategic decision making for both brands. |
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| • | Sales and marketing systems. We have developed a sophisticated system of online data screens which enables our sales force to analyze key account information of our corporate customers including historical and current rental activity, revenue and booking sources, top renting locations, rate usage categories and customer satisfaction data. We use this information, which is updated weekly and captured on a country-by-country basis, to determine opportunities for revenue growth, profitability and improvement. |
| • | Interactive adjustments. We have developed a multi-linked customer data system which allows us to easily retrieve pertinent customer information and make needed adjustments online for superior customer service. This data system links with other accounting systems to handle any charge card transactions automatically. |
Fleet
General. We maintain a single fleet of vehicles for Avis and Budget. We rent a wide variety of vehicles, including luxury and specialty vehicles. Our fleet consists primarily of vehicles from the current and immediately preceding model year. Rentals are generally made on a daily, weekly or monthly basis. Rental charges are computed on the basis of the length of the rental or, in some cases, on the length of the rental plus a mileage charge. Rates vary at different locations depending on the type of vehicle rented, the local marketplace and competitive and cost factors. Rentals are made utilizing rate plans under which the customer is responsible for gasoline used during the rental. We also generally offer our customers the convenience of leaving a rented vehicle at a location in a city other than the one in which it was rented, although, consistent with industry practices, a drop-off charge or special intercity rate may be imposed. We facilitate one-way car rentals between corporate-owned and franchised locations in the United States that enable us to operate as an integrated network of locations.
Vehicle purchasing. We participate in a variety of vehicle purchase programs with major domestic and foreign vehicle manufacturers. General Motors is the featured supplier for Avis, and Ford is the featured supplier for Budget. During 2008, approximately 32%, 23% and 14% of the cars acquired for our U.S. car rental fleet were manufactured by General Motors, Ford and Chrysler, respectively, compared to 34%, 27% and 16%, respectively, in 2007. During 2008, we also purchased Mitsubishi, Hyundai, Kia, Nissan, Subaru, Suzuki, Toyota and Volkswagen vehicles. The decrease in the portion of our fleet sourced from domestic manufacturers in 2008 is reflective of our continuing efforts to diversify our fleet and to reduce fleet costs.
Vehicle disposition. We generally hold a vehicle in our domestic fleet for a term of four to 14 months. For 2008 and 2007, approximately 58% and 73%, respectively, of the rental cars purchased for our domestic car fleet were subject to agreements requiring automobile manufacturers to repurchase them or guarantee our rate of depreciation during a specified period of time. Cars subject to these agreements are sometimes referred to as “program vehicles” or “program cars” and cars not subject to these agreements are sometimes referred to as “risk cars” or “risk vehicles”. The programs in which we participate currently require that the program vehicles be maintained in our fleet for a minimum number of months (typically four to 12 months) and impose return conditions, including those related to mileage and condition. At the time of return to the manufacturer, we receive the price guaranteed at the time of purchase and are thus protected from fluctuations in the prices of previously-owned vehicles in the wholesale market at the time of disposition. The future percentages of program and risk vehicles in our fleet will be dependent on the availability and attractiveness of manufacturers’ repurchase and guaranteed depreciation programs. We dispose of our risk vehicles largely through automobile auctions, including auctions that enable dealers to purchase vehicles online more quickly than through traditional auctions.
Of the approximately 373,000 cars from our rental car fleet that we sold in 2008 (compared to 407,000 that we sold in 2007), we sold approximately 64% back to the manufacturers pursuant to repurchase or guaranteed depreciation programs and the rest through third party channels such as wholesale auctions. In 2009, we expect the percentage of cars sold back to the manufacturers to decrease as we acquire more risk vehicles.
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Utilization and seasonality. Our car rental business is subject to seasonal variations in customer demand, with the summer vacation period representing the peak season. The general seasonal variation in demand, along with more localized changes in demand at each of our locations, causes us to vary our fleet size over the course of the year. For 2008, our average monthly fleet size in the U.S. ranged from a low of approximately 269,000 vehicles in December to a high of approximately 380,000 vehicles in July. Compared to 2007, our average fleet size decreased approximately 1% in 2008 at approximately 338,000 vehicles. Average domestic fleet utilization for 2008, which is based on the number of rental days (or portion thereof) that vehicles are rented compared to the total amount of time that vehicles are available for rent, ranged from 68% in December to 79% in August and averaged 75% for 2008, which was consistent with 2007 levels. Our calculation of utilization may not be comparable to other companies’ calculation of similarly titled statistics.
Maintenance. We place a strong emphasis on vehicle maintenance for customer safety and customer satisfaction reasons, as well as because quick and proper repairs are critical to fleet utilization. To accomplish this task we employ a fully-certified National Institute for Automotive Service Excellence (“ASE”) technician instructor at our headquarters. This instructor has developed a specialized training program for our 405 technicians who operate in approximately 85 maintenance and damage repair centers for both Avis and Budget. We use advanced diagnostic equipment, including General Motors’ “Tech 2” and MDI diagnostic systems and Ford’s IDS diagnostic system. Our technician training department also prepares its own technical service bulletins that can be retrieved electronically at all of our repair locations. Approximately 85% of our technicians are ASE-certified.
Customer service
Our commitment to delivering a consistently high level of customer service is a critical element of our success and strategy. We conduct daily location-specific customer satisfaction tracking by sending web-based surveys to recent customers of our top volume locations. In 2008, we received over 530,000 responses to our online customer satisfaction survey (the Voice of the Customer Survey). The Voice of the Customer Survey selects customers at specific locations to evaluate their overall satisfaction with their rental experience at that location. Results are analyzed generally and by location to help further enhance our service levels to our customers. In addition, we utilize a toll-free “800” number and a dedicated customer service e-mail address to allow customers of both Avis and Budget to report problems directly to our customer relations department. Location associates and managers also receive training and are empowered to resolve virtually all customer issues at the location level. We prepare weekly and monthly reports on the types and number of complaints received for use by location management in conjunction with the customer satisfaction reports as feedback of customer service delivery.
Environmental Initiatives
Over the past several years, we have launched a number of initiatives to manage the environmental aspects of our business. We have focused on and expect to continue to focus on the environmental profile of our car rental fleet, as measured using the United States Environmental Protection Agency SmartWay Certification program. Sixty-three percent of the 2008 model year rental cars in our fleet met the standards for U.S. EPA SmartWay Certification. We also offer gas/electric hybrid cars for rent in three different car classes and flex fuel cars for rent for those seeking to minimize environmental impact through use of E-85 ethanol fuel. We also offer a significant number of vehicles equipped for electronic toll collection, which published research indicates reduces hydrocarbons and carbon monoxide emissions as well as emissions of nitrogen oxides.
We have begun the process of creating formal Environmental Management Systems (EMS) for key airport locations in accordance with ISO 14001 international standards. We intend to use these standards to quantify the various environmental aspects of our business operations, and to manage these aspects, reducing our impact when and where practicable. For example, all of the car washes installed at our Avis and Budget facilities now recycle and reuse at least 80% of their wastewater. We also recently announced that we will make the puraDYN® Oil Filtration System standard equipment on our fleet of nearly 300 heavy duty buses; this equipment upgrade is expected to reduce our use of motor oil significantly.
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We also offer corporate customers a carbon footprint calculator designed to work with our data warehouse and compute the emissions from their rental car use. We then offer our corporate customers a program to help them reduce their impact, including driver education, and the use of carbon offset credits aimed at making their rental car use carbon neutral. We also have an alliance with Carbonfund.org, a leading non-profit provider of carbon offset credits, to enable both renters and corporate customers to be able to offset the emissions from their rental car use. Renters can offset emissions on a daily, weekly or monthly basis on Avis.com or Budget.com.
Airport concession fees
In general, concession fees for on-airport locations are based on a percentage of total commissionable revenue (as defined by each airport authority), subject to minimum annual guaranteed amounts. Concessions are typically awarded by airport authorities every three to five years based upon competitive bids. Our concession agreements with the various airport authorities generally impose certain minimum operating requirements, provide for relocation in the event of future construction and provide for abatement of the minimum annual guarantee in the event of extended low passenger volume.
Competition
The car rental industry is characterized by intense price and service competition. Competition in our vehicle rental operations business is based primarily upon price, reliability, vehicle availability, national distribution, usability of booking systems, ease of rental and return, and other elements of customer service. In addition, competition is influenced strongly by advertising, marketing and brand reputation. We compete primarily with the following car rental companies: Hertz Global Holdings, Inc., Dollar Thrifty Automotive Group, Enterprise Rent-A-Car Company, which also operates the National Car Rental and Alamo brands, and Europcar.
2008 Acquisitions
In 2008, we acquired the exclusive rights to certain vehicle rental franchise territories and related assets, including $36 million of associated vehicles, for $87 million in cash, resulting in $50 million valued as trademark intangible assets. These acquisitions for 2008 relate to the Company’s domestic car rental and international car rental segments. These acquisitions were not significant individually or in the aggregate to the Company’s results of operations, financial position or cash flows.
Truck rental business
Operations
Budget’s truck rental business is one of the largest local and one-way truck rental businesses in the United States. The Budget truck rental business has a combined fleet of approximately 29,700 trucks, with an average truck age of three years, which are rented through a network of approximately 2,500 dealers and 300 company-operated and 75 franchisee-operated locations throughout the continental United States. The Budget truck rental business serves both the consumer and light commercial sectors. The consumer sector consists primarily of individuals who rent trucks to move household goods on either a one-way or local basis. The light commercial sector consists of a wide range of businesses that rent light- to medium-duty trucks, which we define as trucks having a gross vehicle weight of less than 26,000 pounds, for a variety of commercial applications. In 2008, the Budget truck rental business generated total revenue of approximately $382 million.
We primarily advertise in “yellow pages” telephone directories to promote our truck rental business to potential customers. Budget truck rental customers can make reservations through the Budget truck rental reservation center toll-free at 1-800-GO-BUDGET, through our Budget truck rental website at budgettruck.com or by calling a location directly. In addition, we have established online affiliations with websites like moving.com to reach our targeted audience. Budget truck rental reservations may also be made through the budget.com website.
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We maintain a co-branding agreement with Public Storage, a leading operator of self-storage units, whereby we are an exclusive third-party provider of rental trucks at Public Storage locations, and engage in certain cross-promotional efforts. We also maintain a strategic partnership agreement with Sears, Roebuck & Co. and in 2008 entered into new agreements with Entertainment Publications and AARP to promote Budget’s truck rental business.
Distribution
Budget’s truck rental business is offered through a national network, which included approximately 2,500 dealers as of December 31, 2008. These independently-owned dealers primarily operate self-storage facilities, rental centers, hardware stores, service stations and other similar retail service businesses. In addition to their principal businesses, the dealers rent our light- and medium-duty trucks to consumers and to our commercial accounts and are responsible for collecting payments on our behalf. The dealers receive a commission on all truck rentals and ancillary equipment rentals. Generally, dealership agreements may be terminated by either party upon 30 to 90 days’ prior written notice.
Competition
The truck rental industry is characterized by intense price and service competition. We compete with a large number of truck rental companies throughout the country, including U-Haul International, Inc., Penske Truck Leasing Corporation, Ryder System, Inc., Enterprise Rent-A-Car Company and many others.
Seasonality
Our truck rental operations are subject to seasonal demand patterns, with generally higher levels of demand occurring during the late spring and summer months when most self-moves occur, with the third quarter typically being our busiest quarter. Generally, December is also a strong month due to increased retail sales activity and package deliveries.
Ancillary products and insurance coverages
We supplement our daily truck rental revenue by offering customers a range of ancillary optional products. We rent automobile towing equipment and other moving accessories such as hand trucks, furniture pads and moving supplies, as well as where2 GPS navigation units. We also make available to customers a range of optional liability-limiting products and coverages such as physical damage waivers, automobile towing protection, personal accident and cargo insurance, and supplemental liability insurance. These ancillary products enhance our appeal to consumers by offering customers “one-stop” moving services.
INSURANCE
We generally assume the risk of liability to third parties arising from vehicle rental services in the United States, Canada, Puerto Rico and the U.S. Virgin Islands, for up to $1 million per occurrence, through a combination of self-insurance, insurance coverage provided by one of our domestic subsidiaries and insurance coverage secured from one or more unaffiliated domestic insurance carriers. We retain the exposure for up to $9 million per occurrence, in excess of the previously described $1 million level, through an unaffiliated fronting carrier who is reinsured by our offshore captive insurance company, Constellation Reinsurance Co., Ltd. We also purchase additional excess insurance coverage from a combination of unaffiliated excess carriers.
We insure the risk of liability to third parties in Argentina, Australia and New Zealand through a combination of unaffiliated carriers and our affiliates. These carriers provide coverage supplemental to minimum local requirements.
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INTEREST IN CAREY HOLDINGS, INC.
We own a 47.9% interest in Carey Holdings, Inc., the parent company of Carey International, Inc., a leading worldwide provider of chauffeured ground transportation services. Carey operates in approximately 550 cities and 60 countries through a network of franchisees and alliance partners. In 2008, we continued to develop our relationship with Carey to enable us to offer our customers increasingly diversified ground transportation products and services.
TRADEMARKS AND INTELLECTUAL PROPERTY
The service marks “Avis” and “Budget”, related marks incorporating the words “Avis” or “Budget”, and related logos and marks such as “We try harder” are material to our vehicle rental business. Our subsidiaries, licensees and franchisees actively use these marks. All of the material marks used by the Avis and Budget Systems are registered (or have applications pending for registration) with the United States Patent and Trademark Office as well as all countries worldwide where Avis and Budget have operations. Our subsidiaries own the marks, patents and other intellectual property, including the Wizard System, used in our business.
FINANCIAL DATA OF SEGMENTS AND GEOGRAPHIC AREAS
Financial data for our segments and geographic areas are reported in Note 23—Segment Information to our Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.
REGULATION
We are subject to federal, state and local laws and regulations, including those relating to taxing and licensing of vehicles, franchising, consumer credit, consumer protection, environmental protection, insurance, privacy and labor matters.
Environmental
The principal environmental regulatory requirements applicable to our vehicle rental operations relate to the ownership or use of tanks for the storage of petroleum products, such as gasoline, diesel fuel and waste oils; the treatment or discharge of waste waters; and the generation, storage, transportation and off-site treatment or disposal of solid or liquid wastes. We operate approximately 430 Avis and Budget locations at which petroleum products are stored in underground or above ground tanks. We have instituted an environmental compliance program designed to ensure that these tanks are in compliance with applicable technical and operational requirements, including the replacement and upgrade of underground tanks to comply with the December 1998 U.S. Environmental Protection Agency upgrade mandate and periodic testing and leak monitoring of underground storage tanks. We believe that the locations where we currently operate are in compliance, in all material respects, with such regulatory requirements.
We may also be subject to requirements related to the remediation of, or the liability for remediation of, substances that have been released into the environment at properties owned or operated by us or at properties to which we send substances for treatment or disposal. Such remediation requirements may be imposed without regard to fault and liability for environmental remediation can be substantial.
We may be eligible for reimbursement or payment of remediation costs associated with future releases from regulated underground storage tanks and have established funds to assist in the payment of remediation costs for releases from certain registered underground tanks. Subject to certain deductibles, the availability of funds, compliance status of the tanks and the nature of the release, these tank funds may be available to us for use in remediating future releases from our tank systems.
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Loss damage waivers
A traditional revenue source for the vehicle rental industry has been the sale of loss damage waivers, by which rental companies agree to relieve a customer from financial responsibility arising from vehicle damage incurred during the rental period if there has been no breach of the rental agreement. Approximately 4% of our domestic car rental revenue during 2008 was generated by the sale of loss damage waivers. To date, 24 states have enacted legislation which requires disclosure to each customer at the time of rental that damage to the rented vehicle may be covered by the customer’s personal automobile insurance and that loss damage waivers may not be necessary. In addition, New York permits the sale of loss damage waivers at a capped rate per day based on the vehicle manufacturer’s suggested retail price. Illinois, Nevada and California have similar statutes, which establish the daily rate that can be charged for loss damage waivers.
Insurance
As a result of our reinsurance of the optional insurance coverages that we offer through unaffiliated third party insurance companies as well as other insurance obligations, we are subject to regulation under the insurance statutes, including insurance holding company statutes, of the jurisdictions in which our insurance company subsidiaries are domiciled. These regulations vary from jurisdiction to jurisdiction, but generally require insurance holding companies and insurers that are subsidiaries of insurance holding companies to register and file certain reports, including information concerning their capital structure, ownership, financial condition and general business operations with the regulatory authority of the applicable jurisdiction, and require prior regulatory agency approval of changes in control of an insurer and intra-corporate transfers of assets within the holding company structure. Such insurance statutes may also require that we obtain limited licenses to sell optional insurance coverage to our customers at the time of rental.
Franchise regulation
The sale of franchises is regulated by various state laws, as well as by the Federal Trade Commission (the “FTC”). The FTC requires that franchisors make extensive disclosure to prospective franchisees but does not require registration. A number of states require registration or disclosure in connection with franchise offers and sales. In addition, several states have “franchise relationship laws” or “business opportunity laws” that limit the ability of the franchisor to terminate franchise agreements or to withhold consent to the renewal or transfer of these agreements. Although our franchising operations have not been materially adversely affected by such existing regulations, we cannot predict the effect of any future federal, state or local legislation or regulation.
Privacy
Laws in some countries and jurisdictions limit the types of information we may collect about individuals with whom we deal or propose to deal, as well as how we collect, retain and use the information that we are permitted to collect, some of which is non-public personally identifiable information. The centralized nature of our information systems requires the routine flow of information about customers and potential customers across national borders, particularly into the United States. If this flow of information were to become illegal, or subject to onerous restrictions, our ability to serve our customers could be seriously impaired for an extended period of time. In addition, our failure to maintain the security of the data we hold, whether as a result of our own error or the actions of others, could harm our reputation or give rise to legal liabilities leading to lower revenue, increased costs and otherwise adversely impact our results of operations.
EMPLOYEES
As of December 31, 2008, we employed approximately 26,000 employees, of which approximately 9,000 were employed on a part-time basis. Approximately 26% of our employees are covered by collective bargaining agreements. We believe our employee relations are satisfactory. We have never experienced a large-scale work stoppage.
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You should carefully consider each of the following risks and all of the other information set forth in this Annual Report on Form 10-K. Based on the information currently known to us, we believe that the following information identifies the most significant risk factors affecting our company in each of these categories of risk. However, the risks and uncertainties our company faces are not limited to those described below. Additional risks and uncertainties not presently known to us or that we currently believe to be immaterial may also adversely affect our business. Past financial performance may not be a reliable indicator of future performance and historical trends should not be used to anticipate results or trends in future periods.
Risks related to our business
The high level of competition in the vehicle rental industry may lead to reduced rental volumes, downward pricing pressure or an inability to increase our prices, which could have an adverse impact on our results of operations.
The vehicle rental industry in which we operate is highly competitive. We believe that price is one of the primary competitive factors in the vehicle rental industry. Our competitors, some of whom may have access to substantial capital, may seek to compete aggressively on the basis of pricing. To the extent that we match competitors’ reduced pricing, it could have an adverse impact on our results of operations. To the extent that we do not match or remain within a reasonable competitive margin of our competitors’ pricing, it could also have an adverse impact on our results of operations, as we may lose rental volume. The risk of competition on the basis of pricing in the truck rental industry can be even more intense than in the car rental industry because it is more difficult to reduce fleet size in the truck rental industry in response to reduced demand. The Internet has increased pricing transparency among vehicle rental companies by enabling cost-conscious customers to more easily obtain and compare the rates available from various vehicle rental companies for any given rental. This transparency may increase the prevalence and intensity of price competition in the future.
We face risks of increased fleet costs, both generally and due to the possibility that manufacturers could change or cease their repurchase or guaranteed depreciation programs.
Fleet costs, which represent our largest single expense, represented approximately 29% of our aggregate expenses for 2008 and can vary from year to year based on the prices at which we are able to purchase and dispose of rental vehicles. For 2008 and 2007, approximately 58% and 73%, respectively, of the rental cars purchased for our domestic car fleet were the subject of agreements requiring automobile manufacturers to repurchase them or guarantee the depreciation rate for a specified period of time. We refer to cars subject to such agreements as “program cars.” Under these repurchase and guaranteed depreciation programs, automobile manufacturers agree to repurchase cars at a specified price during a specified time period or guarantee the rate of depreciation for a specified period of time, typically subject to certain car condition and mileage requirements. Repurchase and guaranteed depreciation programs therefore enable us to determine, in advance, our depreciation expense, which is a significant cost factor in our car rental operations. Repurchase and guaranteed depreciation programs also limit the risk to us that the market value of a car, at the time of its disposition, will be less than its estimated residual (or depreciated) value; however, such programs result in additional exposure to the manufacturers with whom we have such agreements. See “We face risks related to the financial condition and possible bankruptcy of automobile manufacturers and the used vehicle marketplace”.
Automobile manufacturers may not continue to sell cars to us subject to repurchase or guaranteed depreciation programs at all or on terms consistent with past practice. The overall cost of cars subject to repurchase or guaranteed depreciation programs could also increase if the manufacturers were to make changes to these programs, particularly if such changes were to result in a decrease in the repurchase price or guaranteed depreciation without a corresponding decrease to the original purchase price. Repurchase or guaranteed depreciation programs also generally provide us with flexibility to reduce the size of our fleet rapidly in response to an economic slowdown or changes in demand by returning cars sooner than originally expected. This
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flexibility may be reduced in the future to the extent the percentage of program cars in our car rental fleet decreases or this feature of repurchase or guaranteed depreciation programs is altered.
Our per unit fleet costs could also increase if we purchase fewer vehicles, as we receive payments from manufacturers, known as “incentive payments”, following the purchase of some of our vehicles once certain conditions are met such as reaching certain purchase volumes, or if manufacturers eliminate or reduce the terms of these incentive programs. Our failure to purchase pre-determined volumes of cars for our rental fleet, or the elimination or reduction in incentive payments, could cause our per unit fleet costs to increase substantially and adversely impact our financial condition and results of operations.
We face risks related to the financial condition and possible bankruptcy of automobile manufacturers and the used vehicle marketplace.
Approximately 58% of the rental cars acquired for our domestic car fleet in 2008 are subject to manufacturer repurchase or guaranteed depreciation programs and we also receive incentive payments from manufacturers following the purchase of some of our vehicles once certain conditions are met such as reaching certain purchase volumes. A default on any repurchase or guaranteed depreciation agreement or incentive payment obligation could leave us with a substantial unpaid claim against the manufacturer particularly with respect to program cars that were either (i) resold for an amount less than the amount guaranteed under the applicable agreement and therefore subject to a “true-up” payment obligation from the manufacturer or (ii) returned to the manufacturer but for which we were not yet paid and therefore we could incur a substantial loss as a result of such default.
Approximately 32%, 23% and 14% of the cars we acquired in 2008 were manufactured by General Motors, Ford and Chrysler, respectively, and more than 57% of these cars, and a portion of our cars manufactured by foreign manufacturers, are subject to manufacturer repurchase or guaranteed depreciation agreements. The auto industry has been adversely impacted by current economic conditions, and U.S. car sales of both domestic and foreign manufacturers have recently declined to historically low levels. U.S. automakers are facing particularly serious challenges; General Motors and Chrysler received government loans in 2008 and have requested additional assistance in 2009 and some observers believe Ford may seek similar assistance in 2009. We could incur additional material expenses if, following a manufacturer default under its agreements with us as a result of commencement of bankruptcy proceedings by such manufacturer or otherwise, the prices at which we were able to dispose of program cars were less than the specified prices under the repurchase or guaranteed depreciation program. The effect may be magnified because we typically pay the manufacturer of a program car more than we would pay to buy the same car as a non-program, or “risk”, vehicle and because we depreciate a program car to the repurchase price or the guaranteed depreciation agreed to by the manufacturer, which price does not take into consideration conditions in the used car marketplace and is usually therefore higher than the price that would be available in the used car marketplace.
We currently sell non-program vehicles through auctions, third party resellers and other channels in the used vehicle marketplace. In the fourth quarter of 2008, the resale value of used vehicles dropped sharply. Residual values for both non-program cars and trucks in our vehicle rental fleet can decline for a variety of reasons, including the current downturn in the U.S. and global economies, the effects of the disruptions of the credit markets on demand for vehicles in the used vehicle marketplace, a manufacturer announcing the elimination of various models or brands, or the financial distress of a manufacturer, including commencement of bankruptcy proceedings by such manufacturer. Such a reduction in value could cause us to sustain a substantial loss on the ultimate sale of non-program cars and trucks or require us to depreciate those cars and trucks at a more accelerated rate while we own them. If a manufacturer were to default on its obligations with respect to any of our program vehicles or commence bankruptcy proceedings, we may be forced to resell those program vehicles on our own, increasing our exposure to the same resale risks as apply to non-program vehicles.
Any reduction in the value of our fleet could effectively increase our fleet costs, adversely impact our profitability and potentially lead to decreased capacity in our asset backed car rental funding facilities due to the collateral requirements for such facilities which effectively increase as market values for vehicles decrease. As a result, our ability to utilize our asset-backed vehicle financing programs to acquire new vehicles for our rental
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fleet may be limited. In addition, if our ability to sell vehicles in the used vehicle marketplace were to become severely limited at a time when required collateral levels were rising, principal under our asset-backed financing facilities may be required to be repaid sooner than anticipated with vehicle disposition proceeds and lease payments we make to our vehicle program subsidiaries. If that were to occur, the holders of our asset-backed debt may have the ability to exercise their right to direct the trustee to foreclose on and sell vehicles to generate proceeds sufficient to repay such debt.
To the extent auto manufacturers significantly curtail production in response to current economic conditions or determine to curtail sales to the vehicle rental industry for any reason, we may not be able to obtain a sufficient number of vehicles to operate our business without significantly increasing our fleet costs.
We have been adversely impacted by the downturn in the U.S. economy and weakness in travel demand and the housing market and may be further adversely impacted.
The U.S. economy appears to have been in recession throughout 2008, and such conditions are likely to persist into at least 2009. Historically, our results of operations have declined during periods of general economic weakness. The effects of the current recession have contributed to the significant year-over-year decline in the results of our car and truck rental operations, including declines in volume and pricing particularly in the second half of 2008 in both our car and truck rental businesses. If economic conditions in the United States and worldwide do not improve or worsen, our financial condition and results of operations could be materially and adversely impacted in 2009 and beyond.
For example, the economic downturn has led to reduced travel demand, with many U.S. airlines having implemented capacity reductions and many companies curtailing business travel. In 2008, we generated approximately 80% of our domestic car rental revenue from our on-airport locations; therefore, a decline in airline travel will typically have a direct adverse impact on our results of operations. Air travel could also be further affected by work stoppages, military conflicts, terrorist incidents or threats, pandemic diseases, natural disasters or the response of governments to any of these events.
Our truck rental operations generated negative EBITDA for 2008 in part because the housing market, a key driver of both local rentals and one-way truck rentals, is also experiencing a severe downturn. If adverse conditions in the housing market persist or worsen, we may see a further decline in truck rental transactions, which could have a further adverse impact on our business.
We are dependent on third party distribution channels, and the success of our business depends in significant part on these relationships.
We generate approximately 45% of our domestic car rental reservations through third party distribution channels, which include (i) traditional and online travel agencies, airlines and hotel companies, marketing partners such as credit card companies and membership organizations, and other entities that help us attract customers and (ii) global distribution systems (“GDS”) that connect travel agents, travel service providers and corporations to our reservations systems. In 2008, 19% and 2% of our domestic car rental reservations came through our largest GDS source and our largest non-GDS third party source of reservations, respectively. The operators of third party distribution channels generally can cancel or modify their agreements with us upon relatively short notice. Changes in our pricing agreements, commission schedules or arrangements with third party distribution channels, the termination of any of our relationships or a reduction in the transaction volume of such channels, or a GDS’s (Amadeus, Galileo, Sabre or Worldspan) inability to process and communicate reservations to us could have an adverse impact on our business, financial condition and results of operations.
Our business is seasonal, and a disruption in rental activity during our peak season could materially adversely affect our results of operations.
In our business, the third quarter of the year has historically been our strongest quarter due to the increased level of leisure travel and household moving activity. In 2008, the third quarter accounted for approximately 28% of
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our vehicle rental revenue for each of our Domestic Car Rental, International Car Rental and Truck Rental segments and was our most profitable quarter for each of our segments as measured by EBITDA. Any circumstance or occurrence that disrupts rental activity during the third quarter could have a disproportionately adverse impact on our financial condition and our results of operations.
Our derivative instruments may impact our results of operations.
We utilize derivative instruments to manage a portion of our risk related to fluctuations in interest rates, gas prices and foreign exchange rates. The derivative instruments we use are typically in the form of interest rate and commodity swaps and foreign exchange forwards. Periodically, we are required to determine the change in fair value, called the “mark to market,” of these derivative instruments, which can result in a non-cash charge or gain being recognized in our financial results for a period preceding the period or periods in which settlement occurs under the derivative instruments and, for example, interest payments are made. Changes or shifts in interest rates, gas prices and foreign exchange rates can significantly impact the valuation of our derivatives and therefore could expose us to substantial mark-to-market losses or gains if such rates or prices fluctuate materially from the time the derivatives were entered into. Accordingly, a fluctuation in such rates or prices may impact our financial position, results of operations and cash flows. In addition, volatility in rates and prices can also impact the cost and effectiveness of our derivative instruments in managing our risks. To the extent any of our derivatives were to result in a gain upon settlement, we would be exposed to credit risk of the counterparties to such derivatives, which are typically financial institutions.
We are exposed to fluctuations in foreign exchange rates, which may adversely affect our results of operations.
Certain of our international operations generate revenue and incur operating costs in currencies other than the U.S. dollar, including our operations in Australia, Canada and New Zealand. In addition, the financial position and results of operations of some of our foreign subsidiaries are reported in the relevant local currency and then translated to U.S. dollars at the applicable currency exchange rate for inclusion in our consolidated financial statements. Changes in exchange rates between these foreign currencies and the U.S. dollar will affect the recorded levels of our assets and liabilities, to the extent such figures reflect the inclusion of foreign assets and liabilities that are translated into U.S. dollars for presentation in our financial statements, as well as our results of operations. While we take steps to manage our currency exposure, we cannot accurately predict the nature or extent of future exchange rate variability, which could adversely impact our results of operations and financial position.
We may not be successful in implementing our cost-saving and efficiency improvements or other business strategies.
We expect to face a challenging operating environment in 2009, given the weakness in the economy and the disruption in the credit markets. As a result, we announced actions designed to reduce costs and improve efficiency. Such actions include (i) reduction of operating costs, fleet costs and other expenses; (ii) targeted pricing increases; (iii) assessment and modification or elimination of unprofitable aspects of our business; and (iv) consolidation of certain back office and other functions. We also anticipate generating additional cost savings in 2009 through implementation of our Performance Excellence process improvement initiative. If we are unable to achieve sufficient cost savings through these actions, our financial condition and results of operations could be adversely impacted.
Part of our business strategy also includes enhancing profitability by expanding our ancillary revenues such as revenue from selling insurance coverages and where2 GPS navigation rentals. If we are unable to achieve targeted price increases aimed at improving revenue per day, overall profitability or ancillary revenue growth through our actions, our financial condition and results of operations could be adversely impacted.
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Acquisitions of existing Avis or Budget franchisees, or other businesses, could have an adverse impact on our results of operations.
We have acquired or may acquire existing franchisees and have invested in and may invest in other businesses. These acquisitions may involve numerous risks, including those associated with integrating operations, technology and personnel into our business, potential disruption of our ongoing business and distraction of management, and exposure to existing as well as unknown liabilities, including litigation involving the acquired entity. Such acquisitions may not be accretive to our earnings and may negatively impact our financial condition and results of operations.
We face risks arising from our heavy reliance on communications networks and centralized information systems.
We rely heavily on information systems, including our reservation system, to accept reservations, process rental and sales transactions, manage our fleet of vehicles, account for our activities and otherwise conduct our business. We have centralized our information systems, and we rely on communications service providers to link our systems with the business locations these systems serve. A failure of a major system, or a major disruption of communications between the system and the locations it serves, could cause a loss of reservations, interfere with our ability to manage our fleet, slow rental and sales processes, and otherwise adversely affect our ability to manage our business effectively. Our systems’ business continuity plans and insurance programs seek to mitigate such a risk, not eliminate it.
In addition, because our systems contain non-public personally identifiable information about millions of individuals and businesses, our failure to maintain the security of the data we hold, whether as a result of our own error or the actions of others, could harm our reputation, give rise to legal liabilities leading to lower revenue and increased costs or otherwise adversely impact our reputation, financial condition and results of operations.
We face risks related to liability and insurance.
Our businesses expose us to claims for personal injury, death and property damage related to the use of our vehicles and for workers’ compensation claims and other employment-related claims by our employees. We may become exposed to uninsured liability at levels in excess of our historical levels resulting from unusually high losses or otherwise. In addition, liabilities in respect of existing or future claims may exceed the level of our reserves and/or our insurance, which could adversely impact our financial condition and results of operations. Furthermore, insurance with unaffiliated carriers may not continue to be available to us on economically reasonable terms or at all.
Environmental regulations could subject us to liability for fines or damages.
We are subject to federal, state, local and foreign environmental laws and regulations in connection with our operations, including, among other things, with respect to the ownership and operation of tanks for the storage of petroleum products, such as gasoline, diesel fuel and motor and waste oils. We have established a compliance program for our tank systems that is intended to ensure that the tanks are properly registered with the state or other jurisdiction in which the tanks are located and have been either replaced or upgraded to meet applicable leak detection and spill, overfill, corrosion protection and vapor recovery requirements. These tank systems may not at all times remain free from undetected leaks, and the use of these tanks may result in significant spills, which may expose us to material liabilities.
We have made, and will continue to make, expenditures to comply with environmental laws and regulations, including, among others, expenditures for the cleanup of contamination at our owned and leased properties, as well as contamination at other locations at which our wastes have reportedly been identified. Our compliance with existing or future environmental laws and regulations may, however, require material expenditures by us or otherwise have an adverse impact on our financial position, results of operations and cash flows.
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Changes in the U.S. and foreign legal and regulatory environment that affect our operations, including laws and regulations relating to the insurance products we sell, consumer privacy, data security, employment matters, taxes, automobile-related liability and insurance rates, could disrupt our business, increase our expenses or otherwise have an adverse impact on our results of operations.
We are subject to a wide variety of laws and regulations in the United States and the other countries and jurisdictions in which we operate, and changes in the level of government regulation of our business have the potential to materially alter our business practices or our profitability. Depending on the jurisdiction, those changes may come about through new legislation, the issuance of new laws and regulations or changes in the interpretation of existing laws and regulations by a court, regulatory body or governmental official.
Optional insurance products, including, but not limited to, supplemental liability insurance, personal accident insurance and personal effects protection, we offer to renters providing various insurance coverages in our domestic vehicle rental operations, are regulated under state laws governing the licensing of such products. In our international car rental operations, our offering of optional products providing insurance coverages historically has not been regulated.
Any changes in U.S. or foreign law that change our operating requirements with respect to optional insurance products could increase our costs of compliance or make it uneconomical to offer such products, which would lead to a reduction in revenue and profitability. If customers decline to purchase supplemental liability insurance products from us as a result of any changes in these laws or otherwise, our results of operations could be materially adversely affected.
In almost every state, we recover from consumers various costs associated with the title and registration of our vehicles. In addition, where permitted, we also recover from consumers certain costs, including concession costs imposed by an airport authority or the owner and/or operator of the premises from which our vehicle is rented. Our long-standing business practice has been to separately state the existence of these additional costs in our rental agreements and invoices, and disclose to consumers additional surcharges used to recover such costs together with an estimated total price, inclusive of these surcharges, in all distribution channels. We believe that this standard practice comports with the Federal Trade Commission Act and has been upheld by several courts. We may in the future be subject to potential legislative changes or administrative action which could limit, restrict or prohibit our ability to separately state, charge and recover such costs, which would result in an adverse cost reallocation. If any such changes were to be enacted there may be an adverse impact or limitation on our ability to recover all of the surcharges we currently charge, which could adversely impact our profitability and results of operations.
We are also subject to numerous other laws and regulations in numerous jurisdictions. Changes in such laws and regulations could adversely impact our financial position and results of operations.
We may be held responsible by third parties, regulators or courts for the actions of, or failures to act by, our licensees, dealers or independent operators, which exposes us to possible fines, other liabilities and bad publicity.
Our car and truck rental franchisee and dealer locations are independently owned and operated. We also operate many of our corporate locations through agreements with “agency operators,” which are third party independent contractors who receive commissions to operate such locations. Our agreements with our franchisees, dealers and agency operators require that they comply with all laws and regulations applicable to their businesses, including our internal policies and standards. Under these agreements, our franchisees, dealers and agency operators retain control over the employment and management of all personnel. Third parties, regulators or courts may seek to hold us responsible for the actions of, or failures to act by, our franchisees, dealers or agency operators. Although we maintain the right to monitor the operations of these franchisees, dealers and agency operators, and under certain circumstances have the ability to terminate their agreements for failure to adhere to contracted operational standards, we are unlikely to detect all problems. Moreover, there are occasions when the actions and activities of
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our franchisees, dealers or agency operators may not be clearly distinguishable from our own. It is our policy to vigorously seek to be dismissed from any such claims and to pursue indemnity for any adverse outcomes. Failure of our franchisees, dealers or agency operators to comply with laws and regulations may expose us to liability, damages and publicity that may adversely affect our business.
Significant or sustained increases or significant volatility in fuel costs or limitations in fuel supplies could harm our business.
We could be adversely affected by limitations in fuel supplies or significant or sustained increases or significant volatility in fuel prices. A severe or protracted disruption in fuel supplies or significant increases in fuel prices could have an adverse impact on our financial condition and results of operations, either by directly discouraging consumers from renting cars and trucks or by causing a decline in airline passenger traffic. Significant volatility in fuel prices can also impact the cost and effectiveness of derivative instruments we utilize to seek to hedge our exposure to fluctuation in fuel prices for fuel used in our business, thereby impacting our financial condition and results of operations. See “Our derivative instruments may impact our results of operations”.
Risks related to our indebtedness
We have a substantial amount of debt which could impair our financial condition and adversely affect our ability to react to changes in our business.
As of December 31, 2008, our total debt was approximately $7.8 billion and we had approximately $333 million of available letter of credit capacity, $275 million of which is available for borrowings, under our senior credit facilities.
Our substantial indebtedness could have important consequences, including:
| • | limiting our ability to borrow additional amounts to fund working capital, capital expenditures, debt service requirements, execution of our business strategy, or acquisitions and other purposes, particularly in light of our current inability to rely on the exception to the limitation on indebtedness covenant contained in our senior unsecured notes that is based on an interest coverage ratio; |
| • | requiring us to dedicate a substantial portion of our cash flow from operations to pay principal and interest on our debt, which would reduce the funds available to us for other purposes; |
| • | making us more vulnerable to adverse changes in general economic, industry and competitive conditions, in government regulation and in our business by limiting our flexibility in planning for, and making it more difficult for us to react quickly to, changing conditions; and |
| • | exposing us to risks inherent in interest rate fluctuations because some of our borrowings are at variable rates of interest, which could result in higher interest expenses in the event of increases in interest rates. |
Our ability to make payments on and refinance our debt depends on our ability to generate cash flow. To some extent, this is subject to prevailing economic and competitive conditions and to certain financial, business and other factors, many of which are beyond our control. Our business may not generate cash flow from operations at levels sufficient to permit us to pay principal, premium, if any, and interest on our indebtedness, and our cash needs may increase. If we are unable to generate sufficient cash flow from operations to service our debt and meet our other cash needs, we may be forced to reduce or delay capital expenditures, sell or curtail assets or operations, seek additional capital, or seek to restructure or refinance our indebtedness. If we must sell or curtail our assets or operations, it may negatively affect our ability to generate revenue.
Despite our current indebtedness levels, we may still be able to incur substantially more debt. This could further exacerbate the risks associated with our substantial indebtedness. Subject to the specified limitations referred to above, the indenture governing our senior unsecured notes limits, but does not prohibit, us from incurring
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additional indebtedness in the future. As noted above, as of December 31, 2008, our senior credit facilities provided us commitments for additional letters of credit of up to $333 million, $275 million of which is available for borrowings. All of those borrowings would be secured and the lenders under our senior credit facilities would have a prior claim to the assets that secure such indebtedness. If new debt is added to our current debt levels, the risks described above could intensify.
We may be unable to remain in compliance with the financial or other covenants contained in our debt instruments, including our senior credit facilities.
Many of our debt instruments, including our senior credit facilities, contain financial and other covenants that impose significant requirements on us and limit our ability to engage in certain transactions or activities.
Our senior credit facilities were amended in December 2008 to change the financial covenants, interest rate spreads and restrictions on our activities contained therein. As a result, our borrowing costs under such facility will increase in 2009 compared to 2008 and the letter of credit availability and borrowing capacity thereunder were reduced.
Notwithstanding the December 2008 amendments to our senior credit facilities, due to reduced demand for travel services, rising borrowing costs and other factors, there can be no assurance that we will be able to generate sufficient earnings to enable us to satisfy the minimum EBITDA requirement or other covenants included in our senior credit facilities, our $2.45 billion of asset-backed conduit facilities used to finance a portion of our domestic car rental operations or our other borrowing agreements. Our failure to comply with these covenants, if not waived, would cause a default under the senior credit facilities and could result in principal under the conduit facilities being required to be repaid from a portion of vehicle disposition proceeds and lease payments we make to our vehicle program subsidiaries. If such a failure were to occur, there can be no assurance that we would be able to refinance or obtain a replacement for such facilities and in certain circumstances such failure could also give rise to a default under the instruments that govern our other indebtedness.
We have been adversely impacted by the significant disruption in the credit and asset-backed securities markets, which has led to and could lead to further increases in interest rates and could disrupt our ability to obtain financing for our operations, which require substantial capital.
We rely upon financing for our operations, particularly asset-backed financing, through asset-backed securities and the lending market, for our vehicle fleet. Our total asset-backed debt as of December 31, 2008 was approximately $6.0 billion, with available capacity of approximately $1.1 billion. In the fourth quarter of 2008, we amended and renewed our two asset-backed domestic rental car conduit facilities for 2009 with aggregate capacity of $2.45 billion and such facilities mature from September through December 2009. As a result of these amendments and renewals, our borrowing costs and collateral requirements for 2009 will increase compared to 2008. In addition, approximately $300 million and $1.1 billion of term asset-backed financings for our domestic car rental operations will mature in 2009 and 2010, respectively. There has been significant disruption in the asset-backed financing market; therefore, we may be unable to obtain refinancing for our operations at current levels, or at all, when our asset-backed rental car financings mature, and any new financing or refinancing of our existing financing could increase our borrowing costs, including due to an increase in required collateral levels. See “We face risks related to the financial condition and possible bankruptcy of automobile manufacturers and the used vehicle marketplace.” In addition, we could be subject to increased collateral requirements to the extent we request any amendment or renewal of any of our existing financing or by other counterparties.
Ambac Assurance Corporation, MBIA Insurance Corporation, Financial Guaranty Insurance Company and XL Capital, Ltd. provide credit enhancement in the form of financial guaranties for approximately $1.45 billion, $725 million, $200 million and $125 million, respectively, of our approximately $2.8 billion of domestic term asset-backed car rental financing outstanding at December 31, 2008. The debt ratings of these financial guaranty firms have been downgraded significantly, and the firms have substantially curtailed their issuance of new guaranties. Therefore we are unlikely to be able to offer similar financial guaranties in connection with any
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refinancing we pursue for our term asset-backed financings. Assured Guaranty Corp. is the provider of a financial guaranty for $250 million of our term asset-backed car rental financing.
Certain insolvency events in respect of the financial guarantors of our outstanding term asset-backed financings would result in principal of the related financing being required to be repaid sooner than anticipated from a portion of the proceeds of ordinary course vehicle disposition and lease payments we make to our vehicle program subsidiaries. These financial guarantor insolvency events could also result in the noteholders of the series of asset-backed notes guaranteed by the insolvent financial guarantor directing the trustee to foreclose on and sell vehicles to generate proceeds sufficient to repay such series of notes. If such a financial guarantor insolvency event were to occur, there can be no assurance that we would be able to obtain a replacement for the relevant financings on reasonable terms or at all.
We utilize a like-kind exchange program whereby we replace vehicles in a manner that allows tax gains on disposed vehicles to be deferred. The program has resulted in a material deferral of federal and state income taxes beginning in 2004. The benefit of deferral is dependent on reinvestment of vehicle disposition proceeds in replacement vehicles within a prescribed period of time (usually six months). An extended downsizing of our fleet could result in reduced deferrals, utilization of tax attributes and increased payment of federal and state income taxes. Such a downsizing or reduction in purchases would likely occur if, and to the extent, we are unable to obtain financing when our asset backed rental car financings mature.
An increase in interest rates would increase the cost of servicing our debt and could reduce our profitability.
A significant amount of our borrowings, primarily our vehicle-backed borrowings, bear interest at variable rates and expose us to interest rate risk. If interest rates increase, whether because of an increase in market interest rates or an increase in our own cost of borrowing, our debt service obligations for our variable rate indebtedness would increase even though the amount of borrowings remained the same, and our results of operations could be adversely affected. As of December 31, 2008, our total outstanding debt of approximately $7.8 billion included interest rate sensitive debt of approximately $2.4 billion (either by its original terms or through the use of interest rate derivatives), which had a weighted average interest rate of approximately 4% per annum. During our seasonal borrowing peak in 2008, outstanding interest rate sensitive debt totalled approximately $2.4 billion, with a weighted average interest rate of approximately 3% per annum.
Restrictive covenants in agreements and instruments governing our debt may adversely affect our ability to operate our business.
The terms of certain of our indebtedness, including the indenture governing our senior unsecured notes and the agreement governing our senior credit facilities contain, and our future debt instruments may contain, various provisions that limit our ability to, among other things:
| • | incur additional debt; |
| • | provide guarantees in respect of obligations of other persons; |
| • | issue redeemable stock and preferred stock; |
| • | pay dividends or distributions or redeem or repurchase capital stock; |
| • | prepay, redeem or repurchase debt; |
| • | make loans, investments and capital expenditures; |
| • | incur liens; |
| • | make distributions from our subsidiaries; |
| • | sell assets and capital stock of our subsidiaries; |
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| • | make acquisitions; and |
| • | consolidate or merge with or into, or sell substantially all of our assets to, another person. |
In December 2008, we amended our senior credit facilities and as a result certain of the terms set forth above were revised to be more restrictive than they had previously been and we granted additional collateral to the lenders party to such facilities, which represented most of our assets that were not already encumbered by existing financings.
Risks related to the Cendant Separation
We have limited operating history as a stand-alone vehicle rental company.
The financial information included in this annual report on Form 10-K does not reflect the financial condition, results of operations or cash flows we would have achieved as a stand-alone vehicle rental company during full year 2006. Prior to the completion of the Cendant Separation, the vehicle rental business was operated by Cendant as part of its broader corporate organization, rather than as an independent company. Cendant or one of its affiliates performed various corporate functions for our vehicle rental business, including, but not limited to, tax administration, certain governance functions (including compliance with the Sarbanes-Oxley Act of 2002 and internal audit) and external reporting. Our financial results for all periods before fourth quarter 2006 for our operating segments reflect allocations of corporate expenses from Cendant for these and similar functions. These allocations may be more or less than the comparable expenses we would have incurred had we operated as a stand-alone vehicle rental company during those periods.
We are relying on Realogy, Wyndham Worldwide and Travelport to fulfill their obligations under the Separation Agreement and other agreements.
Pursuant to the Separation Agreement, Realogy and Wyndham Worldwide are responsible for 62.5% and 37.5%, respectively, of certain contingent and other of our corporate liabilities including those relating to unresolved tax and legal matters as well as 100% of certain liabilities that relate to their respective businesses (the “Assumed Obligations”). More specifically, Realogy and Wyndham Worldwide have generally assumed and are responsible for the payment of their specified percentage of (i) all taxes imposed on us and certain of our subsidiaries and (ii) certain of our contingent and other corporate liabilities and/or those of our subsidiaries to the extent incurred prior to August 23, 2006. These contingent and other corporate liabilities include liabilities relating to (i) Cendant’s terminated or divested businesses, including among others, the former PHH and Marketing Services (Affinion) businesses, (ii) liabilities relating to the sale of Travelport, (iii) Cendant’s litigation that did not pertain to the operations of Realogy, Wyndham Worldwide, Travelport or our vehicle rental operations, including the Credentials Litigation (for a further description of the Credentials Litigation, see “Legal Proceedings”) and (iv) generally any actions with respect to the Cendant Separation or the distributions brought by any third party. If either Realogy or Wyndham were to default in its payment, when due, of any such Assumed Obligations, each non-defaulting party, including us, would be required to pay an equal portion of the amounts in default.
Realogy was acquired by an affiliate of Apollo Management VI, L.P. following the Cendant Separation and is not listed as an independent public company, but the acquisition did not affect Realogy’s obligation to satisfy its specified percentage of its Assumed Obligations. However, as a result of the acquisition, Realogy has greater debt obligations and its ability to satisfy its portion of such Assumed Obligations may be adversely impacted. In accordance with the terms of the Separation Agreement, Realogy posted a letter of credit for the benefit of the Company to cover its estimated share of the Assumed Obligations, which is subject to adjustment from time to time, although there can be no assurance that such letter of credit will be sufficient or effective to cover Realogy’s actual obligations if and when they arise. In addition, the Separation Agreement effectively provides Realogy with the right to control the process for resolving disputes related to many of the Assumed Obligations.
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Moreover, the Separation Agreement provides for cross-indemnities designed to place financial responsibility of certain liabilities and other obligations with the proper company. For example, Realogy, Wyndham Worldwide and/or Travelport are required to indemnify us in respect of certain effective guarantees that result from either us or one of our subsidiaries remaining a named lessee on real estate leases pertaining to properties occupied by Realogy, Wyndham and/or Travelport. Any failure by Realogy, Wyndham Worldwide or Travelport to pay any of their assumed liabilities when due or to indemnify us when required may adversely impact our results of operations.
Risks related to our common stock
The market price of our shares may fluctuate widely.
During 2008, the market price for our common stock experienced a substantial decline. We cannot predict the prices at which our common stock will trade. The market price of our common stock may fluctuate widely, depending upon many factors, some of which may be beyond our control, including:
| • | our quarterly or annual earnings, or those of other companies in our industry, including our suppliers; |
| • | actual or anticipated fluctuations in our operating results; |
| • | changes in accounting standards, policies, guidance, interpretations or principles; |
| • | announcements by us or our competitors of acquisitions or dispositions; |
| • | changes in earnings estimates by securities analysts or our ability to meet those estimates; |
| • | changes in investors’ and analysts’ perceptions of our industry, business or related industries; |
| • | the operating and stock price performance of other comparable companies; |
| • | overall market fluctuations; |
| • | general economic conditions and conditions in the credit markets; and |
| • | our ability to meet the continued listing requirements of the New York Stock Exchange. See “If we do not meet the continued listing requirements of the New York Stock Exchange, our common stock may be delisted”. |
The decrease in our stock price during 2008 has impacted our ability to provide equity incentives to our employees, officers or directors with a value comparable to prior years and has impacted the value of prior incentive awards made to our employees; therefore our ability to retain our key employees and officers could be adversely impacted.
Your percentage ownership may be diluted in the future.
Your percentage ownership may be diluted in the future because of equity issuances or equity awards that we granted or will grant to our directors, officers and employees. As disclosed in the notes to our financial statements included herein, in 2008 we granted approximately 1.2 million restricted stock units and we granted stock options in January 2009. We also expect to grant restricted stock units, stock options and/or other types of equity awards in the future.
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Provisions in our certificate of incorporation and by-laws, and of Delaware law may prevent or delay an acquisition of our company, which could decrease the trading price of our common stock.
Our amended and restated certificate of incorporation, amended and restated by-laws and Delaware law contain provisions that are intended to deter coercive takeover practices and inadequate takeover bids by making such practices or bids unacceptably expensive to the raider and to encourage prospective acquirors to negotiate with our Board of Directors rather than to attempt a hostile takeover. These provisions include, among others:
| • | elimination of the right of our stockholders to act by written consent; |
| • | rules regarding how stockholders may present proposals or nominate directors for election at stockholder meetings; |
| • | the right of our Board to issue preferred stock without stockholder approval; and |
| • | limitations on the right of stockholders to remove directors. |
Delaware law also imposes some restrictions on mergers and other business combinations between us and any holder of 15% or more of our outstanding common stock.
We believe these provisions protect our stockholders from coercive or otherwise unfair takeover tactics by requiring potential acquirors to negotiate with our Board and by providing our Board with more time to assess any acquisition proposal. These provisions are not intended to make our company immune from takeovers. However, these provisions apply even if the offer may be considered beneficial by some stockholders and could delay or prevent an acquisition that our Board determines is not in the best interests of our company and our stockholders.
We recorded a charge for goodwill impairment in third quarter 2008, and our goodwill may be further impaired in the future, which may require us to record an additional charge to earnings.
Under generally accepted accounting principles, we perform a goodwill impairment assessment as required, which includes, among other things, a reconciliation of current equity market capitalization to stockholders’ equity. In third quarter 2008, our total stockholders’ equity significantly exceeded our equity market capitalization and based on our goodwill impairment assessment, we recorded a charge of approximately $1.3 billion for impairment of goodwill, intangible assets and the Company’s investment in Carey Holdings, Inc. During the third and fourth quarter 2008, our stock price continued to decline. We may be required to record an additional impairment in the future including as a result of continued reduction to our equity market capitalization or other declines in our business, which would result in a negative impact on our results of operations.
If we do not meet the New York Stock Exchange continued listing requirements, our common stock may be delisted.
The New York Stock Exchange (“NYSE”) continued listing standards require that our common stock have a minimum average closing price of not less than $1.00 during a consecutive 30 trading-day period. On December 17, 2008, we were notified by the NYSE that we had fallen below this continued listing standard. Pursuant to NYSE rules, we must bring our share price and average share price back above $1.00 within six months from the receipt of the NYSE notice, subject to possible extension. If we fail to do so, or fail to maintain compliance with other NYSE listing requirements, the NYSE may initiate suspension and delisting procedures. A delisting of our common stock could negatively impact us by:
| • | reducing the liquidity and market price of our common stock; |
| • | reducing the number of investors willing to hold or acquire our common stock, which could negatively impact our ability to raise equity financing and access the public capital markets; or |
| • | impairing our ability to provide equity incentives to our employees, officers or directors. |
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We have responded to the NYSE with notice of our intent to cure the current deficiency, in which we noted that if we do not expect that the price condition will be cured at the expiration of the six-month cure period, we will consider a reverse stock split that will enable us to be in compliance with the price condition.
| ITEM 1B. | UNRESOLVED STAFF COMMENTS |
Not applicable.
Our principal executive offices are located at leased offices at 6 Sylvan Way, Parsippany, New Jersey 07054 pursuant to a lease expiring in 2023. Additional corporate functions are also conducted at leased offices at 10 Sylvan Way and Three Century Drive in Parsippany, New Jersey pursuant to leases expiring in 2011 and 2018, respectively. We also own a facility in Virginia Beach, Virginia, which serves as a satellite administrative facility for our car and truck rental operations. Office space is also leased in Orlando, Florida; Englewood, Colorado; Wichita Falls, Texas; Tulsa, Oklahoma; and Fredericton, Canada pursuant to leases expiring in 2010, except for the Englewood and Fredericton leases which expire in 2011. These locations primarily provide operational services for both brands, including call center operations. The Budget office at Redding, California was closed in 2005 and is currently vacant and is subject to a lease expiring in 2011. In addition, there are approximately 15 other leased office locations in the United States for administrative activities, regional sales and operations activities.
We lease or have vehicle rental concessions for both the Avis and Budget brands at locations throughout the world. Avis operates approximately 1,000 locations in the United States and approximately 300 locations outside the United States. Of those locations, approximately 250 in the United States and approximately 120 outside the United States are at airports. Budget operates at approximately 650 locations in the United States of which approximately 170 are at airports. Budget also operates at approximately 175 locations outside the United States of which approximately 65 are at airports. Typically, an airport receives a percentage of vehicle rental revenue, with a guaranteed minimum. Because there is a limit to the number of vehicle rental locations in an airport, vehicle rental companies frequently bid for the available locations, usually on the basis of the size of the guaranteed minimums. We believe that our properties are sufficient to meet our present needs and we do not anticipate any difficulty in securing additional space, as needed, on acceptable terms.
Vehicle Rental Litigation
We, along with our subsidiaries, are involved from time to time in legal proceedings in the ordinary course of business, including the cases described below.
Avis was named as a defendant in two putative class actions (Esquivel v. Avis, commenced January 24, 2004 in the 214th Judicial District of Nueces County, Texas, and Stafford v. Avis, commenced February 16, 2005 in the District Court in and for Creek County, Oklahoma). Each case alleged various causes of action related to the Company’s use and collection of the fuel service charge pursuant to its rental agreements. Both cases were settled by the Company for nominal fees.
On November 14, 2007, two California residents filed a putative class action lawsuit, captioned Michael Shames et al. v. The Hertz Corp. et al., No. 07 CV 2174H (S.D. Cal.), against Avis Budget, six other rental car companies, the California Travel and Tourism Commission (the “CTTC”) and the CTTC’s Executive Director, alleging that the defendants violated federal antitrust law and California’s Unfair Competition Law and False Advertising Law by allegedly agreeing to pass on airport concession fees and a state tourism commission
29
assessment to passenger car renters in California. One plaintiff has raised an additional claim against the CTTC and its Executive Director of alleged violations of California’s Bagley-Keene Open Meeting Act. The plaintiffs are seeking treble damages, injunctive relief and attorneys’ fees and costs. We filed a motion to dismiss the Shames suit, and on April 8, 2008, the U.S. District Court for the Southern District of California granted the motions to dismiss the putative class action lawsuit, on the ground that plaintiffs failed to state claims for which relief could be granted. An amended complaint was filed in May 2008 against the Company and six other rental car companies, as well as the CTTC, and contained claims that the defendants had violated federal antitrust law and California’s Unfair Competition Law and False Advertising Law by allegedly agreeing to pass on airport concession fees and a state tourism commission assessment to passenger car renters in California. On July 24, 2008, the U.S. District Court for the Southern District of California granted our motions to dismiss with respect to the state law claims and denied our motion to dismiss with respect to the federal antitrust claim. The court has dismissed all claims against the CTTC, but the plaintiffs are appealing the CTTC’s dismissal. We intend to continue to vigorously defend this suit as we believe it is without merit.
In December 2007, two individuals filed separate but virtually identical putative class action lawsuits, captioned Thomas J. Comiskey et al. v. Avis Budget Group, Inc. et al., No. CV07-08118 (C.D. Cal.) and Isabel S. Cohen et al. v. Avis Budget Group, Inc. et al., No. CV07-08164 (C.D. Cal.), against Avis Budget, 12 other rental car companies, the CTTC and California’s Secretary of Business, Transportation and Housing. These suits challenge the tourism commission assessment fees imposed on certain renters in California as of January 1, 2007. Both the Comiskey and Cohen suits allege that California’s tourism assessment program with respect to the rental car industry (i) infringes on renters’ speech and associational rights in violation of both the U.S. and California Constitutions, (ii) violates the Commerce Clause of the U.S. Constitution, (iii) violates 42 U.S.C. § 1983 insofar as the assessment program violates the federal Constitution’s Commerce Clause and First and Fourteenth Amendments, and (iv) violates the Motor Vehicle Revenues section of the California Constitution. On February 5, 2008, the district court consolidated the Comiskey and Cohen suits, and on March 19, 2008, plaintiffs filed a consolidated amended complaint against Avis Budget, ten other rental car companies, the CTTC and California’s Secretary of Business, Transportation and Housing. The consolidated amended complaint contains all the claims from the earlier individual complaints and adds equal-protection claims under the U.S. and California Constitutions. As was the case with both individual complaints, the consolidated amended complaint seeks declaratory and injunctive relief, a refund of all California tourism commission assessment fees collected by the rental car defendants, attorneys’ fees and costs, and unspecified damages. The defendants moved to dismiss the consolidated amended complaint as well as to transfer the action (now known as In re Tourism Assessment Fee Litigation) to the Southern District of California. On September 23, 2008, the transfer motion was granted and the action was subsequently transferred to the Southern District of California. On February 19, 2009, the court granted defendants’ motions to dismiss plaintiffs’ federal law claims, declined to exercise supplemental jurisdiction over plaintiffs’ state law claims, and dismissed plaintiffs’ amended complaint with prejudice.
Corporate Litigation
Pursuant to the Separation Agreement, Realogy has assumed 62.5% and Wyndham Worldwide has assumed 37.5% of certain contingent and other corporate liabilities (and related costs and expenses), including legal matters and related disputes, of the Company or its subsidiaries which are not primarily related to any of the respective businesses of Realogy, Wyndham Worldwide, Travelport and/or the Company’s vehicle rental operations, in each case incurred or allegedly incurred on or prior to the date of the separation of Travelport from the Company. Such litigation includes the Credentials Litigation described below.
CSI Investment et. al. v. Cendant et. al., (Case No. 1:00-CV-01422 (DAB-DFE) (S.D.N.Y.) (“Credentials Litigation”) is an action for breach of contract and fraud arising out of Cendant’s acquisition of the Credentials business in 1998. The Credentials Litigation commenced in February 2000 and was filed against Cendant and its senior management. The Stock Purchase Agreement provided for the sale of Credentials Services International to Cendant for a set price of $125 million plus an additional amount which was contingent on Credentials’ future
30
performance. The closing occurred just prior to Cendant’s April 15, 1998 announcement of the discovery of accounting irregularities in its former CUC business units. Plaintiffs seek payment of certain “hold back” monies in the total amount of $5.7 million, as well as a contingent payment based upon future performance that plaintiffs contend should have been approximately $50 million. In early 2007, the parties moved for summary judgment on various aspects of the case, and in September 2007, the Court granted Cendant’s motion for summary judgment on the fraud claims and plaintiffs’ motion for summary judgment with respect to the plaintiffs’ claims for hold back monies and for breach of contract. Including pre-judgment interest, the Court entered judgment in favor of plaintiffs in the amount of approximately $94.3 million plus attorneys’ fees. The judgment entered in favor of plaintiffs was affirmed in May 2008 following the denial of our and plaintiffs’ motions for reconsideration. The judgment included sanctions against Cendant in the amount of $720,000 and Realogy and Wyndham have paid their proportional share of such sanctions plus post-judgment interest thereon. As requested by Realogy and Wyndham (who bear the economic liability for this case, as discussed below), we filed a notice of appeal on May 23, 2008 and appellate bonds were posted by Realogy and Wyndham in their proportional share. Plaintiffs filed a notice of cross appeal on June 2, 2008 and the Court stayed plaintiffs’ application for attorneys’ fees pending the outcome of the appeal. On September 12, 2008, we filed the initial appellate brief and plaintiffs filed their opposition brief and opening brief on their cross appeal on November 26, 2008. Our reply brief and response on cross appeal were filed on January 23, 2009 and oral argument is expected to take place in the spring of 2009. Given the agreements set forth in the Separation Agreement discussed above, we do not expect that any judgment or payment related to the Credentials Litigation will have a net impact on our financial statements or cash balances.
Realogy, Wyndham Worldwide and Travelport have also assumed under the Separation Agreement certain contingent and other corporate liabilities (and related costs and expenses), which include legal proceedings where we are named as a defendant but are primarily related to each of their respective businesses.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
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| ITEM 5. | MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES |
Market Price of Common Stock
Our common stock is listed on the New York Stock Exchange (“NYSE”) under the symbol “CAR”. At January 30, 2009, the number of stockholders of record was approximately 3,954. The following table sets forth the quarterly high and low sales prices per share of CAR common stock as reported by the NYSE for 2008 and 2007.
| 2008 |
High | Low | ||||
| First Quarter |
$ | 13.74 | $ | 9.00 | ||
| Second Quarter |
18.00 | 8.30 | ||||
| Third Quarter |
11.90 | 4.20 | ||||
| Fourth Quarter |
5.83 | 0.38 | ||||
| 2007 |
High | Low | ||||
| First Quarter |
$ | 28.10 | $ | 21.80 | ||
| Second Quarter |
31.47 | 26.02 | ||||
| Third Quarter |
30.24 | 19.08 | ||||
| Fourth Quarter |
23.86 | 12.51 | ||||
Dividend Policy
We paid no cash dividends on our common stock in 2008 and 2007 and we do not anticipate paying dividends on our common stock for the foreseeable future. Our ability to pay dividends to holders of our common stock is limited as a practical matter by ABCR’s senior credit facilities, the indenture governing our senior notes and our vehicle financing programs, insofar as we may seek to pay dividends out of funds made available to Avis Budget Group by ABCR and/or its subsidiaries, because these debt financings directly or indirectly restrict ABG’s ability to pay dividends. The declaration and payment of future dividends to holders of our common stock will be at the discretion of our Board of Directors and will depend upon many factors, including our financial condition, earnings, capital requirements of our businesses, covenants associated with certain debt obligations, legal requirements, regulatory constraints, industry practice and other factors that the Board of Directors deems relevant.
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Securities Authorized for Issuance under Equity Compensation Plans
The following table provides information about shares of our common stock that may be issued upon the exercise of options and restricted stock units under all of our existing equity compensation plans as of December 31, 2008. The table excludes 202,000 shares of our common stock which was issued or available for issuance pursuant to the 1998 Employee Stock Purchase Plan approved by stockholders.
Of the approximately 8.3 million shares of our common stock to be issued upon exercise of outstanding options, stock settled stock appreciation rights and restricted stock units, approximately 5 million shares are related to stock option grants that were made by Cendant Corporation to employees of Cendant Corporation prior to the spin-offs of Realogy and Wyndham, all of which have strike prices in excess of our closing stock price of $0.70 on December 31, 2008.
| Plan Category |
Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants, Rights and Restricted Stock Units (d) |
Weighted-Average Exercise Price of Outstanding Options, Warrants and Rights (Excludes Restricted Stock Units) ($) (d) |
Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (Excluding Securities Reflected in First Column) | |||
| Equity compensation plans approved by Company stockholders (a) |
4,720,917 | $24.96 | 6,724,046 | |||
| Equity compensation plans not approved by Company stockholders (b)(e) |
3,587,196 | $24.81 | - | |||
| Equity compensation plans assumed in mergers, acquisitions and corporate transactions (c) |
26,382 | $18.59 | - | |||
| Total |
8,334,495 | $24.85 | 6,724,046 |
| (a) |
The number of securities to be issued includes options and other awards granted under the following plans: 2007 Equity and Incentive Plan; 1997 Stock Incentive Plan; 1997 Stock Option Plan; 1987 Stock Option Plan and the Directors Deferred Compensation Plan. Each plan other than the 2007 Equity and Incentive Plan was approved by stockholders with respect to an initial allocation of shares. The number of securities remaining available for future issuance under equity compensation plans represents solely shares available for issuance under the 2007 Equity and Incentive Plan. |
| (b) |
Includes options and other awards granted under the following plans: 1999 Broad-Based Employee Stock Option Plan; 1997 Employee Stock Plan; 1992 Employee Stock Option Plan; and stand-alone option grants to former officers. The material terms of these plans are set forth under footnote (e) below. Notwithstanding the terms of these plans to the contrary, no option granted under any of these plans provides for a term in excess of 10 years or an exercise price below fair market value as of the date of grant (other than options assumed or replaced in connection with acquisitions). All options granted under these plans have been approved by the Board of Directors or the Compensation Committee of the Board of Directors. |
| (c) |
Includes options granted under the following plans: Galileo International, Inc. 1999 Equity and Performance Incentive Plan, Trendwest Resorts, Inc. 1997 Employee Stock Option Plan, Cheap Tickets 1999 Stock Incentive Plan, Avis Group Holdings Inc. 1997 Stock Option Plan, and Avis Group Holdings Inc. 2000 Compensation Plan. |
| (d) |
Reflects an equitable adjustment of stock options and restricted stock units in connection with the spin-off of PHH Corporation to our stockholders during 2005 and the distributions of Realogy and Wyndham in 2006. Also reflects the one-for-ten reverse stock split completed in September 2006. |
| (e) |
Following are the material terms of plans not submitted for stockholder approval: |
1999 Broad-Based Employee Stock Option Plan. This plan provides for the grant of stock options, shares of Common Stock and other awards valued by reference to Common Stock to our employees who are not executive officers. Shares issued pursuant to the exercise of options granted under this plan may be authorized and unissued shares or treasury
33
shares. In the event of any change in corporate capitalization, any reorganization of our company or a similar event, shares subject to outstanding options, the exercise price of outstanding options and the number and type of shares remaining to be made subject to options under this plan may be adjusted or substituted for, as the Compensation Committee or Board may determine. The terms and conditions of options granted under this plan are to be determined by the Compensation Committee, provided that the exercise price of an option may not be less than the fair market value of the shares covered thereby on the date of grant. Each option granted under this plan will become immediately exercisable upon a “change-of-control transaction” (as defined in the plan). Unless otherwise determined by the Compensation Committee, following termination of employment, options granted under this plan generally will remain exercisable, to the extent exercisable at the time of termination, for one year (two years, in the case of retirement, death or disability).
1997 Employee Stock Plan. This plan provides for the grant of awards of stock options, stock appreciation rights and restricted stock to our employees and affiliates. Shares issued pursuant to awards granted under this plan may be authorized and unissued shares or treasury shares. In the event of any change in corporate capitalization, any reorganization of our company or a similar event, shares subject to outstanding awards, the exercise price of outstanding options and the number and type of shares remaining to be made subject to awards under this plan may be adjusted or substituted for, as the Compensation Committee or Board may determine. The terms and conditions of awards granted under this plan are to be determined by the Compensation Committee, provided that the exercise price of an option may not be less than the fair market value of the shares covered thereby on the date of grant. Under this plan, stock appreciation rights may be granted only in tandem with an option, and will be cancelled to the extent the related option is exercised or cancelled. The vesting of restricted stock awards granted under this plan may be subject to the attainment of predetermined performance goals. Unless otherwise determined by the Compensation Committee, following termination of employment, options and stock appreciation rights granted under this plan generally will remain exercisable, to the extent exercisable at the time of termination, for one year (two years, in the case of retirement, death or disability). Unless otherwise determined by the Compensation Committee, following termination of employment for any reason, shares that are subject to restrictions under a restricted stock award will be immediately forfeited.
Issuer Purchases of Equity Securities
None.
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Performance Graph
The following graph assumes $100 invested on December 31, 2003 and compares (A) the yearly percentage change in our cumulative total stockholder return on our common stock (as measured by dividing (i) the sum of (a) the cumulative amount of dividends, assuming dividend reinvestment, during the five years commencing on the last trading day before January 1, 2004 and ending on December 31, 2008, and (b) the difference between our stock price at the end and the beginning of the periods presented by (ii) the share price at the beginning of the periods presented with (B) the Standard & Poor’s MidCap 400 Index and the Dow Jones U.S. Transportation Average Index.
COMPARISON OF 5 YEAR CUMULATIVE TOTAL RETURN
Among Avis Budget Group, Inc., the S&P Midcap 400 Index
and the Dow Jones US Transportation Average Index
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ITEM 6. SELECTED FINANCIAL DATA
| At or For the Year Ended December 31, | |||||||||||||||||||
| 2008 | 2007 | 2006 | 2005 | 2004 | |||||||||||||||
| (In millions, except per share data) | |||||||||||||||||||
| Results of Operations |
|||||||||||||||||||
| Net revenues |
$ | 5,984 | $ | 5,986 | $ | 5,689 | $ | 5,400 | $ | 4,820 | |||||||||
| Income (loss) from continuing operations |
$ | (1,124 | ) | $ | (947 | ) | $ | (451 | ) | $ | (11 | ) | $ | 71 | |||||
| Income (loss) from discontinued operations, net of tax |
- | 31 | (1,479 | ) | 1,637 | 2,020 | |||||||||||||
| Cumulative effect of accounting changes, net of tax |
- | - | (64 | ) | (8 | ) | - | ||||||||||||
| Net income (loss) |
$ | (1,124 | ) | $ | (916 | ) | $ | (1,994 | ) | $ | 1,618 | $ | 2,091 | ||||||
| Per Share Data |
|||||||||||||||||||
| Income (loss) from continuing operations: |
|||||||||||||||||||
| Basic |
$ | (11.04 | ) | $ | (9.18 | ) | $ | (4.48 | ) | $ | (0.10 | ) | $ | 0.69 | |||||
| Diluted |
(11.04 | ) | (9.18 | ) | (4.48 | ) | (0.10 | ) | 0.67 | ||||||||||
| Income (loss) from discontinued operations: |
|||||||||||||||||||
| Basic |
$ | - | $ | 0.30 | $ | (14.71 | ) | $ | 15.74 | $ | 19.60 | ||||||||
| Diluted |
- | 0.30 | (14.71 | ) | 15.74 | 18.99 | |||||||||||||
| Cumulative effect of accounting changes: |
|||||||||||||||||||
| Basic |
$ | - | $ | - | $ | (0.63 | ) | $ | (0.08 | ) | $ | - | |||||||
| Diluted |
- | - | (0.63 | ) | (0.08 | ) | - | ||||||||||||
| Net income (loss): |
|||||||||||||||||||
| Basic |
$ | (11.04 | ) | $ | (8.88 | ) | $ | (19.82 | ) | $ | 15.56 | $ | 20.29 | ||||||
| Diluted |
(11.04 | ) | (8.88 | ) | (19.82 | ) | 15.56 | 19.66 | |||||||||||
| Cash dividends declared (a) |
$ | - | $ | - | $ | 1.10 | $ | 4.00 | $ | 3.20 | |||||||||
| Financial Position |
|||||||||||||||||||
| Total assets |
$ | 11,318 | $ | 12,474 | $ | 13,271 | $ | 34,493 | $ | 42,698 | |||||||||
| Assets of discontinued operations |
- | - | - | 20,512 | 29,452 | ||||||||||||||
| Assets under vehicle programs |
7,826 | 7,981 | 7,700 | 8,500 | 7,072 | ||||||||||||||
| Long-term debt, including current portion |
1,789 | 1,797 | 1,842 | 3,508 | 4,234 | ||||||||||||||
| Debt under vehicle programs (b) |
6,034 | 5,596 | 5,270 | 7,909 | 6,727 | ||||||||||||||
| Stockholders’ equity |
93 | 1,465 | 2,443 | 11,342 | 12,464 | ||||||||||||||
| (a) |
Cash dividends declared have been adjusted to reflect the 1-for-10 reverse stock split of our common stock which became effective in September 2006. See Note 1 to our Consolidated Financial Statements. |
| (b) |
Includes related-party debt due to Avis Budget Rental Car Funding (AESOP), LLC. See Note 17 to our Consolidated Financial Statements. |
In presenting the financial data above in conformity with generally accepted accounting principles, we are required to make estimates and assumptions that affect the amounts reported. See “Critical Accounting Policies” under Item 7 included elsewhere herein for a detailed discussion of the accounting policies that we believe require subjective and complex judgments that could potentially affect reported results.
Income (loss) from discontinued operations, net of tax, includes the after tax results of the following disposed businesses for all periods presented (through their dates of disposition): (i) Travelport, which we sold in August 2006, (ii) Realogy and Wyndham, which were spun-off on July 31, 2006, (iii) our former Marketing Services division, which we sold in October 2005, (iv) Wright Express Corporation, which we sold in February 2005, (v) our former mortgage, fleet leasing and appraisal businesses, which were included in the spin-off of PHH Corporation on January 31, 2005, and (vi) Jackson Hewitt Tax Service Inc., which we sold in June 2004. Income (loss) from discontinued operations, net of tax, also includes a tax benefit realized as a result of certain elections
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made in connection with the disposition of Travelport on income tax returns filed during 2007, the after tax losses on the sale of Travelport and the spin-offs of Realogy and Wyndham in 2006, the after tax gains on the sale of our Marketing Services division and Wright Express in 2005, the after tax loss on the spin-off of PHH in 2005, and the after tax gain on the sale of Jackson Hewitt in 2004. See Note 3 to our Consolidated Financial Statements for more detailed information regarding these discontinued operations.
During 2008, we recorded a $1,262 million ($1,053 million, net of tax) charge to reflect (i) the impairment of goodwill, (ii) the impairment of the Company’s tradenames assets and (iii) the impairment of our investment in Carey Holdings, Inc. These charges reflect the decline in their fair value below their carrying value, primarily as a result of reduced market valuations for vehicle services and other companies, as well as reduced profit forecasts due to soft economic conditions and increased financing costs. In 2007, we recorded a $1,195 million ($1,073 million after tax) charge for the impairment of goodwill at each of our reporting units to reflect the decline in their fair value as evidenced by a decline in the market value of our common stock. See Note 2 to our Consolidated Financial Statements. In 2006, we recorded an impairment charge of approximately $1.3 billion within discontinued operations to reflect the difference between Travelport’s carrying value and its estimated fair value, less costs to dispose. In 2005, we recorded an impairment charge of $425 million within discontinued operations as a result from a decline in future anticipated cash flows of one of Travelport’s businesses.
During 2008, we recorded $28 million of restructuring charges related to restructuring initiatives within each of our segments. In 2006, we recorded $10 million of restructuring charges related to restructuring initiatives within our Truck Rental and Domestic Car Rental segments. In 2005, we recorded $26 million of restructuring and transaction-related charges as a result of restructuring activities undertaken following the spin-off of PHH Corporation and the initial public offering of Wright Express Corporation. See Note 5 to our Consolidated Financial Statements.
During 2008 and 2007, separation-related costs incurred in connection with the spin-offs of Realogy and Wyndham and the sale of Travelport were insignificant. In 2006 and 2005, we incurred separation-related costs of $574 million and $15 million, respectively. These costs consisted primarily of legal, accounting, other professional and consulting fees and various employee costs, and for 2006 included costs associated with the retirement of corporate debt.
In 2006, 2005 and 2004, we incurred $40 million, $35 million and ($28) million, respectively, of litigation and related costs (credits) primarily in connection with the 1998 discovery of accounting irregularities in the former business units of CUC International, Inc. The amount in 2004 includes a $55 million credit recorded in connection with previously established liabilities for severance and other termination benefits for which we no longer believe we are liable. In 2008 and 2007, these costs were immaterial.
In 2006, we recorded a $103 million ($64 million after tax) non-cash charge to reflect the cumulative effect of accounting charges related to (i) real estate time-share transactions at our former Hospitality Services and Timeshare Resorts segment and (ii) stock-based compensation awards. In 2005, we recorded a $14 million ($8 million after tax) non-cash charge to reflect the cumulative effect of accounting change relating to our asset retirement obligation to remove assets at certain leased properties.
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ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with our Consolidated Financial Statements and accompanying Notes thereto included elsewhere herein. Unless otherwise noted, all dollar amounts in tables are in millions and those relating to our results of operations are presented before taxes.
We operate two of the most recognized brands in the global vehicle rental industry through Avis Rent A Car System, LLC and Budget Rent A Car System, Inc. We provide car and truck rentals and ancillary services to businesses and consumers in the United States and internationally.
We operate in the following business segments:
| • | Domestic Car Rental—provides car rentals and ancillary products and services in the United States. |
| • | International Car Rental—provides vehicle rentals and ancillary products and services primarily in Argentina, Australia, Canada, New Zealand, Puerto Rico and the U.S. Virgin Islands. |
| • | Truck Rental—provides truck rentals and related services to consumers and light commercial users in the United States. |
Our revenues are derived principally from car and truck rentals in our Company-owned operations and include (i) time and mileage (“T&M”) fees charged to our customers for vehicle rentals, (ii) reimbursement from our customers for certain operating expenses we incur, including gasoline and vehicle licensing fees, as well as airport concession fees, which we pay in exchange for the right to operate at airports and other locations, and (iii) sales of loss damage waivers and insurance and rentals of navigation units and other items in conjunction with vehicle rentals. We also earn royalty revenue from our franchisees in conjunction with their vehicle rental transactions.
Car rental volumes are closely associated with the travel industry, particularly airline passenger volumes, or enplanements. Because we operate primarily in the United States and generate a significant portion of our revenue from our on-airport operations, we expect that our ability to generate revenue growth will be somewhat dependent on increases in domestic enplanements. We have also experienced significant per-unit fleet cost increases over the last four years, which have negatively impacted our margins. Accordingly, our ability to achieve profit margins consistent with prior periods remains dependent on our ability to successfully manage our fleet costs and to implement corresponding changes in our pricing programs. Our vehicle rental operations are seasonal. Historically, the third quarter of the year has been our strongest quarter due to the increased level of leisure travel and household moving activity. Any circumstance or occurrence that disrupts rental activity during the third quarter could have a disproportionate adverse effect on our results of operations. We have a partially variable cost structure and routinely adjust the size and, therefore, the cost of our rental fleet in response to fluctuations in demand. However, certain expenses, such as rent, are fixed and cannot be reduced in response to seasonal fluctuations in our operations.
We believe that the following trends, among others, may affect and/or have impacted our financial condition and results of operations:
| • | Domestic enplanements, which declined in 2008 compared to 2007 and, based on airlines’ announced projected capacity reductions, are expected to decline again in 2009; |
| • | Rising per-unit car fleet cost and changes in conditions in the used vehicle marketplace; |
| • | Changes in the financial condition of vehicle manufacturers; |
| • | Difficulty in achieving sustained pricing increases; |
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| • | Our expansion in off-airport or local vehicle rentals, including insurance replacement rentals; |
| • | Increases in borrowing costs for corporate and vehicle-related debt; and |
| • | Demand for truck rentals, which has been impacted by a decline in household moving activity. |
Many of these trends are the result of the current downturn in the U.S. and worldwide economies and have caused EBITDA for our domestic car rental and truck rental segments for the year ended December 31, 2008 to be significantly lower than for the year ended December 31, 2007. Due to reduced demand for travel services, rising borrowing costs and other factors, there can be no assurance that we will be able to satisfy the minimum EBITDA requirement and other covenants contained in our senior credit facilities, and our asset-backed car rental conduit facilities. Failure to comply with such covenants could significantly impact our liquidity if we were unable to obtain an amendment or waiver or were unable to refinance or obtain a replacement for such facilities. There can also be no assurance that 2008 results will be indicative of results we will achieve in 2009.
We have also been impacted by, and may be further impacted by, the current financial market disruptions as we rely heavily on financing for our operations, particularly asset-backed financing. The amendments we obtained to our senior credit facilities and asset-backed car rental conduit facilities in October and December 2008 amended the pricing, financial covenants and other terms in those facilities. As a result, our borrowing costs under such facilities will increase in 2009 compared to 2008 and the letter of credit availability and borrowing capacity under our senior credit facilities were reduced. These asset-backed car rental conduit facilities mature from September through December of 2009. To the extent we were to require any further amendment or waiver under our senior credit facilities or asset-backed car rental conduit facilities, our borrowing costs would likely increase even further. See “Risk Factors—Risks related to our indebtedness.”
RESULTS OF OPERATIONS
Discussed below are our consolidated results of operations and the results of operations for each of our reportable segments. Generally accepted accounting principles require us to segregate and report as discontinued operations, for all periods presented, the account balances and activities of Realogy, Wyndham and Travelport.
We measure performance using the following key operating statistics: (i) rental days, which represents the total number of days (or portion thereof) a vehicle was rented, and (ii) T&M revenue per rental day, which represents the average daily revenue we earned from rental and mileage fees charged to our customers. Our car rental operating statistics (rental days and T&M revenue per rental day) are all calculated based on the actual usage of the vehicle during a 24-hour period. We believe that this methodology, while conservative, provides our management with the most relevant statistics in order to manage the business. Our calculation may not be comparable to other companies’ calculation of similarly-titled statistics.
The reportable segments presented below represent our operating segments for which separate financial information is available and is utilized on a regular basis by our chief operating decision maker to assess performance and to allocate resources. In identifying our reportable segments, we also consider the nature of services provided by our operating segments. Management evaluates the operating results of each of our reportable segments based upon revenue and “EBITDA,” which we define as income from continuing operations before non-vehicle related depreciation and amortization, any impairment of goodwill, other intangible asset or equity investment, non-vehicle related interest and income taxes. Our presentation of EBITDA may not be comparable to similarly-titled measures used by other companies.
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Year Ended December 31, 2008 vs. Year Ended December 31, 2007
Our consolidated results of operations comprised the following:
| 2008 | 2007 | Change | ||||||||||
| Net revenues |
$ | 5,984 | $ | 5,986 | $ | (2 | ) | |||||
| Total expenses |
7,327 | 6,978 | 349 | |||||||||
| Loss before income taxes |
(1,343 | ) | (992 | ) | (351 | ) | ||||||
| Benefit from income taxes |
(219 | ) | (45 | ) | (174 | ) | ||||||
| Loss from continuing operations |
(1,124 | ) | (947 | ) | (177 | ) | ||||||
| Loss from discontinued operations, net of tax |
- | (2 | ) | 2 | ||||||||
| Gain on disposal of discontinued operations, net of tax |
- | 33 | (33 | ) | ||||||||
| Net loss |
$ | (1,124 | ) | $ | (916 | ) | $ | (208 | ) | |||
During 2008, our net revenues decreased $2 million principally due to a $103 million (2%) decrease in T&M revenue, reflecting a 1% decrease in domestic and international car rental T&M revenue per day and a 7% decrease in our Truck rental T&M revenue per day, offset by a $101 million (8%) increase in ancillary revenues, such as counter sales of insurance products, GPS navigation unit rentals, gasoline sales and fees charged to customers. In addition, the total revenue decrease includes a $7 million favorable effect related to foreign currency exchange rate fluctuations on the translation of our international operations’ results into U.S. dollars.
The total expense increase of $349 million (5%) was principally due to (i) a $126 million (8%) increase in vehicle depreciation and lease charges resulting from an increase in per-unit fleet costs, (ii) a $114 million (4%) increase in operating expenses, representing higher gasoline costs (which increased $77 million), vehicle licensing expenses and other items, (iii) a $67 million (6%) increase in impairment charges recorded for the impairment of goodwill, our tradenames asset and our equity investment in Carey Holdings, Inc. (“Carey”), (iv) $28 million in restructuring costs primarily associated with severance related expenses and costs incurred for closing facilities and (v) the absence of $5 million in net separation related expenses primarily resulting from tax related items. The increase in total expenses includes an adverse impact from foreign currency exchange rates of $7 million, offset by a gain on foreign currency earnings hedges of $7 million. As a result of these items, offset by a $174 million increase in our benefit from income taxes, our loss from continuing operations increased $177 million.
Our effective tax rate for continuing operations was a benefit of 16.3% and 4.5% for 2008 and 2007, respectively. The unusually low tax rate for 2008 and 2007 was primarily due from the non-deductible portion of the impairment charges.
Following is a more detailed discussion of the results of each of our reportable segments:
| Revenues | EBITDA (a) | |||||||||||||||||||
| 2008 | 2007 | % Change |
2008 | 2007 | % Change |
|||||||||||||||
| Domestic Car Rental |
$ | 4,695 | $ | 4,679 | 0 | % | $ | 12 | $ | 265 | (95 | )% | ||||||||
| International Car Rental |
904 | 873 | 4 | 141 | 131 | 8 | ||||||||||||||
| Truck Rental |
382 | 416 | (8 | ) | (4 | ) | 17 | * | ||||||||||||
| Corporate and Other (b) |
3 | 18 | * | (13 | ) | 1 | * | |||||||||||||
| Total Company |
$ | 5,984 | $ | 5,986 | 136 | 414 | ||||||||||||||
| Less: Non-vehicle related depreciation and amortization |
88 | 84 | ||||||||||||||||||
| Interest expense related to corporate debt, net |
129 | 127 | ||||||||||||||||||
| Impairment (c) |
1,262 | 1,195 | ||||||||||||||||||
| Loss before income taxes |
$ | (1,343 | ) | $ | (992 | ) | ||||||||||||||
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| (*) |
Not meaningful. |
| (a) |
In 2007, EBITDA reflects separation-related costs (credits) of $5 million in Domestic Car Rental and ($10) million in Corporate and Other. |
| (b) |
Includes unallocated corporate overhead and the elimination of transactions between segments. |
| (c) |
We recorded a charge of $1,262 million for the impairment of goodwill, our tradenames asset and our investment in Carey during 2008. Domestic Car Rental recorded $882 million of the charge, International Car Rental recorded $275 million, Truck Rental recorded $87 million and Corporate and Other recorded $18 million. During 2007, we recorded a charge of $1,195 million for the impairment of goodwill. Domestic Car Rental recorded $786 million of the goodwill impairment, International Car Rental recorded $268 million and Truck Rental recorded $141 million. |
Domestic Car Rental
Revenues increased $16 million (less than 1%) while EBITDA decreased $253 million (95%) in 2008 compared with 2007. Revenue increased due to growth in ancillary revenues offset by lower car rental pricing. EBITDA margins were negatively impacted year-over-year by lower car rental pricing, increased fleet costs and severance costs.
The revenue increase of $16 million was comprised of a $91 million (9%) increase in ancillary revenues, offset by a $74 million (2%) decrease in T&M revenue. The $91 million increase in ancillary revenues was primarily due to (i) a $48 million increase in rentals of GPS navigation units, our implementation of an energy recovery fee, sales of insurance products and other items, (ii) a $33 million increase in gasoline sales, which was more than offset in EBITDA by $71 million of higher gasoline expense including an unfavorable impact of $31 million from gasoline hedges, and (iii) a $10 million increase in airport concession and vehicle licensing revenues, $6 million of which was offset in EBITDA by higher airport concession and vehicle licensing expenses remitted to airport and other regulatory authorities. The decrease in T&M revenue was principally driven by a 1% decrease in T&M revenue per day, while rental days remained essentially unchanged year-over-year.
The favorable effect of increased revenues was offset in EBITDA by $133 million (10%) of increased fleet depreciation and lease charges resulting from an 11% increase in per-unit fleet costs, while the average size of our domestic rental fleet decreased 1%. EBITDA also reflected a $61 million (2%) increase in operating and selling, general and administrative and other expenses including (i) $23 million of restructuring charges recorded in 2008 primarily due to expenses related to severance and the closure of rental facilities, (ii) $22 million of incremental operating expenses primarily representing inflationary increases in wages and salaries, off-airport rental expense and other costs offset by expense savings from our process improvement and cost-reduction initiatives, and (iii) a $9 million increase in selling, general and administration expense primarily related to higher travel agency commissions, travel incentive programs and other marketing costs.
International Car Rental
Revenues and EBITDA increased $31 million (4%) and $10 million (8%), respectively, in 2008 compared with 2007. Revenue and EBITDA increased primarily due to growth in ancillary revenues and the impact of foreign currency exchange rate movements.
The revenue increase of $31 million was comprised of a $28 million (11%) increase in ancillary revenues and a $3 million increase in car rental T&M revenue. The total growth in revenue includes a $7 million increase related to foreign currency exchange rates, impacting T&M revenue by $6 million and ancillary revenues by $1 million, and was largely offset in EBITDA by the opposite impact of foreign exchange on expenses of $7 million. The $28 million increase in ancillary revenues was primarily due to (i) a $13 million increase in counter sales of insurance, rentals of GPS navigation units and other items, (ii) a $12 million increase in airport concession and vehicle licensing revenues, $4 million of which was offset in EBITDA by higher airport concession and vehicle licensing expense remitted to airport and other regulatory authorities, and (iii) a $3 million increase in gasoline sales, which was more than offset in EBITDA by higher gasoline costs. The increase in T&M revenue was principally driven by a 1% increase in rental days, while T&M revenue per day remained essentially unchanged year-over-year.
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The favorable effect of incremental T&M revenues was offset in EBITDA by $6 million (3%) of increased fleet depreciation and lease charges, reflecting a 2% increase in the average size of our international rental fleet and a 1% increase in per-unit fleet costs. EBITDA also reflects a $6 million (2%) increase in incremental operating expenses including (i) a $9 million increase in salaries and wages, rents and other costs, (ii) a $4 million increase in selling, general and administrative expense related primarily to increased agency operator commissions, marketing and other expenses, and (iii) $3 million of restructuring charges recorded in 2008 for severance related expenses and costs for facility closures. These cost increases were offset by a $3 million reduction in insurance costs due to favorable claims experience and a $7 million gain on our foreign exchange earnings hedges.
Truck Rental
Revenues and EBITDA declined $34 million (8%) and $21 million, respectively, in 2008 compared with 2007.
The revenue decrease was due to a decline of $32 million (10%) in T&M revenue, which reflected a 7% decrease in T&M revenue per day and a 3% decrease in rental days in 2008 compared with 2007. The unfavorable effect of decreased revenue on EBITDA was partially offset by $11 million (9%) less fleet depreciation, lease charges and interest primarily reflecting an increase in the planned service lives of our truck fleet. EBITDA also reflected a decrease of $7 million in operating commission expense primarily as a result of the decrease in T&M revenue, and $2 million of restructuring charges recorded in 2008 for severance related expenses.
Corporate and Other
Revenue and EBITDA declined $15 million and $14 million, respectively, in 2008 compared with 2007.
The revenue decrease was primarily due to a decrease in revenues earned for information technology and other service contracts with Realogy, Wyndham and Travelport as the contracts expire and various services are no longer required. EBITDA decreased primarily due to the absence of a $14 million credit related to tax-related receivables from Realogy and Wyndham, recognized in connection with the adoption of FASB Interpretation No. 48 (“FIN 48”), “Accounting for Uncertainty in Income”, in first quarter 2007.
Year Ended December 31, 2007 vs. Year Ended December 31, 2006
Our consolidated results of operations comprised the following:
| 2007 | 2006 | Change | ||||||||||
| Net revenues |
$ | 5,986 | $ | 5,689 | $ | 297 | ||||||
| Total expenses |
6,978 | 6,366 | 612 | |||||||||
| Loss before income taxes |
(992 | ) | (677 | ) | (315 | ) | ||||||
| Benefit from income taxes |
(45 | ) | (226 | ) | 181 | |||||||
| Loss from continuing operations |
(947 | ) | (451 | ) | (496 | ) | ||||||
| Income (loss) from discontinued operations, net of tax |
(2 | ) | 478 | (480 | ) | |||||||
| Gain (loss) on disposal of discontinued operations, net of tax |
33 | (1,957 | ) | 1,990 | ||||||||
| Cumulative effect of accounting changes, net of tax |
- | (64 | ) | 64 | ||||||||
| Net loss |
$ | (916 | ) | $ | (1,994 | ) | $ | 1,078 | ||||
During 2007, our total revenues increased $297 million (5%) driven by our car rental operations, which experienced a 5% increase in T&M revenue, reflecting a 4% increase in rental days and a 1% increase in T&M revenue per day, and a 13% increase in ancillary revenue. The growth in our car rental operations was partially offset by a 7% reduction in truck rental days and an 8% reduction in truck T&M revenue per day. Ancillary revenue growth was primarily driven by increases in airport concession and vehicle licensing revenues, rentals of GPS navigation units, and sales of loss damage waivers and insurance products. In addition, the total revenue
42
increase includes $67 million related to foreign currency exchange rate fluctuations on the translation of our international operations results into U.S. dollars.
Total expenses increased $612 million (10%) due to (i) a $1,195 million charge recorded for the impairment of goodwill at each of our reporting units to reflect the decline in their fair value as evidenced by a decline in the market value of our common stock, (ii) a $146 million (5%) increase in operating expense largely due to the 4% increase in car rental days, (iii) an increase in vehicle depreciation and lease charges of $155 million (11%) resulting from higher per unit vehicle costs and 4% growth in our average car rental fleet and (iv) the adverse impact from foreign exchange currency rates of $56 million. The increase in expenses was offset by decreases principally due to the $313 million charge for early extinguishment of debt incurred during 2006 and a $266 million decrease in separation-related costs. The separation costs related primarily to severance, retention and legal, accounting and other professional fees incurred in connection with the Cendant Separation. We also experienced (i) a $160 million reduction in selling, general and administrative expenses resulting mainly from unallocated corporate expense in 2006 related to the discontinued operations treatment of our former subsidiaries and (ii) $109 million lower interest expense related to corporate debt, resulting from the repayment of approximately $3.5 billion of such debt in third quarter 2006. As a result of these items and a $181 million reduction in our benefit from income taxes, our loss from continuing operations increased $496 million. Our effective tax rate for continuing operations were benefits of 4.5% and 33.4% for 2007 and 2006, respectively. The decrease in our effective tax rate for 2007 was primarily due to the non-deductible portion of the goodwill impairment charge.
Income (loss) from discontinued operations decreased $480 million, which principally reflects the absence of net income generated by Realogy, Wyndham and Travelport prior to the Cendant Separation, which was completed in 2006. The $2 billion increase in gain (loss) on disposal of discontinued operations, net of tax primarily represents the loss on disposal of discontinued operations in 2006, partially offset by a tax benefit realized as a result of certain elections made in connection with the Travelport disposition on the income tax returns filed during 2007.
Absent in 2007 were the non-cash charges recorded in 2006 of $103 million ($64 million, after tax) to reflect the cumulative effect of accounting changes as a result of our adoption of (i) Statement of Financial Accounting Standards (“SFAS”) No. 152, “Accounting for Real Estate Time-Sharing Transactions,” and American Institute of Certified Public Accountants’ Statement of Position No. 04-2, “Accounting for Real Estate Time-Sharing Transactions” on January 1, 2006, which resulted in a non-cash charge of $65 million after tax, and (ii) SFAS No. 123R, “Share-Based Payment,” on January 1, 2006, which resulted in a non-cash credit of $1 million after tax.
As a result of the above-mentioned items, net loss decreased approximately $1.1 billion.
Following is a more detailed discussion of the results of each of our reportable segments:
| Revenues | EBITDA(a) | |||||||||||||||||||
| 2007 | 2006 | % Change |
2007 | 2006 | % Change |
|||||||||||||||
| Domestic Car Rental |
$ | 4,679 | $ | 4,395 | 6 | % | $ | 265 | $ | 214 | 24 | % | ||||||||
| International Car Rental |
873 | 761 | 15 | 131 | 111 | 18 | ||||||||||||||
| Truck Rental |
416 | 472 | (12 | ) | 17 | 45 | (62 | ) | ||||||||||||
| Corporate and Other (b) |
18 | 61 | * | 1 | (393 | ) | * | |||||||||||||
| Total Company |
$ | 5,986 | $ | 5,689 | 414 | (23 | ) | |||||||||||||
| Less: Non-vehicle related depreciation and amortization |
84 | 105 | ||||||||||||||||||
| Interest expense related to corporate debt, net (c) |
127 | 549 | ||||||||||||||||||
| Goodwill impairment (d) |
1,195 | - | ||||||||||||||||||
| Loss before income taxes |
$ | (992 | ) | $ | (677 | ) | ||||||||||||||
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| (*) |
Not meaningful. |
| (a) |
In 2007, EBITDA reflects separation-related costs (credits) of $5 million in Domestic Car Rental and ($10) million in Corporate and Other. In 2006, EBITDA reflects separation-related costs of $19 million in Domestic Car Rental, $1 million in International Car Rental, $3 million in Truck Rental and $238 million in Corporate and Other. |
| (b) |
Includes unallocated corporate overhead, the elimination of transactions between segments and the results of operations of certain non-strategic businesses. In addition, EBITDA for 2006 reflects unallocated corporate expenses related to discontinued operations. Following the completion of the Cendant Separation, we do not incur the majority of such costs. |
| (c) |
The amount in 2006 includes a $313 million charge related to the early extinguishment of corporate debt. |
| (d) |
We recorded a charge of $1,195 million for the impairment of goodwill during the three months ended December 31, 2007. Domestic Car Rental recorded $786 million of the goodwill impairment, International Car Rental recorded $268 million and Truck Rental recorded $141 million. |
Domestic Car Rental
Revenues and EBITDA increased $284 million (6%) and $51 million (24%), respectively, in 2007 compared with 2006. We experienced increased demand for car rentals and significantly increased our ancillary revenues.
The revenue increase of $284 million was comprised of a $132 million (4%) increase in T&M revenue and a $152 million (19%) increase in ancillary revenues. The increase in T&M revenue was principally driven by a 4% increase in rental days. The $152 million increase in ancillary revenues was due primarily to (i) a $72 million increase in airport concession and vehicle licensing revenues, $20 million of which was offset in EBITDA by higher airport concession and vehicle licensing expenses remitted to airport and other regulatory authorities, (ii) a $69 million increase in rentals of GPS navigation units, sales of loss damage waivers and insurance products and other items, and (iii) an $11 million increase in gasoline sales.
The favorable effect of incremental revenues was offset in EBITDA by $125 million (11%) of increased fleet depreciation and lease charges primarily resulting from increased per-unit fleet costs in 2007 and a 4% increase in average fleet. EBITDA also reflected a $92 million increase in operating expenses including (i) $64 million of additional expenses associated with increased car rental volume and fleet size, primarily related to credit card fees and agency operator commissions and (ii) $29 million of incremental expenses, primarily representing inflationary increases in salaries and wages and off-airport rental expense. We incurred $8 million more vehicle-related interest expense during 2007 compared to 2006, primarily due to the loss of intercompany interest income recorded in 2006 prior to the Cendant Separation. EBITDA also benefited from a $17 million decrease in separation-related costs, primarily related to accelerated vesting of stock-based compensation awards incurred in 2006.
International Car Rental
Revenues and EBITDA increased $112 million (15%) and $20 million (18%), respectively, in 2007 compared with 2006, primarily due to the impact of foreign currency exchange rate fluctuations, increased car rental pricing and higher demand for car rentals.
The revenue increase of $112 million was comprised of a $73 million (13%) increase in car rental T&M revenue and a $39 million (18%) increase in ancillary revenues. The increase in T&M revenue was principally driven by a 10% increase in T&M revenue per day and a 3% increase in the number of days a car was rented. The total growth in revenue includes a $67 million increase related to the translation of foreign currency exchange rates, which increased T&M revenue per day by 8% and was largely offset in EBITDA by the opposite impact on expenses and provided a net benefit of $8 million year-over-year. The $39 million increase in ancillary revenues was due primarily to (i) a $23 million increase in counter sales of insurance and other items, and (ii) a $13 million increase in airport concession and vehicle licensing revenues, which was more than offset in EBITDA by higher airport concession and vehicle licensing expenses remitted to airport and other regulatory authorities.
The favorable effect of incremental T&M revenues was partially offset in EBITDA by $27 million (15%) of increased fleet depreciation and lease charges principally resulting from an increase of 4% in the average size of
44
our international rental fleet and increased per-unit fleet costs including the effects of foreign exchange movements. EBITDA also reflects $37 million of incremental operating expenses including (i) $22 million in inflationary increases in salaries and wages, rents and other costs, (ii) $11 million in additional expenses associated with increased car rental volume, primarily related to license and registration fees and other vehicle costs, and (iii) $4 million in increased gasoline expenses. We incurred $7 million more interest expense during 2007 than in 2006 due to increased borrowings for international operations and higher interest rates.
Truck Rental
Revenues and EBITDA declined $56 million (12%) and $28 million (62%), respectively, in 2007 compared with 2006, primarily reflecting decreases in rental day volume and T&M revenue per day. EBITDA was also impacted by increased fleet costs.
Substantially all of the revenue decrease was due to a decline in T&M revenue, which reflected a 7% reduction in rental days and an 8% decrease in T&M revenue per day. The 7% reduction in rental days resulted primarily from declines in one-way consumer and commercial volumes, and a 6% reduction in the average size or our rental fleet. We believe these decreases reflect a soft housing market and heightened competition for commercial rentals. Despite the reduction in the average size of our truck rental fleet, we incurred $4 million (4%) of incremental fleet depreciation, interest and lease charges primarily due to higher per-unit fleet costs, including a reduction in expense of $5 million due to a change in projected vehicle hold periods. These items were offset by $22 million in reduced operating expenses, including (i) a decrease of $11 million in operating commission expense primarily reflecting the decrease in T&M revenue, (ii) a $10 million decrease in maintenance and damage costs, and (iii) an $8 million reduction in insurance expense as a result of favorable claims experience and the reduction in rental days. EBITDA also reflected a $5 million reduction in restructuring charges compared to 2006 and a year-over-year reduction of $3 million in costs related to the Cendant Separation.
Corporate and Other
Revenues decreased $43 million and EBITDA increased from a loss of $393 million in 2006 to an income of $1 million in 2007.
Revenues were lower in 2007 due to (i) the absence of $17 million in revenue associated with a credit card marketing program under which we earned fees based on a percentage of credit card spending through the date of the Cendant Separation, (ii) a $16 million decrease in revenues earned for information technology service contracts with Realogy, Wyndham and Travelport as the contracts expire and services are no longer being provided and (iii) a $10 million reduction primarily related to dividend income and gains on the sale of marketable securities in 2006.
EBITDA increased primarily due to (i) a $131 million reduction in selling and general expenses resulting from the spin-offs of Realogy and Wyndham and the sale of Travelport in third quarter 2006, (ii) a $248 million reduction in separation-related expenses, including unallocated corporate costs, (iii) a $40 million reduction in legal fees for litigation related to the former CUC business units and (iv) a $21 million decrease in intercompany interest expense prior to the Cendant Separation.
FINANCIAL CONDITION, LIQUIDITY AND CAPITAL RESOURCES
We present separately the financial data of our vehicle programs. These programs are distinct from our other activities as the assets under vehicle programs are generally funded through the issuance of debt that is collateralized by such assets. The income generated by these assets is used, in part, to repay the principal and interest associated with the debt. Cash inflows and outflows relating to the generation or acquisition of such assets and the principal debt repayment or financing of such assets are classified as activities of our vehicle
45
programs. We believe it is appropriate to segregate the financial data of our vehicle programs because, ultimately, the source of repayment of such debt is the realization of such assets.
FINANCIAL CONDITION
| December 31, 2008 |
December 31, 2007 |
Change | |||||
| Total assets exclusive of assets under vehicle programs |
$3,492 | $4,493 | $(1,001 | ) | |||
| Total liabilities exclusive of liabilities under vehicle programs |
3,811 | 3,889 | (78 | ) | |||
| Assets under vehicle programs |
7,826 | 7,981 | (155 | ) | |||
| Liabilities under vehicle programs |
7,414 | 7,120 | 294 | ||||
| Stockholders’ equity |
93 | 1,465 | (1,372 | ) |
Total assets exclusive of assets under vehicle programs decreased approximately $1.0 billion primarily due to (i) a charge of $1,262 million recorded in 2008 for the impairment to our goodwill, our tradenames asset within our other intangible assets, net and our equity investment in Carey, (ii) a $109 million decrease within other current assets for receivables due from Realogy and Wyndham, (iii) a $39 million decrease in income taxes receivable, (iv) a $36 million decrease in derivatives related to our vehicle debt driven by fluctuations in interest rates, and (v) a $32 million decrease in accounts receivable. These decreases were offset by (i) a $302 million increase in deferred taxes, (ii) a $77 million increase in other non-current assets related to an increase to the tax indemnification receivables from Realogy and Wyndham, (iii) a $48 million increase in other non-current assets and (iv) a $44 million increase in cash and cash equivalents (see “Liquidity and Capital Resources—Cash Flows” for a detailed discussion).
Total liabilities exclusive of liabilities under vehicle programs decreased $78 million primarily due to decreases of (i) $48 million in accounts payable, (ii) $39 million in tax liabilities for which we are entitled to indemnification from Realogy and Wyndham, (iii) $37 million in accrued payroll related liabilities, which related primarily to the payment of the 2007 annual incentives in first quarter 2008, (iv) $33 million in non-current insurance liabilities, (v) $27 million in advertising and marketing related liabilities and (vi) $15 million in accrued legal settlements. These decreases were partially offset by a net $86 million increase in other non-current liabilities, primarily related to a $68 million increase in tax liabilities for which we are entitled to indemnification from Realogy and Wyndham and a $40 million increase in long-term income taxes payable.
Assets under vehicle programs decreased $155 million primarily due to (i) a $310 million decrease in our net vehicles primarily due to the effect of foreign currency translations and (ii) a $113 million decrease in our Investment in Avis Budget Rental Car Funding (AESOP) LLC primarily due to mark-to-market losses on derivatives. These decreases were partially offset by a $257 million increase in receivables for vehicles sold.
Liabilities under vehicle programs increased $294 million, reflecting $438 million in additional borrowings, offset by an $86 million decrease in invoices from manufacturers for vehicles received. See “Liquidity and Capital Resources—Debt and Financing Arrangements” for a detailed account of the change in our debt related to vehicle programs.
Stockholders’ equity decreased approximately $1.4 billion primarily due to (i) a net loss of $1,124 million, (ii) a $226 million decrease in accumulated other comprehensive income primarily as a result of currency translation adjustments, unrealized losses on interest rate hedges and the decrease in the fair value of our pension plan assets and (iii) the repurchase of approximately $33 million of our common stock.
46
LIQUIDITY AND CAPITAL RESOURCES
Our principal sources of liquidity are cash on hand and our ability to generate cash through operations and financing activities, as well as available funding arrangements and committed credit facilities, each of which is discussed below.
CASH FLOWS
At December 31, 2008, we had $258 million of cash on hand, an increase of $44 million from $214 million at December 31, 2007. The following table summarizes such increase:
| Year Ended December 31, | ||||||||||||
| 2008 | 2007 | Change | ||||||||||
| Cash provided by (used in): |
||||||||||||
| Operating activities |
$ | 1,704 | $ | 1,714 | $ | (10 | ) | |||||
| Investing activities |
(2,096 | ) | (1,917 | ) | (179 | ) | ||||||
| Financing activities |
463 | 239 | 224 | |||||||||
| Effects of exchange rate changes |
(27 | ) | 6 | (33 | ) | |||||||
| Net change in cash and cash equivalents |
$ | 44 | $ | 42 | $ | 2 | ||||||
During 2008, we generated $10 million less cash from operating activities in comparison to 2007. This change principally reflected (i) a decrease in operating results in 2008 primarily due to higher expenses than those incurred in 2007 and (ii) a decrease in tax related items, offset by a reduced use of cash for working capital requirements during the year.
We used $179 million more cash in investing activities during 2008 compared with 2007. This change primarily reflects the activities of our vehicle programs, which used approximately $169 million more cash primarily due to the reduction in proceeds received on disposition of vehicles resulting from a reduction in vehicle dispositions. Additionally, there was $77 million of incremental spending for acquisitions of vehicle rental franchises during 2008, offset by the cash used in 2007 for our equity investment in Carey. During 2009, we expect to utilize at least $4.6 billion of cash to purchase rental vehicles, which will primarily be funded with proceeds received on the sale of rental vehicles to manufacturers under repurchase and guaranteed depreciation agreements or in the used vehicle market and our borrowings under our vehicle-backed debt programs. We anticipate aggregate capital expenditures will approximate $75 million in 2009.
We generated $224 million more cash from financing activities during 2008 compared to 2007. This change primarily reflects (i) a $299 million net increase in cash provided under our vehicle programs’ financing activities primarily due to reduced principal payments required on our vehicle-backed debt and (ii) a $35 million decrease in debt principal payments related to our corporate borrowings in 2008. These reductions in cash outflows were partially offset by an $83 million net increase in cash utilized for the repurchases of common stock during 2008 versus cash received in 2007 for common stock issuances.
DEBT AND FINANCING ARRANGEMENTS
At December 31, 2008, we had approximately $7.8 billion of indebtedness (including corporate indebtedness of approximately $1.8 billion and debt under vehicle programs of approximately $6.0 billion).
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Corporate indebtedness consisted of:
| Maturity Date |
As of December 31, 2008 |
As of December 31, 2007 |
Change | |||||||||
| Floating rate term loan (a) (b) |
April 2012 | $ | 787 | $ | 796 | $ | (9 | ) | ||||
| Floating rate notes (a) |
May 2014 | 250 | 250 | - | ||||||||
| 7 5/8% notes (a) |
May 2014 | 375 | 375 | - | ||||||||
| 7 3/4% notes (a) |
May 2016 | 375 | 375 | - | ||||||||
| 1,787 | 1,796 | (9 | ) | |||||||||
| Other |
2 | 1 | 1 | |||||||||
| $ | 1,789 | $ | 1,797 | $ | (8 | ) | ||||||
| (a) |
In connection with the Separation, Avis Budget Car Rental borrowed $1,875 million in April 2006, which consisted of (i) $1 billion of unsecured fixed and floating rate notes and (ii) an $875 million secured floating rate term loan under our senior credit facilities. During December 2008, we amended this facility to change the financial covenants, interest rate spreads and restrictions on certain activities. As of December 31, 2008 the floating rate term loan and floating rate notes bear interest at three month LIBOR plus 375 basis points and three month LIBOR plus 250 basis points, respectively. We use various hedging strategies, including derivative instruments, to manage a portion of the risks associated with our floating rate debt. |
| (b) |
Our senior credit facilities are secured by pledges of all of the capital stock of substantially all of our direct or indirect domestic subsidiaries and up to 66% of the capital stock of each direct foreign subsidiary, subject to certain exceptions, and liens on substantially all of our intellectual property and certain other real and personal property. |
The following table summarizes the components of our debt under vehicle programs (including related party debt due to Avis Budget Rental Car Funding (AESOP) LLC (“Avis Budget Rental Car Funding”)):
| As of December 31, 2008 |
As of December 31, 2007 |
Change | ||||||||
| Debt due to Avis Budget Rental Car Funding (a) |
$ | 5,142 | $ | 4,646 | $ | 496 | ||||
| Budget Truck financing: |
||||||||||
| Budget Truck Funding program (b) |
316 | 246 | 70 | |||||||
| Capital leases |
126 | 204 | (78 | ) | ||||||
| Other (c) |
450 | 500 | (50 | ) | ||||||
| $ | 6,034 | $ | 5,596 | $ | 438 | |||||
| (a) |
As of December 31, 2008, the principal sources of the $5.1 billion of debt are $4.8 billion of third party debt issued by Avis Budget Rental Car Funding, $85 million of our equity investment in Avis Budget Rental Car Funding and $215 million of interest rate derivative hedges. The increase principally reflects $468 million of incremental borrowings under our various debt arrangements to support the acquisition of rental vehicles within our Domestic Car Rental operations. |
| (b) |
The increase primarily reflects incremental borrowings under our conduit facility to support the acquisition of rental vehicles within our Budget Truck rental fleet. |
| (c) |
The decrease primarily reflects the effect of foreign currency exchange movements. |
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The following table provides the contractual maturities for our corporate debt and our debt under vehicle programs (including related party debt due to Avis Budget Rental Car Funding) at December 31, 2008:
| Corporate Debt |
Debt under Vehicle Programs | |||||
| Due in 2009 |
$ | 10 | $ | 2,263 | ||
| Due in 2010 |
9 | 1,389 | ||||
| Due in 2011 |
9 | 974 | ||||
| Due in 2012 |
761 | 1,108 | ||||
| Due in 2013 |
- | - | ||||
| Thereafter |
1,000 | 300 | ||||
| $ | 1,789 | $ | 6,034 | |||
At December 31, 2008, we had approximately $1.5 billion of available funding under our various financing arrangements (comprised of approximately $340 million of availability at the corporate level and approximately $1.1 billion available for use in our vehicle programs). As of December 31, 2008, the committed credit facilities available to us and/or our subsidiaries at the corporate or Avis Budget Car Rental level included:
| Total Capacity |
Outstanding Borrowings |
Letters of Credit Issued |
Available Capacity | |||||||||
| Revolving credit facility (a) |
$ | 1,150 | $ | - | $ | 816 | $ | 334 | ||||
| Letter of credit facility (b) |
228 | - | 224 | 4 | ||||||||
| (a) |
This secured revolving credit facility was entered into by Avis Budget Car Rental in April 2006 and amended in December 2008, has a five year term and as of December 31, 2008 bears interest of LIBOR plus 400 basis points. The floating rate term loan and our revolving credit facility are secured by pledges of all of the capital stock of all of the Company’s direct or indirect domestic subsidiaries and up to 66% of the capital stock of each direct foreign subsidiary, subject to certain exceptions, and liens on substantially all of the Company’s intellectual property and certain other real and personal property. |
| (b) |
Final maturity date is July 2010. |
The following table presents available funding under our debt arrangements related to our vehicle programs at December 31, 2008:
| Total Capacity (a) |
Outstanding Borrowings |
Available Capacity | |||||||
| Debt due to Avis Budget Rental Car Funding (b) |
$ | 5,967 | $ | 5,142 | $ | 825 | |||
| Budget Truck Financing: |
|||||||||
| Budget Truck Funding program (c) |
316 | 316 | - | ||||||
| Capital leases (d) |
126 | 126 | - | ||||||
| Other (e) |
761 | 450 | 311 | ||||||
| $ | 7,170 | $ | 6,034 | $ | 1,136 | ||||
| (a) |
Capacity is subject to maintaining sufficient assets to collateralize debt. |
| (b) |
The outstanding debt is collateralized by approximately $6.6 billion of underlying vehicles and related assets. |
| (c) |
The outstanding debt is collateralized by $334 million of underlying vehicles and related assets. |
| (d) |
These capital leases are collateralized by $144 million of underlying vehicles. |
| (e) |
The outstanding debt is collateralized by $869 million of vehicles and related assets. |
The significant terms for our outstanding debt instruments, credit facilities and available funding arrangements as of December 31, 2008 can be found in Notes 16 and 17 to our Consolidated Financial Statements.
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LIQUIDITY RISK
Our primary liquidity needs include the payment of operating expenses, servicing of corporate and vehicle related debt and procurement of rental vehicles to be used in our operations. Our primary sources of funding are operating revenue, cash received upon sale of vehicles, borrowings under our vehicle-backed borrowing arrangements and our revolving credit facility.
Our liquidity position has been and may be further negatively affected by the current financial market disruptions and the current downturn in the U.S. and worldwide economies, which have resulted in and may result in further unfavorable conditions in the vehicle rental industry, in the asset backed financing market, and in the credit markets generally. These factors have contributed to and could further contribute to changes in the debt ratings assigned to us by credit rating agencies and the cost of our borrowings. Additionally, the downturn in the U.S. economy and the disruption in the credit markets could further impact our liquidity due to (i) decreased demand and pricing for vehicles in the used vehicle market, (ii) increased costs associated with, and/or reduced capacity or increased collateral needs under, our financings, such as the increased costs, including additional collateral requirements, incurred in connection with recent amendments to our asset-backed conduit facilities and increased costs and decreased capacity that resulted from recent amendments to our senior credit facilities, (iii) the adverse impact of any of the vehicle manufacturers, including General Motors Corporation, Ford Motor Company, Hyundai Motor America, Kia Motors America or Chrysler LLC being unable or unwilling to honor its obligations to repurchase or guarantee the depreciation on the related program vehicles, (iv) any potential disruption to our ability to obtain financing due to negative credit events specific to us or affecting the overall debt market, including our ability to renew or replace our asset-backed car rental conduit facilities as they mature in 2009, (v) the impact of an actual or potential default by any of the financial guaranty firms that have insured a portion of our outstanding vehicle-backed debt and (vi) the effect of any of Realogy, Wyndham or Travelport being unable or unwilling to honor its obligations under the Separation Agreement. Our liquidity position also may be negatively affected if we are unable to remain in compliance with the financial and other covenants associated with our senior credit facilities and other borrowings. The indenture governing our senior unsecured notes prohibits us from incurring additional debt, subject to certain exceptions. We are currently unable to rely on the exception which requires compliance with an interest coverage ratio. “See Risk Factors—Risks related to our indebtedness.”
As of December 31, 2008, we were not aware of any instances of non-compliance with the financial covenants under our debt facilities.
CONTRACTUAL OBLIGATIONS
The following table summarizes our future contractual obligations as of December 31, 2008:
| 2009 | 2010 | 2011 | 2012 | 2013 | Thereafter | Total | |||||||||||||||
| Long-term debt, including current portion (a) |
$ | 10 | $ | 9 | $ | 9 | $ | 761 | $ | - | $ | 1,000 | $ | 1,789 | |||||||
| Debt under vehicle programs (b) |
2,263 | 1,389 | 974 | 1,108 | - | 300 | 6,034 | ||||||||||||||
| Debt interest |
430 | 282 | 226 | 120 | 75 | 87 | 1,220 | ||||||||||||||
| Operating leases (c) |
401 | 294 | 234 | 196 | 143 | 642 | 1,910 | ||||||||||||||
| Commitments to purchase vehicles (d) |
4,561 | - | - | - | - | - | 4,561 | ||||||||||||||
| Tax obligations (e) |
- | 480 | - | - | - | - | 480 | ||||||||||||||
| Other purchase commitments (f) |
40 | - | - | - | - | - | 40 | ||||||||||||||
| $ | 7,705 | $ | 2,454 | $ | 1,443 | $ | 2,185 | $ | 218 | $ | 2,029 | $ | 16,034 | ||||||||
| (a) |
Consists primarily of borrowings of Avis Budget Car Rental including $1.0 billion of fixed and floating rate senior notes and $789 million outstanding under a secured floating rate term loan. |
| (b) |
Represents debt under vehicle programs (including related party debt due to Avis Budget Rental Car Funding), which was issued to support the purchase of vehicles. |
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| (c) |
Operating lease obligations are presented net of sublease rentals to be received (see Note 18 to our Consolidated Financial Statements). |
| (d) |
Represents commitments to purchase vehicles, the majority of which are from General Motors Corporation, Ford Motor Company, Hyundai Motor America or Chrysler LLC. These commitments are subject to the vehicle manufacturers satisfying their obligations under the repurchase and guaranteed depreciation agreements. The purchase of such vehicles is financed through the issuance of debt under vehicle programs in addition to cash received upon the sale of vehicles, many of which are under repurchase and guaranteed depreciation programs (see Note 18 to our Consolidated Financial Statements). |
| (e) |
Primarily represents income tax uncertainties related to FIN 48, “Accounting for Uncertainty in Income Taxes—an interpretation of FASB Statement No. 109”, substantially all of which are subject to indemnification by Realogy and Wyndham. |
| (f) |
Primarily represents commitments under service contracts for information technology and telecommunications. |
For more information regarding guarantees and indemnifications, see Note 18 to our Consolidated Financial Statements.
ACCOUNTING POLICIES
Critical Accounting Policies
In presenting our financial statements in conformity with generally accepted accounting principles, we are required to make estimates and assumptions that affect the amounts reported therein. Several of the estimates and assumptions we are required to make relate to matters that are inherently uncertain as they pertain to future events and/or events that are outside of our control. If there is a significant unfavorable change to current conditions, it could result in a material adverse impact to our consolidated results of operations, financial position and liquidity. We believe that the estimates and assumptions we used when preparing our financial statements were the most appropriate at that time. Presented below are those accounting policies that we believe require subjective and complex judgments that could potentially affect reported results. However, our businesses operate in environments where we are paid a fee for a service performed, and therefore the results of the majority of our recurring operations are recorded in our financial statements using accounting policies that are not particularly subjective, nor complex.
Goodwill and Other Indefinite-lived Intangible Assets. We have reviewed the carrying value of our goodwill and other indefinite-lived intangible assets as required by Statements of Accounting Standards (“SFAS”) No. 142, “Goodwill and Other Intangible Assets.” In performing this review, we are required to make an assessment of fair value for our goodwill and other indefinite-lived intangible assets. When determining fair value, we utilize various assumptions, including the fair market trading price of our common stock and management’s projections of future cash flows. A change in these underlying assumptions will cause a change in the results of the tests and, as such, could cause the fair value to be less than the respective carrying amount. In such event, we would then be required to record a charge, which would impact earnings. We review the carrying value of goodwill and other indefinite-lived intangible assets for impairment annually, or more frequently if circumstances indicate impairment may have occurred.
Our goodwill and other indefinite-lived intangible assets are allocated among three reporting units. During 2008, a $1,262 million ($1,053 million, net of tax) charge was recorded to reflect (i) the impairment of goodwill, (ii) the impairment of our tradenames assets and (iii) the impairment of our investment in Carey. These charges reflect the decline in their fair value below their carrying value, primarily as a result of reduced market valuations for vehicle services and other companies, as well as reduced profit forecasts due to soft economic conditions and increased financing costs. Domestic Car Rental operations recorded $882 million and International Car Rental recorded $275 million, for goodwill and tradename impairment, Truck Rental recorded $87 million for goodwill impairment and Corporate and Other recorded $18 million for the charge related to our investment in Carey. The aggregate carrying value of our goodwill and other indefinite-lived intangible assets was approximately $75 million and $402 million, respectively, at December 31, 2008.
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Vehicles. We present vehicles at cost, net of accumulated depreciation on the Consolidated Balance Sheets. We record the initial cost of the vehicle net of incentives and allowances from manufactures. We acquire our rental vehicles either through repurchase and guaranteed depreciation programs with certain automobile manufacturers or outside of such programs. For rental vehicles purchased under such programs, we depreciate the vehicles such that the net book value on the date of sale or return to the manufacturers is intended to equal the contractual guaranteed residual values. For vehicles acquired outside of manufacturer repurchase and guaranteed depreciation programs, we depreciate based on the vehicles’ estimated residual market values and their expected dates of disposition. See Note 2 to our Consolidated Financial Statements.
Income Taxes. We account for income taxes under the asset and liability method, which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the financial statements. Under this method, deferred tax assets and liabilities are determined based on the differences between the financial statement and tax bases of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. The effect of a change in tax rates on deferred tax assets and liabilities is recognized in income in the period that includes the enactment date.
We record net deferred tax assets to the extent we believe these assets will more likely than not be realized. In making such determination, we consider all available positive and negative evidence, including scheduled reversals of deferred tax liabilities, projected future taxable income, tax planning strategies and recent results of operations. In the event we were to determine that we would be able to realize deferred income tax assets in the future in excess of their net recorded amount, we would make an adjustment to the valuation allowance which would reduce the provision for income taxes. Currently the Company does not record valuation allowances on the majority of its tax loss carryforwards as there are adequate deferred tax liabilities that could be realized within the carryforward period.
See Notes 2 and 10 to our Consolidated Financial Statements for more information regarding income taxes.
Financial Instruments. We estimate fair values for each of our financial instruments, including derivative instruments. Most of these financial instruments are not publicly traded on an organized exchange. In the absence of quoted market prices, we must develop an estimate of fair value using dealer quotes, present value cash flow models, option pricing models or other conventional valuation methods, as appropriate. The use of these fair value techniques involves significant judgments and assumptions, including estimates of future interest rate levels based on interest rate yield curves, credit spreads of the Company and counterparties, volatility factors, and an estimation of the timing of future cash flows. The use of different assumptions may have a material effect on the estimated fair value amounts recorded in the financial statements, which are disclosed in Note 22 to our Consolidated Financial Statements. In addition, hedge accounting requires that at the beginning of each hedge period, we justify an expectation that the relationship between the changes in fair value of derivatives designated as hedges compared to changes in the fair value of the underlying hedged items will be highly effective. This effectiveness assessment, which is performed at least quarterly, involves an estimation of changes in fair value resulting from changes in interest rates, as well as the probability of the occurrence of transactions for cash flow hedges. The use of different assumptions and changing market conditions may impact the results of the effectiveness assessment and ultimately the timing of when changes in derivative fair values and the underlying hedged items are recorded in earnings. See “Item 7A. Quantitative and Qualitative Disclosures about Market Risk” for a discussion of the effect of hypothetical changes to these assumptions.
Public Liability, Property Damage and Other Insurance Liabilities, Net. Insurance liabilities on our Consolidated Balance Sheets include additional liability insurance, personal effects protection insurance, public liability, property damage and personal accident insurance claims for which we are self-insured. We estimate the required liability of such claims on an undiscounted basis utilizing an actuarial method that is based upon various assumptions which include, but are not limited to, our historical loss experience and projected loss development factors. The required liability is also subject to adjustment in the future based upon changes in claims experience, including changes in the number of incidents and changes in the ultimate cost per incident.
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Adoption of New Accounting Pronouncements
During 2008, we adopted the following standards as a result of the issuance of new accounting pronouncements:
| • | SFAS No. 157, “Fair Value Measurements” |
| • | FASB Staff Position FAS 157-1, “Application of SFAS No. 157 to SFAS No. 13 and its Related Interpretative Accounting Pronouncements that Address Leasing Transactions” |
| • | FASB Staff Position FAS 157-2, “Effective Date of SFAS 157” |
| • | FASB Staff Position FAS 157-3 “Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active” |
| • | SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities—Including an amendment of FASB Statement No. 115” |
| • | FASB Staff Position SFAS 133-1 and FIN 45-4, “Disclosures about Credit Derivatives and Certain Guarantees: An Amendment of FASB Statement No. 133 and FASB Interpretation No. 45; and Clarification of the Effective Date of FASB Statement No. 161” |
| • | FASB Staff Position FAS 140-4 and FIN 46(R)-8, “Disclosures by Public Entities (Enterprises) about Transfers of Financial Assets and Interests in Variable Interest Entities” |
We adopted the following recently issued accounting pronouncements effective January 1, 2009:
| • | SFAS No. 141(R), “Business Combinations” |
| • | SFAS No. 160, “Noncontrolling Interests in Consolidated Financial Statements—an amendment of ARB No. 51” |
| • | SFAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities—an amendment of FASB Statement No. 133” |
| • | FASB Staff Position FAS 132(R)-1, “Employers’ Disclosure about Postretirement Benefit Plan Assets” |
| • | FASB Staff Position FAS 142-3, “Determination of the Useful Life of Intangible Assets” |
| • | Emerging Issues Task Force (EITF) Issue No. 08-6, “Equity Method Investment Accounting Considerations” |
For detailed information regarding these pronouncements and the impact thereof on our business, see Notes 1 and 2 to our Consolidated Financial Statements.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We use various financial instruments, particularly swap contracts, futures and options contracts, to manage and reduce the interest rate risk related specifically to our debt. Foreign currency forwards are also used to manage and reduce the foreign currency exchange rate risk associated with our foreign currency denominated receivables and forecasted royalties, forecasted earnings of foreign subsidiaries and other transactions. We also use derivative commodity instruments to manage and reduce the risk of changing unleaded gasoline prices.
We are exclusively an end user of these instruments, which are commonly referred to as derivatives. We do not engage in trading, market-making or other speculative activities in the derivatives markets. More detailed information about these financial instruments is provided in Note 22 to our Consolidated Financial Statements.
Our principal market exposures are interest and foreign currency rate risks.
| • | Our primary interest rate exposure at December 31, 2008 was to interest rate fluctuations in the United States, specifically LIBOR and commercial paper interest rates due to their impact on variable rate borrowings and other interest rate sensitive liabilities. We anticipate that LIBOR and commercial paper rates will remain a primary market risk exposure for the foreseeable future. |
53
| • | We have foreign currency rate exposure to exchange rate fluctuations worldwide and particularly with respect to the Australian dollar, British pound, Canadian dollar and the New Zealand dollar. We anticipate that such foreign currency exchange rate risk will remain a market risk exposure for the foreseeable future. |
| • | We have commodity price exposure related to fluctuations in the price of unleaded gasoline. We anticipate that such commodity risk will remain a market risk exposure for the foreseeable future. |
We assess our market risk based on changes in interest and foreign currency exchange rates utilizing a sensitivity analysis. The sensitivity analysis measures the potential impact in earnings, fair values and cash flows based on a hypothetical 10% change (increase and decrease) in interest and currency rates.
We use a duration-based model in determining the impact of interest rate shifts on our debt portfolio and interest rate derivative portfolios. The primary assumption used in this model is that a 10% increase or decrease in the benchmark interest rate produces a parallel shift in the yield curve across all maturities.
Our total market risk is influenced by a wide variety of factors including the volatility present within the markets and the liquidity of the markets. There are certain limitations inherent in the sensitivity analyses presented. While probably the most meaningful analysis, these “shock tests” are constrained by several factors, including the necessity to conduct the analysis based on a single point in time and the inability to include the complex market reactions that normally would arise from the market shifts modeled.
We used December 31, 2008, 2007 and 2006 market rates on outstanding financial instruments to perform the sensitivity analyses separately for each of our market risk exposures. The estimates are based on the market risk sensitive portfolios described in the preceding paragraphs and assume instantaneous, parallel shifts in interest rate yield curves and exchange rates.
We have determined that the impact of a 10% change in interest rates exposure would not have a material impact on our operating income, fair values and cash flows. We have determined that the impact of a 10% change in foreign currency exchange rates and commodity prices on our earnings, fair values and cash flows would not be material. While these results may be used as benchmarks, they should not be viewed as forecasts.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See Consolidated Financial Statements and Consolidated Financial Statement Index commencing on Page F-1 hereof.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
| None. |
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ITEM 9A. CONTROLS AND PROCEDURES
| (a) | Disclosure Controls and Procedures. Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of our disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) as of the end of the period covered by this report. Based on such evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of the end of such period, our disclosure controls and procedures are effective. |
| (b) | Management’s Annual Report on Internal Control over Financial Reporting. Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act. Our management assessed the effectiveness of our internal control over financial reporting as of December 31, 2008. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control-Integrated Framework. Based on this assessment, our management believes that, as of December 31, 2008, our internal control over financial reporting is effective. Our independent registered public accounting firm has issued an attestation report on the effectiveness of the Company’s internal control over financial reporting, which is included below. |
| (c) | Changes in Internal Control Over Financial Reporting. There have not been any changes in the Company’s internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the Company’s fiscal fourth quarter that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting. |
55
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of Avis Budget Group, Inc.
We have audited the internal control over financial reporting of Avis Budget Group, Inc. and subsidiaries (the “Company”) as of December 31, 2008, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A company’s internal control over financial reporting is a process designed by, or under the supervision of, the company’s principal executive and principal financial officers, or persons performing similar functions, and effected by the company’s board of directors, management, and other personnel to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of the inherent limitations of internal control over financial reporting, including the possibility of collusion or improper management override of controls, material misstatements due to error or fraud may not be prevented or detected on a timely basis. Also, projections of any evaluation of the effectiveness of the internal control over financial reporting to future periods are subject to the risk that the controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2008, based on the criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated financial statements and financial statement schedule as of and for the year ended December 31, 2008 of the Company and our report dated February 26, 2009 expressed an unqualified opinion on those financial statements and financial statement schedule and included an explanatory paragraph relating to the Company’s adoption of Financial Accounting Standards Board Interpretation No. 48, Accounting for Uncertainty in Income Taxes—an interpretation of FASB Statement No. 109, on January 1, 2007.
/s/ DELOITTE & TOUCHE LLP
New York, New York
February 26, 2009
56
| ITEM 9B. | OTHER INFORMATION |
None.
| ITEM | 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE |
The information contained in the Company’s Annual Proxy Statement under the sections titled “Board of Directors,” “Executive Officers,” “Corporate Governance” and “Section 16(a) Beneficial Ownership Reporting Compliance” is incorporated herein by reference in response to this item.
| ITEM | 11. EXECUTIVE COMPENSATION |
The information contained in the Company’s Annual Proxy Statement under the section titled “Executive Compensation” is incorporated herein by reference in response to this item.
| ITEM 12. | SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
The information contained in the Company’s Annual Proxy Statement under the section titled “Security Ownership of Certain Beneficial Owners and Management” is incorporated herein by reference in response to this item.
Information concerning our equity compensation plans is included in Part II of this report under the caption “Securities Authorized For Issuance Under Equity Compensation Plans.”
| ITEM 13. | CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE |
The information contained in the Company’s Annual Proxy Statement under the section titled “Certain Relationships and Related Transactions” and “Board of Directors” is incorporated herein by reference in response to this item.
| ITEM 14. | PRINCIPAL ACCOUNTANT FEES AND SERVICES |
The information contained in the Company’s Annual Proxy Statement under the section titled “Ratification of Appointment of Auditors” is incorporated herein by reference in response to this item.
| ITEM 15. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULES |
| ITEM 15(A)(1) | FINANCIAL STATEMENTS |
See Consolidated Financial Statements and Consolidated Financial Statements Index commencing on page F-1 hereof.
| ITEM 15(A)(2) | FINANCIAL STATEMENT SCHEDULES |
See Schedule II—Valuation and Qualifying Account for the years ended December 31, 2008, 2007 and 2006 commencing on page G-1 hereof.
| ITEM 15(A)(3) | EXHIBITS |
See Exhibit Index commencing on page H-1 hereof.
57
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| AVIS BUDGET GROUP, INC. | ||
| By: |
/s/ BRETT D. WEINBLATT | |
| Brett D. Weinblatt | ||
| Senior Vice President and Chief Accounting Officer | ||
| Date: February 26, 2009 | ||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ RONALD L. NELSON (Ronald L. Nelson) |
Chairman of the Board, Chief Executive Officer and Director | February 26, 2009 | ||
| /s/ F. ROBERT SALERNO (F. Robert Salerno) |
President, Chief Operating Officer and Director | February 26, 2009 | ||
| /s/ DAVID B. WYSHNER (David B. Wyshner) |
Executive Vice President and Chief Financial Officer | February 26, 2009 | ||
| /s/ BRETT D.WEINBLATT (Brett D.Weinblatt) |
Senior Vice President and Chief Accounting Officer | February 26, 2009 | ||
| /s/ MARY C. CHOKSI (Mary C. Choksi) |
Director | February 26, 2009 | ||
| /s/ LEONARD S. COLEMAN, JR. (Leonard S. Coleman, Jr.) |
Director | February 26, 2009 | ||
| /s/ MARTIN L. EDELMAN (Martin L. Edelman) |
Director | February 26, 2009 | ||
| /s/ JOHN D. HARDY, JR. (John D. Hardy, Jr.) |
Director | February 26, 2009 | ||
| /s/ LYNN KROMINGA (Lynn Krominga) |
Director | February 26, 2009 | ||
| /s/ EDUARDO G. MESTRE (Eduardo G. Mestre) |
Director | February 26, 2009 | ||
| /s/ STENDER E. SWEENEY (Stender E. Sweeney) |
Director | February 26, 2009 | ||
58
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of Avis Budget Group, Inc.
We have audited the accompanying consolidated balance sheets of Avis Budget Group, Inc. and subsidiaries (the “Company”) as of December 31, 2008 and 2007, and the related consolidated statements of operations, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2008. Our audits also included the financial statement schedule listed in the Index at Item 15. These financial statements and financial statement schedule are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements and financial statement schedule based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2008 and 2007, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2008, in conformity with accounting principles generally accepted in the United States of America. Also, in our opinion, such financial statement schedule, when considered in relation to the basic consolidated financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein.
As discussed in Note 2 to the consolidated financial statements, the Company adopted Financial Accounting Standards Board Interpretation No. 48, Accounting for Uncertainty in Income Taxes—an interpretation of FASB Statement No. 109, on January 1, 2007.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Company’s internal control over financial reporting as of December 31, 2008, based on the criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated February 26, 2009 expressed an unqualified opinion on the Company’s internal control over financial reporting.
/S/ DELOITTE & TOUCHE LLP
New York, New York
February 26, 2009
F-2
CONSOLIDATED STATEMENTS OF OPERATIONS
(In millions, except per share data)
| Year Ended December 31, | ||||||||||||
| 2008 | 2007 | 2006 | ||||||||||
| Revenues |
||||||||||||
| Vehicle rental |
$ | 4,564 | $ | 4,667 | $ | 4,519 | ||||||
| Other |
1,420 | 1,319 | 1,170 | |||||||||
| Net revenues |
5,984 | 5,986 | 5,689 | |||||||||
| Expenses |
||||||||||||
| Operating |
3,147 | 3,033 | 2,887 | |||||||||
| Vehicle depreciation and lease charges, net |
1,697 | 1,571 | 1,416 | |||||||||
| Selling, general and administrative |
655 | 658 | 818 | |||||||||
| Vehicle interest, net |
321 | 315 | 320 | |||||||||
| Non-vehicle related depreciation and amortization |
88 | 84 | 105 | |||||||||
| Interest expense related to corporate debt, net: |
||||||||||||
| Interest expense |
129 | 127 | 236 | |||||||||
| Early extinguishment of debt |
- | - | 313 | |||||||||
| Separation costs, net |
- | (5 | ) | 261 | ||||||||
| Restructuring charges |
28 | - | 10 | |||||||||
| Impairment |
1,262 | 1,195 | - | |||||||||
| Total expenses |
7,327 | 6,978 | 6,366 | |||||||||
| Loss before income taxes |
(1,343 | ) | (992 | ) | (677 | ) | ||||||
| Benefit from income taxes |
(219 | ) | (45 | ) | (226 | ) | ||||||
| Loss from continuing operations |
(1,124 | ) | (947 | ) | (451 | ) | ||||||
| Income (loss) from discontinued operations, net of tax |
- | (2 | ) | 478 | ||||||||
| Gain (loss) on disposal of discontinued operations, net of tax |
- | 33 | (1,957 | ) | ||||||||
| Loss before cumulative effect of accounting changes |
(1,124 | ) | (916 | ) | (1,930 | ) | ||||||
| Cumulative effect of accounting changes, net of tax |
- | - | (64 | ) | ||||||||
| Net loss |
$ | (1,124 | ) | $ | (916 | ) | $ | (1,994 | ) | |||
| Earnings (loss) per share, basic and diluted: |
||||||||||||
| Loss from continuing operations |
$ | (11.04 | ) | $ | (9.18 | ) | $ | (4.48 | ) | |||
| Net loss |
(11.04 | ) | (8.88 | ) | (19.82 | ) | ||||||
See Notes to Consolidated Financial Statements.
F-3
CONSOLIDATED BALANCE SHEETS
(In millions, except share data)
| December 31, | ||||||||
| 2008 | 2007 | |||||||
| Assets |
||||||||
| Current assets: |
||||||||
| Cash and cash equivalents |
$ | 258 | $ | 214 | ||||
| Receivables (net of allowance for doubtful accounts of $17 and $19) |
360 | 392 | ||||||
| Deferred income taxes |
75 | 42 | ||||||
| Other current assets |
380 | 570 | ||||||
| Total current assets |
1,073 | 1,218 | ||||||
| Property and equipment, net |
485 | 500 | ||||||
| Deferred income taxes |
503 | 234 | ||||||
| Goodwill |
75 | 1,000 | ||||||
| Other intangibles, net |
467 | 760 | ||||||
| Other non-current assets |
889 | 781 | ||||||
| Total assets exclusive of assets under vehicle programs |
3,492 | 4,493 | ||||||
| Assets under vehicle programs: |
||||||||
| Program cash |
12 | 1 | ||||||
| Vehicles, net |
7,164 | 7,474 | ||||||
| Receivables from vehicle manufacturers and other |
533 | 276 | ||||||
| Investment in Avis Budget Rental Car Funding (AESOP) LLC—related party |
117 | 230 | ||||||
| 7,826 | 7,981 | |||||||
| Total assets |
$ | 11,318 | $ | 12,474 | ||||
| Liabilities and stockholders’ equity |
||||||||
| Current liabilities: |
||||||||
| Accounts payable and other current liabilities |
$ | 901 | $ | 1,094 | ||||
| Current portion of long-term debt |
10 | 10 | ||||||
| Total current liabilities |
911 | 1,104 | ||||||
| Long-term debt |
1,779 | 1,787 | ||||||
| Other non-current liabilities |
1,121 | 998 | ||||||
| Total liabilities exclusive of liabilities under vehicle programs |
3,811 | 3,889 | ||||||
| Liabilities under vehicle programs: |
||||||||
| Debt |
892 | 950 | ||||||
| Debt due to Avis Budget Rental Car Funding (AESOP) LLC—related party |
5,142 | 4,646 | ||||||
| Deferred income taxes |
1,188 | 1,246 | ||||||
| Other |
192 | 278 | ||||||
| 7,414 | 7,120 | |||||||
| Commitments and contingencies (Note 18) |
||||||||
| Stockholders’ equity: |
||||||||
| Preferred stock, $.01 par value—authorized 10 million shares; none issued and outstanding |
- | - | ||||||
| Common stock, $.01 par value—authorized 250 million shares; issued 136,812,802 and 136,706,236 shares |
1 | 1 | ||||||
| Additional paid-in capital |
9,197 | 9,320 | ||||||
| Accumulated deficit |
(2,644 | ) | (1,520 | ) | ||||
| Accumulated other comprehensive income (loss) |
(194 | ) | 32 | |||||
| Treasury stock, at cost—35,030,086 and 32,719,985 shares |
(6,267 | ) | (6,368 | ) | ||||
| Total stockholders’ equity |
93 | 1,465 | ||||||
| Total liabilities and stockholders’ equity |
$ | 11,318 | $ | 12,474 | ||||
See Notes to Consolidated Financial Statements.
F-4
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions)
| Year Ended December 31, | ||||||||||||
| 2008 | 2007 | 2006 | ||||||||||
| Operating Activities |
||||||||||||
| Net loss |
$ | (1,124 | ) | $ | (916 | ) | $ | (1,994 | ) | |||
| Adjustments to arrive at loss from continuing operations |
_ | (31 | ) | 1,543 | ||||||||
| Loss from continuing operations |
(1,124 | ) | (947 | ) | (451 | ) | ||||||
| Adjustments to reconcile loss from continuing operations to net cash provided by (used in) operating activities exclusive of vehicle programs: |
||||||||||||
| Non-vehicle related depreciation and amortization |
88 | 84 | 105 | |||||||||
| Deferred income taxes |
(241 | ) | (57 | ) | (200 | ) | ||||||
| Impairment |
1,262 | 1,195 | _ | |||||||||
| Net change in assets and liabilities, excluding the impact of acquisitions and dispositions: |
||||||||||||
| Receivables |
50 | (6 | ) | (33 | ) | |||||||
| Income taxes |
7 | 38 | (301 | ) | ||||||||
| Accounts payable and other current liabilities |
(40 | ) | (120 | ) | (87 | ) | ||||||
| Other, net |
63 | (38 | ) | (143 | ) | |||||||
| Net cash provided by (used in) operating activities exclusive of vehicle programs |
65 | 149 | (1,110 | ) | ||||||||
| Vehicle programs: |
||||||||||||
| Vehicle depreciation |
1,639 | 1,565 | 1,362 | |||||||||
| 1,639 | 1,565 | 1,362 | ||||||||||
| Net cash provided by operating activities |
1,704 | 1,714 | 252 | |||||||||
| Investing activities |
||||||||||||
| Property and equipment additions |
(83 | ) | (94 | ) | (95 | ) | ||||||
| Net assets acquired (net of cash acquired) and acquisition-related payments |
(88 | ) | (11 | ) | (118 | ) | ||||||
| Proceeds received on asset sales |
17 | 19 | 25 | |||||||||
| Proceeds from sale of investment |
_ | 106 | _ | |||||||||
| Payments made to Realogy and Wyndham, net |
(3 | ) | (108 | ) | _ | |||||||
| Purchase of equity investment |
_ | (60 | ) | _ | ||||||||
| Other, net |
(14 | ) | (13 | ) | 4 | |||||||
| Net cash used in investing activities exclusive of vehicle programs |
(171 | ) | (161 | ) | (184 | ) | ||||||
| Vehicle programs: |
||||||||||||
| Decrease (increase) in program cash |
(11 | ) | 13 | 1 | ||||||||
| Investment in vehicles |
(8,608 | ) | (10,633 | ) | (11,348 | ) | ||||||
| Proceeds received on disposition of vehicles |
6,722 | 8,864 | 10,790 | |||||||||
| Other, net |
(28 | ) | _ | (12 | ) | |||||||
| (1,925 | ) | (1,756 | ) | (569 | ) | |||||||
| Net cash used in investing activities |
(2,096 | ) | (1,917 | ) | (753 | ) | ||||||
F-5
Avis Budget Group, Inc.
CONSOLIDATED STATEMENTS OF CASH FLOWS (Continued)
(In millions)
| Year Ended December 31, | ||||||||||||
| 2008 | 2007 | 2006 | ||||||||||
| Financing activities |
||||||||||||
| Proceeds from borrowings |
_ | _ | 1,875 | |||||||||
| Principal payments on borrowings |
(10 | ) | (45 | ) | (3,603 | ) | ||||||
| Issuances of common stock |
_ | 50 | 46 | |||||||||
| Repurchases of common stock |
(33 | ) | _ | (243 | ) | |||||||
| Payment of dividends |
_ | _ | (113 | ) | ||||||||
| Other, net |
(28 | ) | (1 | ) | (38 | ) | ||||||
| Net cash provided by (used in) financing activities exclusive of vehicle programs |
(71 | ) | 4 | (2,076 | ) | |||||||
| Vehicle programs: |
||||||||||||
| Proceeds from borrowings |
8,476 | 10,565 | 10,979 | |||||||||
| Principal payments on borrowings |
(8,060 | ) | (10,236 | ) | (13,310 | ) | ||||||
| Net change in short-term borrowings |
152 | (86 | ) | (282 | ) | |||||||
| Other, net |
(34 | ) | (8 | ) | (15 | ) | ||||||
| 534 | 235 | (2,628 | ) | |||||||||
| Net cash provided by (used in) financing activities |
463 | 239 | (4,704 | ) | ||||||||
| Effect of changes in exchange rates on cash and cash equivalents |
(27 | ) | 6 | 2 | ||||||||
| Cash provided by discontinued operations |
||||||||||||
| Operating activities |
_ | _ | 463 | |||||||||
| Investing activities |
_ | _ | 3,304 | |||||||||
| Financing activities |
_ | _ | 1,050 | |||||||||
| Effect of changes in exchange rates |
_ | _ | 12 | |||||||||
| Cash provided by discontinued operations |
_ | _ | 4,829 | |||||||||
| Net increase (decrease) in cash and cash equivalents |
44 | 42 | (374 | ) | ||||||||
| Cash and cash equivalents, beginning of period |
214 | 172 | 546 | |||||||||
| Cash and cash equivalents, end of period |
$ | 258 | $ | 214 | $ | 172 | ||||||
| Supplemental Disclosure |
||||||||||||
| Interest payments |
$ | 468 | $ | 461 | $ | 996 | ||||||
| Income tax payments (refunds), net |
$ | 15 | $ | (26 | ) | $ | 275 | |||||
See Notes to Consolidated Financial Statements.
F-6
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
(In millions)
| Common Stock | Additional Paid-in Capital |
Retained Earnings |
Accumulated Other Comprehensive Income |
Treasury Stock | Total Stockholders’ Equity |
|||||||||||||||||||||||
| Shares | Amount | Shares | Amount | |||||||||||||||||||||||||
| Balance at January 1, 2006 |
135.1 | $ | 1 | $ | 12,022 | $ | 5,997 | $ | 40 | (33.9 | ) | $ | (6,718 | ) | $ | 11,342 | ||||||||||||
| Comprehensive loss: |
||||||||||||||||||||||||||||
| Net loss |
- | - | - | (1,994 | ) | - | - | - | ||||||||||||||||||||
| Currency translation adjustment, net of tax of $16 |
- | - | - | - | 213 | - | - | |||||||||||||||||||||
| Unrealized losses on cash flow hedges, net of tax of $(6) |
- | - | - | - | (12 | ) | - | - | ||||||||||||||||||||
| Reclassification for gains on cash flow hedges, net of tax of $(1) |
- | - | - | - | (1 | ) | - | - | ||||||||||||||||||||
| Minimum pension liability adjustment, net of tax of $5 |
- | - | - | - | 9 | - | - | |||||||||||||||||||||
| Total comprehensive loss |
(1,785 | ) | ||||||||||||||||||||||||||
| Net activity related to restricted stock units |
- | - | (48 | ) | - | - | 0.7 | 211 | 163 | |||||||||||||||||||
| Exercise of stock options |
0.4 | - | 39 | - | - | 0.2 | 44 | 83 | ||||||||||||||||||||
| Tax benefit from exercise of stock options |
- | - | 12 | - | - | - | - | 12 | ||||||||||||||||||||
| Repurchases of common stock |
- | - | - | - | - | (1.4 | ) | (243 | ) | (243 | ) | |||||||||||||||||
| Payment of dividends |
- | - | - | (107 | ) | - | - | - | (107 | ) | ||||||||||||||||||
| Dividend of Realogy Corporation and |
||||||||||||||||||||||||||||
| Wyndham Worldwide |
||||||||||||||||||||||||||||
| Corporation |
- | - | (2,361 | ) | (4,482 | ) | (167 | ) | - | - | (7,010 | ) | ||||||||||||||||
| Cumulative effect of adoption of |
||||||||||||||||||||||||||||
| SFAS No. 158, net of tax of $(2) |
- | - | - | - | (4 | ) | - | - | (4 | ) | ||||||||||||||||||
| Other |
- | - | - | - | (10 | ) | 0.1 | 2 | (8 | ) | ||||||||||||||||||
| Balance at December 31, 2006 |
135.5 | $ | 1 | $ | 9,664 | $ | (586 | ) | $ | 68 | (34.3 | ) | $ | (6,704 | ) | $ | 2,443 | |||||||||||
F-7
Avis Budget Group, Inc.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY (Continued)
(In millions)
| Common Stock | Additional Paid-in Capital |
Retained Earnings |
Accumulated Other Comprehensive Income (loss) |
Treasury Stock | Total Stockholders’ Equity |
|||||||||||||||||||||||
| Shares | Amount | Shares | Amount | |||||||||||||||||||||||||
| Balance at January 1, 2007 |
135.5 | $ | 1 | $ | 9,664 | $ | (586 | ) | $ | 68 | (34.3 | ) | $ | (6,704 | ) | $ | 2,443 | |||||||||||
| Comprehensive loss: |
||||||||||||||||||||||||||||
| Net loss |
- | - | - | (916 | ) | - | - | - | ||||||||||||||||||||
| Currency translation adjustment |
- | - | - | - | 50 | - | - | |||||||||||||||||||||
| Unrealized losses on cash flow hedges, net of tax of $59 |
- | - | - | - | (93 | ) | - | - | ||||||||||||||||||||
| Pension liability adjustment, net of tax of $(5) |
- | - | - | - | 7 | - | - | |||||||||||||||||||||
| Total comprehensive loss |
(952 | ) | ||||||||||||||||||||||||||
| Adoption of FIN 48 (see Note 2) |
- | - | - | (18 | ) | - | - | - | (18 | ) | ||||||||||||||||||
| Net activity related to restricted stock units |
- | - | (60 | ) | - | - | 0.3 | 72 | 12 | |||||||||||||||||||
| Exercise of stock options |
1.2 | - | (207 | ) | - | - | 1.3 | 256 | 49 | |||||||||||||||||||
| Tax benefit from exercise of stock options |
- | - | 1 | - | - | - | - | 1 | ||||||||||||||||||||
| Activity related to employee stock purchase plan |
- | - | (3 | ) | - | - | - | 4 | 1 | |||||||||||||||||||
| Post-separation dividend adjustment |
- | - | (66 | ) | - | - | - | - | (66 | ) | ||||||||||||||||||
| Other |
- | - | (9 | ) | - | - | - | 4 | (5 | ) | ||||||||||||||||||
| Balance at December 31, 2007 |
136.7 | $ | 1 | $ | 9,320 | $ | (1,520 | ) | $ | 32 | (32.7 | ) | $ | (6,368 | ) | $ | 1,465 | |||||||||||
| Comprehensive loss: |
||||||||||||||||||||||||||||
| Net loss |
- | - | - | (1,124 | ) | - | - | - | ||||||||||||||||||||
| Currency translation adjustment |
- | - | - | - | (110 | ) | - | - | ||||||||||||||||||||
| Unrealized losses on cash flow hedges, net of tax of $56 |
- | - | - | - | (86 | ) | - | - | ||||||||||||||||||||
| Pension liability adjustment, net of tax of $20 |
- | - | - | - | (30 | ) | - | - | ||||||||||||||||||||
| Total comprehensive loss |
(1,350 | ) | ||||||||||||||||||||||||||
| Net activity related to restricted stock units |
0.1 | - | (94 | ) | - | - | 0.4 | 105 | 11 | |||||||||||||||||||
| Exercise of stock options |
- | - | (1 | ) | - | - | - | 1 | - | |||||||||||||||||||
| Repurchases of common stock |
- | - | - | - | - | (2.9 | ) | (33 | ) | (33 | ) | |||||||||||||||||
| Activity related to employee stock purchase plan |
- | - | (27 | ) | - | - | 0.2 | 28 | 1 | |||||||||||||||||||
| Post-separation dividend adjustment |
- | - | (3 | ) | - | - | - | - | (3 | ) | ||||||||||||||||||
| Other |
- | - | 2 | - | - | - | - | 2 | ||||||||||||||||||||
| Balance at December 31, 2008 |
136.8 | $ | 1 | $ | 9,197 | $ | (2,644 | ) | $ | (194 | ) | (35.0 | ) | $ | (6,267 | ) | $ | 93 | ||||||||||
See Notes to Consolidated Financial Statements.
F-8
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unless otherwise noted, all amounts are in millions, except per share amounts)
| 1. | Basis of Presentation |
Avis Budget Group, Inc. provides car and truck rentals and ancillary services to businesses and consumers in the United States and internationally. The accompanying Consolidated Financial Statements include the accounts and transactions of Avis Budget Group, Inc. and its subsidiaries (“Avis Budget”), as well as entities in which Avis Budget directly or indirectly has a controlling financial interest (collectively, the “Company”).
The Company operates in the following business segments:
| • | Domestic Car Rental—provides car rentals and ancillary products and services in the United States. |
| • | International Car Rental—provides vehicle rentals and ancillary products and services primarily in Argentina, Australia, Canada, New Zealand, Puerto Rico and the U.S. Virgin Islands. |
| • | Truck Rental—provides truck rentals and related services to consumers and light commercial users in the United States. |
In presenting the Consolidated Financial Statements in accordance with accounting principles generally accepted in the United States, management makes estimates and assumptions that affect the amounts reported and related disclosures. Estimates, by their nature, are based on judgment and available information. Accordingly, actual results could differ from those estimates.
Discontinued Operations. In February 2005, the Company completed an initial public offering of Wright Express Corporation (“Wright Express”), its former fuel card subsidiary, and in October 2005, the Company sold its former Marketing Services division, which was comprised of its individual membership and loyalty/insurance marketing businesses. On July 31, 2006, the Company completed the spin-offs of Realogy Corporation (“Realogy”) and Wyndham Worldwide Corporation (“Wyndham”), and on August 23, 2006, the Company completed the sale of Travelport, Inc. (“Travelport”) (see Cendant Separation below). Pursuant to Statement of Financial Accounting Standards (“SFAS”) No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets” (“SFAS No. 144”), the account balances and activities of Wright Express, the former Marketing Services division, Realogy, Wyndham and Travelport have been segregated and reported as discontinued operations for all periods presented. Summarized financial data for the aforementioned businesses are provided in Note 3—Discontinued Operations.
Cendant Separation. In July 2006, under a Board of Directors approved plan, the Company, then known as Cendant Corporation (“Cendant”), was separated into four independent companies (the “Cendant Separation”):
| • | Realogy Corporation—encompasses the Company’s former real estate services segment, which is now presented as a discontinued operation. |
| • | Wyndham Worldwide Corporation—encompasses the Company’s former Hospitality Services and Timeshare Resorts segments, which are now presented as discontinued operations. |
| • | Travelport, Inc.—encompasses the Company’s former Travel Distribution Services segment, which is now presented as a discontinued operation. |
| • | Avis Budget Group, Inc.—encompasses the Company’s vehicle rental operations. |
F-9
On July 31, 2006, the Company completed the spin-offs of Realogy and Wyndham in tax-free distributions of one share each of Realogy and Wyndham common stock for every four and five shares, respectively, of then outstanding Cendant common stock held on July 21, 2006. Prior to the completion of the spin-offs, Avis Budget received special cash dividends of $2,225 million and $1,360 million from Realogy and Wyndham, respectively, and utilized such proceeds to fund a portion of the repayment of its outstanding debt, as discussed below. On August 23, 2006, the Company completed the sale of Travelport for proceeds of approximately $4.1 billion, net of closing adjustments, of which approximately $1.8 billion was used to repay indebtedness of Travelport. Pursuant to the Separation and Distribution Agreement (“Separation Agreement”) among the separating companies, during third quarter 2006, the Company distributed $1,423 million and $760 million of such proceeds from the sale of Travelport to Realogy and Wyndham, respectively.
During 2008, the Company’s costs incurred in connection with the Cendant Separation were not material. During 2007 and 2006, the Company incurred net (credits)/costs of $(5) million and $574 million, respectively, in connection with executing the Cendant Separation. The 2008, 2007 and 2006 amounts relate to costs as follows:
| 2008 | 2007 | 2006 | |||||||||
| Early extinguishment of corporate debt |
$ | - | $ | - | $ | 313 | |||||
| Other separation costs: |
|||||||||||
| Stock-based compensation |
- | - | 79 | ||||||||
| Severance and retention |
- | 3 | 70 | ||||||||
| Legal, accounting and other professional fees |
- | 5 | 38 | ||||||||
| Reversal of receivables from Realogy and Wyndham (a) |
- | - | 28 | ||||||||
| Asset write-offs |
- | - | 19 | ||||||||
| Insurance |
- | - | 14 | ||||||||
| Infrastructure implementation |
2 | 4 | 2 | ||||||||
| FIN 48 indemnification (b) |
4 | (14 | ) | - | |||||||
| Other |
(6 | ) | (3 | ) | 11 | ||||||
| - | (5 | ) | 261 | ||||||||
| $ | - | $ | (5 | ) | $ | 574 | |||||
| (a) |
Represents the reversal of receivables from Realogy and Wyndham due to the favorable resolution of certain tax related contingencies, for which the Company is entitled to indemnification by Realogy and Wyndham. The benefit for income taxes includes a corresponding credit resulting from the favorable resolution of such matters. |
| (b) |
See Note 2—Summary of Significant Accounting Policies. |
In 2006, the Company also incurred costs within discontinued operations of $239 million in connection with executing the Cendant Separation. Such costs are primarily related to the accelerated vesting of stock-based compensation awards, severance and retention and professional and consulting fees.
In addition, pursuant to the Separation Agreement, Realogy, Wyndham and Travelport have agreed to assume and retain all of the liabilities primarily related to each of their respective businesses and operations, including litigation primarily related to each of their businesses where the Company is a named party. Realogy and Wyndham have also agreed to assume certain contingent and other corporate liabilities of the Company or its subsidiaries incurred prior to the disposition of Travelport (see Note 18—Commitments and Contingencies).
Prior to the spin-offs of Realogy and Wyndham, the Company entered into a Transition Services Agreement with Realogy, Wyndham and Travelport to provide for an orderly transition following the sale of Travelport and the spin-offs of Realogy and Wyndham. Under the Transition Services Agreement, the Company has provided Realogy, Wyndham and Travelport with various services, including services relating to payroll, accounts payable, telecommunications and information technology in exchange for fees based on the estimated cost of the services provided. As of December 31, 2008, the majority of these services are no longer being provided.
F-10
Also, in connection with its execution of the Cendant Separation, the Company repaid certain corporate and other debt and entered into new financing arrangements (see Note 16—Long-term Debt and Borrowing Arrangements).
Selling, general and administrative expenses on the accompanying Consolidated Statements of Operations include unallocated corporate expenses in 2006 related to the Company’s discontinued operations. Accordingly, the expenses recorded by the Company in the Consolidated Statements of Operations may not be indicative of the actual expenses the Company would incur as a separate company.
Vehicle Programs. The Company presents separately the financial data of its vehicle programs. These programs are distinct from the Company’s other activities since the assets under vehicle programs are generally funded through the issuance of debt that is collateralized by such assets. The income generated by these assets is used, in part, to repay the principal and interest associated with the debt. Cash inflows and outflows relating to the generation or acquisition of such assets and the principal debt repayment or financing of such assets are classified as activities of the Company’s vehicle programs. The Company believes it is appropriate to segregate the financial data of its vehicle programs because, ultimately, the source of repayment of such debt is the realization of such assets.
Reverse Stock Split. In connection with the September 5, 2006 1-for-10 reverse stock split of the Company’s common stock, common stock share data in the accompanying Consolidated Financial Statements and notes have been revised to reflect the reverse stock split, unless otherwise noted.
Changes in Accounting Estimate. During fourth quarter 2008, the Company increased the assumed service lives of its Truck Rental segment’s model year 2004 and later diesel trucks and model year 2005 and later gas trucks. This extension of service lives reflects the Company’s expectation that it will purchase and dispose of fewer trucks each year than previously projected, thereby lengthening average hold periods for its trucks. This change will also affect the value the Company realizes upon disposition of trucks. The change in estimate, effective as of October 1, 2008, was accounted for prospectively and resulted in a decrease in depreciation expense of approximately $4 million, and decreased net loss by approximately $3 million ($0.02 per diluted share), for the year ended December 31, 2008.
In fourth quarter 2007, the Company revised the assumed service lives of its truck fleet, for model years 2004 and later, to better reflect the projected hold periods of these vehicles. The Company believes that its decision to retain these trucks longer than previously anticipated will allow it to reduce cash outflow related to fleet costs. This change will also affect the value the Company realizes upon the disposition of trucks. The change in estimate, effective as of October 1, 2007, was accounted for prospectively and resulted in a decrease in depreciation expense of approximately $5 million, and decreased net loss by approximately $3 million ($0.03 per diluted share), for the year ended December 31, 2007.
In fourth quarter 2007, the Company revised its estimates for recording depreciation expense related to certain vehicles covered by repurchase and guaranteed depreciation agreements in light of longer projected hold periods. Once these vehicles are held longer than the Company’s average hold period, they will be depreciated at monthly rates consistent with their contractually guaranteed residual values. This change in estimate, effective as of October 1, 2007, was accounted for prospectively and resulted in a decrease in depreciation expense of approximately $10 million, and decreased net loss by approximately $6 million ($0.06 per diluted share), for the year ended December 31, 2007.
Compliance with Debt Covenants, Business Risks and Management’s Plans
Compliance with Debt Covenants. Many of the Company’s debt instruments, including its senior credit facilities, contain financial and other covenants that impose significant requirements on the Company and limit its ability to engage in certain transactions or activities. The Company’s senior credit facilities were
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amended in December 2008 to change the financial covenants, interest rate spreads and restrictions on its activities contained therein. The Company’s financial covenant requires it to maintain minimum trailing twelve month EBITDA (as defined in the credit agreements) amounts on a quarterly basis.
The U.S. economy appears to have been in recession throughout 2008, and such conditions are likely to persist into at least 2009. Historically, the Company’s results of operations have declined during periods of general economic weakness. The effects of the current recession contributed to the significant year-over-year decline in the results of the Company’s car and truck rental operations in 2008, including declines in volume and pricing, particularly in the second half of 2008. If economic conditions in the United States do not improve or worsen, the Company’s results of operations could be materially and adversely impacted in 2009 and beyond.
The Company relies upon financing for its operations, particularly asset-backed financing, through asset-backed securities and the lending market, for its vehicle fleet. As noted above, in fourth quarter 2008, the Company amended and renewed its two asset-backed domestic rental car conduit facilities; such facilities now mature from September through December 2009. As a result of these amendments and renewals, the Company’s borrowing costs and collateral requirements for 2009 will increase compared to 2008. In addition, approximately $300 million and $1.1 billion of term asset-backed financings for the Company’s domestic and international car rental operations will mature in 2009 and 2010, respectively. The existing availability under the asset-backed vehicle financing programs including the asset-backed conduit facilities should be sufficient to increase the Company’s fleet for the third quarter, which has historically been its strongest quarter due to the increased level of leisure travel and household moving activity. A default by any of the financial-guaranty firms that have insured a portion of the Company’s outstanding vehicle-backed debt could affect its existing availability. There has been significant disruption in the asset-backed financing market; therefore, there can be no assurance that the Company will be able to obtain refinancing for its operations at current levels, or at all, when its asset-backed rental car financings mature, and any new financing or refinancing of the Company’s existing financing could increase its borrowing costs, including an increase in its collateral requirements.
Dependence on Vehicle Manufacturers. The Company is dependent on vehicle manufacturers for its fleet purchases and related incentive payments, and a substantial portion of the rental cars that comprise its domestic car fleet (“program cars”) are subject to manufacturer repurchase or guaranteed depreciation programs. A bankruptcy of one or more vehicle manufacturers could adversely affect the Company’s arrangements with such vehicle manufacturers. A default on any repurchase or guaranteed depreciation agreement or incentive payment could leave the Company with a substantial unpaid claim against the manufacturer particularly with respect to program cars that were either (i) resold at an amount less than the amount guaranteed under the applicable agreement, and therefore subject to a “true-up” payment obligation from the manufacturer or (ii) returned to the manufacturer but for which the Company was not paid. In addition, the Company could incur additional expenses if, following a manufacturer default, the prices at which it were able to dispose of program cars were less than the specified prices under the repurchase or guaranteed depreciation program and/or if the prices at which the Company were able to dispose of non-program cars were less than previously assumed.
Cost Reduction Initiatives. In light of the challenging conditions facing its business as well as for competitive reasons, the Company has taken numerous actions to reduce expenses, including implementing during the fourth quarter 2008 a five-point plan designed to reduce costs and improve efficiency. This plan includes (i) targeting significant reductions in operating costs, fleet costs, selling, general and administrative expenses, headcount, discretionary spending and other variable costs, (ii) reviewing and improving station, channel and customer profitability, (iii) reviewing and strengthening the Company’s pricing strategies and marketing, selling and affinity efforts, (iv) consolidation of both customer facing and non-customer facing activities and locations to reduce costs and provide synergies, and (v) consolidation of purchasing and procurement programs and practices. The Company terminated more than 1,600 employees in fourth quarter
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2008 in conjunction with this initiative (see Note 5—Restructuring Charges). The Company also anticipates generating additional cost savings in 2009 through implementation of its Performance Excellence process improvement initiative, which began in late 2007. In addition, the Company has identified a number of additional cost reduction measures that it could implement, if necessary, to offset additional costs.
In addition, in the event of a bankruptcy or a default of one or more vehicle manufacturers, the Company could seek to begin to operate its vehicles for a longer period. This action would enable the Company to rent and depreciate its vehicles over this longer period thereby potentially mitigating the effects of a temporary disruption of vehicle supply.
Notwithstanding the December 2008 amendments to the Company’s senior credit facilities and its cost reduction initiatives, due to reduced demand for travel services, disruption in the credit markets, rising borrowing costs, the Company’s dependence on vehicle manufacturers, and other factors, there can be no assurance that the Company will be able to generate sufficient earnings to enable it to satisfy the minimum EBITDA requirement or other covenants included in its senior credit facilities, the $2.45 billion of asset-backed conduit facilities used to finance a portion of its domestic car rental operations or other borrowing agreements. The Company’s failure to comply with these covenants, if not waived, would cause a default under the senior credit facilities and could result in principal under the conduit facilities being required to be repaid from a portion of vehicle disposition proceeds and lease payments the Company makes to its vehicle program subsidiaries and adversely affect our liquidity position. If such a failure were to occur, there can be no assurance that the Company would be able to refinance or obtain a replacement for such facilities and in certain circumstances such failure could also give rise to a default under the instruments that govern its other indebtedness.
| 2. | Summary of Significant Accounting Policies |
ACCOUNTING PRINCIPLES
The Company’s Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”).
PRINCIPLES OF CONSOLIDATION
The Consolidated Financial Statements include the accounts of Avis Budget and all entities in which the Company has a direct or indirect controlling financial interest and variable interest entities (“VIEs”) where the Company is determined to be the primary beneficiary. The Company is deemed to be the primary beneficiary if it bears a majority of the risk to the entities’ potential losses or stands to gain from a majority of the entities’ expected returns. Significant intercompany transactions have been eliminated in consolidation.
USE OF ESTIMATES AND ASSUMPTIONS
The use of estimates and assumptions as determined by management are required in the preparation of the Consolidated Financial Statements in conformity with GAAP. These estimates are based on management’s evaluation of historical trends and other information available when the Consolidated Financial Statements are prepared. Changes in estimates are recognized in accordance with the accounting rules for the estimate. Actual results could differ from those estimates.
REVENUE RECOGNITION
The Company derives revenue through the operation and franchising of the Avis and Budget rental systems, providing vehicle rentals and other services to business and leisure travelers and others. Other revenue includes rentals of GPS navigational units, sales of loss damage waivers and insurance products, fuel and fuel
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service charges, and other items. Revenue is recognized when persuasive evidence of an arrangement exists, the services have been rendered to customers, the pricing is fixed or determinable and collection is reasonably assured.
Vehicle rental and rental-related revenue is recognized over the period the vehicle is rented. Franchise revenue principally consists of royalties paid by the Company’s franchisees and are recorded as the franchisees’ revenue is earned (generally over the rental period of a vehicle). Revenue and expenses associated with gasoline, vehicle licensing and airport concessions are recorded on a gross basis within revenue and operating expenses.
FOREIGN CURRENCY TRANSLATION
Assets and liabilities of foreign operations are translated at the rate of exchange in effect on the balance sheet date; income and expenses are translated at the weighted average rate of exchange prevailing during the year. The related translation adjustments are reflected in “Accumulated other comprehensive income (loss)” in the stockholders’ equity section of the Consolidated Balance Sheet. The accumulated foreign currency translation adjustment as of December 31, 2008 and December 31, 2007 was $7 million and $117 million, respectively. Foreign currency gains and losses resulting from transactions are included in earnings.
CASH AND CASH EQUIVALENTS
The Company considers highly liquid investments purchased with an original maturity of three months or less to be cash equivalents.
PROPERTY AND EQUIPMENT
Property and equipment (including leasehold improvements) are recorded at cost, net of accumulated depreciation and amortization. Depreciation (non-vehicle related) is computed utilizing the straight-line method over the estimated useful lives of the related assets. Amortization of leasehold improvements is computed utilizing the straight-line method over the estimated benefit period of the related assets, which may not exceed 20 years, or the lease term, if shorter. Useful lives are as follows:
| Buildings |
30 years | |
| Furniture, fixtures & equipment |
3 to 10 years | |
| Capitalized software |
3 to 7 years | |
| Buses and support vehicles |
4 to 15 years |
The Company capitalizes the costs of software developed for internal use in accordance with Statement of Position No. 98-1, “Accounting for the Costs of Computer Software Developed or Obtained for Internal Use”. The software developed or obtained for internal use is amortized on a straight-line basis when such software is substantially ready for use. The net carrying value of software developed or obtained for internal use was $89 million and $60 million as of December 31, 2008 and 2007, respectively.
GOODWILL AND OTHER INTANGIBLE ASSETS
Goodwill represents the excess of the cost of an acquired entity over the fair values assigned to the tangible assets acquired, the identifiable intangible assets that are required to be valued and reported and the liabilities assumed. The Company does not amortize goodwill, but tests it at least annually for recoverability. Other intangible assets, primarily trademarks, with indefinite lives are not amortized but are evaluated annually for impairment. Other intangible assets with finite lives are amortized over their remaining useful lives.
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IMPAIRMENT OF LONG-LIVED ASSETS
In connection with SFAS No. 142, “Goodwill and Other Intangible Assets” (“SFAS No. 142”), the Company is required to assess goodwill and other indefinite-lived intangible assets for impairment annually, or more frequently if circumstances indicate impairment may have occurred. The Company performs its annual impairment assessment in the fourth quarter of each year. Each of the Company’s operating segments represents a reporting unit.
The Company assesses goodwill for such impairment by comparing the carrying value of each reporting units to its fair values using the present value of expected future cash flows. If the first test required under SFAS No. 142 indicates a potential impairment, we perform a second test for that reporting unit to determine the amount of impairment loss, if any. The Company determines the fair value of its reporting units utilizing discounted cash flows and incorporates assumptions that it believes marketplace participants would utilize. When available and as appropriate, comparative market multiples and other factors to corroborate the discounted cash flow results are used. Other indefinite-lived intangible assets are tested for impairment and written down to fair value, as required by SFAS No. 142.
The Company also evaluates the recoverability of its other long-lived assets, including amortizable intangible assets, if circumstances indicate impairment may have occurred, pursuant to SFAS No. 144. This analysis is performed by comparing the respective carrying values of the assets to the current and expected future cash flows, on an undiscounted basis, to be generated from such assets. Property and equipment is evaluated separately within each segment. If such analysis indicates that the carrying value of these assets is not recoverable, the carrying value of such assets is reduced to fair value.
During 2008, the Company recorded a $1,262 million ($1,053 million after tax) charge to reflect (i) the impairment of goodwill, (ii) the impairment of the Company’s tradenames assets and (iii) the impairment of its investment in Carey Holdings, Inc. (“Carey”). These charges reflect the decline in their fair value below their carrying value, primarily as a result of reduced market valuations for vehicle services and other companies, as well as reduced profit forecasts due to soft economic conditions and increased financing costs. Domestic Car Rental recorded $882 million and International Car Rental recorded $275 million for goodwill and tradenames impairment, Truck Rental recorded $87 million for goodwill impairment, and $18 million was recorded within Corporate and Other for the charge related to Carey.
In 2007, the Company recorded a $1,195 million ($1,073 million after tax) charge for the impairment of goodwill at each of the Company’s reporting units to reflect the decline in their fair value as evidenced by a decline in the market value of the Company’s common stock. Domestic Car Rental recorded $786 million of the goodwill impairment, International Car Rental recorded $268 million and Truck Rental recorded $141 million. There was no impairment under SFAS No. 142 on indefinite lived assets or under SFAS No. 144 on long-lived assets.
In 2006, there was no impairment of goodwill or other intangible assets within the Company’s continuing operations, however, the Company recorded an impairment charge of approximately $1.3 billion within discontinued operations to reflect the difference between Travelport’s carrying value and its estimated fair value, less costs to dispose.
PROGRAM CASH
Program cash primarily represents amounts specifically designated to purchase assets under vehicle programs and/or to repay the related debt.
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VEHICLES
Vehicles are stated at cost, net of accumulated depreciation. The initial cost of the vehicles is net of incentives and allowances from manufacturers. The Company acquires many of its rental vehicles pursuant to repurchase and guaranteed depreciation programs established by automobile manufacturers. Under these programs, the manufacturers agree to repurchase vehicles at a specified price and date, or guarantee the depreciation rate for a specified period of time, subject to certain eligibility criteria (such as car condition and mileage requirements). The Company depreciates vehicles such that the net book value on the date of return to the manufacturers is intended to equal the contractual guaranteed residual values, thereby minimizing any gain or loss. The Company records depreciation expense for any deficiency in the contractual guaranteed residual values due to excessive wear or damages. At December 31, 2008, the Company has cumulatively recorded $35 million for the projected difference between the contracted guaranteed residual value and the carrying value of such vehicles, which is reflected in the Consolidated Statement of Operations.
Rental vehicles acquired outside of manufacturer repurchase and guaranteed depreciation programs are depreciated based upon their estimated residual values at their expected dates of disposition, after giving effect to anticipated conditions in the used car market which are reviewed on a continuous basis.
For 2008, 2007 and 2006, rental vehicles were depreciated at rates ranging from 5% to 48% per annum. Upon disposal of the vehicles, depreciation expense is adjusted for any difference between the net sales proceeds and the remaining book value. Vehicle-related interest amounts are net of vehicle-related interest income of $7 million, $5 million and $6 million for 2008, 2007 and 2006, respectively.
During the fourth quarter of 2008, the Company increased the assumed service lives of its model year 2004 and later diesel trucks and model year 2005 and later gas trucks, to better reflect the projected hold period of these vehicles. In the fourth quarter of 2007, the Company revised the assumed service lives of its truck fleet, for model years 2004 and later, to better reflect the projected hold periods of these vehicles. In the fourth quarter 2007, the Company also revised its estimates for recording depreciation expense related to certain vehicles covered by repurchase and guaranteed depreciation agreements (see Note 1—Basis of Presentation).
ADVERTISING EXPENSES
Advertising costs are expensed in the period incurred. Advertising expenses, recorded within selling, general and administrative expense on our Consolidated Statements of Operations, include radio, television, “yellow pages” and other advertising, travel partner points programs, internet advertising and other promotions and were approximately $106 million in both 2008 and 2007 and $107 million in 2006.
TAXES
The Company accounts for income taxes under the asset and liability method, which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the financial statements. Under this method, deferred tax assets and liabilities are determined based on the differences between the financial statement and tax basis of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. The effect of a change in tax rates on deferred tax assets and liabilities is recognized in income in the period that includes the enactment date.
The Company records net deferred tax assets to the extent it believes these assets will more likely than not be realized. In making such determination, the Company considers all available positive and negative evidence, including scheduled reversals of deferred tax liabilities, projected future taxable income, tax planning strategies and recent results of operations. In the event the Company were to determine that it would be able to realize the deferred income tax assets in the future in excess of their net recorded amount, the Company would adjust the valuation allowance, which would reduce the provision for income taxes.
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In June 2006, the FASB issued FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes-an interpretation of FASB Statement No. 109,” (“FIN 48”), which clarifies the accounting for uncertainty in income taxes recognized in the financial statements in accordance with SFAS No. 109, “Accounting for Income Taxes”. FIN 48 provides that a tax benefit from an uncertain tax position may be recognized when it is more likely than not that the position will be sustained upon examination, including resolutions of any related appeals or litigation processes, based on the technical merits. Income tax positions must meet a more-likely-than-not recognition threshold at the effective date to be recognized upon the adoption of FIN 48 and in subsequent periods. This interpretation also provides guidance on measurement, derecognition, classification, interest and penalties, accounting in interim periods, disclosure and transition.
The Company adopted the provisions of FIN 48 on January 1, 2007, as required, and as a result of the implementation of FIN 48, the Company recognized approximately an $18 million increase in the liability for unrecognized tax benefits, which was accounted for as a reduction to the January 1, 2007 balance of retained earnings.
The Company reports revenues net of any tax assessed by a governmental authority that is both imposed on and concurrent with a specific revenue-producing transaction between a seller and a customer in its Consolidated Statements of Operations.
DERIVATIVE INSTRUMENTS
Derivative instruments are used as part of the Company’s overall strategy to manage exposure to market risks associated with fluctuations in foreign currency exchange rates, interest rates and gasoline costs. As a matter of policy, derivatives are not used for trading or speculative purposes.
All derivatives are recorded at fair value either as assets or liabilities. Changes in fair value of derivatives not designated as hedging instruments are recognized currently in earnings within the same line item as the hedged item (principally vehicle interest, net). The effective portion of changes in fair value of derivatives designated as cash flow hedging instruments is recorded as a component of other comprehensive income. The ineffective portion is recognized currently in earnings within the same line item as the hedged item, including vehicle interest, net or interest related to corporate debt, net, based upon the nature of the hedged item. Amounts included in other comprehensive income are reclassified into earnings in the same period during which the hedged item affects earnings.
During 2008 and 2007, the Company did not utilize fair value hedges. In 2006, the Company utilized certain derivatives designated as fair value hedges. Changes in the fair value of such instruments were recognized in earnings as a component of interest related to corporate debt, net.
INVESTMENTS
The Company determines the appropriate classification of its investments in debt and equity securities at the time of purchase and reevaluates such determination at each balance sheet date. The Company’s non-marketable preferred stock investments are accounted for at cost plus accretion. Common stock investments in affiliates over which the Company has the ability to exercise significant influence but not a controlling interest are carried on the equity method of accounting. Available-for-sale securities are carried at current fair value with unrealized gains or losses reported net of taxes as a separate component of stockholders’ equity. Trading securities are recorded at fair value with realized and unrealized gains and losses reported currently in earnings.
During 2008, the Company recorded an $18 million ($11 million, net of tax) charge to reflect the impairment on its investment in Carey.
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Aggregate realized gains and losses on investments and preferred dividend income are recorded within other revenues on the Consolidated Statements of Operations. There were no net realized gains or losses in continuing operations in 2008 and 2007. Gains amounted to $11 million in 2006. Gains and losses on securities sold are based on the specific identification method.
Affinion Group Holdings, Inc. The Company’s former investment in Affinion Group Holdings, Inc. (“Affinion”) was received in connection with the October 2005 sale of its former Marketing Services division, along with cash proceeds approximating $1.7 billion. This investment represented preferred stock with a carrying value of $95 million, including accrued dividends (face value of $125 million) maturing in October 2017, and warrants with a carrying value of $3 million that were exercisable into 7.5% of the common equity of Affinion upon the earlier of four years or the achievement of specified investment hurdles.
Pursuant to the Separation Agreement, the Company was obligated to distribute all proceeds received on the sale of its investments in Affinion to Realogy and Wyndham. Accordingly, following the spin-offs of Realogy and Wyndham on July 31, 2006, the Company began to recognize a charge on its Consolidated Statement of Operations equal to the dividend and accretion income on the preferred stock of Affinion. From January 1, 2006 to July 31, 2006, the Company recorded $6 million of dividend and accretion income related to its preferred stock investment in Affinion. In 2007, the Company sold the majority of its preferred stock investment in Affinion and distributed the proceeds and the remaining investment to Realogy and Wyndham.
SELF-INSURANCE RESERVES
The Consolidated Balance Sheets include approximately $326 million and $361 million of liabilities with respect to self-insured public liability and property damage as of December 31, 2008 and 2007, respectively. Such liabilities relate to additional liability insurance, personal effects protection insurance, public liability, property damage and personal accident insurance claims for which the Company is self-insured. These obligations represent an estimate for both reported claims not yet paid and claims incurred but not yet reported. The Company estimates the required reserve for such claims on an undiscounted basis utilizing an actuarial method that is based upon various assumptions which include, but are not limited to, the Company’s historical loss experience and projected loss development factors. The required liability is also subject to adjustment in the future based upon the changes in claims experience, including changes in the number of incidents and changes in the ultimate cost per incident. These amounts are included within accounts payable and other current liabilities and other non-current liabilities.
The Consolidated Balance Sheets also includes liabilities of approximately $71 million and $76 million as of December 31, 2008 and 2007, respectively, related to health and welfare, workers’ compensation and other benefits the Company provides to its employees. The Company estimates the liability required for such benefits based on actual claims outstanding and the estimated cost of claims incurred as of the balance sheet date. These amounts are included within accounts payable and other current liabilities.
SHARE-BASED PAYMENTS
In December 2004, the FASB issued SFAS No. 123R, “Share-Based Payment” (“SFAS No. 123R”), which eliminates the alternative to measure stock-based compensation awards using the intrinsic value approach permitted by APB Opinion No. 25 and by SFAS No. 123, “Accounting for Stock-Based Compensation”. The Company adopted SFAS No. 123R on January 1, 2006, as required, under the modified prospective application method. Since the Company recorded stock-based compensation expense for all outstanding employee stock awards prior to the adoption of SFAS No. 123R, the adoption of such standard did not have a significant impact on the Company’s results of operations. However, during 2006, the Company recorded an after tax credit of $1 million as a cumulative effect of an accounting change, which represents the Company’s estimate of total future forfeitures of stock-based awards outstanding as of January 1, 2006 (see Note 20—Stock-Based Compensation).
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ADOPTION OF NEW ACCOUNTING STANDARDS DURING 2008
Fair Value Measurements. In September 2006, the FASB issued Statement of Financial Accounting Standards (“SFAS”) No. 157, “Fair Value Measurements” (“SFAS No. 157”), which defines fair value, establishes a framework for measuring fair value and expands disclosures about fair value measurements. In addition, SFAS No. 157 requires the Company to consider its own credit spreads when measuring the fair value of liabilities, including derivatives, and the credit spreads of the Company’s counterparties when measuring the fair value of assets, including derivatives. The Company adopted SFAS No. 157 on January 1, 2008, as required, and it had no impact to the Company’s financial statements at the time of adoption (see Note 22—Financial Instruments).
In February 2008, the FASB issued FSP SFAS 157-1, “Application of SFAS No. 157 to SFAS No. 13 and Its Related Interpretative Accounting Pronouncements that Address Leasing Transactions” (“FSP SFAS 157-1”) and FASB Staff Position SFAS 157-2, “Effective Date of SFAS No. 157” (“FSP SFAS 157-2”). FSP SFAS 157-1 excludes most leasing transactions from the requirements of SFAS No. 157, and FSP SFAS 157-2 delays the effective date of SFAS No. 157 for all nonfinancial assets and nonfinancial liabilities, except those that are recognized or disclosed at fair value in the financial statements on a recurring basis (at least annually). FSP SFAS 157-1 and FSP SFAS 157-2 became effective for the Company upon adoption of SFAS No. 157 on January 1, 2008.
In October 2008, the FASB issued FASB Staff Position (FSP) SFAS 157-3, “Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active” (“FSP SFAS 157-3”). FSP SFAS 157-3 clarifies the application of SFAS No. 157, in a market that is not active and provides guidance on how to determine the fair value of financial assets when the market for that financial asset is not active. The Company adopted FSP SFAS 157-3 on September 30, 2008, as required, and it had no impact to the Company’s financial statements at the time of adoption.
Fair Value Option. In February 2007, the FASB issued SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities—Including an amendment of FASB Statement No. 115” (“SFAS No. 159”). SFAS No. 159 permits a company to irrevocably elect fair value as the initial and subsequent measurement attribute for certain financial assets and financial liabilities on a contract-by-contract basis, with changes in fair value recognized in earnings. The election to use the fair value option is available when an entity first recognizes a financial asset or a financial liability or upon entering into a firm commitment. Additionally, SFAS No. 159 allows for a one-time election for existing positions upon adoption, with the transition adjustment recorded to beginning retained earnings. The Company adopted SFAS No. 159 on January 1, 2008 and elected not to apply the fair value option to measure any of the Company’s financial assets or liabilities.
Credit Derivatives and Guarantees. In September 2008, the FASB issued FSP SFAS 133-1 and FIN 45-4, “Disclosures about Credit Derivatives and Certain Guarantees: An Amendment of FASB Statement No. 133 and FASB Interpretation No. 45; and Clarification of the Effective Date of FASB Statement No. 161” (“FSP SFAS 133-1 and FIN 45-4”). FSP SFAS 133-1 and FIN 45-4 require additional disclosures by entities regarding credit derivatives, including the nature of the instrument, its purpose, performance requirements, potential future payments and its fair value, as well as requiring disclosure of the performance risk of certain guarantees. This FSP also clarifies the required adoption date of SFAS No. 161. The provisions of FSP SFAS 133-1 and FIN 45-4 regarding credit derivatives and guarantees apply prospectively for fiscal years ending after November 15, 2008. The Company adopted FSP SFAS 133-1 and FIN 45-4 on December 31, 2008, as required, and does not currently have credit derivatives but has provided the additional disclosures required relating to certain guarantees in Note 18—Commitments and Contingencies.
Variable Interest Entities. In December 2008, the FASB issued FSP No. FAS 140-4 and FIN 46(R)-8, “Disclosures by Public Entities (Enterprises) about Transfers of Financial Assets and Interests in Variable
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Interest Entities” (“FSP SFAS 140-4 and FIN 46(R)-8”). This FSP amends FASB Statement No. 140, “Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities”, to require public entities to provide additional disclosures about transfers of financial assets. It also amends FASB Interpretation No. 46 (revised December 2003), “Consolidation of Variable Interest Entities”, to require public enterprises to provide additional disclosures about their involvement with variable interest entities. Additionally, this FSP requires certain disclosures to be provided by a public enterprise that is (i) a sponsor of a qualifying special purpose entity (SPE) that holds a variable interest in the qualifying SPE but was not the transferor of financial assets to the qualifying SPE and (ii) a servicer of a qualifying SPE that holds a significant variable interest in the qualifying SPE but was not the transferor of financial assets to the qualifying SPE. The disclosures required by this FSP are intended to provide greater transparency to financial statement users about a transferor’s continuing involvement with transferred financial assets and an enterprise’s involvement with variable interest entities and qualifying SPEs’. FSP FAS 140-4 and FIN 46(R)-8 apply prospectively for fiscal years ending after December 15, 2008. The Company adopted FSP FAS 140-4 and FIN 46(R)-8 on December 31, 2008, as required. It had no impact on the Company’s financial statements at the time of adoption and the additional required disclosures have been provided in Note 17—Debt Under Vehicle Programs and Borrowing Arrangements.
Recently Issued Accounting Pronouncements
In December 2007, the FASB issued SFAS No. 141 (revised 2007), “Business Combinations” (“SFAS No. 141(R)”). SFAS No. 141(R) seeks to improve the relevance, representational faithfulness and comparability of the information that a reporting entity provides in its financial reports about a business combination and its effects. Among other things, SFAS No. 141(R) requires an acquiror to recognize the assets acquired, the liabilities assumed and any noncontrolling interest in the acquiree at the acquisition date, measured at their fair values as of that date, with limited exceptions (whether full or partial acquisitions) and requires expensing of acquisition and most restructuring costs. SFAS No. 141(R) applies prospectively to business combinations for which the acquisition date is on or after the beginning of the first annual reporting period beginning on or after December 15, 2008. The Company adopted SFAS No. 141(R) on January 1, 2009, as required, and it had no impact on its financial statements at the time of adoption.
In December 2007, the FASB issued SFAS No. 160, “Noncontrolling Interests in Consolidated Financial Statements—an amendment of ARB No. 51” (“SFAS No. 160”). SFAS No. 160 amends Accounting Research Bulletin (“ARB”) No. 51 to establish accounting and reporting standards for the noncontrolling (minority) interest in a subsidiary and for the deconsolidation of a subsidiary. In addition, SFAS No. 160 provides expanded disclosure guidance including the requirement that entities present noncontrolling (minority) interests as equity, rather than as a liability or mezzanine equity. SFAS No. 160 applies prospectively, except for the presentation and disclosure requirements which are applied retrospectively for all periods presented, and is effective for fiscal years beginning on or after December 15, 2008. The Company adopted SFAS No. 160 on January 1, 2009, as required, and it had no impact on its financial statements at the time of adoption.
In March 2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities—an amendment of FASB Statement No. 133” (“SFAS No. 161”). SFAS No. 161 requires entities to provide qualitative disclosures about the objectives and strategies for using derivatives, quantitative data about the fair value of and gains and losses on derivative contracts, and details of credit-risk-related contingent features in their hedged positions. SFAS No. 161 applies prospectively for fiscal years beginning on or after November 15, 2008. The Company adopted SFAS No. 161 on January 1, 2009, as required, and it had no impact on its financial statements at the time of adoption.
In December 2008, the FASB issued FSP No. FAS 132(R)-1, “Employers’ Disclosure about Postretirement Benefit Plan Assets” (“FSP FAS 132(R)-1”). FSP FAS 132(R)-1 enhances the plan asset disclosures currently required by FASB Statement No. 132 (revised 2003), “Employers’ Disclosures about Pensions and Other
F-20
Postretirement Benefits”, to provide users of financial statements with useful, transparent, and timely information about the asset portfolios of postretirement benefit plans. FSP FAS 132(R)-1 applies prospectively for fiscal years ending after December 15, 2009. The Company adopted FSP FAS 132(R)-1 on January 1, 2009, as required, and it had no impact on its financial statements at the time of adoption.
In April 2008, the FASB issued FSP No. FAS 142-3 “Determination of the Useful Life of Intangible Assets” (“FSP FAS 142-3”). FSP FAS 142-3 amends the factors that should be considered in developing renewal or extension assumptions used to determine the useful life of a recognized intangible asset under FASB Statement No. 142, “Goodwill and Other Intangible Assets”. FSP FAS 142-3 applies prospectively for fiscal years beginning after December 15, 2008. The Company adopted FSP FAS 142-3 on January 1, 2009, as required, and it had no impact on its financial statements at the time of adoption.
In November 2008, the Emerging Issues Task Force (EITF) ratified EITF Issue No. 08-6, “Equity Method Investment Accounting Considerations,” for investments accounted for under the equity method of accounting. EITF Issue No. 08-6 reaffirmed accounting guidance provided around the initial measurement and other-than-temporary impairment of an equity method investment, as well as the manner in which an equity method investor must account for a share issuance by an investee. EITF Issue No. 08-6 applies prospectively for fiscal years beginning after December 15, 2008. The Company adopted EITF Issue No. 08-6 on January 1, 2009, as required, and it had no impact on its consolidated financial statements at the time of adoption.
| 3. | Discontinued Operations |
Travelport. On August 23, 2006, the Company completed the sale of Travelport, which comprised the Company’s former travel distribution services businesses for proceeds of approximately $4.1 billion, net of closing adjustments. The loss incurred on disposal of Travelport included a $1.3 billion impairment charge reflecting the difference between Travelport’s carrying value and its estimated fair value and a tax charge related to asset basis differences resulting from the 2001 acquisition of a Travelport subsidiary.
Realogy and Wyndham. On July 31, 2006, the Company completed the spin-offs of Realogy and Wyndham in tax-free distributions of one share each of Realogy and Wyndham common stock for every four and five shares, respectively, of Cendant common stock held on July 21, 2006. Direct costs incurred in connection with the spin-offs of Realogy and Wyndham are included within gain (loss) on disposal of discontinued operations, net of tax on the accompanying Consolidated Statements of Operations.
Summarized statement of income data for discontinued operations are as follows:
Year Ended December 31, 2008
During 2008, the Company did not report any income (loss) from discontinued operations.
Year Ended December 31, 2007
The $2 million loss from discontinued operations, net of tax for the year ended December 31, 2007 represents a tax charge due to an increase in non-deductible expenses offset by a benefit in state taxes on discontinued operations. The $33 million gain on disposal of discontinued operations, net of tax for the year ended December 31, 2007, primarily represents a tax benefit realized as a result of certain elections made in connection with the Travelport disposition on the income tax returns filed during 2007.
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Year Ended December 31, 2006
| Wright Express (a) |
Marketing Services Division (b) |
Realogy (c) | ||||||||||
| Net revenues |
$ | - | $ | - | $ | 3,856 | ||||||
| Income before income taxes |
$ | - | $ | - | $ | 445 | ||||||
| Provision for income taxes |
- | - | 172 | |||||||||
| Income from discontinued operations, net of tax |
$ | - | $ | - | $ | 273 | ||||||
| Gain (loss) on disposal of discontinued operations |
$ | 9 | $ | (15 | ) | $ | (76 | ) | ||||
| Provision (benefit) for income taxes |
3 | 27 | (22 | ) | ||||||||
| Gain (loss) on disposal of discontinued operations, net of tax |
$ | 6 | $ | (42 | ) | $ | (54 | ) | ||||
| Wyndham (c) (d) | Travelport (c) | Total | ||||||||||
| Net revenues |
$ | 2,052 | $ | 1,859 | $ | 7,767 | ||||||
| Income before income taxes |
$ | 377 | $ | 170 | $ | 992 | ||||||
| Provision for income taxes |
288 | 54 | 514 | |||||||||
| Income from discontinued operations, net of tax |
$ | 89 | $ | 116 | $ | 478 | ||||||
| Gain (loss) on disposal of discontinued operations |
$ | (83 | ) | $ | (1,464 | ) | $ | (1,629 | ) | |||
| Provision (benefit) for income taxes |
(25 | ) | 345 | 328 | ||||||||
| Gain (loss) on disposal of discontinued operations, net of tax |
$ | (58 | ) | $ | (1,809 | ) | $ | (1,957 | ) | |||
| (a) |
The Company completed the initial public offering of Wright Express in February 2005 and entered into a tax receivable agreement, pursuant to which Wright Express is obligated to make payments to the Company over a 15 year term. Following the Cendant Separation, the Company is obligated to distribute all such payments to Realogy and Wyndham. Gain on disposal includes payments received from Wright Express during 2006 in connection with the tax receivable agreement excluding amounts remitted to Realogy and Wyndham. |
| (b) |
Represents payments in connection with a guarantee obligation made to the Company’s former Marketing Services division, which was disposed of in October 2005, and a tax charge primarily related to state taxes prior to the date of disposition. |
| (c) |
Results are through the date of disposition. |
| (d) |
The provision for income taxes reflects a $158 million charge associated with separating the vacation ownership business from the Company in connection with the spin-off of Wyndham. |
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| 4. | Earnings Per Share |
The following table sets forth the computation of basic and diluted earnings per share (“EPS”):
| Year Ended December 31, | ||||||||||||
| 2008 | 2007 | 2006 | ||||||||||
| Loss from continuing operations |
$ | (1,124 | ) | $ | (947 | ) | $ | (451 | ) | |||
| Income (loss) from discontinued operations, net of tax |
- | (2 | ) | 478 | ||||||||
| Gain (loss) on disposal of discontinued operations, net of tax |
- | 33 | (1,957 | ) | ||||||||
| Cumulative effect of accounting changes, net of tax |
- | - | (64 | ) | ||||||||
| Net loss |
$ | (1,124 | ) | $ | (916 | ) | $ | (1,994 | ) | |||
| Basic and diluted weighted average shares outstanding (a) |
101.9 | 103.1 | 100.6 | |||||||||
| Earnings per share basic and diluted: |
||||||||||||
| Loss from continuing operations |
$ | (11.04 | ) | $ | (9.18 | ) | $ | (4.48 | ) | |||
| Income (loss) from discontinued operations |
- | (0.02 | ) | 4.75 | ||||||||
| Gain (loss) on disposal of discontinued operations |
- | 0.32 | (19.46 | ) | ||||||||
| Cumulative effect of accounting changes |
- | - | (0.63 | ) | ||||||||
| Net loss |
$ | (11.04 | ) | $ | (8.88 | ) | $ | (19.82 | ) | |||
| (a) |
As the Company incurred a loss from continuing operations in 2008, 2007 and 2006, all outstanding stock options and restricted stock units have an anti-dilutive effect and therefore are excluded from the computation of diluted weighted average shares outstanding. Accordingly, basic and diluted weighted average shares outstanding are equal for such periods. |
The following table summarizes the Company’s outstanding common stock equivalents that were anti-dilutive and therefore excluded from the computation of diluted EPS:
| Year Ended December 31, | ||||||
| 2008 | 2007 | 2006 | ||||
| Options (a) |
5.0 | 6.0 | 11.0 | |||
| Warrants (b) |
- | 0.2 | 0.2 | |||
| (a) |
Represents all outstanding stock options for 2008, 2007 and 2006. |
| (b) |
Represents all outstanding warrants for 2007 and 2006, for which the weighted average exercise price was $21.31. These warrants expired on June 3, 2008. |
| 5. | Restructuring Charges |
The restructuring charges related to these activities are accounted for under SFAS No. 146, “Accounting for Costs Associated with Exit or Disposal Activities”.
2008 Restructuring
During 2008, the Company implemented various strategic initiatives targeted principally at reducing costs, enhancing organizational efficiency and consolidating and rationalizing existing processes and facilities. The more significant areas of cost reduction included the elimination of approximately 3,000 positions, resulting in the termination of approximately 2,300 employees within the Company’s Domestic Car Rental, International Car Rental and Truck Rental segments and the closure of certain facilities. The Company recorded a restructuring charge of $28 million in connection with these initiatives, substantially all of which is anticipated to be cash and $13 million of which has been paid as of December 31, 2008. This charge
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primarily represents severance, outplacement services and other costs associated with employee terminations. The Company has reviewed and planned for measures related to this initiative and expects further restructuring costs of approximately $8 million to be incurred in the first six months of 2009.
2006 Restructuring
In 2006, the Company committed to various strategic initiatives targeted principally at reducing costs, enhancing organizational efficiency and consolidating and rationalizing existing processes and facilities within its Budget Truck Rental and Domestic Car Rental operations. The more significant areas of cost reduction included the closure of the Budget Truck Rental headquarters and other facilities and reductions in staff. The Company recorded $8 million of restructuring charges in connection with these initiatives, of which $6 million and $2 million was incurred within the Company’s Truck Rental and Domestic Car Rental operations, respectively. The remaining liabilities related to the 2006 restructuring charges were paid in 2007.
2005 Restructuring
In 2005, the Company recorded $26 million of restructuring charges as a result of activities undertaken following the PHH spin-off and the initial public offering of Wright Express. The restructuring activities were targeted principally at reducing costs, enhancing organizational efficiency and consolidating and rationalizing existing processes and facilities. The more significant areas of cost reduction included the closure of a call center and field locations of the Company’s Truck Rental business and reductions in staff within the Company’s corporate functions. The initial charge recorded in the Company’s Corporate and Other, Truck Rental and Domestic Car Rental segments amounted to $19 million, $5 million and $2 million, respectively. In 2006, the Company recorded a $2 million charge representing a revision to its original estimate of costs to exit a lease in connection with the closure of a truck rental facility in first quarter 2005. As of December 31, 2008, there is a remaining liability of approximately $1 million, relating to obligations under terminated leases.
The initial recognition of the restructuring charges and the corresponding utilization from inception are summarized by category as follows:
| Personnel Related |
Facility Related |
Asset Impairments |
Total | ||||||||||||
| Balance as of January 1, 2006 |
$ | - | $ | 3 | $ | - | $ | 3 | |||||||
| 2005 Restructuring initiative revision |
- | 2 | - | 2 | |||||||||||
| 2006 Restructuring initial charge (a) |
4 | 4 | - | 8 | |||||||||||
| 2005 Restructuring cash payment |
- | (2 | ) | - | (2 | ) | |||||||||
| 2006 Restructuring cash payment |
- | (1 | ) | - | (1 | ) | |||||||||
| Balance as of December 31, 2006 |
4 | 6 | - | 10 | |||||||||||
| 2005 Restructuring cash payment |
- | (1 | ) | - | (1 | ) | |||||||||
| 2006 Restructuring cash payment |
(4 | ) | (3 | ) | - | (7 | ) | ||||||||
| Balance as of December 31, 2007 |
- | 2 | - | 2 | |||||||||||
| 2008 Restructuring initial charge (b) |
23 | 4 | 1 | 28 | |||||||||||
| 2005 Restructuring cash payment |
- | (1 | ) | - | (1 | ) | |||||||||
| 2008 Restructuring cash payment |
(13 | ) | - | - | (13 | ) | |||||||||
| Balance as of December 31, 2008 |
$ | 10 | $ | 5 | $ | 1 | $ | 16 | |||||||
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The restructuring charges and corresponding utilization are recorded within the Company’s segments as follows:
| Truck Rental |
Domestic Car Rental |
International Car Rental |
Total | |||||||||||||
| Balance as of January 1, 2006 |
$ | 3 | $ | - | $ | - | $ | 3 | ||||||||
| 2005 Restructuring initiative revision |
2 | - | - | 2 | ||||||||||||
| 2006 Restructuring initial charge (a) |
6 | 2 | - | 8 | ||||||||||||
| 2005 Restructuring cash payment |
(2 | ) | - | - | (2 | ) | ||||||||||
| 2006 Restructuring cash payment |
(1 | ) | - | - | (1 | ) | ||||||||||
| Balance as of December 31, 2006 |
8 | 2 | - | 10 | ||||||||||||
| 2005 Restructuring cash payment |
(1 | ) | - | - | (1 | ) | ||||||||||
| 2006 Restructuring cash payment |
(5 | ) | (2 | ) | - | (7 | ) | |||||||||
| Balance as of December 31, 2007 |
2 | - | - | 2 | ||||||||||||
| 2008 Restructuring initial charge (b) |
2 | 23 | 3 | 28 | ||||||||||||
| 2005 Restructuring cash payment |
(1 | ) | - | - | (1 | ) | ||||||||||
| 2008 Restructuring cash payment |
(1 | ) | (11 | ) | (1 | ) | (13 | ) | ||||||||
| Balance at December 31, 2008 |
$ | 2 | $ | 12 | $ | 2 | $ | 16 | ||||||||
| (a) |
The initial charge primarily represents severance benefits resulting from reductions in staff and costs incurred in connection with facility closures and lease obligations resulting from the closure of the Truck Rental headquarters, consolidation of Truck Rental operations and the closure of other facilities within the Company’s Domestic Car Rental operations. Prior to December 31, 2006, the Company formally communicated the termination of employment to approximately 180 employees, representing a wide range of employee groups. As of December 31, 2008, the Company has terminated all of these employees. |
| (b) |
The initial charge primarily represents severance benefits resulting from the reductions in staff. The Company formally communicated the termination of employment to approximately 2,300 employees, representing a wide range of employee groups. As of December 31, 2008, the Company terminated all but 158 of these employees. |
| 6. | Franchising Activities |
Franchising revenues, which are recorded within other revenues on the accompanying Consolidated Statements of Operations, amounted to $34 million, $36 million and $37 million during 2008, 2007 and 2006, respectively.
The number of Company-owned and franchised outlets in operation (excluding independent commissioned dealer locations for the Budget truck rental business and Avis and Budget locations operated by or through Avis Europe Holdings, Limited, an independent third party) is as follows:
| As of December 31, | ||||||
| 2008 | 2007 | 2006 | ||||
| Company-owned |
||||||
| Avis brand |
1,334 | 1,335 | 1,268 | |||
| Budget brand |
1,128 | 1,046 | 951 | |||
| Franchised |
||||||
| Avis brand |
890 | 849 | 847 | |||
| Budget brand |
1,134 | 1,184 | 1,218 | |||
In connection with ongoing fees the Company receives from its franchisees pursuant to the franchise agreements, the Company is required to provide certain services, such as training, marketing and the operation of reservation systems.
F-25
| 7. | Acquisitions |
Assets acquired and liabilities assumed in business combinations are recorded on the Company’s Consolidated Balance Sheets as of the respective acquisition dates based upon their estimated fair values at such dates. The results of operations of businesses acquired by the Company have been included in the Company’s Consolidated Statements of Operations since their respective dates of acquisition. The excess of the purchase price over the estimated fair values of the underlying assets acquired, including trademark assets related to franchisees, and liabilities assumed was allocated to goodwill. In certain circumstances, the allocations of the excess purchase price are based upon preliminary estimates and assumptions. Accordingly, the allocations may be subject to revision when the Company receives final information, including appraisals and other analyses. Any revisions to the fair values, within the allocation period, are recorded by the Company as further adjustments to the purchase price allocations.
During 2008, the Company acquired 24 vehicle rental franchisees, which included $36 million of associated vehicles, for $87 million in cash, resulting in $50 million valued as trademark intangible assets. During 2008, a $321 million charge was recorded to reflect the impairment of the Company’s tradenames.
In 2007, the Company acquired 13 vehicle rental franchisees for $10 million in cash, resulting in trademark intangible assets of $11 million. In 2006, the Company acquired 19 vehicle rental franchisees for $20 million in cash, resulting in trademark intangible assets of $17 million.
These acquisitions, which for each year presented, relate primarily to the Company’s Domestic Car Rental segment, were not significant individually or in the aggregate to the Company’s results of operations, financial position or cash flows.
The Company also acquired approximately 48% of the equity in Carey Holdings, Inc., the parent of Carey International, Inc., in October 2007 (see Note 13—Equity Investment).
| 8. | Intangible Assets |
Intangible assets consisted of:
| As of December 31, 2008 | As of December 31, 2007 | |||||||||||||||||
| Gross Carrying Amount |
Accumulated Amortization |
Net Carrying Amount |
Gross Carrying Amount |
Accumulated Amortization |
Net Carrying Amount | |||||||||||||
| Amortized Intangible Assets |
||||||||||||||||||
| Franchise agreements (a) |
$ | 73 | $ | 20 | $ | 53 | $ | 75 | $ | 18 | $ | 57 | ||||||
| Customer lists (b) |
19 | 8 | 11 | 19 | 7 | 12 | ||||||||||||
| Other (c) |
2 | 1 | 1 | 2 | 1 | 1 | ||||||||||||
| $ | 94 | $ | 29 | $ | 65 | $ | 96 | $ | 26 | $ | 70 | |||||||
| Unamortized Intangible Assets |
||||||||||||||||||
| Goodwill |
$ | 75 | $ | 1,000 | ||||||||||||||
| Trademarks (d) |
$ | 402 | $ | 690 | ||||||||||||||
| (a) |
Primarily amortized over a period ranging from 25 to 40 years. |
| (b) |
Primarily amortized over 20 years. |
| (c) |
Primarily amortized over 27 years. |
| (d) |
Comprised of various tradenames (including the Avis and Budget tradenames) that the Company has acquired and which distinguish the Company’s consumer services. These tradenames are expected to generate future cash flows for an indefinite period of time. |
F-26
During 2008, as a result of reduced equity market valuations for vehicle services and other companies, as well as reduced profit forecasts due to soft economic conditions and increased financing costs, it was determined that an impairment had occurred (see Note 2—Summary of Significant Accounting Policies).
The changes to the carrying amount of goodwill during 2008 are as follows:
| Balance at January 1, 2008 |
Goodwill Impairment (a) |
Adjustments to Goodwill (b) |
Balance at December 31, 2008 | |||||||||||
| Domestic Car Rental |
$ | 569 | $ | (569 | ) | $ | - | $ | - | |||||
| International Car Rental |
329 | (267 | ) | (2 | ) | 60 | ||||||||
| Truck Rental |
102 | (87 | ) | - | 15 | |||||||||
| $ | 1,000 | $ | (923 | ) | $ | (2 | ) | $ | 75 | |||||
| (a) |
See Note 2—Summary of Significant Accounting Policies. |
| (b) |
These adjustments to goodwill are primarily due to fluctuations in foreign currency. |
The changes to the carrying amount of trademarks during 2008 are as follows:
| Balance at January 1, 2008 |
Tradenames Impairment (a) |
Adjustments to Trademarks (b) |
Balance at December 31, 2008 | |||||||||||
| Domestic Car Rental |
$ | 594 | $ | (313 | ) | $ | 46 | $ | 327 | |||||
| International Car Rental |
95 | (8 | ) | (13 | ) | 74 | ||||||||
| Truck Rental |
1 | - | - | 1 | ||||||||||
| $ | 690 | $ | (321 | ) | $ | 33 | $ | 402 | ||||||
| (a) |
See Note 2—Summary of Significant Accounting Policies. |
| (b) |
The total adjustments to trademarks of $33 million are primarily the result of business acquisitions that amounted to $46 million within Domestic Car Rental and $4 million within International Car Rental, respectively, offset by a $17 million decrease within International Car Rental due to fluctuations in foreign currency. |
Amortization expense relating to all intangible assets was as follows:
| Year Ended December 31, | |||||||||
| 2008 | 2007 | 2006 | |||||||
| Franchise agreements |
$ | 2 | $ | 2 | $ | 2 | |||
| Customer lists |
1 | 1 | 1 | ||||||
| Total |
$ | 3 | $ | 3 | $ | 3 | |||
Based on the Company’s amortizable intangible assets at December 31, 2008, the Company expects related amortization expense to approximate $3 million for each of the five succeeding fiscal years.
F-27
| 9. | Vehicle Rental Activities |
The components of vehicles, net within assets under vehicle programs are as follows:
| Year Ended December 31, | ||||||||
| 2008 | 2007 | |||||||
| Rental vehicles |
$ | 7,502 | $ | 7,947 | ||||
| Less: Accumulated depreciation |
(1,219 | ) | (1,022 | ) | ||||
| 6,283 | 6,925 | |||||||
| Vehicles held for sale |
881 | 549 | ||||||
| Vehicles, net |
$ | 7,164 | $ | 7,474 | ||||
The components of vehicle depreciation and lease charges, net are summarized below:
| Year Ended December 31, | ||||||||||
| 2008 | 2007 | 2006 | ||||||||
| Depreciation expense |
$ | 1,639 | $ | 1,565 | $ | 1,362 | ||||
| Lease charges |
51 | 46 | 54 | |||||||
| (Gain) loss on sale of vehicles, net and cost of vehicle disposition |
7 | (40 | ) | - | ||||||
| Vehicle depreciation and lease charges, net |
$ | 1,697 | $ | 1,571 | $ | 1,416 | ||||
During 2008, 2007 and 2006, vehicle interest, net on the accompanying Consolidated Statements of Operations excludes $136 million, $141 million and $101 million, respectively, of interest expense related to the fixed and floating rate borrowings of the Company’s Avis Budget Car Rental, LLC (“Avis Budget Car Rental”) subsidiary. Such interest is recorded within interest expense related to corporate debt, net on the accompanying Consolidated Statements of Operations.
| 10. | Income Taxes |
The income tax provision (benefit) consists of the following:
| Year Ended December 31, | ||||||||||||
| 2008 | 2007 | 2006 | ||||||||||
| Current |
||||||||||||
| Federal |
$ | (4 | ) | $ | 1 | $ | (47 | ) | ||||
| State |
10 | 2 | 21 | |||||||||
| Foreign |
16 | 9 | — | |||||||||
| Current income tax provision (benefit) |
22 | 12 | (26 | ) | ||||||||
| Deferred |
||||||||||||
| Federal |
(232 | ) | (120 | ) | (250 | ) | ||||||
| State |
(14 | ) | 46 | 21 | ||||||||
| Foreign |
5 | 17 | 29 | |||||||||
| Deferred income tax benefit |
(241 | ) | (57 | ) | (200 | ) | ||||||
| Benefit from income taxes |
$ | (219 | ) | $ | (45 | ) | $ | (226 | ) | |||
Pretax income (loss) for domestic and foreign operations consists of the following:
| Year Ended December 31, | ||||||||||||
| 2008 | 2007 | 2006 | ||||||||||
| Domestic |
$ | (1,404 | ) | $ | (1,064 | ) | $ | (756 | ) | |||
| Foreign |
61 | 72 | 79 | |||||||||
| Pretax loss |
$ | (1,343 | ) | $ | (992 | ) | $ | (677 | ) | |||
F-28
Current and non-current deferred income tax assets and liabilities are comprised of the following:
| As of December 31, | ||||||||
| 2008 | 2007 | |||||||
| Current deferred income tax assets: |
||||||||
| Accrued liabilities and deferred income |
$ | 115 | $ | 103 | ||||
| Provision for doubtful accounts |
6 | 6 | ||||||
| Acquisition and integration-related liabilities |
2 | — | ||||||
| Valuation allowance (*) |
(20 | ) | (21) | |||||
| Current deferred income tax assets |
103 | 88 | ||||||
| Current deferred income tax liabilities: |
||||||||
| Prepaid expenses |
28 | 46 | ||||||
| Current deferred income tax liabilities |
28 | 46 | ||||||
| Current net deferred income tax asset |
$ | 75 | $ | 42 | ||||
| Non-current deferred income tax assets: |
||||||||
| Net tax loss carryforwards |
$ | 287 | $ | 193 | ||||
| Accrued liabilities and deferred income |
134 | 127 | ||||||
| Tax credit carryforward |
48 | 48 | ||||||
| Acquisition and integration-related liabilities |
24 | 26 | ||||||
| Unrealized hedge loss |
12 | 11 | ||||||
| Depreciation and amortization |
129 | — | ||||||
| Other |
6 | — | ||||||
| Valuation allowance (*) |
(137 | ) | (116 | ) | ||||
| Non-current deferred income tax assets |
503 | 289 | ||||||
| Non-current deferred income tax liabilities: |
||||||||
| Depreciation and amortization |
— | 49 | ||||||
| Other |
— | 6 | ||||||
| Non-current deferred income tax liabilities |
— | 55 | ||||||
| Non-current net deferred income tax asset |
$ | 503 | $ | 234 | ||||
| (*) |
The valuation allowance of $157 million at December 31, 2008, primarily relates to tax loss carryforwards, foreign tax credits and certain state deferred tax assets of $118 million, $32 million and $7 million, respectively. The valuation allowance will be reduced when and if the Company determines that the related deferred income tax assets are more likely than not to be realized. |
Deferred income tax assets and liabilities related to the vehicle programs are comprised of the following:
| As of December 31, | ||||||
| 2008 | 2007 | |||||
| Deferred income tax assets: |
||||||
| Unrealized hedge loss |
$ | 85 | $ | 29 | ||
| 85 | 29 | |||||
| Deferred income tax liabilities: |
||||||
| Depreciation |
1,273 | 1,275 | ||||
| 1,273 | 1,275 | |||||
| Net deferred income tax liabilities under vehicle programs |
$ | 1,188 | $ | 1,246 | ||
As of December 31, 2008, the Company had federal net operating loss carryforwards of approximately $357 million (net of valuation allowances), most of which expire in 2027 and 2028. Currently the Company does
F-29
not record valuation allowances on the majority of its tax loss carryforwards as there are adequate deferred tax liabilities that could be realized within the carryforward period. No provision has been made for U.S. federal deferred income taxes on approximately $410 million of accumulated and undistributed earnings of foreign subsidiaries at December 31, 2008, since it is the present intention of management to reinvest the undistributed earnings indefinitely in those foreign operations. The determination of the amount of unrecognized U.S. federal deferred income tax liability for unremitted earnings is not practicable.
The reconciliation between the U.S. federal income tax statutory rate and the Company’s effective income tax rate for continuing operations is as follows:
| As of December 31, | |||||||||
| 2008 | 2007 | 2006 | |||||||
| Federal statutory rate |
35.0 | % | 35.0 | % | 35.0 | % | |||
| Adjustments to reconcile to the effective rate: |
|||||||||
| State and local income taxes, net of federal tax benefits |
(0.2 | ) | (0.4 | ) | 2.1 | ||||
| Changes in valuation allowances |
(1.1 | ) | (0.4 | ) | (4.3 | ) | |||
| Taxes on foreign operations at rates different than statutory U.S. federal rates |
0.4 | 0.1 | (0.2 | ) | |||||
| Taxes on repatriated foreign income, net of tax credits |
0.1 | 0.1 | (0.1 | ) | |||||
| Resolution of prior years’ examination issues |
(0.4 | ) | 0.2 | 3.5 | |||||
| Goodwill impairment |
(17.4 | ) | (29.8 | ) | — | ||||
| Nondeductible expenses |
(0.2 | ) | (0.4 | ) | (0.8 | ) | |||
| Other |
0.1 | 0.1 | (1.8 | ) | |||||
| 16.3 | % | 4.5 | % | 33.4 | % | ||||
The following is a tabular reconciliation of the total amounts of unrecognized tax benefits for the year:
| December 31, | ||||||||
| 2008 | 2007 | |||||||
| Balance at January 1, |
$ | 612 | $ | 614 | ||||
| Additions based on tax positions related to the current year |
— | — | ||||||
| Additions for tax positions for prior years |
27 | 21 | ||||||
| Reductions for tax positions for prior years |
(36 | ) | (23 | ) | ||||
| Settlements |
(2 | ) | — | |||||
| Balance at December 31, |
$ | 601 | $ | 612 | ||||
Substantially all of the gross amount of the unrecognized tax benefits at December 31, 2008 and 2007, if recognized, would affect the Company’s effective tax rate. The Company’s unrecognized tax benefits were offset by tax credits in the amount of $104 million and tax loss carryforwards in the amount of $10 million and $15 million, as of December 31, 2008 and 2007, respectively.
As of December 31, 2008 and 2007, the unrecognized tax benefits in long-term income taxes payable were $480 million and $440 million, respectively, which were recorded as a component of Other non-current liabilities on the Consolidated Balance Sheets. The Company does not anticipate that total unrecognized tax benefits will significantly change due to the settlement of audits or expiration of statute of limitations within twelve months.
Including the impact of the adoption of FIN 48 on January 1, 2007, the Company’s accrual for the potential interest associated with uncertain tax positions was $26 million. During the twelve months ended December 31, 2008 and 2007, the Company recorded additional liabilities of $51 million and $23 million, respectively, for the accrual of interest, which had a minimal impact on the Company’s results of operations as the Company is substantially entitled to indemnification for such liabilities and recognized corresponding
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receivables from Realogy and Wyndham. The Company recognizes potential interest and corresponding indemnification from Realogy and Wyndham, related to unrecognized tax benefits within interest expense related to corporate debt, net on the accompanying Consolidated Statements of Operations. Penalties incurred during the twelve months ended December 31, 2008 and 2007, were not significant and were recognized as a component of income taxes.
The Company is subject to income taxes in the United States and numerous foreign jurisdictions. Significant judgment is required to determine the Company’s worldwide provision for income taxes and to record the related assets and liabilities. In the ordinary course of business, there are many transactions and calculations where the ultimate tax determination is uncertain. The Company is regularly under audit by tax authorities. Accruals for tax contingencies are provided for in accordance with the requirements of FIN 48. Pursuant to the Tax Sharing Agreement entered into in connection with the Cendant Separation and the Separation Agreement, the Company is entitled to indemnification for non-Avis Budget Car Rental tax contingencies for taxable periods prior to and including the Cendant Separation.
The Company and the Internal Revenue Service (“IRS”) have settled the IRS examination for the Company’s taxable years 1998 through 2002. The Company was adequately reserved for this audit cycle and has reflected the results of that examination in the accompanying Consolidated Financial Statements. The IRS has commenced an audit of the Company’s taxable years 2003 through 2006, the year of the Cendant Separation. The Company has recorded a $480 million liability, net of federal tax benefit, in respect of such taxable years, reflecting the Company’s current best estimates of the probable outcome with certain tax positions. The Company believes that its accruals for tax liabilities, including the liabilities for which it is entitled to indemnification pursuant to the Tax Sharing Agreement and Separation Agreement, are adequate for all remaining open years based on its assessment of many factors, including past experience and interpretations of tax law applied to the facts of each matter.
The rules governing taxation are complex and subject to varying interpretations. Therefore, the Company’s tax accruals reflect a series of complex judgments about future events and rely heavily on estimates and assumptions. Although the Company believes the estimates and assumptions supporting its tax accruals are reasonable, the potential result of an audit or litigation related to tax could include a range of outcomes, and could result in tax liabilities for the Company that are materially different than those reflected in the Consolidated Financial Statements. Notwithstanding this, as discussed above, the Company is entitled to indemnification for most pre-Separation matters from Realogy and Wyndham (and has received a letter of credit from Realogy to help ensure Realogy’s performance under its indemnification obligations) and therefore does not expect such resolution to have a significant impact on its earnings, financial position or cash flows.
| 11. | Other Current Assets |
Other current assets consisted of:
| As of December 31, | ||||||
| 2008 | 2007 | |||||
| Receivables from Realogy (a) |
$ | 112 | $ | 169 | ||
| Receivables from Wyndham (a) |
70 | 122 | ||||
| Prepaid expenses |
127 | 148 | ||||
| Other |
71 | 131 | ||||
| $ | 380 | $ | 570 | |||
| (a) |
Represents amounts due for certain contingent and other corporate liabilities assumed by Realogy and Wyndham in connection with the Cendant Separation and transition services performed under a Transition Services Agreement which was entered into at the time of the Cendant Separation. These amounts are due from Realogy and Wyndham on demand upon the Company’s settlement of the related liability. At December 31, 2008 and 2007, there are corresponding liabilities recorded within accounts payable and other current liabilities. |
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| 12. | Property and Equipment, net |
Property and equipment, net consisted of:
| As of December 31, | ||||||||
| 2008 | 2007 | |||||||
| Land |
$ | 48 | $ | 48 | ||||
| Buildings and leasehold improvements |
368 | 365 | ||||||
| Capitalized software |
307 | 255 | ||||||
| Furniture, fixtures and equipment |
139 | 135 | ||||||
| Buses and support vehicles |
53 | 59 | ||||||
| Projects in process |
74 | 93 | ||||||
| 989 | 955 | |||||||
| Less: Accumulated depreciation and amortization |
(504 | ) | (455 | ) | ||||
| $ | 485 | $ | 500 | |||||
Depreciation and amortization expense relating to property and equipment during 2008, 2007 and 2006 was $85 million, $81 million and $102 million, respectively (including $26 million, $21 million and $36 million, respectively, of amortization expense relating to capitalized computer software).
| 13. | Equity Investment |
At December 31, 2008, the Company’s equity-method investee and the Company’s approximate ownership interest, based on outstanding shares, are as follows:
| Company |
Percentage Ownership |
||
| Carey Holdings, Inc. |
47.9 | % |
The Company acquired its investment in Carey Holdings, Inc. (“Carey”) on October 23, 2007 for approximately $60 million in cash. Carey’s subsidiary, Carey International, Inc., is a worldwide provider of chauffeured ground transportation services, operating in approximately 550 cities and 60 countries through a network of franchisees and alliance partners. The Company’s investment in Carey is recorded within other non-current assets on the Consolidated Balance Sheet and the Company’s share of Carey’s operating results is reported within operating expenses on the Consolidated Statements of Operations. During 2008, the Company recorded an $18 million charge ($11 million, net of tax) for an impairment to its investment in Carey to reflect the decline of the investment’s fair value below its carrying value. The impairment relates to the Company’s common equity investment in Carey and its option to acquire an additional ownership stake in Carey, which was not exercised. At December 31, 2008, the Company’s investment totaled $43 million, including $2 million of deferred acquisition costs. The Company’s share of Carey’s operating results were insignificant in 2008 and were a net loss of $2 million from October 23, 2007 to December 31, 2007.
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| 14. | Accounts Payable and Other Current Liabilities |
Accounts payable and other current liabilities consisted of:
| As of December 31, | ||||||
| 2008 | 2007 | |||||
| Accounts payable |
$ | 162 | $ | 210 | ||
| Accrued payroll and related |
134 | 171 | ||||
| Accrued legal settlements |
106 | 121 | ||||
| Public liability and property damage insurance liabilities – current |
106 | 109 | ||||
| Disposition related liabilities |
73 | 125 | ||||
| Other |
320 | 358 | ||||
| $ | 901 | $ | 1,094 | |||
| 15. | Other Non-Current Liabilities |
Other non-current liabilities consisted of:
| As of December 31, | ||||||
| 2008 | 2007 | |||||
| Long-term income taxes payable |
$ | 480 | $ | 440 | ||
| Public liability and property damage insurance liability |
219 | 252 | ||||
| Accrued interest – tax contingencies |
111 | 52 | ||||
| Pension liability |
69 | 22 | ||||
| Acquisition related liabilities |
59 | 65 | ||||
| Tax reserve |
38 | 29 | ||||
| Other |
145 | 138 | ||||
| $ | 1,121 | $ | 998 | |||
| 16. | Long-term Debt and Borrowing Arrangements |
Long-term debt consisted of:
| Maturity Date |
As of December 31, 2008 |
As of December 31, 2007 | ||||||
| Floating rate term loan (a) |
April 2012 | $ | 787 | $ | 796 | |||
| Floating rate notes |
May 2014 | 250 | 250 | |||||
| 7 5/8% notes |
May 2014 | 375 | 375 | |||||
| 7 3/4% notes |
May 2016 | 375 | 375 | |||||
| 1,787 | 1,796 | |||||||
| Other |
2 | 1 | ||||||
| Total long-term debt |
1,789 | 1,797 | ||||||
| Less: Current portion |
10 | 10 | ||||||
| Long-term debt |
$ | 1,779 | $ | 1,787 | ||||
| (a) | The floating rate term loan and our revolving credit facility are secured by pledges of all of the capital stock of all of the Company’s direct or indirect domestic subsidiaries and up to 66% of the capital stock of each direct foreign subsidiary, subject to certain exceptions, and liens on substantially all of the Company’s intellectual property and certain other real and personal property. |
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AVIS BUDGET CAR RENTAL CORPORATE DEBT
Floating Rate Term Loan
The Company’s floating rate term loan was entered into in April 2006. This floating rate term loan was amended in December 2008 to change the financial covenants, interest rate spreads and restrictions on certain activities contained therein. This facility has a six year term and bears interest at three month LIBOR plus 375 basis points, for a rate of 5.2% at December 31, 2008. Quarterly installment payments, of approximately $2 million, are required for the first five and three quarter years with the remaining amount repayable in full at the end of the term. During 2008 and 2007, the Company repaid $9 million and $42 million, respectively, of outstanding principal under the Floating Rate Term Loan.
Floating Rate Senior Notes
The Company’s Floating Rate Senior Notes were issued in April 2006 at 100% of their face value for aggregate proceeds of $250 million. The interest rate on these notes is equal to three month LIBOR plus 250 basis points, for a rate of 3.9% at December 31, 2008. The Company has the right to redeem these notes in whole or in part at any time after May 15, 2008, at the applicable scheduled redemption price, plus in each case, accrued and unpaid interest through the redemption date. These notes are senior unsecured obligations and rank equally in right of payment with all the Company’s existing and future senior indebtedness.
7 5/8% and 7 3/4% Senior Notes
The Company’s 7 5/8% and 7 3/4% Senior Notes were issued in April 2006 at 100% of their face value for aggregate proceeds of $750 million. The Company has the right to redeem the 7 5/8% and 7 3/4% Senior Notes in whole or in part at any time prior to May 15, 2010 and May 15, 2011, respectively, at the applicable make-whole redemption price and, in whole or in part, at any time on or after May 15, 2010 and May 15, 2011, respectively, at the applicable scheduled redemption price, plus in each case, accrued and unpaid interest through the redemption date. These notes are senior unsecured obligations and rank equally in right of payment with all the Company’s existing and future senior indebtedness.
CORPORATE GUARANTEE
On February 9, 2007, the Company agreed to guarantee (the “Guarantee”) the payment of principal, premium, if any, and interest on the $1.0 billion aggregate principal amount of senior notes issued by Avis Budget Car Rental in April 2006 (the “Notes”). The Notes consist of Avis Budget Car Rental’s 7 5/8% Senior Notes, 7 3/4% Senior Notes and Floating Rate Senior Notes in each case described above. The Company executed a Supplemental Indenture, dated February 9, 2007, to provide the Guarantee in accordance with the terms and limitations of the Notes and the indenture governing the Notes. In consideration for providing the Guarantee, the Company received $14 million, before fees and expenses, from certain institutional investors. The $14 million consideration has been deferred and is being amortized over the life of the debt. As of December 31, 2008, the deferred consideration remaining to be amortized amounted to $11 million.
DEBT MATURITIES
The following table provides contractual maturities of the Company’s corporate debt at December 31, 2008:
| Year |
Amount | ||
| 2009 |
$ | 10 | |
| 2010 |
9 | ||
| 2011 |
9 | ||
| 2012 |
761 | ||
| 2013 |
- | ||
| Thereafter |
1,000 | ||
| $ | 1,789 | ||
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COMMITTED CREDIT FACILITIES AND AVAILABLE FUNDING ARRANGEMENTS
At December 31, 2008, the committed credit facilities available to the Company and/or its subsidiaries at the corporate or Avis Budget Car Rental level were as follows:
| Total Capacity |
Outstanding Borrowings |
Letters of Credit Issued |
Available Capacity | |||||||||
| Revolving credit facility (a) |
$ | 1,150 | $ | - | $ | 816 | $ | 334 | ||||
| Letter of credit facility (b) |
228 | - | 224 | 4 | ||||||||
| (a) |
This secured revolving credit facility which was entered into by Avis Budget Car Rental in April 2006 and amended in December 2008, has a five year term and currently bears interest at one month LIBOR plus 400 basis points. The senior credit facilities, which encompass the floating rate term loan and the revolving credit facility, are secured by pledges of all of the capital stock of all of the Company’s direct or indirect domestic subsidiaries and up to 66% of the capital stock of each direct foreign subsidiary, subject to certain exceptions, and liens on substantially all of the Company’s intellectual property and certain other real and personal property. |
| (b) |
Final maturity date is July 2010. |
DEBT COVENANTS
The Company’s debt agreements contain restrictive covenants, including restrictions on dividends paid to the Company by certain of its subsidiaries, the incurrence of additional indebtedness by the Company and certain of its subsidiaries, acquisitions, mergers, liquidations, and sale and leaseback transactions. The senior credit facilities also contain a minimum EBITDA requirement (as defined in the senior credit facilities). As of December 31, 2008, the Company is not aware of any instances of non-compliance with any of its financial covenants. The indenture governing the Company’s senior unsecured notes prohibits it from incurring additional debt, subject to certain exceptions. The Company is currently unable to rely on the exception which requires compliance with an interest coverage ratio.
| 17. | Debt Under Vehicle Programs and Borrowing Arrangements |
Debt under vehicle programs (including related party debt due to Avis Budget Rental Car Funding (AESOP) LLC (“Avis Budget Rental Car Funding”)) consisted of:
| As of December 31, 2008 |
As of December 31, 2007 | |||||
| Debt due to Avis Budget Rental Car Funding (a) |
$ | 5,142 | $ | 4,646 | ||
| Budget Truck financing: |
||||||
| Budget Truck Funding program (b) |
316 | 246 | ||||
| Capital leases |
126 | 204 | ||||
| Other (c) |
450 | 500 | ||||
| $ | 6,034 | $ | 5,596 | |||
| (a) |
The increase principally reflects $468 million of incremental borrowings under the Company’s various debt arrangements to support the acquisition of rental vehicles within the Company’s Domestic Car Rental operations during the year ended December 31, 2008. |
| (b) |
The increase primarily reflects incremental borrowings under the Company’s conduit facility to support the acquisition of rental vehicles within the Company’s Budget Truck rental fleet. |
| (c) |
The decrease primarily reflects the effect of foreign currency exchange movements. |
Avis Budget Rental Car Funding (AESOP) LLC. Avis Budget Rental Car Funding, an unconsolidated bankruptcy remote qualifying special purpose limited liability company, issues private placement notes to investors as well as to bank conduit facilities. Avis Budget Rental Car Funding then uses the proceeds from
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its note issuances to make loans to a wholly-owned subsidiary of the Company, AESOP Leasing LP (“AESOP Leasing”) on a continuing basis. By issuing debt through the AESOP program, Avis Budget has been paying a lower rate of interest than if the Company had issued debt directly to third parties. AESOP Leasing is required to use these proceeds to acquire or finance the acquisition of vehicles used in the Company’s rental car operations. Avis Budget Rental Car Funding is not consolidated, as its interests, including its equity interest, are not considered variable interests and the Company is not the primary beneficiary of Avis Budget Rental Car Funding. As a result, AESOP Leasing’s obligation to Avis Budget Rental Car Funding is reflected as related party debt on the Company’s Consolidated Balance Sheets as of December 31, 2008 and 2007. The Company also recorded an asset within assets under vehicle programs on its Consolidated Balance Sheets at December 31, 2008 and 2007, which represented the equity issued to the Company by Avis Budget Rental Car Funding. AESOP Leasing is consolidated, as the Company is the primary beneficiary of AESOP Leasing; as a result, the vehicles purchased by AESOP Leasing remain on the Company’s Consolidated Balance Sheet. The Company determined it is the primary beneficiary of AESOP Leasing, as it absorbs a majority of its expected losses and residual returns. This determination was made by developing multiple scenarios with different sets of assumptions and determining the probability weighted cash flows that result. AESOP Leasing’s vehicles and related assets, which approximate $6.6 billion and many of which are subject to manufacturer repurchase and guaranteed depreciation agreements, collateralize the debt issued by Avis Budget Rental Car Funding. The assets and liabilities of AESOP Leasing and their carrying values are presented on our consolidated balance sheets within Assets under vehicle programs and Liabilities under vehicle programs, respectively. The assets of AESOP Leasing, included within Assets under vehicle programs (excluding the Investment in Avis Budget Rental Car Funding (AESOP) LLC– related party) are restricted. They may be used only to repay the respective AESOP Leasing liabilities, included within Liabilities under vehicle programs; and to purchase new vehicles, although if certain collateral coverage requirements are met excess cash may be dividended to the Company. The creditors of AESOP Leasing have no recourse to the general credit of the Company. In April 2006, the Company made a capital contribution into Avis Budget Rental Car Funding of $1.6 billion to retire vehicle debt and provide funding for future vehicle purchases, which was not contractually required. The Company also finances vehicles through other variable interest entities and partnerships, which are consolidated and whose assets and liabilities are included within Assets under vehicle programs and Liabilities under vehicle programs, respectively. The requirements of these entities include maintaining sufficient collateral levels and other covenants.
The business activities of Avis Budget Rental Car Funding are limited primarily to issuing indebtedness and using the proceeds thereof to make loans to AESOP Leasing for the purpose of acquiring or financing the acquisition of vehicles to be leased to the Company’s rental car subsidiaries and pledging its assets to secure the indebtedness. Because Avis Budget Rental Car Funding is not consolidated by the Company, its results of operations and cash flows are not reflected within the Company’s Consolidated Financial Statements. Borrowings under the Avis Budget Rental Car Funding program primarily represent floating rate notes with a weighted average interest rate of 2% and 5% as of December 31, 2008 and 2007, respectively.
Truck financing. The Budget Truck Funding program consists of debt facilities established by the Company to finance the acquisition of the Budget Truck rental fleet. The borrowings under the Budget Truck Funding program are collateralized by $334 million of corresponding assets and are floating rate notes with a weighted average interest rate of 4% and 5% as of December 31, 2008 and 2007, respectively. The Company has also obtained a portion of its truck rental fleet under capital lease arrangements for which there are corresponding gross assets of $354 million and $361 million with accumulated amortization of $211 million and $154 million classified within vehicles, net on the Company’s Consolidated Balance Sheets as of December 31, 2008 and 2007, respectively. Interest paid as part of capital lease obligations was $8 million and $10 million during 2008 and 2007, respectively.
Other. Borrowings under the Company’s other vehicle rental programs primarily represent amounts issued under financing facilities that provide for borrowings to support the acquisition of vehicles used in the Company’s international vehicle rental operations and loans to support the acquisition of certain vehicles for
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Domestic Car Rental operations. The debt issued is collateralized by $869 million of vehicles and related assets and primarily represents floating rate bank loans and a commercial paper conduit facility for which the weighted average interest rate as of December 31, 2008 and 2007 was 5% and 6%, respectively.
The following table provides the contractual maturities of the Company’s debt under vehicle programs (including related party debt due to Avis Budget Rental Car Funding) at December 31, 2008:
| Vehicle- Backed Debt |
Capital Leases |
Total | |||||||
| 2009 |
$ | 2,169 | $ | 94 | $ | 2,263 | |||
| 2010 |
1,357 | 32 | 1,389 | ||||||
| 2011 |
974 | - | 974 | ||||||
| 2012 |
1,108 | - | 1,108 | ||||||
| 2013 |
- | - | - | ||||||
| Thereafter |
300 | - | 300 | ||||||
| $ | 5,908 | $ | 126 | $ | 6,034 | ||||
COMMITTED CREDIT FACILITIES AND AVAILABLE FUNDING ARRANGEMENTS
As of December 31, 2008, available funding under the Company’s vehicle programs (including related party debt due to Avis Budget Rental Car Funding) consisted of:
| Total Capacity (a) |
Outstanding Borrowings |
Available Capacity | |||||||
| Debt due to Avis Budget Rental Car Funding |
$ | 5,967 | $ | 5,142 | $ | 825 | |||
| Budget Truck financing: |
|||||||||
| Budget Truck Funding program |
316 | 316 | - | ||||||
| Capital leases |
126 | 126 | - | ||||||
| Other |
761 | 450 | 311 | ||||||
| $ | 7,170 | $ | 6,034 | $ | 1,136 | ||||
| (a) |
Capacity is subject to maintaining sufficient assets to collateralize debt. |
DEBT COVENANTS
Debt agreements under the Company’s vehicle-backed funding programs contain restrictive covenants, including restrictions on dividends paid to the Company by certain of its subsidiaries and restrictions on indebtedness, mergers, liens, liquidations and sale and leaseback transactions and in some cases also require compliance with certain financial requirements. As of December 31, 2008 the Company is not aware of any instances of non-compliance with such financial or restrictive covenants.
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| 18. | Commitments and Contingencies |
Lease Commitments
The Company is committed to making rental payments under noncancelable operating leases covering various facilities and equipment. Many of the Company’s operating leases for facilities contain renewal options. These renewal options vary, but the majority include clauses for the renewal rental at various length terms and prevailing market rate rents, subject to a market review. Future minimum lease payments required under noncancelable operating leases as of December 31, 2008 are as follows:
| Year |
Amount | ||
| 2009 |
$ | 401 | |
| 2010 |
294 | ||
| 2011 |
234 | ||
| 2012 |
196 | ||
| 2013 |
143 | ||
| Thereafter |
642 | ||
| $ | 1,910 | ||
The future minimum lease payments in the above table have been reduced by minimum future sublease rental inflows of $18 million and include minimum concession fees charged by airport authorities which, in many locations, are recoverable from vehicle rental customers.
The Company maintains concession agreements with various airport authorities that allow the Company to conduct its car rental operations onsite. In general, concession fees for airport locations are based on a percentage of total commissionable revenue (as determined by each airport authority), subject to minimum annual guaranteed amounts. These concession fees are included in the Company’s total rent expense and were as follows:
| Year Ended December 31, |
||||||||||||
| 2008 | 2007 | 2006 | ||||||||||
| Rent and minimum concession fees |
$ | 477 | $ | 465 | $ | 424 | ||||||
| Contingent concession expense |
126 | 130 | 142 | |||||||||
| 603 | 595 | 566 | ||||||||||
| Less: sublease rental income |
(5 | ) | (8 | ) | (5 | ) | ||||||
| Total |
$ | 598 | $ | 587 | $ | 561 | ||||||
Commitments under capital leases, other than those within the Company’s vehicle rental program, for which the future minimum lease payments have been reflected in Note 17—Debt Under Vehicle Programs and Borrowing Arrangements, are not significant.
Contingencies
The IRS has commenced an audit of the Company’s taxable years 2003 through 2006, the year of the Cendant Separation (see Note 10—Income Taxes).
The Company is involved in litigation alleging breach of contract and fraud arising out of the acquisition of a business in 1998 which occurred just prior to Cendant’s announcement of the discovery of accounting
F-38
irregularities at its former CUC business units. The Company has accrued liabilities of approximately $103 million regarding such claims. The Company does not believe that it is feasible to predict or determine the final outcome or resolution of such unresolved proceedings. Pursuant to the Separation Agreement (described below), Realogy and Wyndham have assumed all liabilities related to this litigation, as described below, and therefore a corresponding receivable has been established for such amount. Changes in liabilities related to such legal matters for which the Company is entitled to indemnification, and corresponding changes in the Company’s indemnification assets, are shown net within the Separation costs, net line on the Consolidated Statements of Operations.
In connection with the spin-offs of Realogy and Wyndham, the Company entered into the Separation Agreement, pursuant to which Realogy assumed 62.5% and Wyndham assumed 37.5% of certain contingent and other corporate liabilities of the Company or its subsidiaries, which are not primarily related to any of the respective businesses of Realogy, Wyndham, Travelport and/or the Company’s vehicle rental operations, in each case incurred or allegedly incurred on or prior to the separation of Travelport from the Company (“Assumed Liabilities”). Realogy is entitled to receive 62.5% and Wyndham is entitled to receive 37.5% of the proceeds from certain contingent corporate assets of the Company, which are not primarily related to any of the respective businesses of Realogy, Wyndham, Travelport and/or the Company’s vehicle rental operations, arising or accrued on or prior to the separation of Travelport from the Company (“Assumed Assets”). Additionally, if Realogy or Wyndham were to default on its payment of costs or expenses to the Company related to any Assumed Liabilities the Company would be responsible for 50% of the defaulting party’s obligation. In such event, the Company would be allowed to use the defaulting party’s share of the proceeds of any Assumed Assets as a right of offset. Realogy and Wyndham have also agreed to guarantee each other’s as well as the Company’s obligation under each entity’s deferred compensation plans for amounts deferred in respect of 2005 and earlier years.
The Company does not believe that the impact of any unresolved proceedings constituting Assumed Liabilities related to the litigation described above or other pre-Separation activities should result in a material liability to the Company in relation to its consolidated financial position or liquidity, as Realogy and Wyndham each have agreed to assume responsibility for these liabilities as well as other liabilities related to the Company’s litigation that are not related to its vehicle rental operations. Such litigation assumed by Realogy and Wyndham includes litigation which was retained by the Company in connection with the sale of its former Marketing Services division.
In April 2007, Realogy was acquired by an affiliate of Apollo Management VI, L.P. The acquisition does not affect Realogy’s obligation to satisfy 62.5% of the contingent and other corporate liabilities of the Company or its subsidiaries pursuant to the terms of the Separation Agreement. As a result of the acquisition, Realogy has greater debt obligations and its ability to satisfy its portion of the contingent and other corporate liabilities may be adversely impacted. In accordance with the terms of the Separation Agreement, Realogy posted a letter of credit in April 2007 for the benefit of the Company to cover its estimated share of the Assumed Liabilities discussed above, subject to adjustment, although there can be no assurance that such letter of credit will be sufficient or effective to cover Realogy’s actual obligations if and when they arise.
In addition to the matters discussed above, the Company is also involved in claims, legal proceedings and governmental inquiries related to its vehicle rental operations, including contract disputes, business practices issues, insurance claims, intellectual property claims, environmental issues and other commercial, employment and tax matters, and breach of contract claims by licensees. The Company believes that it has adequately accrued for such matters as appropriate or, for matters not requiring accrual, believes that they will not have a material adverse impact on its results of operations, financial position or cash flows based on information currently available. However, litigation is inherently unpredictable and, although the Company believes that its accruals are adequate and/or that it has valid defenses in these matters, unfavorable resolutions could occur, which could adversely impact the Company’s results of operations or cash flows in a particular reporting period.
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Commitments to Purchase Vehicles
The Company maintains agreements with vehicle manufacturers which require the Company to purchase approximately $4.6 billion of vehicles from manufacturers over the next twelve months. The majority of these commitments are subject to the vehicle manufacturers’ satisfying their obligations under the repurchase and guaranteed depreciation agreements. The Company’s featured suppliers for the Avis and Budget brands are General Motors Corporation and Ford Motor Company, respectively, although the Company purchases vehicles produced by numerous other manufacturers. The purchase of such vehicles is financed primarily through the issuance of vehicle-backed debt in addition to cash received upon the sale of vehicles in the used car market and under repurchase and guaranteed depreciation programs.
Other Purchase Commitments
In the normal course of business, the Company makes various commitments to purchase goods or services from specific suppliers, including those related to capital expenditures. None of the purchase commitments made by the Company as of December 31, 2008 (aggregating approximately $40 million) was individually significant. These purchase obligations extend through 2009.
Concentrations
Concentrations of credit risk at December 31, 2008 include (i) risks related to the Company’s repurchase and guaranteed depreciation agreements with domestic and foreign car manufacturers, including General Motors Corporation, Ford Motor Company, Chrysler LLC, Hyundai Motor America and Kia Motors America, Inc., primarily with respect to receivables for program cars that have been returned to the car manufacturers and (ii) risks related to receivables from Realogy and Wyndham of $560 million and $343 million, respectively, related to certain contingent, income tax and other corporate liabilities assumed by Realogy and Wyndham in connection with the Cendant Separation.
Asset Retirement Obligations
The Company maintains a liability for asset retirement obligations. An asset retirement obligation is a legal obligation to perform certain activities in connection with the retirement, disposal or abandonment of assets. The Company’s asset retirement obligations, which are measured at discounted fair values, are primarily related to the removal of underground gas storage tanks at its rental facilities. Liabilities accrued for asset retirement obligations were $21 million and $20 million at December 31, 2008 and 2007, respectively.
Standard Guarantees/Indemnifications
In the ordinary course of business, the Company enters into numerous agreements that contain standard guarantees and indemnities whereby the Company indemnifies another party for breaches of representations and warranties. In addition, many of these parties are also indemnified against any third party claim resulting from the transaction that is contemplated in the underlying agreement. Such guarantees or indemnifications are granted under various agreements, including those governing (i) purchases, sales or outsourcing of assets or businesses, (ii) leases of real estate, (iii) licensing of trademarks, (iv) access to credit facilities and use of derivatives and (v) issuances of debt or equity securities. The guarantees or indemnifications issued are for the benefit of the (i) buyers in sale agreements and sellers in purchase agreements, (ii) landlords in lease contracts, (iii) franchisees in licensing agreements, (iv) financial institutions in credit facility arrangements and derivative contracts and (v) underwriters in debt or equity security issuances. While some of these guarantees extend only for the duration of the underlying agreement, many survive the expiration of the term of the agreement or extend into perpetuity (unless subject to a legal statute of limitations). There are no specific limitations on the maximum potential amount of future payments that the Company could be required to make under these guarantees, nor is the Company able to develop an estimate of the maximum
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potential amount of future payments to be made under these guarantees as the triggering events are not subject to predictability. With respect to certain of the aforementioned guarantees, such as indemnifications of landlords against third party claims for the use of real estate property leased by the Company, the Company maintains insurance coverage that mitigates any potential payments to be made.
Other Guarantees
The Company has provided certain guarantees to, or for the benefit of, subsidiaries of Realogy, Wyndham and Travelport which, as previously discussed, were disposed of during third quarter 2006. These guarantees relate to various real estate operating leases. The maximum potential amount of future payments that the Company may be required to make under the guarantees relating to the various real estate operating leases is estimated to be approximately $300 million. At December 31, 2008, the liability recorded by the Company in connection with these guarantees was approximately $5 million. To the extent that the Company would be required to perform under any of these guarantees, the Company is entitled to indemnification by Realogy, Wyndham and Travelport. The Company monitors the credit ratings and other relevant information for Realogy, Wyndham and Travelport’s parent company in order to assess the status of the payment/performance risk of these guarantees.
The Company has provided certain guarantees to, or for the benefit of, subsidiaries of PHH, which, as previously discussed, was spun-off during first quarter 2005. These guarantees relate primarily to various real estate leases. The maximum potential amount of future payments that the Company may be required to make under the guarantees relating to the various real estate leases is estimated to be approximately $14 million. At December 31, 2008, the liability recorded by the Company in connection with these guarantees was approximately $1 million. To the extent that the Company would be required to perform under any of these guarantees, PHH has agreed to indemnify the Company.
In connection with the Company’s disposition of its Marketing Services division (“MSD”), the Company agreed to provide certain indemnifications related to, among other things, litigation matters related to various suits brought against MSD by individual consumers and state regulatory authorities seeking monetary and/or injunctive relief regarding the marketing of certain membership programs and inquiries from state regulatory authorities related to such programs. Such indemnification entitles the purchaser to reimbursement for a portion of the actual losses suffered by it in regards to such matters. In addition, pursuant to a number of post-closing commercial arrangements entered into between certain of the Company’s subsidiaries and MSD, the Company also agreed to provide a minimum number of call transfers to certain MSD subsidiaries, as well as retaining pre-existing guarantee obligations for certain real estate operating lease obligations on behalf of certain MSD subsidiaries. The Company established a liability for the estimated fair value of these guarantees in the amount of approximately $100 million on the sale date, which reduced the gain on the transaction recorded within discontinued operations. The residual liability as of December 31, 2008 was approximately $39 million. The maximum potential amount of future payments to be made under these guarantees is approximately $263 million, excluding one litigation matter for which there is no limitation to the maximum potential amount of future payments.
Realogy and Wyndham have agreed to assume responsibility for the Company’s potential liabilities relating to PHH and the former Marketing Services division (other than the call transfer obligation). The Company monitors the credit ratings and other relevant information for Realogy and Wyndham in order to assess the status of the payment/performance risk of these guarantees. The Company also has a letter of credit which covers Realogy’s portion of these and certain other obligations.
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| 19. | Stockholders’ Equity |
Cash Dividend Payments
During 2008 and 2007, the Company did not pay cash dividends. In 2006 the Company paid cash dividends of $113 million ($1.10 per share in first quarter). Such per share dividend amount has been adjusted for the 1-for-10 reverse stock split of the Company’s common stock, which became effective September 5, 2006.
Share Repurchases
During 2008, the Company used approximately $33 million of available cash to repurchase approximately 2.9 million shares of Avis Budget Group common stock under its common stock repurchase program.
In 2007, the Company did not repurchase any shares of its common stock. In 2006, the Company used $221 million of available cash and $22 million of proceeds primarily received in connection with option exercises to repurchase $243 million of common stock.
Accumulated Other Comprehensive Income
The components of accumulated other comprehensive income are as follows:
| Currency Translation Adjustments |
Unrealized Losses on Cash Flow Hedges |
Minimum Pension Liability Adjustment |
Accumulated Other Comprehensive Income (Loss) |
|||||||||||||
| Balance, January 1, 2006 |
$ | 77 | $ | 43 | $ | (80 | ) | $ | 40 | |||||||
| Effect of dispositions |
(223 | ) | - | 46 | (177 | ) | ||||||||||
| Current period change |
213 | (13 | ) | 5 | 205 | |||||||||||
| Balance, December 31, 2006 |
67 | 30 | (29 | ) | 68 | |||||||||||
| Current period change |
50 | (93 | ) | 7 | (36 | ) | ||||||||||
| Balance, December 31, 2007 |
117 | (63 | ) | (22 | ) | 32 | ||||||||||
| Current period change |
(110 | ) | (86 | ) | (30 | ) | (226 | ) | ||||||||
| Balance, December 31, 2008 |
$ | 7 | $ | (149 | ) | $ | (52 | ) | $ | (194 | ) | |||||
All components of accumulated other comprehensive income (loss) are net of tax, except currency translation adjustments, which exclude income taxes related to indefinite investments in foreign subsidiaries.
During 2008, the Company recorded unrealized losses on cash flow hedges of $142 million ($86 million, net of tax), in accumulated other comprehensive income which primarily related to the derivatives used to manage the interest-rate risk associated with the Company’s vehicle-backed debt and the Company’s floating rate debt (see Note 22—Financial Instruments). Such amount in 2008 includes $141 million of unrealized losses, excluding tax, on cash flow hedges related to the Company’s vehicle-backed debt and is offset by a corresponding decrease in the Company’s Investment in Avis Budget Rental Car Funding on the Consolidated Balance Sheet.
| 20. | Stock-Based Compensation |
The Company expects to grant stock options, and may grant stock appreciation rights (“SARs”), restricted shares and restricted stock units (“RSUs”) to its employees, including directors and officers of the Company and its affiliates. Beginning in 2003, the Company changed the method by which it provides stock-based compensation to its employees by significantly reducing the number of stock options granted and instead issuing RSUs as a form of compensation. Additionally, in 2006, the Company issued stock-settled stock
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appreciation rights to certain executives. As of December 31, 2008, the Company’s active stock-based compensation plan consists of the 2007 Equity and Incentive Plan, under which the Company is authorized to grant up to 8 million shares of its common stock and approximately 7 million shares were available for future grants. The Company may settle employee stock option exercises with either treasury shares or shares purchased on the open market. The Company typically issues shares related to vested RSUs from treasury shares. The Company applies the direct method and tax law ordering approach to calculate the tax effects of stock-based compensation. In jurisdictions with net operating loss carryforwards, tax deductions for 2008 and 2007 exercises of stock-based awards did not generate a cash benefit. Approximately $30 million of tax benefits will be recorded in additional paid-in capital when realized in these jurisdictions.
Stock Options
Following the spin-offs of Realogy and Wyndham, all previously outstanding and unvested stock options vested and converted into stock options of Avis Budget, Realogy and Wyndham. Although no stock options were granted during 2008, 2007 and 2006, the Company granted stock options in January 2009 that vest based on performance, market and/or time vesting criteria.
The annual activity of the Company’s common stock option plans consisted of (in thousands of shares):
| 2008 | 2007 | 2006 | ||||||||||||||||
| Number of Options |
Weighted Average Exercise Price (c) |
Number of Options |
Weighted Average Exercise Price (c) |
Number of Options |
Weighted Average Exercise Price (c) | |||||||||||||
| Balance at beginning of year |
5,963 | $ | 26.16 | 11,037 | $ | 27.22 | 12,890 | $ | 27.12 | |||||||||
| Granted at fair market value |
- | - | - | - | - | - | ||||||||||||
| Exercised (a) |
(5 | ) | 10.68 | (2,495 | ) | 19.92 | (576 | ) | 15.69 | |||||||||
| Forfeited |
(955 | ) | 32.89 | (2,579 | ) | 36.74 | (1,277 | ) | 31.36 | |||||||||
| Balance at end of year (b) |
5,003 | 24.90 | 5,963 | 26.16 | 11,037 | 27.22 | ||||||||||||
| (a) |
The intrinsic value of stock options exercised during 2008 was insignificant. Stock options exercised during 2007 and 2006 had intrinsic value of $20 million and $23 million, respectively. |
| (b) |
As of December 31, 2008, there were no “in-the-money” stock options and aggregate unrecognized compensation expense related to outstanding stock options was zero as of December 31, 2008. |
| (c) |
As a result of the spin-offs of Realogy and Wyndham on July 31, 2006, the exercise price of each option was adjusted downward by a proportionate value. Such amounts were then revised to reflect the 1-for-10 reverse stock split, which became effective on September 5, 2006. |
The table below summarizes information regarding the Company’s outstanding and exercisable stock options as of December 31, 2008 (in thousands of shares):
| Outstanding and Exercisable Options | |||||||
| Range of Exercise Prices |
Number of Options |
Weighted Average Remaining Contractual Life |
Weighted Average Exercise Price | ||||
| Less than $15.00 |
795 | 1.8 | $ | 13.53 | |||
| $15.01 to $20.00 |
373 | 2.4 | 18.57 | ||||
| $20.01 to $25.00 |
214 | 1.4 | 22.13 | ||||
| $25.01 to $30.00 |
2,498 | 1.5 | 26.61 | ||||
| $30.01 and above |
1,123 | 1.0 | 31.77 | ||||
| 5,003 | 1.5 | 24.90 | |||||
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Restricted Stock Units
RSUs currently granted by the Company entitle the employee to receive one share of Avis Budget common stock upon vesting, which occurs ratably over a four-year period for the majority of currently outstanding RSUs. The Company also employs performance and time vesting criteria for RSU grants made to certain of the Company’s executives. The predetermined performance criteria determine the number of RSUs that will ultimately vest and are based on growth in earnings before taxes and certain other metrics over varying periods of three to four years. The number of performance-based RSUs that will ultimately vest may range from 0% to 100% of the target award. The annual activity related to the Company’s RSUs consisted of (in thousands of shares):
| 2008 | 2007 | 2006 | |||||||||||||||||
| Number of RSUs |
Weighted Average Grant Price |
Number of RSUs |
Weighted Average Grant Price |
Number of RSUs |
Weighted Average Grant Price |
||||||||||||||
| Balance at beginning of year |
2,330 | $ | 25.03 | 1,774 | $ | 24.33 | 2,299 | $ | (* | ) | |||||||||
| Granted at fair market value (a) |
1,156 | 12.84 | 1,143 | 25.83 | 1,799 | (* | ) | ||||||||||||
| Vested (b) |
(577 | ) | 24.68 | (382 | ) | 24.31 | (1,129 | ) | (* | ) | |||||||||
| Canceled (b) |
(236 | ) | 21.05 | (205 | ) | 24.79 | (1,195 | ) | (* | ) | |||||||||
| Balance at end of year (c) |
2,673 | 20.18 | 2,330 | 25.03 | 1,774 | 24.33 | |||||||||||||
| (*) |
Weighted average grant date prices for RSU activity prior to the Cendant Separation are not meaningful due to the impact of the Cendant Separation on the weighted average grant price of RSUs. |
| (a) |
Reflects the maximum number of RSUs assuming achievement of all performance and time vesting criteria. |
| (b) |
As a result of the Cendant Separation, approximately 1.2 million RSUs were canceled during third quarter 2006. Also, as a result of the Cendant Separation, approximately 1.1 million RSUs vested and converted into shares of Avis Budget common stock, Realogy common stock and Wyndham common stock. |
| (c) |
As of December 31, 2008, the Company’s outstanding RSUs had aggregate intrinsic value of $2 million. Aggregate unrecognized compensation expense related to RSUs amounted to $42 million as of December 31, 2008. The balance of RSUs at December 31, 2008 consists of 1,696,000 related to time-based awards and 977,000 related to performance-based awards. |
Stock Appreciation Rights
SARs are settled in Company stock, have a seven-year term, and vest ratably over a four-year period or after three years with no graded vesting prior thereto. The Company’s policy is to grant SARs with exercise prices at then-current fair market value. At December 31, 2008, the Company had approximately 0.5 million SARs outstanding with a weighted average exercise price of $24.40, a weighted average contractual life of 4.6 years and unrecognized compensation expense of $1 million.
The weighted average grant-date fair value of SARs granted during 2006 was $9.05. The fair value of these SARs is estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted average assumptions: dividend yield—0%; expected volatility—32.9%; risk-free interest rate—4.9%; and expected holding period—4.9 years.
Employee Stock Purchase Plan
The Company is authorized to sell shares of its Avis Budget common stock to eligible employees under its non-compensatory employee stock purchase plan (“ESPP”). Under the terms of the ESPP, employees may authorize the company to withhold up to 10% of their compensation from each paycheck for the purchase of Avis Budget common stock. For amounts withheld in 2008, the purchase price of the stock was calculated as 95% of the fair market value of Avis Budget common stock as of last business day each month. During 2008,
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the Company sold approximately 155,000 shares under the ESPP. As of December 31, 2008, approximately 200,000 shares were available for issuance under the ESPP.
Compensation Expense
The Company records compensation expense for all outstanding employee stock awards (see Note 2—Summary of Significant Accounting Policies). The Company’s policy is to record compensation expense related to the issuance of stock options and SARs to its employees on a straight-line basis over the vesting period of the award and based on the estimated number of stock options or SARs the Company believes it will ultimately provide. The Company records amortization expense of the deferred compensation related to RSUs on a straight-line basis over the remaining vesting periods of the respective RSUs and based on the estimated performance goals the Company believes it will ultimately achieve.
The Company recorded pretax stock-based compensation expense of $15 million, $17 million and $93 million ($9 million, $10 million and $57 million, after tax) during 2008, 2007 and 2006, respectively, related to employee stock awards that were granted or modified by the Company. The expense recorded in 2006 includes a pretax charge of $79 million primarily related to the accelerated vesting of previously outstanding RSUs and equitable adjustments related to previously outstanding stock options, as a result of the Cendant Separation. Such pretax stock-based compensation expense is recorded within selling, general and administrative expenses on the accompanying Consolidated Statements of Operations except amounts incurred in connection with the 2006 accelerated vesting of RSUs and stock options related to the Cendant Separation (which are recorded within the Separation costs, net line item).
The Company also recorded pretax stock-based compensation expense of $134 million ($83 million after tax) during 2006 within discontinued operations. The expense recorded in 2006 includes a pretax charge of $104 million, primarily related to the accelerated vesting of previously outstanding RSUs and equitable adjustments related to previously outstanding stock options as a result of the Cendant Separation.
| 21. | Employee Benefit Plans |
Defined Contribution Savings Plans
The Company sponsors several defined contribution savings plans that provide certain eligible employees of the Company an opportunity to accumulate funds for retirement. The Company matches the contributions of participating employees on the basis specified by the plans. The Company’s contributions to these plans were $15 million, $14 million and $23 million during 2008, 2007 and 2006, respectively.
During 2008, the Company made changes to various defined contribution savings plans. Included among these changes, effective January 1, 2009, were modifications to the Company’s matching contribution and of certain vesting criteria and the merger of certain plans.
Defined Benefit Pension Plans
The Company sponsors domestic non-contributory defined benefit pension plans covering certain eligible employees and contributory defined benefit pension plans in certain foreign subsidiaries with participation in the plans at the employees’ option. Under these plans, benefits are based on an employee’s years of credited service and a percentage of final average compensation. However, the majority of such plans are frozen and are no longer accruing benefits.
The Company adopted SFAS No. 158 as of December 31, 2006. SFAS No. 158 requires the recognition of the funded status of the defined benefit pension plan on the Consolidated Balance Sheets and the recognition as a component of accumulated other comprehensive loss, net of tax, the gains or losses and prior service
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costs or credits that arise during the period but are not recognized as components of net periodic benefit cost. Upon adoption of SFAS No. 158, the Company recorded a pretax charge of $6 million ($4 million, after tax) within stockholders’ equity and a $6 million reduction in pension assets.
The components of net periodic benefit cost and the assumptions related to the cost consisted of the following:
| For the Year Ended December 31, | ||||||||||||
| 2008 | 2007 | 2006 | ||||||||||
| Service cost |
$ | 2 | $ | 2 | $ | 2 | ||||||
| Interest cost |
12 | 11 | 13 | |||||||||
| Expected return on plan assets |
(14 | ) | (12 | ) | (14 | ) | ||||||
| Amortization of unrecognized amounts |
3 | 3 | 5 | |||||||||
| Net periodic benefit cost |
$ | 3 | $ | 4 | $ | 6 | ||||||
The Company uses a measurement date of December 31 for its pension plans. The funded status of the pension plans as of December 31, 2008 and 2007 was as follows:
| Change in Benefit Obligation |
2008 | 2007 | ||||||
| Benefit obligation at end of prior year |
$ | 189 | $ | 193 | ||||
| Service cost |
2 | 2 | ||||||
| Interest cost |
12 | 11 | ||||||
| Plan amendments |
1 | 1 | ||||||
| Actuarial (gain)/loss |
5 | (10 | ) | |||||
| Net benefits paid |
(9 | ) | (8 | ) | ||||
| Benefit obligation at end of current year |
$ | 200 | $ | 189 | ||||
| Change in Plan Assets |
||||||||
| Fair value of assets at end of prior year |
$ | 167 | $ | 156 | ||||
| Actual return on plan assets |
(33 | ) | 12 | |||||
| Employer contributions |
6 | 7 | ||||||
| Net benefits paid |
(9 | ) | (8 | ) | ||||
| Fair value of assets at end of current year |
$ | 131 | $ | 167 | ||||
| Funded status at end of year |
$ | (69 | ) | $ | (22 | ) | ||
| Net amounts recognized in the consolidated balance sheets: |
||||||||
| Other non-current liabilities |
$ | (69 | ) | $ | (22 | ) | ||
The estimated amount that will be amortized from accumulated other comprehensive income into net periodic benefit cost in 2009 is as follows:
| 2009 | |||
| Net actuarial loss |
$ | 8 | |
| Prior service cost |
1 | ||
| $ | 9 | ||
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The following assumptions, calculated on a weighted-average basis, were used to determine pension obligations and pension costs for the principal plans in which the Company’s employees participated:
| For the Year Ended December 31, |
|||||||||
| 2008 | 2007 | 2006 | |||||||
| Discount rate: |
|||||||||
| Net periodic benefit cost |
6.25 | % | 5.75 | % | 5.50 | % | |||
| Benefit obligation |
6.25 | % | 6.25 | % | 5.75 | % | |||
| Long-term rate of return on plan assets |
8.25 | % | 8.25 | % | 8.25 | % | |||
To select a discount rate for its defined benefit pension plans, the Company uses a modeling process that involves matching the expected cash outflows of such plan, to a yield curve constructed from a portfolio of AA rated fixed-income debt instruments. The Company uses the average yield of this hypothetical portfolio as a discount rate benchmark.
The Company’s expected rate of return on plan assets of 8.25% is a long term rate based on historic plan asset returns over varying long term periods combined with current market conditions and broad asset mix considerations. The expected rate of return is a long term assumption and generally does not change annually.
As of December 31, 2008, substantially all of the Company’s defined benefit pension plans had a projected benefit obligation in excess of the fair value of plan assets. The Company expects to contribute approximately $8 million to these plans in 2009.
The Company’s pension plan assets were $131 million and $167 million as of December 31, 2008 and 2007, respectively. Plan assets are managed by independent investment advisors with the objective of maximizing returns with a prudent level of risk. Plan assets consist mainly of equity and fixed income securities of U.S. and foreign issuers and our weighted average asset allocation for the Company’s pension plan as of December 31, 2008 was as follows:
| Asset Category |
2008 | ||
| Equity |
48 | % | |
| Debt |
50 | % | |
| Real estate |
2 | % |
The Company estimates that future benefit payments from plan assets will be $10 million, $10 million, $10 million, $11 million, $12 million and $69 million for 2009, 2010, 2011, 2012, 2013 and 2014 to 2018, respectively.
| 22. | Financial Instruments |
Risk Management
Following is a description of the Company’s risk management policies.
Foreign Currency Risk. The Company uses foreign exchange forward contracts to manage its exposure to changes in foreign currency exchange rates associated with its foreign currency denominated receivables and forecasted royalties, forecasted earnings of foreign subsidiaries and forecasted foreign currency denominated acquisitions. The Company primarily hedges its foreign currency exposure to the British pound, Canadian dollar, Australian dollar and New Zealand dollar. The majority of forward contracts do not qualify for hedge accounting treatment under SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities” (“SFAS No. 133”). The fluctuations in the value of these forward contracts do, however, largely offset the
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impact of changes in the value of the underlying risk they economically hedge. Forward contracts used to hedge forecasted third party receipts and disbursements up to 12 months are designated and do qualify as cash flow hedges. The amount of gains or losses reclassified from other comprehensive income to earnings resulting from ineffectiveness or from excluding a component of the forward contracts’ gain or loss from the effectiveness calculation for cash flow hedges during 2008, 2007 and 2006 was not material, nor is the amount of gains or losses the Company expects to reclassify from other comprehensive income to earnings over the next 12 months.
Interest Rate Risk. The Company uses various hedging strategies including interest rate swaps and interest rate caps to create an appropriate mix of fixed and floating rate assets and liabilities. During 2008, the Company recorded a net unrealized loss on all cash flow hedges of $86 million, net of tax, to other comprehensive income. The after-tax amount of gains or losses reclassified from accumulated other comprehensive income (loss) to earnings resulting from ineffectiveness for 2008, 2007 and 2006 was not material to the Company’s results of operations. The Company estimates that approximately $130 million of losses deferred in accumulated other comprehensive income will be recognized in earnings in 2009, which is expected to be offset in earnings by the impact of the underlying hedged items.
During 2008, the Company used interest rate swaps, designated as cash flow hedges, to manage the risk related to its floating rate corporate debt. In connection with such cash flow hedges, the Company recorded net unrealized losses of $1 million, net of tax, to other comprehensive income. In 2007, the Company used interest rate swaps, designated as cash flow hedges, to manage the risk related to its floating rate corporate debt. In connection with such cash flow hedges, the Company recorded net unrealized losses of $13 million, net of tax, to other comprehensive income. In 2006, the Company’s hedging strategies related to its corporate debt included swaps and financial instruments with purchased option features designated as either fair value hedges or freestanding derivatives. The fair value hedges were effective resulting in no impact on the Company’s consolidated results of operations during 2006, except to create the accrual of interest expense at variable rates. The freestanding derivatives resulted in a nominal impact in 2006. In 2006, the Company repaid all outstanding debt associated with terminated hedges and recognized the unamortized gains as a component of the early extinguishment of debt line item on the accompanying Consolidated Statements of Operations.
The Company uses derivatives to manage the risk associated with its floating rate vehicle-backed debt. These derivatives include freestanding derivatives and derivatives designated as cash flow hedges, which have maturities ranging from April 2009 to August 2012. In connection with such cash flow hedges, the Company recorded net unrealized losses of $85 million, $80 million and $5 million, net of tax, during 2008, 2007 and 2006, respectively, to other comprehensive income. The Company recorded a gain (loss) of $(17) million, $(8) million and $5 million, respectively, related to freestanding derivatives during 2008, 2007 and 2006, respectively.
Commodity Risk. The Company is also exposed to changes in commodity prices, primarily unleaded gasoline. In the third and fourth quarters of 2008, first quarter 2007 and fourth quarter 2006, the Company purchased derivative commodity instruments to manage the risk of changes in unleaded gasoline prices. These instruments were designated as freestanding derivatives. These derivatives resulted in a $22 million loss and a $10 million gain on the Company’s consolidated results of operations in 2008 and 2007, respectively. In 2006, these derivatives had a nominal impact on the Company’s consolidated results of operations.
Credit Risk and Exposure. The Company is exposed to counterparty credit risks in the event of nonperformance by counterparties to various agreements and sales transactions. The Company manages such risk by evaluating the financial position and creditworthiness of such counterparties and by requiring collateral in certain instances in which financing is provided. The Company mitigates counterparty credit risk associated with its derivative contracts by monitoring the amount for which it is at risk with each counterparty, periodically evaluating counterparty creditworthiness and financial position, and where possible, dispersing its risk among multiple counterparties.
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There were no significant concentrations of credit risk with any individual counterparties or groups of counterparties at December 31, 2008 or 2007 other than (i) risks related to the Company’s repurchase and guaranteed depreciation agreements with General Motors Corporation, Ford Motor Company, Chrysler LLC, Hyundai Motor America and Kia Motors America, Inc. with respect to program cars that were returned to the car manufacturers but for which the Company has not yet received payment (see Note 2—Summary of Significant Accounting Policies), (ii) receivables from Realogy and Wyndham related to certain contingent, income tax and other corporate liabilities assumed by Realogy and Wyndham in connection with the Cendant Separation and (iii) risks related to leases which have been assumed by Realogy, Wyndham or Travelport but of which the Company is a guarantor.
Concentrations of credit risk associated with trade receivables are considered minimal due to the Company’s diverse customer base. Bad debts have been minimal historically. The Company does not normally require collateral or other security to support credit sales.
Fair Value
The fair value of the Company’s financial instruments are generally determined by reference to market values resulting from trading on a national securities exchange or in an over-the-counter market. In some cases where quoted market prices are not available, prices are derived by considering the yield of the benchmark security that was issued to initially price the instruments and adjusting this rate by the credit spread in basis points that market participants would demand for the instruments as of the measurement date. In situations where long-term borrowings are part of a conduit facility backed by short term floating rate debt, the Company has determined that its carrying value approximates the fair value of this debt. The carrying amounts of cash and cash equivalents, available-for-sale securities, accounts receivable, program cash and accounts payable and accrued liabilities approximate fair value due to the short-term maturities of these assets and liabilities.
The carrying amounts and estimated fair values of financial instruments at December 31 are as follows:
| 2008 | 2007 | |||||||||||
| Carrying Amount |
Estimated Fair Value |
Carrying Amount |
Estimated Fair Value |
|||||||||
| Corporate debt |
||||||||||||
| Current portion of long-term debt |
10 | 10 | 10 | 10 | ||||||||
| Long-term debt |
1,779 | 545 | 1,787 | 1,680 | ||||||||
| Interest rate swaps and commodity instruments (*) |
(51 | ) | (51 | ) | (28 | ) | (28 | ) | ||||
| Debt under vehicle programs |
||||||||||||
| Vehicle-backed debt due to Avis Budget Rental Car Funding |
5,142 | 4,184 | 4,646 | 4,274 | ||||||||
| Vehicle-backed debt |
888 | 879 | 936 | 931 | ||||||||
| Interest rate swaps (*) |
(4 | ) | (4 | ) | (14 | ) | (14 | ) | ||||
| (*) |
Derivatives in (liability) position |
SFAS No. 157 requires disclosures about the Company’s assets and liabilities that are measured at fair value. The Company used significant observable inputs (Level 2 inputs), other than quoted unadjusted prices from active markets (Level 1 inputs), to determine the fair value of its derivative assets and liabilities.
Valuation Techniques. Derivatives entered into by the Company are typically executed over-the-counter and are valued using internal valuation techniques, as no quoted market prices exist for such instruments. The valuation technique and inputs depend on the type of derivative and the nature of the underlying exposure.
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The principal techniques used to value these instruments are discounted cash flows and Black-Scholes option valuation models. These models take into account a variety of factors including, where applicable, maturity, commodity prices, interest rate yield curves of the Company and counterparties, credit curves, counterparty creditworthiness and currency exchange rates. These factors are applied on a consistent basis and are based upon observable inputs where available.
The following table presents information about the Company’s assets and liabilities measured at fair value on a recurring basis:
Items for Which Measurement Is Based on Significant Other Observable Inputs (Level 2):
| As of December 31, 2008 | |||
| Assets: |
|||
| Interest rate swaps and other derivatives |
$ | 1 | |
| Interest rate swaps and other derivatives under vehicle programs |
- | ||
| Total |
$ | 1 | |
| Liabilities: |
|||
| Interest rate swaps and other derivatives |
$ | 52 | |
| Interest rate swaps and other derivatives under vehicle programs |
4 | ||
| Total |
$ | 56 | |
| 23. | Segment Information |
The reportable segments presented below represent the Company’s operating segments for which separate financial information is available and is utilized on a regular basis by its chief operating decision maker to assess performance and to allocate resources. In identifying its reportable segments, the Company also considers the nature of services provided by its operating segments. Management evaluates the operating results of each of its reportable segments based upon revenue and “EBITDA,” which is defined as income from continuing operations before non-vehicle related depreciation and amortization, any impairment of goodwill, other intangible asset or equity investment, non-vehicle related interest and income taxes. The Company’s presentation of EBITDA may not be comparable to similarly-titled measures used by other companies.
Year Ended December 31, 2008
| Domestic Car Rental |
International Car Rental |
Truck Rental |
Corporate and Other (a) |
Total | |||||||||||||
| Net revenues |
$ | 4,695 | $ | 904 | $ | 382 | $ | 3 | $ | 5,984 | |||||||
| Vehicle depreciation and lease charges, net |
1,403 | 211 | 83 | - | 1,697 | ||||||||||||
| Vehicle interest, net |
262 | 30 | 29 | - | 321 | ||||||||||||
| EBITDA |
12 | 141 | (4 | ) | (13 | ) | 136 | ||||||||||
| Non-vehicle depreciation and amortization |
77 | 8 | 3 | - | 88 | ||||||||||||
| Segment assets exclusive of assets under vehicle programs |
1,928 | 485 | 106 | 973 | 3,492 | ||||||||||||
| Assets under vehicle programs |
6,538 | 780 | 508 | - | 7,826 | ||||||||||||
| Capital expenditures (excluding vehicles) |
72 | 10 | 1 | - | 83 | ||||||||||||
During 2008, a $1,262 million charge was recorded for the impairment of goodwill, intangible assets and investments (see Note 2—Summary of Significant Accounting Policies).
F-50
Year Ended December 31, 2007
| Domestic Car Rental |
International Car Rental |
Truck Rental |
Corporate and Other (a) |
Total | |||||||||||
| Net revenues |
$ | 4,679 | $ | 873 | $ | 416 | $ | 18 | $ | 5,986 | |||||
| Vehicle depreciation and lease charges, net |
1,270 | 205 | 96 | - | 1,571 | ||||||||||
| Vehicle interest, net |
259 | 28 | 28 | - | 315 | ||||||||||
| EBITDA |
265 | 131 | 17 | 1 | 414 | ||||||||||
| Non-vehicle depreciation and amortization |
74 | 7 | 2 | 1 | 84 | ||||||||||
| Segment assets exclusive of assets under vehicle programs |
2,528 | 717 | 192 | 1,056 | 4,493 | ||||||||||
| Assets under vehicle programs |
6,421 | 1,043 | 517 | - | 7,981 | ||||||||||
| Capital expenditures (excluding vehicles) |
79 | 12 | 3 | - | 94 | ||||||||||
In 2007, a $1,195 million charge was recorded for the impairment of goodwill (see Note 2—Summary of Significant Accounting Policies).
Year Ended December 31, 2006
| Domestic Car Rental |
International Car Rental |
Truck Rental |
Corporate and Other (a) |
Total | |||||||||||||
| Net revenues (b) |
$ | 4,395 | $ | 761 | $ | 472 | $ | 61 | $ | 5,689 | |||||||
| Vehicle depreciation and lease charges, net |
1,145 | 178 | 93 | - | 1,416 | ||||||||||||
| Vehicle interest, net |
272 | 22 | 26 | - | 320 | ||||||||||||
| EBITDA |
214 | 111 | 45 | (393 | ) | (23 | ) | ||||||||||
| Non-vehicle depreciation and amortization |
78 | 6 | 2 | 19 | 105 | ||||||||||||
| Segment assets exclusive of assets under vehicle programs |
3,096 | 919 | 314 | 1,242 | 5,571 | ||||||||||||
| Assets under vehicle programs |
6,400 | 798 | 502 | - | 7,700 | ||||||||||||
| Capital expenditures (excluding vehicles) |
63 | 18 | 2 | 12 | 95 | ||||||||||||
| (a) |
Includes the results of operations of the Company’s non-strategic businesses, investments, unallocated corporate overhead and the elimination of transactions between segments. |
| (b) |
Inter-segment net revenues were not significant to the net revenues of any one segment. |
Provided below is a reconciliation of EBITDA to loss before income taxes.
| Year Ended December 31, | ||||||||||||
| 2008 | 2007 | 2006 | ||||||||||
| EBITDA |
$ | 136 | $ | 414 | $ | (23 | ) | |||||
| Less: Non-vehicle related depreciation and amortization |
88 | 84 | 105 | |||||||||
| Interest expense related to corporate debt, net |
129 | 127 | 236 | |||||||||
| Impairment |
1,262 | 1,195 | - | |||||||||
| Early extinguishment of debt |
- | - | 313 | |||||||||
| Loss before income taxes |
$ | (1,343 | ) | $ | (992 | ) | $ | (677 | ) | |||
F-51
The geographic segment information provided below is classified based on the geographic location of the Company’s subsidiaries.
| United States |
All Other Countries |
Total | |||||||
| 2008 |
|||||||||
| Net revenues |
$ | 5,080 | $ | 904 | $ | 5,984 | |||
| Segment assets exclusive of assets under vehicle programs |
3,007 | 485 | 3,492 | ||||||
| Assets under vehicle programs |
7,046 | 780 | 7,826 | ||||||
| Property and equipment, net |
445 | 40 | 485 | ||||||
| 2007 |
|||||||||
| Net revenues |
$ | 5,113 | $ | 873 | $ | 5,986 | |||
| Segment assets exclusive of assets under vehicle programs |
3,776 | 717 | 4,493 | ||||||
| Assets under vehicle programs |
6,938 | 1,043 | 7,981 | ||||||
| Property and equipment, net |
450 | 50 | 500 | ||||||
| 2006 |
|||||||||
| Net revenues |
$ | 4,928 | $ | 761 | $ | 5,689 | |||
| Segment assets exclusive of assets under vehicle programs |
4,652 | 919 | 5,571 | ||||||
| Assets under vehicle programs |
6,902 | 798 | 7,700 | ||||||
| Property and equipment, net |
442 | 44 | 486 | ||||||
| 24. | Guarantor and Non-Guarantor Consolidating Financial Statements |
The following consolidating financial information presents Consolidating Condensed Statements of Operations for the years ended December 31, 2008, 2007 and 2006, Consolidating Condensed Balance Sheets as of December 31, 2008 and December 31, 2007 and Consolidating Condensed Statements of Cash Flows for the years ended December 31, 2008, 2007 and 2006 for: (i) Avis Budget Group, Inc. (the “Parent”); (ii) Avis Budget Car Rental and Avis Budget Finance, Inc. (the “Subsidiary Issuers”); (iii) the guarantor subsidiaries; (iv) the non-guarantor subsidiaries; (v) elimination entries necessary to consolidate the Parent with the Subsidiary Issuers, the guarantor and non-guarantor subsidiaries; and (vi) the Company on a consolidated basis. The Subsidiary Issuers and the guarantor and non-guarantor subsidiaries are 100% owned by the Parent, either directly or indirectly. All guarantees are full and unconditional and joint and several. This financial information is being presented in relation to the Company’s Guarantee of the Notes issued by Avis Budget Car Rental. See Note 16—Long-term Debt and Borrowing Arrangements for additional description of these Notes. The Notes have separate investors than the equity investors of the Company and the Notes are guaranteed by the Parent and certain subsidiaries.
Investments in subsidiaries are accounted for using the equity method of accounting for purposes of the consolidating presentation. The principal elimination entries relate to investments in subsidiaries and intercompany balances and transactions. For purposes of the accompanying Consolidating Condensed Statements of Operations, certain expenses incurred by the Subsidiary Issuers are allocated to the guarantor and non-guarantor subsidiaries. The results of operations of discontinued operations are included in the non-guarantor subsidiaries column. Income from discontinued operations, net of tax within the Parent column includes the equity in earnings from discontinued operations and gain (loss) on disposal of discontinued operations.
F-52
Consolidating Condensed Statements of Operations
For the Year Ended December 31, 2008
| Parent | Subsidiary Issuers |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Total | |||||||||||||||||||
| Revenues |
||||||||||||||||||||||||
| Vehicle rental |
$ | - | $ | - | $ | 3,941 | $ | 623 | $ | - | $ | 4,564 | ||||||||||||
| Other |
3 | - | 1,044 | 2,038 | (1,665 | ) | 1,420 | |||||||||||||||||
| Net revenues |
3 | - | 4,985 | 2,661 | (1,665 | ) | 5,984 | |||||||||||||||||
| Expenses |
||||||||||||||||||||||||
| Operating |
3 | 10 | 2,631 | 503 | - | 3,147 | ||||||||||||||||||
| Vehicle depreciation and lease charges, net |
- | - | 1,486 | 1,276 | (1,065 | ) | 1,697 | |||||||||||||||||
| Selling, general and administrative |
15 | - | 563 | 77 | - | 655 | ||||||||||||||||||
| Vehicle interest, net |
- | - | 295 | 207 | (181 | ) | 321 | |||||||||||||||||
| Non-vehicle related depreciation and amortization |
- | - | 80 | 8 | - | 88 | ||||||||||||||||||
| Interest expense related to corporate debt, net: |
||||||||||||||||||||||||
| Interest expense |
(1 | ) | 133 | - | (3 | ) | - | 129 | ||||||||||||||||
| Intercompany interest expense (income) |
- | (133 | ) | 133 | - | - | - | |||||||||||||||||
| Separation costs |
(2 | ) | 2 | - | - | - | - | |||||||||||||||||
| Restructuring charges |
- | - | 25 | 3 | - | 28 | ||||||||||||||||||
| Impairment |
18 | 12 | 1,214 | 18 | - | 1,262 | ||||||||||||||||||
| Total expenses |
33 | 24 | 6,427 | 2,089 | (1,246 | ) | 7,327 | |||||||||||||||||
| Income (loss) before income taxes and equity in earnings of subsidiaries |
(30 | ) | (24 | ) | (1,442 | ) | 572 | (419 | ) | (1,343 | ) | |||||||||||||
| Provision (benefit) for income taxes |
(14 | ) | 3 | (273 | ) | 65 | - | (219 | ) | |||||||||||||||
| Equity in earnings (loss) of subsidiaries |
(1,108 | ) | (1,081 | ) | 88 | - | 2,101 | - | ||||||||||||||||
| Net income (loss) |
$ | (1,124 | ) | $ | (1,108 | ) | $ | (1,081 | ) | $ | 507 | $ | 1,682 | $ | (1,124 | ) | ||||||||
F-53
For the Year Ended December 31, 2007
| Parent | Subsidiary Issuers |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Total | |||||||||||||||||||
| Revenues |
||||||||||||||||||||||||
| Vehicle rental |
$ | - | $ | - | $ | 4,047 | $ | 620 | $ | - | $ | 4,667 | ||||||||||||
| Other |
7 | - | 967 | 2,178 | (1,833 | ) | 1,319 | |||||||||||||||||
| Net revenues |
7 | - | 5,014 | 2,798 | (1,833 | ) | 5,986 | |||||||||||||||||
| Expenses |
||||||||||||||||||||||||
| Operating |
1 | - | 2,555 | 477 | - | 3,033 | ||||||||||||||||||
| Vehicle depreciation and lease charges, net |
- | - | 1,353 | 1,535 | (1,317 | ) | 1,571 | |||||||||||||||||
| Selling, general and administrative |
14 | - | 560 | 84 | - | 658 | ||||||||||||||||||
| Vehicle interest, net |
- | - | 293 | 322 | (300 | ) | 315 | |||||||||||||||||
| Non-vehicle related depreciation and amortization |
1 | - | 76 | 7 | - | 84 | ||||||||||||||||||
| Interest expense related to corporate debt, net: |
||||||||||||||||||||||||
| Interest expense |
(3 | ) | 132 | - | (2 | ) | - | 127 | ||||||||||||||||
| Intercompany interest expense (income) |
- | (132 | ) | 132 | - | - | - | |||||||||||||||||
| Separation costs |
(10 | ) | 5 | - | - | - | (5 | ) | ||||||||||||||||
| Impairment |
- | 4 | 1,180 | 11 | - | 1,195 | ||||||||||||||||||
| Total expenses |
3 | 9 | 6,149 | 2,434 | (1,617 | ) | 6,978 | |||||||||||||||||
| Income (loss) before income taxes and equity in earnings of subsidiaries |
4 | (9 | ) | (1,135 | ) | 364 | (216 | ) | (992 | ) | ||||||||||||||
| Provision (benefit) for income taxes |
(3 | ) | (91 | ) | (6 | ) | 55 | - | (45 | ) | ||||||||||||||
| Equity in earnings (loss) of subsidiaries |
(954 | ) | (1,035 | ) | 94 | - | 1,895 | - | ||||||||||||||||
| Income (loss) from continuing operations |
(947 | ) | (953 | ) | (1,035 | ) | 309 | 1,679 | (947 | ) | ||||||||||||||
| Income (loss) from Discontinued operations, net of tax |
31 | - | - | - | - | 31 | ||||||||||||||||||
| Net income (loss) |
$ | (916 | ) | $ | (953 | ) | $ | (1,035 | ) | $ | 309 | $ | 1,679 | $ | (916 | ) | ||||||||
F-54
For the Year Ended December 31, 2006
| Parent | Subsidiary Issuers |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Total | |||||||||||||||||||
| Revenues |
||||||||||||||||||||||||
| Vehicle rental |
$ | - | $ | - | $ | 3,972 | $ | 547 | $ | - | $ | 4,519 | ||||||||||||
| Other |
39 | - | 805 | 2,057 | (1,731 | ) | 1,170 | |||||||||||||||||
| Net revenues |
39 | - | 4,777 | 2,604 | (1,731 | ) | 5,689 | |||||||||||||||||
| Expenses |
||||||||||||||||||||||||
| Operating |
2 | - | 2,469 | 416 | - | 2,887 | ||||||||||||||||||
| Vehicle depreciation and lease charges, net |
- | - | 1,248 | 1,519 | (1,351 | ) | 1,416 | |||||||||||||||||
| Selling, general and administrative |
191 | - | 554 | 88 | (15 | ) | 818 | |||||||||||||||||
| Vehicle interest, net |
- | - | 305 | 311 | (296 | ) | 320 | |||||||||||||||||
| Non-vehicle related depreciation and amortization |
9 | - | 81 | 15 | - | 105 | ||||||||||||||||||
| Interest expense related to corporate debt, net: |
||||||||||||||||||||||||
| Interest expense |
176 | 101 | (27 | ) | (1 | ) | (13 | ) | 236 | |||||||||||||||
| Intercompany interest expense (income) |
- | (101 | ) | 101 | - | - | - | |||||||||||||||||
| Early extinguishment of debt |
313 | - | - | - | - | 313 | ||||||||||||||||||
| Separation costs, net |
238 | 19 | 4 | - | - | 261 | ||||||||||||||||||
| Restructuring charges |
- | - | 10 | - | - | 10 | ||||||||||||||||||
| Total expenses |
929 | 19 | 4,745 | 2,348 | (1,675 | ) | 6,366 | |||||||||||||||||
| Income (loss) before income taxes and equity in earnings of subsidiaries |
(890 | ) | (19 | ) | 32 | 256 | (56 | ) | (677 | ) | ||||||||||||||
| Provision (benefit) for income taxes |
(338 | ) | (7 | ) | 48 | 61 | 10 | (226 | ) | |||||||||||||||
| Equity in earnings of subsidiaries |
101 | 182 | 198 | - | (481 | ) | - | |||||||||||||||||
| Income (loss) from continuing operations |
(451 | ) | 170 | 182 | 195 | (547 | ) | (451 | ) | |||||||||||||||
| Income (loss) from Discontinued operations, net of tax |
(1,479 | ) | - | - | 478 | (478 | ) | (1,479 | ) | |||||||||||||||
| Income (loss) before cumulative effect of accounting changes |
(1,930 | ) | 170 | 182 | 673 | (1,025 | ) | (1,930 | ) | |||||||||||||||
| Cumulative effect of accounting changes, net of tax |
(64 | ) | - | - | (65 | ) | 65 | (64 | ) | |||||||||||||||
| Net income |
$ | (1,994 | ) | $ | 170 | $ | 182 | $ | 608 | $ | (960 | ) | $ | (1,994 | ) | |||||||||
F-55
Consolidating Condensed Balance Sheets
As of December 31, 2008
| Parent | Subsidiary Issuers |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Total | |||||||||||||||||
| Assets |
||||||||||||||||||||||
| Current assets: |
||||||||||||||||||||||
| Cash and cash equivalents |
$ | 11 | $ | 51 | $ | 15 | $ | 181 | $ | - | $ | 258 | ||||||||||
| Receivables, net |
110 | 177 | 73 | - | 360 | |||||||||||||||||
| Deferred income taxes |
1 | - | 97 | 3 | (26 | ) | 75 | |||||||||||||||
| Other current assets |
189 | 70 | 84 | 41 | (4 | ) | 380 | |||||||||||||||
| Total current assets |
201 | 231 | 373 | 298 | (30 | ) | 1,073 | |||||||||||||||
| Property and equipment, net |
- | 188 | 257 | 40 | - | 485 | ||||||||||||||||
| Deferred income taxes |
12 | 208 | 264 | 19 | - | 503 | ||||||||||||||||
| Goodwill |
- | - | 74 | 1 | - | 75 | ||||||||||||||||
| Other intangibles, net |
- | 7 | 387 | 73 | - | 467 | ||||||||||||||||
| Other non-current assets |
765 | 101 | 19 | 4 | - | 889 | ||||||||||||||||
| Intercompany receivables (payables) |
(29 | ) | 677 | (958 | ) | 310 | - | - | ||||||||||||||
| Investment in subsidiaries |
(20 | ) | 759 | 1,961 | - | (2,700 | ) | - | ||||||||||||||
| Total assets exclusive of assets under vehicle programs |
929 | 2,171 | 2,377 | 745 | (2,730 | ) | 3,492 | |||||||||||||||
| Assets under vehicle programs: |
||||||||||||||||||||||
| Program cash |
- | - | - | 12 | - | 12 | ||||||||||||||||
| Vehicles, net |
- | - | 174 | 6,990 | - | 7,164 | ||||||||||||||||
| Receivables from vehicle manufacturers and other |
- | - | - | 533 | - | 533 | ||||||||||||||||
| Investment in Avis Budget Rental Car Funding (AESOP) LLC-related party |
- | - | - | 117 | - | 117 | ||||||||||||||||
| - | - | 174 | 7,652 | - | 7,826 | |||||||||||||||||
| Total assets | $ | 929 | $ | 2,171 | $ | 2,551 | $ | 8,397 | $ | (2,730 | ) | $ | 11,318 | |||||||||
| Liabilities and stockholders’ equity | ||||||||||||||||||||||
| Current liabilities: | ||||||||||||||||||||||
| Accounts payable and other current liabilities |
$ | 204 | $ | 249 | $ | 398 | $ | 80 | $ | (30 | ) | $ | 901 | |||||||||
| Current portion of long-term debt |
- | 10 | - | - | - | 10 | ||||||||||||||||
| Total current liabilities |
204 | 259 | 398 | 80 | (30 | ) | 911 | |||||||||||||||
| Long-term debt | - | 1,779 | - | - | - | 1,779 | ||||||||||||||||
| Other non-current liabilities |
632 | 128 | 248 | 113 | - | 1,121 | ||||||||||||||||
| Total liabilities exclusive of liabilities under vehicle programs |
836 | 2,166 | 646 | 193 | (30 | ) | 3,811 | |||||||||||||||
| Liabilities under vehicle programs: |
||||||||||||||||||||||
| Debt |
- | 50 | 126 | 716 | - | 892 | ||||||||||||||||
| Due to Avis Budget Rental Car Funding (AESOP) LLC-related party |
- | - | - | 5,142 | - | 5,142 | ||||||||||||||||
| Deferred income taxes |
- | - | 1,020 | 168 | - | 1,188 | ||||||||||||||||
| Other |
- | - | - | 192 | - | 192 | ||||||||||||||||
| - | 50 | 1,146 | 6,218 | - | 7,414 | |||||||||||||||||
| Total stockholders’ equity |
93 | (45 | ) | 759 | 1,986 | (2,700 | ) | 93 | ||||||||||||||
| Total liabilities and stockholders’ equity |
$ | 929 | $ | 2,171 | $ | 2,551 | $ | 8,397 | $ | (2,730 | ) | $ | 11,318 | |||||||||
F-56
As of December 31, 2007
| Parent | Subsidiary Issuers |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Total | ||||||||||||||||
| Assets |
|||||||||||||||||||||
| Current assets: |
|||||||||||||||||||||
| Cash and cash equivalents |
$ | 37 | $ | 99 | $ | 12 | $ | 66 | $ | - | $ | 214 | |||||||||
| Receivables, net |
2 | 67 | 220 | 103 | - | 392 | |||||||||||||||
| Deferred income taxes |
- | - | 73 | 2 | (33 | ) | 42 | ||||||||||||||
| Other current assets |
329 | 104 | 82 | 55 | - | 570 | |||||||||||||||
| Total current assets |
368 | 270 | 387 | 226 | (33 | ) | 1,218 | ||||||||||||||
| Property and equipment, net |
- | 175 | 275 | 50 | - | 500 | |||||||||||||||
| Deferred income taxes |
4 | 223 | - | 49 | (42 | ) | 234 | ||||||||||||||
| Goodwill |
- | 3 | 985 | 12 | - | 1,000 | |||||||||||||||
| Other intangibles, net |
- | 17 | 648 | 95 | - | 760 | |||||||||||||||
| Other non-current assets |
681 | 72 | 22 | 6 | - | 781 | |||||||||||||||
| Intercompany receivables (payables) |
460 | 672 | (1,007 | ) | (125 | ) | - | - | |||||||||||||
| Investment in subsidiaries |
841 | 2,063 | 2,496 | - | (5,400 | ) | - | ||||||||||||||
| Total assets exclusive of assets under vehicle programs |
2,354 | 3,495 | 3,806 | 313 | (5,475 | ) | 4,493 | ||||||||||||||
| Assets under vehicle programs: |
|||||||||||||||||||||
| Program cash |
- | - | - | 1 | - | 1 | |||||||||||||||
| Vehicles, net |
- | - | 207 | 7,267 | - | 7,474 | |||||||||||||||
| Receivables from vehicle manufacturers and other |
- | - | - | 276 | - | 276 | |||||||||||||||
| Investment in Avis Budget Rental Car Funding (AESOP) LLC-related party |
- | - | - | 230 | - | 230 | |||||||||||||||
| - | - | 207 | 7,774 | - | 7,981 | ||||||||||||||||
| Total assets |
$ | 2,354 | $ | 3,495 | $ | 4,013 | $ | 8,087 | $ | (5,475 | ) | $ | 12,474 | ||||||||
| Liabilities and stockholders’ equity |
|||||||||||||||||||||
| Current liabilities: |
|||||||||||||||||||||
| Accounts payable and other current liabilities |
$ | 356 | $ | 233 | $ | 433 | $ | 105 | $ | (33 | ) | $ | 1,094 | ||||||||
| Current portion of long-term debt |
1 | 9 | - | - | - | 10 | |||||||||||||||
| Total current liabilities |
357 | 242 | 433 | 105 | (33 | ) | 1,104 | ||||||||||||||
| Long-term debt |
- | 1,787 | - | - | - | 1,787 | |||||||||||||||
| Other non-current liabilities |
532 | 110 | 218 | 180 | (42 | ) | 998 | ||||||||||||||
| Total liabilities exclusive of liabilities under vehicle programs |
889 | 2,139 | 651 | 285 | (75 | ) | 3,889 | ||||||||||||||
| Liabilities under vehicle programs: |
|||||||||||||||||||||
| Debt |
- | 58 | 204 | 688 | - | 950 | |||||||||||||||
| Due to Avis Budget Rental Car Funding (AESOP) LLC-related party |
- | - | - | 4,646 | - | 4,646 | |||||||||||||||
| Deferred income taxes |
- | - | 1,088 | 158 | - | 1,246 | |||||||||||||||
| Other |
- | 2 | 7 | 269 | - | 278 | |||||||||||||||
| - | 60 | 1,299 | 5,761 | - | 7,120 | ||||||||||||||||
| Total stockholders’ equity |
1,465 | 1,296 | 2,063 | 2,041 | (5,400 | ) | 1,465 | ||||||||||||||
| Total liabilities and stockholders’ equity |
$ | 2,354 | $ | 3,495 | $ | 4,013 | $ | 8,087 | $ | (5,475 | ) | $ | 12,474 | ||||||||
F-57
Consolidating Condensed Statements of Cash Flows
For the Year Ended December 31, 2008
| Parent | Subsidiary Issuers |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Total | |||||||||||||||||||
| Net cash provided by (used in) operating activities |
$ | (8 | ) | $ | 106 | $ | 126 | $ | 1,512 | $ | (32 | ) | $ | 1,704 | ||||||||||
| Investing activities |
||||||||||||||||||||||||
| Property and equipment additions |
- | (52 | ) | (21 | ) | (10 | ) | - | (83 | ) | ||||||||||||||
| Net assets acquired, net of cash acquired, and acquisition-related payments |
- | - | (72 | ) | (16 | ) | - | (88 | ) | |||||||||||||||
| Proceeds received on asset sales |
- | 10 | 5 | 2 | - | 17 | ||||||||||||||||||
| Payments received from Realogy and Wyndham, net |
(3 | ) | - | - | - | - | (3 | ) | ||||||||||||||||
| Other, net |
(1 | ) | (3 | ) | (11 | ) | 1 | - | (14 | ) | ||||||||||||||
| Net cash provided by (used in) investing activities exclusive of vehicle programs |
(4 | ) | (45 | ) | (99 | ) | (23 | ) | - | (171 | ) | |||||||||||||
| Vehicle programs: |
||||||||||||||||||||||||
| Decrease in program cash |
- | (8 | ) | - | (3 | ) | - | (11 | ) | |||||||||||||||
| Investment in vehicles |
- | (129 | ) | (9 | ) | (8,470 | ) | - | (8,608 | ) | ||||||||||||||
| Proceeds received on disposition of vehicles |
- | 117 | 3 | 6,602 | - | 6,722 | ||||||||||||||||||
| Investment in Avis Budget Rental Car Funding (AESOP) LLC |
- | - | - | (28 | ) | - | (28 | ) | ||||||||||||||||
| - | (20 | ) | (6 | ) | (1,899 | ) | - | (1,925 | ) | |||||||||||||||
| Net cash provided by (used in) investing activities |
(4 | ) | (65 | ) | (105 | ) | (1,922 | ) | - | (2,096 | ) | |||||||||||||
| Financing activities |
||||||||||||||||||||||||
| Principal payments on borrowings |
(1 | ) | (9 | ) | - | - | - | (10 | ) | |||||||||||||||
| Repurchase of common stock |
(33 | ) | - | - | - | - | (33 | ) | ||||||||||||||||
| Net intercompany transactions |
20 | (20 | ) | 62 | (94 | ) | 32 | - | ||||||||||||||||
| Other, net |
- | (28 | ) | - | - | - | (28 | ) | ||||||||||||||||
| Net cash provided by (used in) financing activities exclusive of vehicle programs |
(14 | ) | (57 | ) | 62 | (94 | ) | 32 | (71 | ) | ||||||||||||||
| Vehicle programs: |
||||||||||||||||||||||||
| Proceeds from borrowings |
- | 30 | - | 8,446 | - | 8,476 | ||||||||||||||||||
| Principal payments on borrowings |
- | (30 | ) | (78 | ) | (7,952 | ) | - | (8,060 | ) | ||||||||||||||
| Net change in short-term borrowings |
- | - | - | 152 | - | 152 | ||||||||||||||||||
| Other, net |
- | (32 | ) | (2 | ) | - | - | (34 | ) | |||||||||||||||
| - | (32 | ) | (80 | ) | 646 | - | 534 | |||||||||||||||||
| Net cash provided by (used in) financing activities |
(14 | ) | (89 | ) | (18 | ) | 552 | 32 | 463 | |||||||||||||||
| Effect of changes in exchange rates on cash and cash equivalents |
- | - | - | (27 | ) | - | (27 | ) | ||||||||||||||||
| Net increase (decrease) in cash and cash equivalents |
(26 | ) | (48 | ) | 3 | 115 | - | 44 | ||||||||||||||||
| Cash and cash equivalents, beginning of period |
37 | 99 | 12 | 66 | - | 214 | ||||||||||||||||||
| Cash and cash equivalents, end of period |
$ | 11 | $ | 51 | $ | 15 | $ | 181 | $ | - | $ | 258 | ||||||||||||
F-58
For the Year Ended December 31, 2007
| Parent | Subsidiary Issuers |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Total | |||||||||||||||||||
| Net cash provided by (used in) operating activities |
$ | 18 | $ | (13 | ) | $ | (48 | ) | $ | 1,973 | $ | (216 | ) | $ | 1,714 | |||||||||
| Investing activities |
||||||||||||||||||||||||
| Property and equipment additions |
- | (47 | ) | (36 | ) | (11 | ) | - | (94 | ) | ||||||||||||||
| Net assets acquired, net of cash acquired, and acquisition-related payments |
- | - | (11 | ) | - | - | (11 | ) | ||||||||||||||||
| Proceeds received on asset sales |
- | 13 | 3 | 3 | - | 19 | ||||||||||||||||||
| Proceeds received from sale of investment |
106 | - | - | - | - | 106 | ||||||||||||||||||
| Proceeds from (paid to) Realogy and Wyndham, net |
(108 | ) | - | - | - | - | (108 | ) | ||||||||||||||||
| Proceeds from disposition of businesses, net of transaction-related payments |
- | - | - | - | - | - | ||||||||||||||||||
| Purchase of equity investment |
(60 | ) | - | - | - | - | (60 | ) | ||||||||||||||||
| Other, net |
- | (6 | ) | (7 | ) | - | - | (13 | ) | |||||||||||||||
| Net cash provided by (used in) investing activities exclusive of vehicle programs |
(62 | ) | (40 | ) | (51 | ) | (8 | ) | - | (161 | ) | |||||||||||||
| Vehicle programs: |
||||||||||||||||||||||||
| Decrease (increase) in program cash |
- | - | - | 13 | - | 13 | ||||||||||||||||||
| Investment in vehicles |
- | (45 | ) | (87 | ) | (10,501 | ) | - | (10,633 | ) | ||||||||||||||
| Proceeds received on disposition of vehicles |
- | 228 | 50 | 8,586 | - | 8,864 | ||||||||||||||||||
| Others, net |
- | - | - | - | - | - | ||||||||||||||||||
| - | 183 | (37 | ) | (1,902 | ) | - | (1,756 | ) | ||||||||||||||||
| Net cash provided by (used in) investing activities |
(62 | ) | 143 | (88 | ) | (1,910 | ) | - | (1,917 | ) | ||||||||||||||
| Financing activities |
||||||||||||||||||||||||
| Principal payments on borrowings |
(3 | ) | (42 | ) | - | - | - | (45 | ) | |||||||||||||||
| Issuances of common stock |
50 | - | - | - | - | 50 | ||||||||||||||||||
| Net intercompany transactions |
2 | (106 | ) | 172 | (284 | ) | 216 | - | ||||||||||||||||
| Other, net |
(3 | ) | 2 | - | - | - | (1 | ) | ||||||||||||||||
| Net cash provided by (used in) financing activities exclusive of vehicle programs |
46 | (146 | ) | 172 | (284 | ) | 216 | 4 | ||||||||||||||||
| Vehicle programs: |
||||||||||||||||||||||||
| Proceeds from borrowings |
- | 48 | - | 10,517 | - | 10,565 | ||||||||||||||||||
| Principal payments on borrowings |
- | (2 | ) | (52 | ) | (10,182 | ) | - | (10,236 | ) | ||||||||||||||
| Net change in short-term borrowings |
- | - | - | (86 | ) | - | (86 | ) | ||||||||||||||||
| Other, net |
- | (6 | ) | (1 | ) | (1 | ) | - | (8 | ) | ||||||||||||||
| - | 40 | (53 | ) | 248 | - | 235 | ||||||||||||||||||
| Net cash provided by (used in) financing activities |
46 | (106 | ) | 119 | (36 | ) | 216 | 239 | ||||||||||||||||
| Effect of changes in exchange rates on cash and cash equivalents |
- | - | - | 6 | - | 6 | ||||||||||||||||||
| Net increase (decrease) in cash and cash Equivalents |
2 | 24 | (17 | ) | 33 | - | 42 | |||||||||||||||||
| Cash and cash equivalents, beginning of period |
35 | 75 | 29 | 33 | - | 172 | ||||||||||||||||||
| Cash and cash equivalents, end of period |
$ | 37 | $ | 99 | $ | 12 | $ | 66 | $ | - | $ | 214 | ||||||||||||
F-59
For the Year Ended December 31, 2006
| Parent | Subsidiary Issuers |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Total | |||||||||||||||||||
| Net cash provided by (used in) operating activities |
$ | (1,383 | ) | $ | 86 | $ | (82 | ) | $ | 1,535 | $ | 96 | $ | 252 | ||||||||||
| Investing activities |
||||||||||||||||||||||||
| Property and equipment additions |
(8 | ) | (25 | ) | (40 | ) | (22 | ) | - | (95 | ) | |||||||||||||
| Net assets acquired, net of cash acquired, and acquisition-related payments |
- | (95 | ) | (14 | ) | (9 | ) | - | (118 | ) | ||||||||||||||
| Proceeds received on asset sales |
- | 15 | 7 | 3 | - | 25 | ||||||||||||||||||
| Other, net |
6 | - | (3 | ) | 1 | - | 4 | |||||||||||||||||
| Net cash provided by (used in) investing activities exclusive of vehicle programs |
(2 | ) | (105 | ) | (50 | ) | (27 | ) | - | (184 | ) | |||||||||||||
| Vehicle programs: |
||||||||||||||||||||||||
| Increase in program cash |
- | 15 | - | (14 | ) | - | 1 | |||||||||||||||||
| Investment in vehicles |
- | (108 | ) | (166 | ) | (11,074 | ) | - | (11,348 | ) | ||||||||||||||
| Proceeds received on investment in vehicles |
- | 338 | (4 | ) | 10,456 | - | 10,790 | |||||||||||||||||
| Others, net |
- | - | - | (12 | ) | - | (12 | ) | ||||||||||||||||
| - | 245 | (170 | ) | (644 | ) | - | (569 | ) | ||||||||||||||||
| Net cash provided by (used in) investing activities |
(2 | ) | 140 | (220 | ) | (671 | ) | - | (753 | ) | ||||||||||||||
| Financing activities |
||||||||||||||||||||||||
| Proceeds from borrowings |
- | 1,875 | - | - | - | 1,875 | ||||||||||||||||||
| Principal payments on borrowings |
(3,564 | ) | (38 | ) | (1 | ) | - | - | (3,603 | ) | ||||||||||||||
| Issuances of common stock |
46 | - | - | - | - | 46 | ||||||||||||||||||
| Repurchase of common stock |
(243 | ) | - | - | - | - | (243 | ) | ||||||||||||||||
| Payments of dividends |
(113 | ) | - | 3 | (3 | ) | - | (113 | ) | |||||||||||||||
| Net intercompany transactions |
613 | (1,945 | ) | 434 | 842 | 56 | _ | |||||||||||||||||
| Other, net |
(3 | ) | (35 | ) | - | - | - | (38 | ) | |||||||||||||||
| Net cash provided by (used in) financing activities exclusive of vehicle programs |
(3,264 | ) | (143 | ) | 436 | 839 | 56 | (2,076 | ) | |||||||||||||||
| Vehicle programs: |
||||||||||||||||||||||||
| Proceeds from borrowings |
- | - | - | 10,979 | - | 10,979 | ||||||||||||||||||
| Principal payments on borrowings |
- | - | (113 | ) | (13,197 | ) | - | (13,310 | ) | |||||||||||||||
| Net change in short-term borrowings |
- | - | - | (282 | ) | - | (282 | ) | ||||||||||||||||
| Other, net |
- | (9 | ) | (5 | ) | (1 | ) | - | (15 | ) | ||||||||||||||
| - | (9 | ) | (118 | ) | (2,501 | ) | - | (2,628 | ) | |||||||||||||||
| Net cash provided by (used in) financing activities |
(3,264 | ) | (152 | ) | 318 | (1,662 | ) | 56 | (4,704 | ) | ||||||||||||||
| Effect of changes in exchange rates on cash and cash equivalents |
- | - | - | 2 | - | 2 | ||||||||||||||||||
| Cash provided by (used in) discontinued operations |
4,046 | - | - | 783 | - | 4,829 | ||||||||||||||||||
| Net increase (decrease) in cash and cash equivalents |
(603 | ) | 74 | 16 | (13 | ) | 152 | (374 | ) | |||||||||||||||
| Cash and cash equivalents, beginning of period |
638 | 1 | 13 | 46 | (152 | ) | 546 | |||||||||||||||||
| Cash and cash equivalents, end of period |
$ | 35 | $ | 75 | $ | 29 | $ | 33 | $ | _ | $ | 172 | ||||||||||||
F-60
| 25. | Selected Quarterly Financial Data—(unaudited) |
Provided below are selected unaudited quarterly financial data for 2008 and 2007.
The underlying diluted per share information is calculated from the weighted average common stock and common stock equivalents outstanding during each quarter, which may fluctuate, based on quarterly income levels, market prices and share repurchases. Therefore, the sum of the quarters’ per share information may not equal the total year amounts presented on the Consolidated Statements of Operations.
| 2008 | |||||||||||||||
| First (a) | Second | Third (a) | Fourth (a) | ||||||||||||
| Net revenues |
$ | 1,445 | $ | 1,577 | $ | 1,701 | $ | 1,261 | |||||||
| Income (loss) from continuing operations |
(12 | ) | 15 | (1,006 | ) | (121 | ) | ||||||||
| Net income (loss) |
$ | (12 | ) | $ | 15 | $ | (1,006 | ) | $ | (121 | ) | ||||
| Per share information: |
|||||||||||||||
| Basic |
|||||||||||||||
| Income (loss) from continuing operations |
$ | (0.11 | ) | $ | 0.15 | $ | (9.91 | ) | $ | (1.20 | ) | ||||
| Net income (loss) |
$ | (0.11 | ) | $ | 0.15 | $ | (9.91 | ) | $ | (1.20 | ) | ||||
| Weighted average shares |
102.8 | 101.4 | 101.6 | 101.7 | |||||||||||
| Diluted |
|||||||||||||||
| Income (loss) from continuing operations |
$ | (0.11 | ) | $ | 0.15 | $ | (9.91 | ) | $ | (1.20 | ) | ||||
| Net income (loss) |
$ | (0.11 | ) | $ | 0.15 | $ | (9.91 | ) | $ | (1.20 | ) | ||||
| Weighted average shares |
102.8 | 101.4 | 101.6 | 101.7 | |||||||||||
| 2007 | |||||||||||||||
| First | Second | Third | Fourth (a) | ||||||||||||
| Net revenues |
$ | 1,365 | $ | 1,516 | $ | 1,719 | $ | 1,386 | |||||||
| Income (loss) from continuing operations |
12 | 23 | 63 | (1,045 | ) | ||||||||||
| Income (loss) from discontinued operations, net of tax |
- | - | (3 | ) | 1 | ||||||||||
| Gain (loss) on disposal of discontinued operations, net of tax |
1 | 1 | 43 | (12 | ) | ||||||||||
| Net income (loss) |
$ | 13 | $ | 24 | $ | 103 | $ | (1,056 | ) | ||||||
| Per share information: |
|||||||||||||||
| Basic |
|||||||||||||||
| Income (loss) from continuing operations |
$ | 0.12 | $ | 0.22 | $ | 0.60 | $ | (10.05 | ) | ||||||
| Income (loss) from discontinued operations |
- | - | (0.02 | ) | 0.01 | ||||||||||
| Gain (loss) on disposal of discontinued operations |
0.01 | 0.01 | 0.42 | (0.12 | ) | ||||||||||
| Net income (loss) |
$ | 0.13 | $ | 0.23 | $ | 1.00 | $ | (10.16 | ) | ||||||
| Weighted average shares |
101.6 | 103.4 | 103.9 | 104.0 | |||||||||||
| Diluted |
|||||||||||||||
| Income (loss) from continuing operations |
$ | 0.12 | $ | 0.22 | $ | 0.60 | $ | (10.05 | ) | ||||||
| Income (loss) from discontinued operations |
- | - | (0.02 | ) | 0.01 | ||||||||||
| Gain (loss) on disposal of discontinued operations |
- | 0.01 | 0.41 | (0.12 | ) | ||||||||||
| Net income (loss) |
$ | 0.12 | $ | 0.23 | $ | 0.99 | $ | (10.16 | ) | ||||||
| Weighted average shares |
103.0 | 104.8 | 105.0 | 104.0 | |||||||||||
| (a) | As the Company incurred a loss from continuing operations for this period, all outstanding stock options, restricted stock units and warrants are anti-dilutive for such periods. Accordingly, basic and diluted weighted average shares outstanding are equal for such periods. |
F-61
Schedule II – Valuation and Qualifying Accounts
(in millions)
| Description |
Balance at Beginning of Period |
Expensed | Other – Translation Adjustment |
Deductions | Balance at End of Period | ||||||||||||
| Allowance for Doubtful Accounts: |
|||||||||||||||||
| Year Ended December 31, |
|||||||||||||||||
| 2008 |
$ | 19 | $ | 10 | $ | (2 | ) | $ | (10 | ) | $ | 17 | |||||
| 2007 |
20 | 7 | 1 | (9 | ) | 19 | |||||||||||
| 2006 |
20 | 16 | 1 | (17 | ) | 20 | |||||||||||
G-1
| Exhibit No. |
Description | |
| 2.1 | Separation and Distribution Agreement by and among Cendant Corporation*, Realogy Corporation, Wyndham Worldwide Corporation and Travelport Inc., dated as of July 27, 2006 (Incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K dated August 1, 2006). | |
| 2.2 | Letter Agreement dated August 23, 2006 related to the Separation and Distribution Agreement by and among Realogy Corporation, Cendant Corporation*, Wyndham Worldwide Corporation and Travelport Inc. dated as of July 27, 2006 (Incorporated by reference to Exhibit 2.2 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2007). | |
| 3.1 | Amended and Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated September 5, 2006). | |
| 3.2 | Amended and Restated By-Laws of the Company (Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated October 30, 2006). | |
| 4.1(a) | Indenture, dated as of April 19, 2006, among Avis Budget Car Rental, LLC, Avis Budget Finance, Inc., the guarantors from time to time parties thereto and the Bank of Nova Scotia Trust Company of New York, as trustee, relating to $1,000 million aggregate principal amount of senior notes, consisting of $250 million aggregate principal amount of Floating Rate Senior Notes due 2014, $375 million aggregate principal amount of 7.625% Senior Notes due 2014 and $375 million aggregate principal amount of 7.750% Senior Notes due 2016 (Incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K dated April 21, 2006). | |
| 4.1(b) | Supplemental Indenture, dated as of February 9, 2007, to the Indenture, dated as of April 19, 2006, among Avis Budget Car Rental, LLC, Avis Budget Finance, Inc., the guarantors from time to time parties thereto and the Bank of Nova Scotia Trust Company of New York, as trustee (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated February 9, 2007). | |
| 4.1(c) | Second Supplemental Indenture, dated as of January 28, 2009, among Avis Budget Car Rental, LLC and Avis Budget Finance, Inc., as Issuers, the guarantors from time to time parties thereto and the Bank of Nova Scotia Trust Company of New York, as trustee. | |
| 4.2 | Form of Exchange Floating Rate Note (Included in Exhibit 10.4 to the Company’s Current Report on Form 8-K dated April 21, 2006). | |
| 4.3 | Form of Exchange 7.625% Note (Included in Exhibit 10.4 to the Company’s Current Report on Form 8-K dated April 21, 2006). | |
| 4.4 | Form of Exchange 7.75% Note (Included in Exhibit 10.4 to the Company’s Current Report on Form 8-K dated April 21, 2006). | |
| 10.1 | Employment Agreement between Avis Budget Group, Inc. and Ronald L. Nelson (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated December 31, 2008). † | |
| 10.2 | Employment Agreement between Avis Budget Group, Inc. and F. Robert Salerno (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated December 31, 2008). † | |
| 10.3 | Employment Agreement between Avis Budget Group, Inc. and David B. Wyshner (Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K dated December 31, 2008). † | |
| 10.4 | Employment Agreement between Avis Budget Group, Inc. and Mark J. Servodidio (Incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K dated December 31, 2008). † | |
H-1
| Exhibit No. |
Description | |
| 10.5 | Employment Agreement between Avis Budget Group, Inc. and Larry D. De Shon (Incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K dated December 31, 2008). † | |
| 10.6 | Employment Agreement between Avis Budget Group, Inc. and Patric T. Siniscalchi. † | |
| 10.7(a) | 1987 Stock Option Plan, as amended (Incorporated by reference to Exhibit 10.16 to the Company’s Form 10-Q for the quarterly period ended October 31, 1996 dated December 13, 1996, File No. 1-10308).† | |
| 10.7(b) | Amendment to 1987 Stock Option Plan dated January 3, 2001 (Incorporated by reference to Exhibit 10.7(b) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2000 dated March 29, 2001).† | |
| 10.8(a) | 1997 Stock Option Plan (Incorporated by reference to Exhibit 10.23 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended April 30, 1997 dated June 16, 1997, File No. 1-10308).† | |
| 10.8(b) | Amendment to 1997 Stock Option Plan dated January 3, 2001 (Incorporated by reference to Exhibit 10.11(b) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2000 dated March 29, 2001).† | |
| 10.8(c) | Amendment to 1997 Stock Option Plan dated March 19, 2002 (Incorporated by reference to Exhibit 10.11(c) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2002 dated March 5, 2003).† | |
| 10.9(a) | Avis Budget Group, Inc. 2007 Equity and Incentive Plan (Incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2007 dated August 8, 2007).† | |
| 10.9(b) | Amendment to the Avis Budget Group, Inc. 2007 Equity And Incentive Plan dated March 20, 2008 (Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2008 dated May 7, 2008). † | |
| 10.10(a) | 1997 Stock Incentive Plan (Incorporated by reference to Appendix E to the Joint Proxy Statement/ Prospectus included as part of the Company’s Registration Statement on Form S-4, Registration No. 333-34517, dated August 28, 1997).† | |
| 10.10(b) | Amendment to 1997 Stock Incentive Plan dated March 27, 2000 (Incorporated by reference to Exhibit 10.12(b) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2000 dated March 29, 2001).† | |
| 10.10(c) | Amendment to 1997 Stock Incentive Plan dated March 28, 2000 (Incorporated by reference to Exhibit 10.12(c) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2000 dated March 29, 2001).† | |
| 10.10(d) | Amendment to 1997 Stock Incentive Plan dated January 3, 2001 (Incorporated by reference to Exhibit 10.12(d) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2000 dated March 29, 2001).† | |
| 10.11(a) | 1997 Employee Stock Plan (Incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-8, Registration No. 333-45183, dated January 29, 1998).† | |
| 10.11(b) | Amendment to 1997 Employee Stock Plan dated January 3, 2001 (Incorporated by reference to Exhibit 10.15(b) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2003 dated March 1, 2004).† | |
H-2
| Exhibit No. |
Description | |
| 10.12 | Amendment to Certain Stock Plans (Incorporated by reference to Exhibit 10.16(c) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2003 dated March 5, 2003).† | |
| 10.13 | 1999 Broad-Based Employee Stock Option Plan, including the Third Amendment dated March 19, 2002, Second Amendment dated April 2, 2001 and First Amendment dated March 29, 1999 (Incorporated by reference to Exhibit 10.17 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2002 dated March 5, 2003).† | |
| 10.14 | Amendment to Various Equity-Based Plans (Incorporated by reference to Exhibit 10.16 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2005 dated March 1, 2006).† | |
| 10.15(a) | Form of Award Agreement—Restricted Stock Units (Incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K dated August 4, 2006).† | |
| 10.15(b) | Form of Award Agreement—Stock Appreciation Rights (Incorporated by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K dated August 4, 2006).† | |
| 10.15(c) | Form of Award Agreement— Stock Options. † | |
| 10.15(d) | Form of Award Agreement— Stock Options. † | |
| 10.16 | Avis Budget Group, Inc. Non-Employee Directors Deferred Compensation Plan, Amended and Restated as of January 1, 2007. † | |
| 10.17 | Avis Budget Group, Inc. Deferred Compensation Plan, amended and restated as of November 1, 2008. † | |
| 10.18 | Avis Budget Group, Inc. Savings Restoration Plan, amended and restated as of November 1, 2008. † | |
| 10.19 | Amended and Restated Equalization Benefit Plan (Incorporated by reference to Exhibit 10.59 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007, dated February 29, 2008). † | |
| 10.20 | Avis Rent A Car System, LLC Pension Plan. † | |
| 10.21(a) | Second Amended and Restated Base Indenture, dated as of June 3, 2004, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee (Incorporated by reference to Exhibit 10.7 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2004, dated August 2, 2004). | |
| 10.21(b) | Supplemental Indenture No. 1, dated as of December 23, 2005, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee, to the Second Amended and Restated Base Indenture, dated as of June 3, 2004 (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated January 20, 2006). | |
| 10.21(c) | Supplemental Indenture No. 2, dated as of May 9, 2007, among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, and The Bank of New York Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee, to the Second Amended and Restated Base Indenture, dated as of June 3, 2004 (Incorporated by reference to Exhibit 10.6 the Company Form 10-Q for the quarterly period ended June 30, 2007, dated August 8, 2007). | |
| 10.22(a) | Second Amended and Restated Loan Agreement, dated as of June 3, 2004, among AESOP Leasing L.P., as Borrower, Quartx Fleet Management, Inc., as a Permitted Nominee, PV Holding Corp., as a Permitted Nominee, and Cendant Rental Car Funding (AESOP) LLC***, as | |
H-3
| Exhibit No. |
Description | |
| Lender (Incorporated by reference to Exhibit 10.8 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2004, dated August 2, 2004). | ||
| 10.22(b) | First Amendment, dated as of December 23, 2005, among AESOP Leasing L.P., as Borrower, Quartx Fleet Management, Inc., as a Permitted Nominee, PV Holding Corp., as Permitted Nominee, and Cendant Rental Car Funding (AESOP) LLC***, as Lender, to the Second Amended and Restated Loan Agreement, dated as of June 3, 2004 (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated January 20, 2006). | |
| 10.22(c) | Second Amendment, dated as of May 9, 2007, among AESOP Leasing L.P., as Borrower, PV Holding Corp., as Permitted Nominee, Quartx Fleet Management, Inc., as Permitted Nominee, and Avis Budget Rental Car Funding (AESOP) LLC, as Lender, to the Second Amended and Restated Loan Agreement, dated as of June 3, 2004 (Incorporated by reference to Exhibit 10.8 the Company Form 10-Q for the quarterly period ended June 30, 2007, dated August 8, 2007). | |
| 10.23(a) | Amended and Restated Loan Agreement, dated as of June 3, 2004, among AESOP Leasing L.P., as Borrower, and Cendant Rental Car Funding (AESOP) LLC***, as Lender (Incorporated by reference to Exhibit 10.29(a) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2006, dated March 1, 2007). | |
| 10.23(b) | First Amendment, dated as of December 23, 2005, among AESOP Leasing L.P., as Borrower, and Cendant Rental Car Funding (AESOP) LLC***, as Lender, to the Amended and Restated Loan Agreement, dated as of June 3, 2004 (Incorporated by reference to Exhibit 10.29(b) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2006, dated March 1, 2007). | |
| 10.23(c) | Second Amendment, dated as of the May 9, 2007, among AESOP Leasing L.P., as Borrower, and Avis Budget Rental Car Funding (AESOP) LLC, as Lender, to the Amended and Restated Loan Agreement, dated as of June 3, 2004 (Incorporated by reference to Exhibit 10.7 the Company Form 10-Q for the quarterly period ended June 30, 2007, dated August 8, 2007). | |
| 10.24(a) | Second Amended and Restated Master Motor Vehicle Operating Lease Agreement, dated as of June 3, 2004, among AESOP Leasing L.P., as Lessor, and Cendant Car Rental Group, Inc.**, as Lessee and as Administrator (Incorporated by reference to Exhibit 10.9 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2004, dated August 2, 2004). | |
| 10.24(b) | First Amendment, dated December 23, 2005, among AESOP Leasing L.P., as Lessor, and Cendant Car Rental Group, Inc.**, as Lessee and as Administrator, to the Second Amended and Restated Master Motor Vehicle Operating Lease Agreement, dated as of December 23, 2005 (Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K dated January 20, 2006). | |
| 10.24(c) | Third Amendment, dated as of May 9, 2007, among AESOP Leasing L.P., as Lessor and Avis Budget Car Rental, LLC, as Lessee and as the Administrator, to the Second Amended and Restated Master Motor Vehicle Operating Lease Agreement, dated as of June 3, 2004 (Incorporated by reference to Exhibit 10.9 the Company Form 10-Q for the quarterly period ended June 30, 2007, dated August 8, 2007). | |
| 10.25(a) | Amended and Restated Master Motor Vehicle Finance Lease Agreement, dated as of June 3, 2004, among AESOP Leasing L.P., as Lessor, Cendant Car Rental Group, Inc.**, as Lessee, as Administrator and as Finance Lease Guarantor, Avis Rent A Car System, Inc.****, as Lessee, and Budget Rent A Car System, Inc., as Lessee (Incorporated by reference to Exhibit 10.30(a) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2006, dated March 1, 2007). | |
H-4
| Exhibit No. |
Description | |
| 10.25(b) | First Amendment, dated as of December 23, 2005, among AESOP Leasing L.P., as Lessor, Cendant Car Rental Group, Inc.**, as Lessee, as Administrator and as Finance Lease Guarantor, Avis Rent A Car System, Inc.****, as Lessee, and Budget Rent A Car System, Inc., as Lessee, to the Amended and Restated Master Motor Vehicle Finance Lease Agreement, dated as of June 3, 2004 (Incorporated by reference to Exhibit 10.30(b) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2006, dated March 1, 2007). | |
| 10.25(c) | Third Amendment, dated as of May 9, 2007, among AESOP Leasing L.P., as Lessor, Avis Budget Car Rental, LLC, as Lessee, as Administrator and as Finance Lease Guarantor, Avis Rent A Car System, LLC, as Lessee, and Budget Rent A Car System, Inc., as Lessee, to the Amended and Restated Master Motor Vehicle Finance Lease Agreement, dated as of June 3, 2004 (Incorporated by reference to Exhibit 10.11 the Company Form 10-Q for the quarterly period ended June 30, 2007, dated August 8, 2007). | |
| 10.26 | Second Amended and Restated Administration Agreement, dated as of June 3, 2004, among Cendant Rental Car Funding (AESOP) LLC***, AESOP Leasing L.P., AESOP Leasing Corp. II, Avis Rent A Car System, Inc.****, Budget Rent A Car System, Inc., Cendant Car Rental Group, Inc.** and The Bank of New York, as Trustee (Incorporated by reference to Exhibit 10.34 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2005, dated March 1, 2006). | |
| 10.27 | Assignment and Assumption Agreement dated as of June 3, 2004, among Avis Rent A Car System, Inc.****, Avis Group Holdings, Inc.***** and Cendant Car Rental Group, Inc.** (Incorporated by reference to Exhibit 10.35 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2005, dated March 1, 2006). | |
| 10.28(a) | Amended and Restated Series 2002-2 Supplement, dated as of November 22, 2002, among AESOP Funding II L.L.C.***, Cendant Car Rental Group, Inc.** (as assignee of Avis Rent A Car System, Inc.****), as Administrator, JPMorgan Chase Bank, as Administrative Agent, certain CP Conduit Purchasers, certain Funding Agents, certain APA Banks, and The Bank of New York, as Trustee and Series 2002-2 Agent, to the Second Amended and Restated Base Indenture dated as of June 3, 2004, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee (Incorporated by reference to Exhibit 10.6 to Avis Group Holdings, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2002, dated March 6, 2003). | |
| 10.28(b) | Fourth Amendment to the Amended and Restated Series 2002-2 Supplement, dated as of November 30, 2005, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Administrative Agent, the commercial paper conduit purchasers, the funding agents and the APA Banks named therein and The Bank of New York, as Trustee and Series 2002-2 Agent (Incorporated by reference to Exhibit 10.39(b) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2005, dated March 1, 2006). | |
| 10.28(c) | Fifth Amendment to the Amended and Restated Series 2002-2 Supplement, dated as of December 23, 2005, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Administrative Agent, the commercial paper conduit purchasers, the funding agents and the APA Banks named therein and The Bank of New York, as Trustee and Series 2002-2 Agent (Incorporated by reference to Exhibit 10.39(c) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2005, dated March 1, 2006). | |
| 10.28(d) | Seventh Amendment to the Amended and Restated Series 2002-2 Supplement, dated as of March 21, 2006, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, JPMorgan | |
H-5
| Exhibit No. |
Description | |
| Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Administrative Agent, the commercial paper conduit purchasers, the funding agents and the APA Banks named therein and The Bank of New York, as Trustee and Series 2002-2 Agent (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated March 27, 2006). | ||
| 10.28(e) | Eighth Amendment to the Amended and Restated Series 2002-2 Supplement, dated as of November 30, 2006, among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Administrative Agent, the commercial paper conduit purchasers, the funding agents and the APA Banks named therein and The Bank of New York, as Trustee and Series 2002-2 Agent (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated December 6, 2006). | |
| 10.28(f) | Ninth Amendment to the Amended and Restated Series 2002-2 Supplement, dated as of May 9, 2007, among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Administrative Agent, the commercial paper conduit purchasers, the funding agents and the APA Banks named therein and The Bank of New York Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and as Series 2002-2 Agent (Incorporated by reference to Exhibit 10.15 the Company Form 10-Q for the quarterly period ended June 30, 2007, dated August 8, 2007). | |
| 10.28(g) | Tenth Amendment to the Amended and Restated Series 2002-2 Supplement, dated as of October 29, 2007, among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Administrative Agent, the commercial paper conduit purchasers, the funding agents and the APA Banks named therein and The Bank of New York Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and as Series 2002-2 Agent (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated November 2, 2007). | |
| 10.28(h) | Eleventh Amendment to the Amended and Restated Series 2002-2 Supplement, dated as of October 27, 2008 , among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Administrative Agent, the commercial paper conduit purchasers, the funding agents and the APA Banks named therein and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and as Series 2002-2 Agent (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated October 28, 2008). | |
| 10.28(i) | Twelfth Amendment to the Amended and Restated Series 2002-2 Supplement, dated as of December 23, 2008, among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Administrative Agent, the commercial paper conduit purchasers, the funding agents and the APA Banks named therein and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and as Series 2002-2 Agent (Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K dated December 24, 2008). | |
| 10.29(a) | Series 2003-4 Supplement, dated as of June 19, 2003, among AESOP Funding II L.L.C.***, as Issuer, and The Bank of New York, as Trustee and Series 2003-4 Agent, to the Second Amended and Restated Base Indenture dated as of June 3, 2004, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee (Incorporated by reference to Exhibit 10.2 to Avis Group Holdings, Inc.’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2003, dated August 13, 2003). | |
| 10.29(b) | Second Amendment, dated as of December 23, 2005, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee and Series 2003-4 Agent, | |
H-6
| Exhibit No. |
Description | |
| to the Series 2003-4 Supplement dated as of June 19, 2003 (Incorporated by reference to Exhibit 10.43(b) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2005, dated March 1, 2006). | ||
| 10.29(c) | Third Amendment, dated as of May 9, 2007, among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, and The Bank of New York Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and as Series 2003-4 Agent, to the Series 2003-4 Supplement, dated as of June 19, 2003 (Incorporated by reference to Exhibit 10.19 the Company Form 10-Q for the quarterly period ended June 30, 2007, dated August 8, 2007). | |
| 10.30(a) | Second Amended and Restated Series 2004-1 Supplement, dated as of June 27, 2006, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, Avis Budget Car Rental, LLC, as Administrator, Mizuho Corporate Bank, Ltd., as Administrative Agent, certain financial institutions, as Purchasers, and The Bank of New York, as Trustee and Series 2004-1 Agent, to the Second Amended and Restated Base Indenture, dated as of June 3, 2004, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated June 30, 2006). | |
| 10.30(b) | First Amendment to the Second Amended and Restated Series 2004-1 Supplement, dated as of May 9, 2007, among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, Avis Budget Car Rental, LLC, as Administrator, Mizuho Corporate Bank, Ltd., as Administrative Agent, certain financial institutions, as Purchasers, and The Bank of New York Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and as Series 2004-1 Agent (Incorporated by reference to Exhibit 10.21 the Company Form 10-Q for the quarterly period ended June 30, 2007, dated August 8, 2007). | |
| 10.31(a) | Series 2004-2 Supplement, dated as of February 18, 2004, among AESOP Funding II L.L.C.***, as Issuer, and The Bank of New York, as Trustee and Series 2004-2 Agent, to the Second Amended and Restated Base Indenture dated as of June 3, 2004, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee (Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2004, dated May 3, 2004). | |
| 10.31(b) | Second Amendment, dated as of December 23, 2005, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee and Series 2004-2 Agent, to the Series 2004-2 Supplement, dated as of February 18, 2004 (Incorporated by reference to Exhibit 10.45(b) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2005, dated March 1, 2006). | |
| 10.31(c) | Third Amendment, dated as of May 9, 2007, among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, and The Bank of New York Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and as Series 2004-2 Agent, to the Series 2004-2 Supplement, dated as of February 18, 2004 (Incorporated by reference to Exhibit 10.22 the Company Form 10-Q for the quarterly period ended June 30, 2007, dated August 8, 2007). | |
| 10.32(a) | Series 2005-1 Supplement, dated as of February 25, 2005, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee and Series 2005-1 Agent, to the Second Amended and Restated Base Indenture, dated as of June 3, 2004, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated March 2, 2005) | |
| 10.32(b) | First Amendment, dated as of December 23, 2005, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee and Series 2005-1 Agent, | |
H-7
| Exhibit No. |
Description | |
| to the Series 2005-1 Supplement dated as of February 25, 2005 (Incorporated by reference to Exhibit 10.29(b) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2005, dated March 1, 2006). | ||
| 10.32(c) | Second Amendment, dated as of May 9, 2007, among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, and The Bank of New York Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and as Series 2005-1 Agent, to the Series 2005-1 Supplement, dated as of February 25, 2005 (Incorporated by reference to Exhibit 10.23 the Company Form 10-Q for the quarterly period ended June 30, 2007, dated August 8, 2007). | |
| 10.33(a) | Amended and Restated Series 2005-2 Supplement, dated May 20, 2008, between Avis Budget Rental Car Funding (AESOP) LLC (formerly known as Cendant Rental Car Funding (AESOP) LLC), as issuer and The Bank of New York Trust Company, N.A. (as successor in interest to The Bank of New York), as trustee and as Series 2005-2 Agent, to the Second Amended and Restated Base Indenture, dated as of June 3, 2004, between Avis Budget Rental Car Funding (AESOP) LLC, as issuer and The Bank of New York Trust Company, N.A. (as successor in interest to The Bank of New York), as trustee (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated May 22, 2008). | |
| 10.33(b) | First Amendment, dated as of November 11, 2008, between Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and as Series 2005-2 Agent, to the Amended and Restated Series 2005-2 Supplement, dated as of May 20, 2008. | |
| 10.34(a) | Series 2005-4 Supplement, dated as of June 1, 2005, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee and as Series 2005-4 Agent, to the Second Amended and Restated Base Indenture, dated as of June 3, 2004, among Cendant Rental Car Funding (AESOP) LLC*** and The Bank of New York, as Trustee (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated June 7, 2005). | |
| 10.34(b) | First Amendment, dated as of December 23, 2005, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee and Series 2005-4 Agent, to the Series 2005-4 Supplement dated as of June 1, 2005 (Incorporated by reference to Exhibit 10.30(b) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2005, dated March 1, 2006). | |
| 10.34(c) | Second Amendment, dated as of May 9, 2007, among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, and The Bank of New York Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and as Series 2005-4 Agent, to the Series 2005-4 Supplement, dated as of June 1, 2005 (Incorporated by reference to Exhibit 10.25 the Company Form 10-Q for the quarterly period ended June 30, 2007, dated August 8, 2007). | |
| 10.34(d) | Third Amendment, dated as of November 11, 2008, between Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and as Series 2005-4 Agent, to the Series 2005-4 Supplement, dated as of June 1, 2005. | |
| 10.35(a) | Series 2006-1 Supplement, dated as of January 19, 2006, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer, and The Bank of New York, as Trustee and as Series 2006-1 Agent, to the Second Amended and Restated Base Indenture, dated as of June 3, 2004, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer and The Bank of New York, as Trustee (Incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K dated January 20, 2006). | |
H-8
| Exhibit No. |
Description | |
| 10.35(b) | First Amendment, dated as of May 9, 2007, among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer, and The Bank of New York Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and as Series 2006-1 Agent, to the Series 2006-1 Supplement, dated as of January 11, 2006 (Incorporated by reference to Exhibit 10.26 the Company Form 10-Q for the quarterly period ended June 30, 2007, dated August 8, 2007). | |
| 10.36(a) | Series 2007-2 Supplement, dated as of June 6, 2007, among Avis Budget Rental Car Funding (AESOP) LLC, as Issuer and The Bank of New York Trust Company, N.A., as Trustee and Series 2007-2 Agent, to the Second Amended and Restated Base Indenture, dated as of June 3, 2004, among Cendant Rental Car Funding (AESOP) LLC***, as Issuer and The Bank of New York, as Trustee, as amended (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated June 8, 2007). | |
| 10.36(b) | First Amendment, dated as of November 11, 2008, between Avis Budget Rental Car Funding (AESOP) LLC, as Issuer and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to The Bank of New York), as Trustee and Series 2007-2 Agent, to the Series 2007-2 Supplement, dated as of June 6, 2007. | |
| 10.37(a) | Series 2008-1 Supplement, dated as of February 15, 2008, among Avis Budget Rental Car Funding (AESOP) LLC, Avis Budget Car Rental, LLC, as administrator, JPMorgan Chase Bank, N.A., as administrative agent, the commercial paper conduit purchasers, the funding agents and the APA Banks named therein, and The Bank of New York Trust Company, N.A., as trustee and as Series 2008-1 Agent (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated February 22, 2008). | |
| 10.37(b) | First Amendment to the Series 2008-1 Supplement, dated as of October 27, 2008, among Avis Budget Rental Car Funding (AESOP) LLC, Avis Budget Car Rental, LLC, as administrator, JPMorgan Chase Bank, N.A., as administrative agent, the commercial paper conduit purchasers, the funding agents and the APA Banks named therein, and The Bank of New York Mellon Trust Company, N.A., as trustee and as Series 2008-1 Agent (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated October 28, 2008). | |
| 10.37(c) | Second Amendment to the Series 2008-1 Supplement, dated as of December 23, 2008, among Avis Budget Rental Car Funding (AESOP) LLC, Avis Budget Car Rental, LLC, as administrator, JPMorgan Chase Bank, N.A., as administrative agent, the commercial paper conduit purchasers, the funding agents and the APA Banks named therein, and The Bank of New York Mellon Trust Company, N.A., as trustee and as Series 2008-1 Agent (Incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K dated December 24, 2008). | |
| 10.38 | Administration Agreement, dated as of May 11, 2006, among Budget Truck Funding, LLC, Budget Truck Rental, LLC, as Administrator, and The Bank of New York Trust Company, N.A., as Trustee (Incorporated by reference to Exhibit 10.16 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2006 dated, August 9, 2006). | |
| 10.39(a) | Master Motor Vehicle Operating Lease Agreement, dated as of May 11, 2006, among Budget Truck Funding, LLC††, as Lessor, Budget Truck Rental, LLC, as Administrator and as Lessee, and Avis Budget Car Rental, LLC, as Guarantor (Incorporated by reference to Exhibit 10.15 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2006, dated August 9, 2006). | |
| 10.39(b) | Amendment No. 1 to the Master Motor Vehicle Operating Lease Agreement, dated as of February 15, 2008, among Centre Point Funding, LLC (formerly known as Budget Truck Funding, LLC), as Lessor, Budget Truck Rental, LLC, as Administrator and as Lessee, and Avis | |
H-9
| Exhibit No. |
Description | |
| Budget Car Rental, LLC, as Guarantor (Incorporated by reference to Exhibit 10.40(a) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007, dated February 29, 2008). | ||
| 10.40(a) | Base Indenture, dated as of May 11, 2006, among Budget Truck Funding, LLC††, as Issuer, and The Bank of New York Trust Company, N.A., as Trustee (Incorporated by reference to Exhibit 10.13 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2006, dated August 9, 2006). | |
| 10.40(b) | Amendment No. 1 to the Base Indenture, dated as of May 16, 2007, among Budget Truck Funding, LLC††, as Issuer, and The Bank of New York Trust Company, N.A., as Trustee (Incorporated by reference to Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2007, dated August 8, 2007). | |
| 10.40(c) | Amendment No. 2 to the Base Indenture, dated as of February 15, 2008, among Centre Point Funding, LLC (formerly known as Budget Truck Funding, LLC), as Issuer, and The Bank of New York Trust Company, N.A., as Trustee (Incorporated by reference to Exhibit 10.41(b) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007, dated February 29, 2008). | |
| 10.41(a) | Series 2006-1 Supplement, dated as of May 11, 2006, among Budget Truck Funding, LLC, as Issuer, Budget Truck Rental, LLC††, as Administrator, Deutsche Bank Securities, Inc., as Administrative Agent, certain commercial paper conduit purchasers, certain funding agents, certain APA banks and The Bank of New York Trust Company, N.A., as Trustee, Series 2006-1 Agent and Securities Intermediary, to the Base Indenture, dated as of May 11, 2006, among Budget Truck Funding, LLC††, as Issuer, and The Bank of New York Trust Company, N.A., as Trustee (Incorporated by reference to Exhibit 10.14 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2006, dated August 9, 2006). | |
| 10.41(b) | Amendment No. 1 to the Series 2006-1 Supplement, dated as of May 16, 2007, among Budget Truck Funding, LLC††, as Issuer, Deutsche Bank Securities, Inc., as Administrative Agent, certain CP Conduit Purchasers, certain Funding Agents, certain APA Banks and The Bank of New York Trust Company, N.A., as Trustee (Incorporated by reference to Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2007, dated August 8, 2007). | |
| 10.41(c) | Extension Letter (related to the Series 2006-1 Supplement, dated as of May 11, 2006), dated as of May 10, 2007, from Budget Truck Funding, LLC††, as Issuer (Incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2007, dated August 8, 2007). | |
| 10.41(d) | Amendment No. 2 to the Series 2006-1 Supplement, dated as of February 15, 2008, among Centre Point Funding, LLC (formerly known as Budget Truck Funding, LLC), as Issuer, Deutsche Bank Securities, Inc., as Administrative Agent, certain CP Conduit Purchasers, certain Funding Agents, certain APA Banks and The Bank of New York Trust Company, N.A., as Trustee (Incorporated by reference to Exhibit 10.42(c) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007, dated February 29, 2008). | |
| 10.41(e) | Amendment No. 3 to the Series 2006-1 Supplement, dated as of February 15, 2008, among Centre Point Funding, LLC (formerly known as Budget Truck Funding, LLC), as Issuer, Deutsche Bank Securities, Inc., as Administrative Agent, certain CP conduit Purchasers, certain Funding Agents, certain APA Banks and The Bank of New York Trust Company, N.A., as Trustee (Incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2008 dated August 7, 2008). | |
H-10
| Exhibit No. |
Description | |
| 10.41(f) | Amendment No. 4 to the Series 2006-1 Supplement, dated as of December 23, 2008, among Centre Point Funding, LLC (formerly known as Budget Truck Funding, LLC), as Issuer, Deutsche Bank Securities, Inc., as Administrative Agent, certain CP conduit Purchasers, certain Funding Agents, certain APA Banks and The Bank of New York Mellon Trust Company, N.A., as Trustee. | |
| 10.42(a) | Asset and Stock Purchase Agreement by and among Budget Group, Inc. and certain of its Subsidiaries, Cendant Corporation* and Cherokee Acquisition Corporation dated as of August 22, 2002 (Incorporated by reference to Exhibit 10.71 to the Company’s Annual Report on Form 10-K/A for the year ended December 31, 2001 dated November 4, 2002). | |
| 10.42(b) | First Amendment to Asset and Stock Purchase Agreement by and among Budget Group, Inc. and certain of its Subsidiaries, Cendant Corporation* and Cherokee Acquisition Corporation dated as of September 10, 2002 (Incorporated by reference to Exhibit 10.72 to the Company’s Annual Report on Form 10-K/A for the year ended December 31, 2001 dated November 4, 2002). | |
| 10.43 | Separation Agreement, dated as of January 31, 2005, by and between Cendant Corporation* and PHH Corporation (Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K dated February 4, 2005). | |
| 10.44 | Tax Sharing Agreement, dated as of January 31, 2005, by and among Cendant Corporation*, PHH Corporation and certain affiliates of PHH Corporation named therein (Incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K dated February 4, 2005).††† | |
| 10.45 | Cendant Corporation* Officer Personal Financial Services Policy (Incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K dated January 26, 2005). | |
| 10.46 | Form of TRAC Participation Agreement (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated May 26, 2005). | |
| 10.47 | Form of TRAC Lease (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated May 26, 2005). | |
| 10.48 | Form of TRAC Guaranty (Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K dated May 26, 2005). | |
| 10.49(a) | WTH Funding Limited Partnership Fourth Amended and Restated Limited Partnership Agreement among Aviscar Inc., Budgetcar Inc., as general partners and BNY Trust Company of Canada, in its capacity as trustee of STARS Trust and Montreal Trust Company of Canada, in its capacity as trustee of Bay Street Funding Trust, as limited partners dated April 20, 2005 (Incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2005 dated August 2, 2005). | |
| 10.49(b) | Amending Agreement No. 1 to the Fourth Amended and Restated Limited Partnership Agreement among Aviscar Inc. and Budgetcar Inc., as general partners and BNY Trust Company of Canada, in its capacity as trustee of STARS Trust and Montreal Trust Company of Canada, in its capacity as trustee of Bay Street Funding Trust, as limited partners (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated December 20, 2006). | |
| 10.49(c) | Amending Agreement No. 2 to the Fourth Amended and Restated Limited Partnership Agreement among Aviscar Inc. and Budgetcar Inc., as general partners and BNY Trust Company of Canada, in its capacity as trustee of STARS Trust and Montreal Trust Company of Canada, in its capacity as trustee of Bay Street Funding Trust, as limited partners (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated December 20, 2006). | |
H-11
| Exhibit No. |
Description | |
| 10.49(d) | Amending Agreement No. 3 to the Fourth Amended and Restated Limited Partnership Agreement among Aviscar Inc. and Budgetcar Inc., as general partners and BNY Trust Company of Canada, in its capacity as trustee of STARS Trust and Montreal Trust Company of Canada, in its capacity as trustee of Bay Street Funding Trust, as limited partners (Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K dated December 20, 2006). | |
| 10.49(e) | Amending Agreement No. 4 to the Fourth Amended and Restated Limited Partnership Agreement among Aviscar Inc. and Budgetcar Inc., as general partners and BNY Trust Company of Canada, in its capacity as trustee of STARS Trust and Montreal Trust Company of Canada, in its capacity as trustee of Bay Street Funding Trust, as limited partners (Incorporated by reference to Exhibit 10.50(d) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007, dated February 29, 2008). | |
| 10.49(f) | Amending Agreement No. 5 to the Fourth Amended and Restated Limited Partnership Agreement among Aviscar Inc. and Budgetcar Inc., as general partners and BNY Trust Company of Canada, in its capacity as trustee of STARS Trust and Montreal Trust Company of Canada, in its capacity as trustee of Bay Street Funding Trust, as limited partners (Incorporated by reference to Exhibit 10.50(e) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007, dated February 29, 2008). | |
| 10.49(g) | Amending Agreement No. 6 to the Fourth Amended and Restated Limited Partnership Agreement among Aviscar Inc. and Budgetcar Inc., as general partners and BNY Trust Company of Canada, in its capacity as trustee of STARS Trust and Montreal Trust Company of Canada, in its capacity as trustee of Bay Street Funding Trust, as limited partners (Incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2008 dated May 7, 2008). | |
| 10.49(h) | Amending Agreement No. 7 to the Fourth Amended and Restated Limited Partnership Agreement among Aviscar Inc. and Budgetcar Inc., as general partners and BNY Trust Company of Canada, in its capacity as trustee of STARS Trust and Montreal Trust Company of Canada, in its capacity as trustee of Bay Street Funding Trust, as limited partners (Incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2008 dated May 7, 2008). | |
| 10.49(i) | Amending Agreement No. 8 to the Fourth Amended and Restated Limited Partnership Agreement among Aviscar Inc. and Budgetcar Inc., as general partners and BNY Trust Company of Canada, in its capacity as trustee of STARS Trust and Montreal Trust Company of Canada, in its capacity as trustee of Bay Street Funding Trust, as limited partners (Incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2008 dated August 7, 2008). | |
| 10.49(j) | Amending Agreement No. 9 to the Fourth Amended and Restated Limited Partnership Agreement among Aviscar Inc. and Budgetcar Inc., as general partners and BNY Trust Company of Canada, in its capacity as trustee of STARS Trust and Montreal Trust Company of Canada, in its capacity as trustee of Bay Street Funding Trust, as limited partners. | |
| 10.50 | Parent Guaranty of Avis Budget Car Rental, LLC to BNY Trust Company of Canada, in its capacity as trustee of STARS Trust and Montreal Trust Company of Canada, in its capacity as trustee of Bay Street Funding Trust, as limited partners (Incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K dated December 20, 2006). | |
| 10.51(a) | Credit Agreement, dated as of April 19, 2006, among Avis Budget Holdings, LLC and Avis Budget Car Rental, LLC, as Borrower, the lenders referred to therein, JPMorgan Chase Bank, | |
H-12
| Exhibit No. |
Description | |
| N.A., as Administrative Agent, Deutsche Bank Securities Inc., as Syndication Agent, Bank of America, N.A., Calyon New York Branch and Citicorp USA, Inc., as Documentation Agents, and Wachovia Bank, National Association, as Co-Documentation Agent (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated April 21, 2006). | ||
| 10.51(b) | First Amendment, dated December 23, 2008 to the Credit Agreement dated as of April 19, 2006 among Avis Budget Holdings, LLC, Avis Budget Car Rental, LLC, the subsidiary borrowers from time to time parties thereto, the several lenders from time to time parties thereto, Bank of America, N.A., Calyon New York Branch and Citicorp USA, Inc., as documentation agents, Wachovia Bank, National Association, as co-documentation agent, Deutsche Bank Securities Inc. as syndication agent and JPMorgan Chase Bank, N.A., as administrative agent (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated December 24, 2008). | |
| 10.52 | Amended and Restated Guarantee and Collateral Agreement, dated as of December 23, 2008, made by each of the signatories thereto in favor of JPMorgan Chase Bank, N.A., as administrative agent (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated December 24, 2008). | |
| 10.53 | Purchase Agreement, dated as of June 30, 2006, by and among the Company, Travelport Inc. and TDS Investor LLC (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated June 30, 2006). | |
| 10.54 | Transition Services Agreement among Cendant Corporation*, Realogy Corporation, Wyndham Worldwide Corporation and Travelport Inc., dated as of July 27, 2006 (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated August 1, 2006). | |
| 10.55(a) | Tax Sharing Agreement among Cendant Corporation*, Realogy Corporation, Wyndham Worldwide Corporation and Travelport Inc., dated as of July 28, 2006 (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated August 1, 2006). | |
| 10.55(b) | Amendment to the Tax Sharing Agreement, dated July 28, 2006, among Avis Budget Group, Inc., Realogy Corporation, Wyndham Worldwide Corporation and Travelport Inc. (Incorporated by reference to Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2008 dated August 7, 2008). | |
| 10.56 | Agreement dated as of December 1, 2008 between Avis Budget Car Rental, LLC and General Motors††† (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated December 8, 2008). | |
| 10.57(a) | Purchase Agreement by and among Cendant Corporation*, Affinity Acquisition, Inc. and Affinity Acquisition Holdings, Inc. dated as of July 26, 2005 (Incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2005 dated November 2, 2005). | |
| 10.57(b) | Amendment No. 1 dated as of October 17, 2005 to the Purchase Agreement dated as of July 26, 2005 by and among Cendant Corporation*, Affinity Acquisition, Inc. (now known as Affinion Group, Inc. ) and Affinity Acquisition Holdings, Inc. (now known as Affinion Group Holdings, Inc.) (Incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2005 dated November 2, 2005). | |
| 10.58 | Trademark License Agreement between Wizard Co. Inc. and Avis Europe plc (Incorporated by reference to Exhibit 10.60 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007, dated February 29, 2008). | |
H-13
| Exhibit No. |
Description | |
| 10.59 | System License Agreement between Avis Rent A Car System, Inc. and Avis Europe plc (Incorporated by reference to Exhibit 10.61 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007, dated February 29, 2008). | |
| 12 | Statement Re: Computation of Ratio of Earnings to Fixed Charges. | |
| 21 | Subsidiaries of Registrant. | |
| 23 | Consent of Independent Registered Public Accounting Firm. | |
| 31.1 | Certification of Chief Executive Officer Pursuant to Rules 13(a)-14(a) and 15(d)-14(a) Promulgated Under the Securities Exchange Act of 1934, as amended. | |
| 31.2 | Certification of Chief Financial Officer Pursuant to Rules 13(a)-14(a) and 15(d)-14(a) Promulgated Under the Securities Exchange Act of 1934, as amended. | |
| 32 | Certifications Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
| * | Cendant Corporation is now known as Avis Budget Group, Inc. |
| ** | Cendant Car Rental Group, LLC (formerly known as Cendant Car Rental Group, Inc.) is now known as Avis Budget Car Rental, LLC. |
| *** | Cendant Rental Car Funding (AESOP) LLC, formerly known as AESOP Funding II L.L.C, is now known as Avis Budget Rental Car Funding (AESOP) LLC. |
| **** | Avis Rent A Car System, Inc. is now known as Avis Rent A Car System, LLC. |
| *****Avis | Group Holdings, Inc. is now known as Avis Group Holdings, LLC. |
| † | Denotes management contract or compensatory plan. |
| †† | Budget Truck Funding, LLC is now known as Centre Point Funding, LLC. |
| ††† | Confidential treatment has been requested for certain portions of this Exhibit pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, which portions have been omitted and filed separately with the Securities and Exchange Commission. |
H-14
Exhibit 4.1(c)
AVIS BUDGET CAR RENTAL, LLC
and
AVIS BUDGET FINANCE, INC.,
as Issuers,
The GUARANTORS from time to time parties hereto
and
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK
as Trustee
SECOND SUPPLEMENTAL INDENTURE
DATED as of JANUARY 28, 2009
TO THE INDENTURE
DATED as of APRIL 19, 2006,
AS SUPPLEMENTED BY
THE FIRST SUPPLEMENTAL INDENTURE
DATED as of FEBRUARY 8, 2007
FLOATING RATE SENIOR NOTES DUE 2014
7.625% SENIOR NOTES DUE 2014
7.75% SENIOR NOTES DUE 2016
SECOND SUPPLEMENTAL INDENTURE, dated as of January 28, 2009 (this “Second Supplemental Indenture”), by and among Avis Budget Car Rental, LLC, a Delaware limited liability company (the “Company”), Avis Budget Finance, Inc., a Delaware corporation (together with the Company and their respective successors, the “Issuers”), Wizard Services, Inc., a Delaware corporation (“Wizard”), PR Holdco, Inc., a Delaware corporation (“PR Holdco”), Runabout, LLC, a Delaware limited liability company (“Runabout” and, together with Wizard and PR Holdco, the “New Subsidiary Guarantors”), each other Guarantor under the Indenture referred to below (together, the “Existing Guarantors”), and The Bank of Nova Scotia Trust Company of New York, as trustee (“the Trustee”) under the Indenture referred to below.
WITNESSETH:
WHEREAS, the Issuers, the Existing Guarantors and the Trustee have heretofore become parties to the Indenture, dated as of April 19, 2006 (the “Base Indenture”), as supplemented by a First Supplemental Indenture, dated as of February 8, 2007 (so supplemented and as may be further amended, supplemented, waived or otherwise modified to the date hereof, the “Indenture”), providing for the issuance of Floating Rate Senior Notes due 2014, 7.625% Senior Notes due 2014 and 7.75% Senior Notes due 2016 of the Issuers (collectively, the “Notes”);
WHEREAS, Sections 414 and 1308 of the Indenture provide that the Company is required to cause each Domestic Subsidiary that guarantees the Company’s obligations under the Senior Credit Facility to execute and deliver to the Trustee a supplemental indenture to the Indenture with respect to the Notes pursuant to which each such Domestic Subsidiary shall guarantee the Subsidiary Guaranteed Obligations under the Notes pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein and in Article XIII of the Indenture;
WHEREAS, each New Subsidiary Guarantor has guaranteed the Company’s obligations under the Senior Credit Facility and now desires to enter into a supplemental indenture in order to provide a Subsidiary Guarantee for good and valuable consideration, including substantial economic benefit in that the financial performance and condition of each New Subsidiary Guarantor is dependent on the financial performance and condition of the Company, the obligations hereunder which each New Subsidiary Guarantor has guaranteed, and on each New Subsidiary Guarantor’s access to working capital through the Company’s access to revolving credit borrowings under the Senior Credit Facility;
WHEREAS, all conditions and requirements necessary to make this Second Supplemental Indenture a valid and binding agreement have been duly performed and complied with; and
WHEREAS, pursuant to Section 901 of the Indenture, the parties hereto are authorized to execute and deliver this Second Supplemental Indenture to amend the Indenture, without the consent of any Holder;
NOW, THEREFORE, for and in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each New Subsidiary Guarantor, the Issuers, the Existing Guarantors and the Trustee mutually covenant and agree for the benefit of all Holders of the Notes as follows:
1. Defined Terms. Terms used but not defined in this Second Supplemental Indenture shall have the meanings ascribed to them in the Base Indenture. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Second Supplemental Indenture refer to this Second Supplemental Indenture as a whole and not to any particular Section hereof.
2. Agreement to Guarantee. Each New Subsidiary Guarantor hereby agrees, jointly and severally with all other Subsidiary Guarantors and irrevocably, fully and unconditionally, to guarantee the Subsidiary Guaranteed Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in Article XIII of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Subsidiary Guarantor.
3. Termination, Release and Discharge. Each New Subsidiary Guarantor’s Subsidiary Guarantee shall terminate and be of no further force or effect, and each New Subsidiary Guarantor shall be released and discharged from all obligations in respect of such Subsidiary Guarantee, as and when provided in Section 1303 of the Indenture.
4. Parties. Nothing in this Second Supplemental Indenture is intended or shall be construed to give any Person, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of any New Subsidiary Guarantor’s Subsidiary Guarantee or any provision contained herein or in Article XIII of the Indenture.
5. Governing Law. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TRUSTEE, THE COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SECOND SUPPLEMENTAL INDENTURE.
6. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
7. Trustee. The Trustee accepts the trusts created by the Indenture, as amended and supplemented by this Second Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Indenture, as amended and supplemented by this Second Supplemental Indenture. The Trustee makes no representation or warranty as to the validity or sufficiency of this Second Supplemental Indenture or as to the accuracy of the recitals to this Second Supplemental Indenture.
2
8. Successors. All covenants and agreements in this Second Supplemental Indenture by the Issuers, the Existing Guarantors, each New Subsidiary Guarantor and the Trustee shall bind their respective successors, whether so expressed or not.
9. Severability. In case any provisions in this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
10. Counterparts. The parties hereto may sign one or more copies of this Second Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
11. Headings. The Section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
3
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the date first written above.
| AVIS BUDGET CAR RENTAL, LLC | ||
| AVIS BUDGET FINANCE, INC. | ||
| AVIS BUDGET GROUP, INC. | ||
| AVIS BUDGET HOLDINGS, LLC | ||
| AVIS ASIA AND PACIFIC, LIMITED | ||
| AVIS CAR RENTAL GROUP, LLC | ||
| AVIS CARIBBEAN, LIMITED | ||
| AVIS ENTERPRISES, INC. | ||
| AVIS GROUP HOLDINGS, LLC | ||
| AVIS INTERNATIONAL, LTD. | ||
| AVIS LEASING CORPORATION | ||
| AVIS RENT A CAR SYSTEM, LLC | ||
| PF CLAIMS MANAGEMENT, LTD. | ||
| WIZARD CO., INC. | ||
| AB CAR RENTAL SERVICES, INC. | ||
| ARACS LLC | ||
| AVIS OPERATIONS, LLC | ||
| WIZARD SERVICES, INC. | ||
| PR HOLDCO, INC. | ||
| By | /s/ Rochelle Tarlowe | |
| Name: | Rochelle Tarlowe | |
| Title: | Vice President and Treasurer | |
| BGI LEASING, INC. | ||
| BUDGET RENT A CAR SYSTEM, INC. | ||
| BUDGET TRUCK RENTAL LLC | ||
| RUNABOUT, LLC | ||
| By | /s/ David B. Wyshner | |
| Name: | David B. Wyshner | |
| Title: | Executive Vice President, | |
| Chief Financial Officer and Treasurer | ||
| THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, as Trustee | ||
| By | /s/ Warren Goshine | |
| Authorized Officer | ||
Exhibit 10.6
December 19, 2008
Mr. Patric Siniscalchi
Executive Vice President, International
Avis Budget Group
6 Sylvan Way
Parsippany, NJ 07054
Dear Pat:
We are pleased to confirm your continued employment with Avis Budget Car Rental, LLC, (“ABCR” or the “Company”), a subsidiary of Avis Budget Group, as Executive Vice President, International. To comply with the requirements of Section 409A of the Internal Revenue Code and the regulations thereunder (“Section 409A”), the Company is hereby amending and restating this letter agreement as set forth herein.
Your salary will continue to be paid on a bi-weekly basis at its current rate. You will be eligible to receive a target bonus equal to the percentage of your regular base salary during the performance period that is no less than your current target bonus percentage, subject to the Company achieving performance goals as described in the Management Incentive Plan for ABG Senior Executive Leadership and you remaining employed with the Company through the payment date. The bonus distribution is typically in the first quarter of the next year.
Per ABCR’s standard policy, this letter is not intended, nor should it be considered, to be an employment contract for a definite or indefinite period of time. As you know, employment with ABCR is at will, and either you or ABCR may terminate your employment at any time, with or without cause.
If, however, your employment with ABCR is terminated by ABCR other than: (i) “for cause” (as defined below); (ii) in connection with your disability which prevents you or is reasonably expected to prevent you from performing services for ABCR for a period of 12 months (your “disability”); or (iii) death, you will receive (1) a lump-sum severance payment within 15 days following the Release Date (as defined below) equal to 200% of the sum of your base salary plus your target incentive (bonus) and (2) perquisites to include continued access to company car usage, financial planning and health coverage (Company-subsidized COBRA) for a period of 24 months. For purposes of this agreement ‘company subsidized COBRA’ shall mean that the Company shall subsidize the total cost of COBRA coverage such that the contributions required of you for health plan participation during the 24 month period shall be substantially equal to the contributions required of active employed executives of ABG. All other programs and perquisites would be governed by their respective plan documents; provided, however, that the provision of such severance pay is subject to, and contingent upon, your executing within forty-five days following your termination of employment and failing to revoke a separation agreement with ABCR (the date on which the release is no longer revocable, the “Release Date”), in such form determined by ABCR, which requires
Mr. Patric Siniscalchi
Page Two
December 19, 2008
you, in part, to release all actual and purported claims against ABCR and its affiliates and which also requires you to agree to: (i) protect and not disclose all confidential and proprietary information of ABCR; (ii) not compete, directly or indirectly, against ABCR for a period of no longer than one year after your employment separation or for a period of time and within a geographic scope determined by ABCR to be reasonable to protect ABCR’s business interests; and (iii) not solicit any ABCR employees, consultants, agents or customers during and for one year after your employment separation.
In addition, if you experience an involuntary termination of employment from ABCR other than “for cause,” and other than as a result of your “disability” or death, you will receive a lump sum cash payment within 15 days following the Release Date equal to the fair market value as of your termination of employment of your stock-based awards which would have vested in accordance with their original vesting schedule by the one-year anniversary of your termination of employment; provided that, to the extent required to achieve deductibility under Section 162(m) of the Internal Revenue Code of awards that vest based on the achievement of performance criteria, with respect to any awards that vest based on the achievement of performance criteria, for performance periods beginning after January 1, 2009, payment in respect of these awards shall not occur unless and until ACBR determines that all applicable performance goals have been attained (and you or your beneficiary will receive such payment at the same time, and on the same basis, as awards granted to other executive officers who are subject to the same performance goals vest).
In addition, if you experience a termination of employment from ABCR due to your “disability” or death, you or your beneficiary will receive a lump sum cash payment within 15 days following the Release Date (or, in the event of your death, within 30 days of your death) equal to the fair market value as of your termination of employment of all of your stock-based awards.
“Termination for Cause” shall mean: (i) your willful failure to substantially perform your duties as an employee of the Company or any subsidiary (other than any such failure resulting from your incapacity due to physical or mental illness); (ii) any act of fraud, misappropriation, dishonesty, embezzlement or similar conduct against the Company or any subsidiary; or (iii) conviction of a felony or any crime involving moral turpitude (which conviction, due to the passage of time or otherwise, is not subject to further appeal).
The payments and benefits described in this letter are intended to comply with Section 409A and, accordingly, to the maximum extent permitted, the terms of this letter shall be interpreted and administered to be in compliance with Section 409A of the Internal Revenue Code (“Section 409A”). Notwithstanding anything to the contrary contained herein, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A, you will not be considered to have terminated employment with ACBR for purposes of the benefits provided in this letter and no payments shall be due to you on termination of employment hereunder until you are considered to have incurred a “separation from service” from ACBR within the meaning of Section 409A. Each amount to be paid or benefit to be provided in this letter shall be construed as a separate identified payment for purposes of Section 409A. Any payments described in this Agreement that are paid pursuant to a “separation pay plan” as described in Treas. Reg. 1.409A-1(b)(9)(iii) or that are due within
Mr. Patric Siniscalchi
Page Three
December 19, 2008
the “short term deferral period” as defined in Section 409A shall not be treated as deferred compensation unless applicable law requires otherwise. Notwithstanding anything contained herein, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this letter (or any other plan or agreement of the Company providing you with payments or benefits upon your separation from service) during the six-month period immediately following your separation from service shall instead be paid or provided on the first business day after the date that is six months following your separation date (or death, if earlier).
The by-laws of the Company provide that officers will be indemnified for their authorized actions on behalf of our Company to the fullest extent permitted under applicable law.
This severance pay as set forth in this letter is in lieu of and supersedes any other severance benefits otherwise payable to you under any other agreement or severance plan of ABCR or its affiliates.
| Regards, | ||
| /s/ Mark J. Servodidio | ||
| Mark J. Servodidio | ||
| Executive Vice President – Human Resources | ||
| Understood and accepted: | ||
| /s/ Patric Siniscalchi | ||
| Patric Siniscalchi | ||
| Date: | 12/23/2008 | |
Exhibit 10.15(c)
FORM OF TIME-BASED AWARD
AVIS BUDGET GROUP, INC.
2007 EQUITY AND INCENTIVE PLAN
STOCK OPTION AGREEMENT
[ ] (the “Optionee”) is granted, effective as of the day of (the “Date of Grant”), options (the “Options”) to purchase shares of common stock, par value $.01 (“Stock”) of Avis Budget Group, Inc. (the “Option Shares”) pursuant to the 2007 Equity and Incentive Plan (the “Plan”) of Avis Budget Group, Inc. (the “Company”). The Options are subject to the terms and conditions set forth below and in the Plan, which is a part of this Stock Option Agreement (the “Agreement”). To the extent that there is a conflict between the terms of the Plan and this Agreement, the terms of the Plan shall govern. Any term not defined herein shall have the meaning assigned to such term in the Plan.
| 1. | Exercise Price: $ per Option Share |
| 2. | Number of Option Shares: |
| 3. | Type of Option: Non-Qualified |
| 4. | Vesting: Subject to accelerated vesting as set forth in this Agreement or in Section 7 of the Plan, the Options granted hereunder will become vested in accordance with the following schedule provided that the Optionee is continuously employed by the Company on the vesting date: |
| Date of Vesting |
Option Shares Vested | |
| 5. | Exercise of Option: |
| (a) | The Option may be exercised with respect to vested Option Shares, from time to time during the Option Term, in whole or in part (but for the purchase of whole shares only), by delivery of a written notice (the “Exercise Notice”) from the Optionee to the Company, which Exercise Notice shall: |
| (i) | state that the Optionee elects to exercise the Option; |
| (ii) | state the number of Option Shares with respect to which the Optionee is exercising the Option; |
| (iii) | in the event that the Option shall be exercised by the representative of the Optionee’s estate, include appropriate proof of the right of such person to exercise the Option; |
| (iv) | state the date upon which the Optionee desires to consummate the purchase of such Option Shares (which date must be prior to the termination of the Option); and |
| (v) | comply with such further provisions as the Company may reasonably require. |
| (b) | Payment of the Exercise Price for the Option Shares to be purchased on the exercise of the Option shall be made by (i) cash (ii) certified or bank cashier’s check payable to the order of the Company, (iii) unless otherwise determined by the Committee at the time of exercise, in the form of Shares already owned by the Optionee which have a Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Shares as to which such Option shall be exercised, (iv) unless otherwise determined by the Committee at the time of exercise, authorization for the Company, or a third-party broker designated by the Company, to withhold a number of shares otherwise payable pursuant to the exercise of an Option having a Fair Market Value less than or equal to the aggregate Exercise Price, (iv) any other form of consideration approved by the Committee and permitted by applicable law or (v) any combination of the foregoing. |
| (c) | As a condition of delivery of the Option Shares, the Company shall have the right to require the Optionee to remit to the Company in cash an amount sufficient to satisfy any federal, state and local withholding tax requirements related thereto. The Optionee may satisfy the foregoing requirement by electing to have the Company withhold from delivery Shares or by delivering already owned unrestricted Shares, in each case, having a value equal to the minimum amount of tax required to be withheld. Such shares shall be valued at their Fair Market Value on the date as of which the amount of tax to be withheld is determined. |
| 6. | Expiration Date: |
| (a) | General. Subject to earlier termination upon the occurrence of certain events related to the termination of the Optionee’s employment as set forth in this Agreement, the Options granted hereunder shall expire on the tenth (10th) anniversary of the Date of Grant, unless earlier exercised (such ten-year period, the “Option Term”). |
| (b) | Death or Disability. Except as otherwise provided in any individual agreement between the Optionee and the Company, if the Optionee experiences a termination of employment by reason of the Optionee’s total and permanent disability (as defined in any individual agreement between the Optionee and the Company or, if no such agreement is in effect, as determined by the Committee in its good faith discretion) or death, the unvested portion of the Option Shares shall vest and the Optionee shall be permitted to exercise the Option Shares for six months following such termination of employment (but in no event beyond the expiration of the Option Term). Option Shares that remain unexercised at the expiration of such exercise period shall terminate at such time. |
| (c) | Cause. If the Company terminates the Optionee’s employment for Cause, the unexercised portion of the Option Shares, whether vested or unvested, shall terminate immediately and the Optionee shall have no right thereafter to exercise any part of the Option Shares. |
| (d) | Other. Except as otherwise provided in any individual agreement between the Optionee and the Company, if the Optionee experiences a termination of employment for any reason not otherwise set forth above, the unvested portion of the Option Shares shall terminate immediately. Any Option Shares that were vested on the date of such termination of employment shall remain exercisable for six months following such termination of employment (but in no event beyond the expiration of the Option Term). Option Shares that remain unexercised at the expiration of such exercise period shall terminate at such time. |
| 7. | Change in Control. Except as otherwise provided in any individual agreement between the Optionee and the Company, in the event of a Change in Control, the Option Shares granted pursuant to this Agreement shall be treated in the manner set forth in Section 7 of the Plan. |
| 8. | Governing Law: This Agreement shall be governed by and construed under the internal laws of the State of Delaware. |
| 9. | Amendment: This Agreement may not be amended, terminated, suspended or otherwise modified except in a written instrument, duly executed by both parties. Notwithstanding the above, the Company may amend, terminate, suspend, or otherwise modify the terms of the Option (in whole or in part), at any time and without advance notice to the Optionee; provided, that, following any such action by the Company, the Optionee receives an amended Option or a replacement award that, in the Company’s discretion, has a substantially equivalent value to the Option prior to such action. |
| 10. | Entire Agreement: This Agreement (and the other writings incorporated by reference herein) constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior written or oral negotiations, commitments, representations and agreements with respect thereto. |
| AVIS BUDGET GROUP, INC. | ||
| By: |
| |
| Title: | ||
Exhibit 10.15(d)
FORM OF PERFORMANCE AWARD
AVIS BUDGET GROUP, INC.
2007 EQUITY AND INCENTIVE PLAN
STOCK OPTION AGREEMENT
[ ] (the “Optionee”) is granted, effective as of the day of (the “Date of Grant”), options (the “Options”) to purchase shares of common stock, par value $.01 (“Stock”) of Avis Budget Group, Inc. (the “Option Shares”) pursuant to the 2007 Equity and Incentive Plan (the “Plan”) of Avis Budget Group, Inc. (the “Company”). The Options are subject to the terms and conditions set forth below and in the Plan, which is a part of this Stock Option Agreement (the “Agreement”). To the extent that there is a conflict between the terms of the Plan and this Agreement, the terms of the Plan shall govern. Any term not defined herein shall have the meaning assigned to such term in the Plan.
| 1. | Exercise Price: $ per Option Share |
| 2. | Number of Option Shares: |
| 3. | Type of Option: Non-Qualified |
| 4. | Vesting: Subject to accelerated vesting as set forth in this Agreement or in Section 7 of the Plan, the Options granted hereunder (or a portion thereof) will become vested on in accordance with the provisions of Exhibit A hereto, provided that the Optionee is continuously employed by the Company on the vesting date and provided that the performance conditions set forth on Exhibit A have been achieved. |
| 5. | Exercise of Option: |
| (e) | The Option may be exercised with respect to vested Option Shares, from time to time during the Option Term, in whole or in part (but for the purchase of whole shares only), by delivery of a written notice (the “Exercise Notice”) from the Optionee to the Company, which Exercise Notice shall: |
| (i) | state that the Optionee elects to exercise the Option; |
| (ii) | state the number of Option Shares with respect to which the Optionee is exercising the Option; |
| (iii) | in the event that the Option shall be exercised by the representative of the Optionee’s estate, include appropriate proof of the right of such person to exercise the Option; |
| (iv) | state the date upon which the Optionee desires to consummate the purchase of such Option Shares (which date must be prior to the termination of the Option); and |
| (v) | comply with such further provisions as the Company may reasonably require. |
| (f) | Payment of the Exercise Price for the Option Shares to be purchased on the exercise of the Option shall be made by (i) cash, (ii) certified or bank cashier’s check payable to the order of the Company, (iii) unless otherwise determined by the Committee at the time of exercise, in the form of Shares already owned by the Optionee which have a Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Shares as to which such Option shall be exercised, (iv) unless otherwise determined by the Committee at the time of exercise, authorization for the Company, or a third-party broker designated by the Company, to withhold a number of shares otherwise payable pursuant to the exercise of an Option having a Fair Market Value less than or equal to the aggregate Exercise Price, (iv) any other form of consideration approved by the Committee and permitted by applicable law or (v) any combination of the foregoing. |
| (g) | As a condition of delivery of the Option Shares, the Company shall have the right to require the Optionee to remit to the Company in cash an amount sufficient to satisfy any federal, state and local withholding tax requirements related thereto. The Optionee may satisfy the foregoing requirement by electing to have the Company withhold from delivery Shares or by delivering already owned unrestricted Shares, in each case, having a value equal to the minimum amount of tax required to be withheld. Such shares shall be valued at their Fair Market Value on the date as of which the amount of tax to be withheld is determined. |
| 6. | Expiration Date: |
| (a) | General. Subject to earlier termination as a result of the failure to achieve the required performance results or as the result of the occurrence of certain events related to the termination of the Optionee’s employment as provided for in this Agreement, the Options granted hereunder shall expire on the tenth (10th) anniversary of the Date of Grant, unless earlier exercised (such ten-year period, the “Option Term”). |
| (b) | Death or Disability. Except as otherwise provided in any individual agreement between the Optionee and the Company, if the Optionee experiences a termination of employment by reason of the Optionee’s total and permanent disability (as defined in any individual agreement between the Optionee and the Company or, if no such agreement is in effect, as determined by the Committee in its good faith discretion) or death, the unvested portion of the Option Shares shall vest and the Optionee shall be permitted to exercise the Option Shares for six months following such termination of employment (but in no event beyond the expiration of the Option Term). Option Shares that remain unexercised at the expiration of such exercise period shall terminate at such time. |
| (c) | Cause. If the Company terminates the Optionee’s employment for Cause, the unexercised portion of the Option Shares, whether vested or unvested, shall terminate immediately and the Optionee shall have no right thereafter to exercise any part of the Option Shares. |
| (d) | Other. Except as otherwise provided in any individual agreement between the Optionee and the Company, if the Optionee experiences a termination of employment for any reason not otherwise set forth above, the unvested portion of the Option Shares shall terminate immediately. Any Option Shares that were vested on the date of such termination of employment shall remain exercisable for six months following such termination of employment (but in no event beyond the expiration of the Option Term). |
Option Shares that remain unexercised at the expiration of such exercise period shall terminate at such time.
| 7. | Change in Control. Except as otherwise provided in any individual agreement between the Optionee and the Company, in the event of a Change in Control, the Option Shares granted pursuant to this Agreement shall be treated in the manner set forth in Section 7 of the Plan. |
| 8. | Recapture Policy. If the Committee learns of any intentional misconduct by the Optionee that resulted in an increase to the number of Options vesting pursuant to this Agreement, the Committee, to the full extent permitted by applicable law, in all appropriate cases, shall cause any unexercised Options that vested as a result of such misconduct, whether or not vested, to terminate and shall seek reimbursement of any gains realized on the exercise of any Options that vested as a result of such misconduct. |
| 9. | Governing Law. This Agreement shall be governed by and construed under the internal laws of the State of Delaware. |
| 10. | Amendment: This Agreement may not be amended, terminated, suspended or otherwise modified except in a written instrument, duly executed by both parties. Notwithstanding the above, the Company may amend, terminate, suspend, or otherwise modify the terms of the Option (in whole or in part), at any time and without advance notice to the Optionee; provided, that, following any such action by the Company, the Optionee receives an amended Option or a replacement award that, in the Company’s discretion, has a substantially equivalent value to the Option prior to such action. |
| 11. | Entire Agreement. This Agreement (and the other writings incorporated by reference herein) constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior written or oral negotiations, commitments, representations and agreements with respect thereto. |
| AVIS BUDGET GROUP, INC. | ||
| By: |
| |
| Title: |
||
Exhibit 10.16
AVIS BUDGET GROUP, INC.
NON-EMPLOYEE DIRECTORS DEFERRED COMPENSATION PLAN
(FORMERLY KNOWN AS CENDANT CORPORATION
1999 NON-EMPLOYEE DIRECTORS
DEFERRED COMPENSATION PLAN,
AMENDED AND RESTATED AS OF JANUARY 22, 2005
AS FURTHER AMENDED NOVEMBER, 18 2005)
AMENDED AND RESTATED AS OF JANUARY 1, 2007
1. Purpose. The purpose of the Avis Budget Group, Inc. Non-Employee Directors Deferred Compensation Plan (the “Plan”) is to align the interests of non-employee directors of Avis Budget Group, Inc. (“Avis”) (formerly Cendant Corporation) with the interests of Avis stockholders by requiring and/or permitting such directors to defer certain of their fees received for providing services to Avis in the form of Avis stock equivalents.
2. Eligibility. Directors of Avis who are not also employees of Avis (“Directors”) are (i) with respect to elective deferrals, eligible to participate in the Plan (subject to their irrevocable election to defer receipt of eligible compensation) and (ii) with respect to required deferrals, required to participate in the Plan.
3. Administration. The Plan will be administered by the Compensation Committee of the Board of Directors of Avis, or such other committee of the Board of Directors designated by the Board of Directors from time to time (the “Committee”).
4. (a) Deferral of Compensation. Subject to such rules, regulations and procedures that Avis may establish from time to time, and subject to the execution by a Director of a valid deferral election, Directors may elect to defer all, but not less than all, of their annual retainer fees, as well as such other fees and payments determined by the Board of Directors or the Committee to be either mandatory or eligible for deferral from time to time (collectively, “Fees”) into the Plan. All Fees deferred into the Plan will be converted into a number of Avis Share Units. The number of Avis Share Units allocated to a Director’s account will be equal to the amount of Fees deferred into the Plans as of any given date (an “Allocation Date”), divided by the fair market value of Avis common stock, par value $0.01 per share (“Avis Stock”) as of the Allocation Date. For purposes of the Plan, fair market value shall equal the closing price per share of Avis Stock as of the applicable Allocation Date, or such other reasonable formula determined by the Committee. An Allocation Date will occur on each date upon which any Director would otherwise become entitled to receive all or any portion of any Fee, or as otherwise determined by the Committee. Each Avis Share Unit will be the equivalent of one share of Avis Stock.
(b) Conversion and Distribution of Cash Balances. Pursuant to the rules and procedures prescribed by the Committee or its delegate, a Director may elect either (1) to have any cash credited to the Director’s account in connection with the separation of Avis’s predecessor (Cendant Corporation) into three independent public companies or the subsequent privatization of Realogy Corporation, converted into Avis Share Units; provided that, once a Director converts cash into Avis Share Units the Director may not subsequently convert such Avis Share Units back into cash or (2) to have such cash distributed to the Director on the date designated in a properly executed election form provided by Avis for the purpose of making such election; provided, that any election under this clause (2) shall be implemented in a manner intended to avoid the imposition of taxes under Section 409A of the Internal Revenue Code.
5. Election. With respect to elective deferrals, in order to participate in the Plan, a Director must complete a deferral election in such form, and at such time, as determined by Avis in its sole discretion, but in accordance with IRS regulations applicable to the deferral of income. Once an election is made, it may not be revoked; provided, however, that a Director may no later than sixty (60) days prior to the beginning of any calendar year, revoke an election to the extent applicable to such calendar year. No deferral election form is required with respect to Fees which are required to be deferred into the Plan.
6. Dividends. Additional Avis Share Units will be credited to a Director’s account in respect of cash dividends and/or special dividends and distributions, if any, on Avis Stock, based on the number of Avis Share Units credited to such Director’s account as of the record date for such dividend or distribution. Such additional units shall be credited on the next Allocation Date following the payment date for such dividend or distribution. The number of Avis Share Units to be so credited shall be equal to the quotient obtained by dividing (A) the product of (i) the number of Avis Share Units credited to such account on the dividend or distribution record date and (ii) the dividend (or distribution value as determined by the Committee in its sole discretion) per share of Avis Stock, by (B) the closing price of a share of Avis Stock as of such dividend payment date or distribution date.
7. Adjustments. If at any time the number of shares of Avis Stock is increased or decreased as the result of any stock dividend or distribution, stock split, combination or reclassification of shares or any similar transaction, the number of Avis Share Units in a Director’s account will be equitably adjusted, as determined by the Committee in its sole discretion, to the extent necessary to preserve, but not increase, the value of each Director’s account. In connection with the separation of Avis’s predecessor (Cendant Corporation) into three independent public companies, a Director’s account was credited with a number of common stock units of Wyndham Worldwide Corporation and Realogy Corporation to preserve, but not increase, the value of each Director’s account. Each such common stock unit represents the equivalent of one share of Wyndham Worldwide Corporation stock or Realogy Corporation stock, respectively.
8. Vesting. Each Director will be fully and immediately vested in his or her account under the Plan.
9. Distribution of Deferred Compensation. Except as provided in Section 3(b) hereof or in the last sentence of this Section 9, each Director (or his or her beneficiary) will receive a distribution of his or her account (including units deferred prior to the date of any amendment to the Plan), in the form of shares of Avis Stock or Wyndham Corporation stock, as the case may be, on the date which is seven months immediately following the date upon which such Director is no longer a member of Avis’s Board of Directors for any reason. Distributions shall not occur prior to or following such date under any circumstances. The number of shares of Avis Stock payable to a Director upon distribution will equal the number of Avis Share Units held in such Director’s account as of the date of such distribution. The number of shares of Wyndham Worldwide Corporation Stock payable to a Director upon distribution will equal the number of Wyndham Worldwide Corporation common stock units held in such Director’s account as of the date of such distribution. Notwithstanding the above, the Committee may, in its sole discretion, provide a Director with an election to receive a cash distribution equal in value to the Wyndham Worldwide Corporation stock which would otherwise be distributable.
10. Authorized Shares. A total of 500,000 shares of Avis Stock shall be authorized and available to be issued directly under the Plan as previously approved by the stockholders of Avis. Additional shares of Avis Stock shall be issued under the Avis Budget Group, Inc. 2007 Equity and Incentive Plan and subject to the limitations therein.
11. Successors in Interest. The obligations of Avis under the Plan shall be binding upon any successor or successors of Avis, whether by merger, consolidation, sale of assets or otherwise, and for this purpose references herein to Avis shall be deemed to include any such successor or successors. The right of Directors or that of any other person, to the payment of deferred compensation or other benefits under this Plan may not be assigned, transferred, pledged or encumbered except by will or by the laws of descent and distribution.
12. Miscellaneous. A Director shall have only the interest of an unsecured general creditor of Avis in respect of all amounts allocated to his or her account. All amounts deferred under the Plan shall remain the sole property of Avis, subject to the claims of its general creditors and available for Avis’s use until actually distributed to the Director. With respect to amounts deferred under the Plan, the obligation of Avis hereunder is purely contractual and shall not be funded or secured in any way. The Committee shall have the authority to adopt rules and regulations for carrying out the Plan and to interpret, construe or implement the provisions thereof. The distribution of deferred amounts under the Plan to Directors shall be subject to applicable withholding taxes.
13. Governing Laws. This Plan shall be construed and enforced in accordance with, and governed by, the laws of the State of New Jersey.
14. Termination and Amendment of the Plan. The Board of Directors of Avis may terminate this Plan at any time provided that distributions shall not be accelerated or further deferred except in accordance with the provisions of Internal Revenue Code Section 409A. The Board of Directors of Avis may, without the consent of any Director or beneficiary, amend the Plan at any time and from time to time; provided, however, that no such amendment shall adversely affect the rights of any such Director or beneficiary with respect to amounts previously deferred under the Plan (as determined by the Committee in its sole discretion).
15. Interpretation. Avis intends that transactions under this Plan will be exempt under amended Rule 16b-3 promulgated under Section 16 of the Securities Exchange Act of 1934, as amended, unless otherwise determined by Avis.
Exhibit 10.17
AVIS BUDGET GROUP, INC.
DEFERRED COMPENSATION PLAN
Amended and Restated as of November 1, 2008
AVIS BUDGET GROUP, INC.
DEFERRED COMPENSATION PLAN
Table of Contents
| ARTICLE I – SPONSORSHIP AND PURPOSE OF PLAN |
2 | |
| ARTICLE II – DEFINITIONS |
3 | |
| ARTICLE III – PARTICIPATION |
5 | |
| ARTICLE IV– ELECTIVE AND MATCHING DEFERRALS |
6 | |
| ARTICLE V – ACCOUNTS |
7 | |
| ARTICLE VI – PAYMENTS |
8 | |
| ARTICLE VII – BENEFICIARY DESIGNATION |
10 | |
| ARTICLE VIII– PLAN ADMINISTRATION |
11 | |
| ARTICLE IX – AMENDMENT AND TERMINATION |
12 | |
| ARTICLE X – MISCELLANEOUS |
13 | |
| ARTICLE XI – FUNDING |
15 | |
ARTICLE I – SPONSORSHIP AND PURPOSE OF PLAN
| 1.1 | Sponsorship |
Avis Budget Group, Inc. (the “Company”) a corporation organized under the laws of the State of Delaware, sponsors the Avis Budget Group, Inc. Deferred Compensation Plan (the “Plan”), a non-qualified deferred compensation plan for the benefit of Participants and Beneficiaries (as defined herein). This Plan shall generally be effective October 31, 1999; however, the Plan will be effective as to each individual upon becoming a Participant.
Effective as of January 1, 2008, the Plan was amended and restated to comply with the provisions of Section 409A of the Code and the regulations thereunder, and to conform with certain other administrative or operational procedures.
Effective as of November 1, 2008, the Plan was further amended to merge the Avis Rent A Car System, LLC Deferred Compensation Plan (referred to as the “Old ARAC Plan”) into this Plan and to conform with certain other administrative or operational procedures. Except where specifically noted, the provisions of this document will apply to both the Plan and the Old ARAC Plan.
| 1.2 | Purpose of Plan |
The Plan is intended to be an unfunded plan maintained primarily for the purpose of enabling certain employees to defer receipt of designated percentages or amounts of their Compensation and to provide a means for certain other deferrals of Compensation.
Page 2
ARTICLE II – DEFINITIONS
Wherever used herein, the following terms have the meanings set forth below, unless a different meaning is clearly required by the context:
| 2.1 | Account means, for each Participant, the account established for his or her benefit under Section 5.1. |
| 2.2 | Beneficiary means the person(s) or entity designated by the Participant in accordance with the provisions of Article VII to receive benefits under the Plan as a result of a Participant’s death. |
| 2.2 | Board means the Board of Directors of the Company. |
| 2.3 | Change of Control means the date on which: |
(a) any one person, or more than one person acting as a group, acquires ownership of stock of the Company that, together with stock held by such person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Company;
(b) any one person, or more than one person acting as a group, acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Company possessing 30% or more of the total voting power of the stock of the Company;
(c) a majority of members of the Company’s Board of Directors is replaced during any twelve-month period by directors whose appointment or election is not endorsed by a majority of the members of the Company’s Board of Directors before the date of the appointment or election; or
(d) any one person, or more than one person acting as a group, acquires (or has acquired during the twelve-month periods ending on the date of the most recent acquisition by such person or persons) assets from the corporation that have at total gross fair market value equal to more than 40% of the total gross fair market value of all of the assets of the Company immediately before such acquisition or acquisitions.
| 2.4 | Code means the Internal Revenue Code of 1986, as amended from time to time. Reference to any section or subsection of the Code includes reference to any comparable or succeeding provisions of any legislation which amends, supplements or replaces such section or subsection. |
| 2.5 | Committee means a Committee of one or more persons appointed by the Board to administer the Plan. In the absence of such appointment, or if, due to resignation or other cause, no appointed members remain, the Board shall be the Committee. |
| 2.6 | Compensation means a Participant’s annual base salary, annual bonus and commissions received from the Employer as compensation for services. |
| 2.7 | Disabled or Disability means the inability of a Participant to engage in any substantial, gainful activity by reason of any medically determinable physical or mental impairment |
Page 3
| which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months, and the permanence and degree of which shall be supported by medical evidence satisfactory to the Committee. |
| 2.8 | Election Form means the participation election form as approved and prescribed by the Committee. |
| 2.9 | Elective Deferral means the portion of Compensation which is deferred by a Participant under Section 4.1. |
| 2.10 | Eligible Employee means each employee of the Employer who is determined by the Employer in its sole discretion to be eligible to participate in the Plan. |
| 2.11 | Employer means the Company, any successor to all or a major portion of the Company’s assets or business which assumes the obligations of the Company, and each other entity that is affiliated with the Company which adopts the Plan with the consent of the Company, provided that the Company shall have the sole power to amend the Plan. |
| 2.12 | ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to any section or subsection of ERISA includes reference to any comparable or succeeding provisions of any legislation which amends, supplements or replaces such section or subsection. |
| 2.13 | Matching Deferral means a deferral provided at the Employer’s discretion for a Participant’s benefit as described in Section 4.3. |
| 2.14 | Participant means any individual who participates in the Plan in accordance with Article III. |
| 2.15 | Plan means this Avis Budget Group, Inc. Deferred Compensation Plan, as amended from time to time. Effective November 1, 2008, this term shall be interpreted to include the Old ARAC Plan. |
| 2.16 |
Plan Year means the twelve consecutive month period ending each December 31st. |
| 2.17 | Termination of Employment means a Participant’s separation from the service of the Employer by reason of resignation, discharge, or retirement. Separation from service as a result of a transfer to an affiliate or subsidiary of the Employer does not constitute Termination of Employment. |
| 2.18 | Trust means the trust established by the Company that identifies the Plan as a plan with respect to which assets are to be held by the Trustee. |
| 2.19 | Trustee means the trustee or trustees under the Trust. |
| 2.20 | Unforeseen Emergency means a severe financial hardship arising from illness or accident of the Participant, Participant’s spouse or dependents; casualty loss; or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. |
Page 4
ARTICLE III – PARTICIPATION
| 3.1 | Commencement of Participation |
Any Eligible Employee who elects to defer part of his or her Compensation in accordance with Section 4.1 shall become a Participant in the Plan as of the date such deferrals commence in accordance with Section 4.1. Participants under the Old ARAC Plan are automatically deemed Participants of the Plan as of November 1, 2008.
| 3.2 | Continued Participation |
A Participant in the Plan shall continue to be a Participant so long as any amount remains credited to his or her Account. Notwithstanding the foregoing, Participation in respect of any calendar year is not a guarantee of participation in respect of any future calendar year.
Page 5
ARTICLE IV – ELECTIVE AND MATCHING DEFERRALS
| 4.1 | Elective Deferrals |
Any individual who becomes an Eligible Employee at the time he or she is hired by an Employer may, by completing an Election Form and filing it with the Committee within 30 days following the date on which the Committee gives such individual written notice that the individual is an Eligible Employee, elect to defer a percentage or dollar amount of one or more payments of Compensation, on such terms as the Committee may permit, which are earned by and payable to the Participant after the date on which the individual files the Election Form. Such election will be effective only for the Plan Year in which it is filed.
Any other Eligible Employee may elect to defer a percentage or dollar amount of one or more payments of Compensation, on such terms as the Committee may permit by completing an Election Form prior to the first day of such succeeding Plan Year. Such election shall be effective only for the Plan Year succeeding the Plan Year in which the election is made.
| 4.2 | Elective Deferral Limitations |
No dollar limitation exists on the total amount of Compensation that may be deferred under the Plan. However, each component of Compensation is subject to a separate deferral percentage limitation. For each Plan Year, a Participant may not defer more than:
| • | 80% of annual base salary; |
| • | 98% of annual bonus; and |
| • | 80% of commissions. |
| 4.3 | Matching Deferrals |
The Employer has the sole discretion to credit Matching Deferrals in the Accounts of any or all Eligible Employees in any amount it feels appropriate. However, in no event will such Matching Deferral exceed 6% of such Eligible Employee’s Compensation for any Plan Year.
| 4.4 | Vesting |
A Participant shall be immediately vested in, and shall have a nonforfeitable right to, all Elective Deferrals, Matching Deferrals, and all income and gain attributable thereto, credited to his or her Account; provided, however, that the existence of such right shall not be deemed to vest in any Participant any right, title or interest in or to any specific assets of the Employer.
Page 6
ARTICLE V – ACCOUNTS
| 5.1 | Accounts |
The Committee shall establish an Account for each Participant reflecting Elective Deferrals and Matching Deferrals made for the Participant’s benefit together with any adjustments for income, gain or loss and any payments from the Account. The Committee may cause the Trustee to maintain and invest separate asset accounts corresponding to each Participant’s Account. The Committee shall establish sub-accounts for each Participant that has more than one election in effect under Section 6.1 and such other sub-accounts as are necessary for the proper administration of the Plan, including a sub-account for amounts deferred (and any subsequent earnings related thereto) under the Old ARAC Plan. The Committee shall periodically, but no less frequently than annually, provide the Participant with a statement of his or her Account reflecting the income, gains and losses (realized and unrealized), amounts of deferrals, and distributions of such Account since the prior statement.
| 5.2 | Investments |
The assets of the Trust shall be invested in such investments as the Trustee shall determine. The Trustee may (but is not required to) consider the Employer’s or a Participant’s investment preferences when investing the assets attributable to a Participant’s Account.
Page 7
ARTICLE VI – PAYMENTS
| 6.1 | Election as to Time and Form of Payment |
A Participant shall elect (on the Election Form used to elect to defer Compensation under Section 4.1) the date at which his or her Account will commence to be paid in cash. The Participant may elect distribution to occur on a specified date or on the date that is six months after Termination of Employment. The Participant shall also elect thereon for payments to be paid in either:
| a. | a single lump-sum payment; or |
| b. | a series of installments paid over a period elected by the Participant of up to 10 years, the amount of each installment to equal the balance of his or her Account immediately prior to the installment divided by the number of installments remaining to be paid. The Participant shall elect whether such installments are made annually, semiannually, quarterly or monthly. |
Such distribution election detailing the time and form of payment will need to be made on an annual basis with respect to each year’s deferral and will only be effective for Elective Deferrals and Matching Contributions made for the Plan Year beginning after the date of the election. If an election under this Section is not made timely or is deemed invalid by the Committee, the default time of distribution for such deferral will be six months after Termination of Employment and the default form of payment will be a single-lump sum payment. Except as provided in Sections 6.2, 6.3 or 6.4, payment of a Participant’s Account shall be made in accordance with the Participant’s elections under this Section 6.1.
In accordance with Section 409A of the Code and the regulations thereunder, prior to December 31, 2008, each Participant shall have the opportunity to revoke their current election on file and make a new distribution election which will apply to their Account balance determined by excluding amounts attributable to the Old ARAC Plan. Each Participant shall also have the opportunity to revoke their current election on file and make a new distribution election which will apply only to amounts attributable to the Old ARAC Plan. Amounts previously scheduled to be distributed in the 2008 calendar year can not be modified and are not eligible for this special unifying election. Furthermore, amounts previously scheduled to be paid after the 2008 calendar year can not be modified to be paid during the 2008 calendar year, but can be modified to be paid in any calendar year after 2008. The Committee, in its sole discretion, shall establish procedures to implement this special election process consistent with the requirements of Section 409A of the Code and the regulations thereunder.
Notwithstanding the above, upon a Participant’s Termination of Employment, in the event such Participant’s Account balance is less than $25,000, such Account balance shall be distributed on the date that is six months following such Termination of Employment in the form of a single lump-sum payment.
| 6.2 | Change of Control |
Notwithstanding Section 6.1, as soon as possible following a Change of Control, each Participant shall be paid his or her entire Account balance in a single lump sum.
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| 6.3 | Disability |
Notwithstanding Section 6.1, if a Participant becomes Disabled prior to the complete distribution of his or her Account, the balance of the Account shall be paid as soon as practicable to the Participant, in the form elected by the Participant pursuant to Section 6.1.
| 6.4 | Death |
Notwithstanding Section 6.1, if a Participant dies prior to the complete distribution of his or her Account, the balance of the Account shall be paid as soon as practicable to the Participant’s designated Beneficiary or Beneficiaries, elected by the Participant pursuant to Section 7.
| 6.5 | Unforeseen Emergency |
A Participant may request distribution of amounts previously deferred under the Old ARAC Plan (and any subsequent earnings related thereto) upon an Unforeseen Emergency. Such distribution is limited to amounts reasonably necessary to meet the emergency and pay any anticipated tax on the distribution. The Committee retains the right to make a final determination if a Participant’s need meets the definition of Unforeseen Emergency and all decisions are final.
| 6.6 | Taxes |
All federal, state or local taxes that the Committee determines are required to be withheld from any payments made pursuant to this Article VI shall be withheld.
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ARTICLE VII – BENEFICIARY DESIGNATION
| 7.1 | Designation |
Upon enrollment in the Plan, each Participant shall file with the Committee a written designation of one or more persons as the Beneficiary who shall be entitled to receive the amount, if any, payable under the Plan upon the Participant’s death. A Participant may, from time to time, revoke or change his or her Beneficiary designation without the consent of any prior Beneficiary by filing a new such designation with the Committee on a form designated by the Committee for such purpose. The most recent such designation received by the Committee shall be controlling and shall be effective upon receipt and acceptance by the Committee; provided, however, that no designation, or change or revocation thereof, shall be effective unless received by the Committee prior to the Participant’s death.
| 7.2 | Failure to Designate Beneficiary |
If no such Beneficiary designation is in effect at the time of a Participant’s death, or if no designated Beneficiary survives the Participant, or if such designation conflicts with law, the Participant’s estate shall be deemed to have been designated as the Beneficiary and shall receive the payment of the amount, if any, payable under the Plan upon the Participant’s death. If the Committee is in doubt as to the right of any person to receive such amount, the Committee may retain such amount, without liability for any interest thereon, until the rights thereto are determined, or the Committee may pay such amount into any court of appropriate jurisdiction and such payment shall be a complete discharge of the obligations of the Employer under the Plan.
| 7.3 | Payment to Representatives |
If the Committee determines that a Participant or Beneficiary is legally incapable of giving valid receipt and discharge for the payment due from this Plan, such amounts shall be paid to a duly appointed and acting guardian, if any. If no such guardian is appointed and acting, the Committee may retain such amount, without liability for any interest thereon, until the rights thereto are determined, or the Committee may pay such amount into any court of appropriate jurisdiction on behalf of the Participant or Beneficiary and such payment shall be a complete discharge of the obligations of the Employer under the Plan.
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ARTICLE VIII – PLAN ADMINISTRATION
| 8.1 | Powers and Duties of the Committee |
The Committee shall have absolute discretion with respect to the operation, interpretation and administration of the Plan. The Committee’s powers and duties shall include, but not be limited to:
| a) | Establishing Accounts for Participants; |
| b) | Determining eligibility for, and amount of, distributions from the Plan; |
| c) | Adopting, interpreting, altering, amending or revoking rules and regulations necessary to administer the Plan; |
| d) | Delegating ministerial duties and employing outside professionals as may be required; and |
| e) | Entering into agreements or taking such other actions on behalf of the Employer as are necessary to implement the Plan. |
Participants are not prohibited from serving as members of the Committee. If an individual is both a Participant and a member of the Committee, such individual is prohibited from making any decision with respect to his or her own participation in, or individual benefits under, the Plan. Any action of the Committee may be taken by a vote or written consent of the majority of the Committee members entitled to act. Any Committee member shall be entitled to represent the Committee, including the signing of any certificate or other written direction, with regard to any action approved by the Committee.
| 8.2 | Information |
To enable the Committee to perform its functions, the Employer shall supply full and timely information to the Committee on all matters relating to the compensation of Participants, their employment, retirement, death, termination of employment, and such other pertinent facts as the Committee may require.
| 8.3 | Claims Procedure |
In the event a claim by a Participant relating to the amount of any distribution is denied, such person will be given written notice by the Committee of such denial, which shall set forth the reason for denial. The Participant may, within sixty (60) days after receiving the notice, request a review of such denial by filing notice in writing with the Committee. The Committee, in its discretion, may request a meeting with the Participant to clarify any matters it deems pertinent. The Committee will render a written decision within sixty (60) days after receipt of such request, stating the reason for its decision. If the Committee is unable to respond within sixty (60) days, an additional sixty (60) days may be taken by the Committee to respond. The Participant will be notified if the additional time is necessary by the end of the initial sixty (60) day period. The determination of the Committee as to any disputed questions or issues arising under the Plan and all interpretations, determinations and decisions of the Committee with respect to any claim hereunder shall be final, conclusive and binding upon all persons.
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ARTICLE IX – AMENDMENT AND TERMINATION
| 9.1 | Amendments |
Except as expressly provided in Section 9.3 hereof, the Company, in its sole discretion, by action of its Board or other governing body charged with the management of the Company, or its designee, may amend the Plan, in whole or in part, at any time.
| 9.2 | Termination |
This Plan is strictly a voluntary undertaking on the part of the Employer and shall not be deemed to constitute a contract between the Employer and any Eligible Employee (or any other employee) or a consideration for, or an inducement or condition of employment for, the performance of the services by any Eligible Employee (or other employee). The Company reserves the right to terminate the Plan at any time, subject to Section 9.3, by an instrument in writing which has been executed on the Company’s behalf by its duly authorized officer. Upon termination, the Company may elect to (a) continue to maintain the Plan to pay benefits hereunder as they become due as if the Plan had not terminated or (b) pay to Participants (or their beneficiaries) the balance of their Accounts no sooner than twelve months and no later then 24 months after the Plan termination is effective.
For purposes of the preceding sentence, in the event the Company chooses to implement clause (b), such termination and liquidation of the Plan shall be subject to the following limitations:
| (1) | The termination and liquidation may not occur proximate to a downturn in the financial health of the Company or the Employer; |
| (2) | The Employer must terminate and liquidate all other plans, programs and arrangements it sponsors that would be aggregated with the Plan under Treasury Regulation 1.409A-1(c) if any Participant had deferred compensation under such plans, programs and arrangements; and |
| (3) | The Employer may not adopt a new plan that would be aggregated with the Plan under Treasury Regulation 1.409A-1(c) if any Participant had participated in such plan for a period of three years following the date the termination and liquidation become irrevocable. |
| 9.3 | Protection of Benefit |
No amendment or termination of this Plan shall reduce the rights of any Participant with respect to amounts allocated to a Participant’s Account prior to the date of such amendment or termination without the Participant’s express written consent.
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ARTICLE X – MISCELLANEOUS
| 10.1 | Tax Withholding |
The Employer shall have the right to deduct an amount sufficient in the opinion of the Employer to satisfy all federal, state and other governmental tax withholding requirements relating to any distribution from the Plan.
| 10.2 | Offset to Benefits |
Amounts payable to the Participant under the Plan may be offset by any reasonable monetary claims the Employer has against the Participant.
| 10.3 | Inalienability |
Except as provided in Section 10.2 hereof, a Participant’s right to payments under this Plan are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors of the Participant. In no event shall the Employer make any payment under this Plan to any person or entity other than the Participant or Beneficiary, unless required by law.
| 10.4 | Employment |
The adoption and maintenance of this Plan does not constitute a contract between the Employer and any Participant and is not consideration for the employment of any person. Nothing contained herein gives any Participant the right to be retained in the employ of the Employer or derogates from the right of the Employer to discharge any Participant at any time and for any reason without regard to the effect of such discharge upon his or her rights as a Participant in the Plan.
| 10.5 | Indemnity of Committee |
The Employer indemnifies and holds harmless the Committee and its designees from and against any and all losses resulting from any liability to which the Committee may be subjected by reason of any act or conduct (except willful misconduct or gross negligence) in its official capacity in the administration of this Plan, including all costs and expenses reasonably incurred in its defense, in case the Employer fails to provide such defense.
| 10.6 | Liability |
No member of the Board, the Committee, or management of the Employer shall be liable to any person for any action taken under the Plan.
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| 10.7 | Rules of Construction |
| (a) | Governing Law. The construction and operation of this Plan are governed by the laws of the State of Delaware, except to the extent superseded by federal law. |
| (b) | Headings. The headings of Articles, Sections and Subsections are for reference only and are not to be utilized in construing the Plan. |
| (c) | Gender. Unless clearly inappropriate, all pronouns of whatever gender refer indifferently to persons or objects of any gender. |
| (d) | Singular and Plural. Unless clearly inappropriate, singular terms refer also to the plural number and vice versa. |
| (e) | Severability. If any provision of this Plan is held illegal or invalid for any reason, the remaining provisions are to remain in full force and effect and to be reformed, construed and enforced in accordance with the purposes of the Plan as if the illegal or invalid provision did not exist. |
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ARTICLE XI – FUNDING
| 11.1 | Unfunded Plan |
This Plan is intended to be unfunded for tax purposes and all distributions hereunder shall be made out of the general assets of the Employer. No Participant or Beneficiary shall have any right, title, interest, or claim in or to any assets of the Employer other than as an unsecured creditor. The Plan constitutes only an unsecured commitment by the Employer to pay benefits to the extent, and subject to the limitations, provided for herein. Although, this Plan constitutes an “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”), it is intended to cover only a select group of management or highly compensated employees pursuant to Sections 201, 301 and 401 of ERISA.
| 11.2 | Trust |
Notwithstanding the foregoing, the Employer has the discretion to contribute to an irrevocable grantor trust amounts allocated to a Participant’s Account. The assets of such Trust shall be available to the creditors of the Employer in the event of bankruptcy or insolvency. To the extent of the Trust assets, amounts due under the Plan shall be payable first from such Trust to Participants before any claim is made against the Employer. The Committee may provide direction to the Trustee or custodian on behalf of the Employer as it deems necessary to provide for the proper distribution of benefits from the Trust.
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IN WITNESS WHEREOF, and as evidence of the adoption of this Plan by the Company, it has caused the same to be signed by its officers thereunto duly authorized, and its corporate seal to be affixed thereto, this 21st day of November, 2008.
| ATTEST | AVIS BUDGET GROUP, INC. | |||
|
|
By: |
| ||
| [Corporate Seal] | Name: | Karen C. Sclafani | ||
| Title: | Executive Vice President, General Counsel and Assistant Secretary | |||
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Exhibit 10.18
AVIS BUDGET GROUP, INC.
SAVINGS RESTORATION PLAN
Amended and Restated as of November 1, 2008
AVIS BUDGET GROUP, INC.
SAVINGS RESTORATION PLAN
Table of Contents
| ARTICLE I – SPONSORSHIP AND PURPOSE OF PLAN |
2 | |
| ARTICLE II – DEFINITIONS |
3 | |
| ARTICLE III – ENROLLMENT AND PARTICIPATION |
6 | |
| ARTICLE IV– DEFERRAL CONTRIBUTIONS |
7 | |
| ARTICLE V – EARNINGS |
8 | |
| ARTICLE VI – DISTRIBUTIONS AND FORM OF BENEFITS |
9 | |
| ARTICLE VII – BENEFICIARY DESIGNATION |
11 | |
| ARTICLE VIII – PLAN ADMINISTRATION |
12 | |
| ARTICLE IX – AMENDMENT AND TERMINATION |
13 | |
| ARTICLE X – MISCELLANEOUS |
14 | |
| ARTICLE XI – FUNDING |
16 | |
ARTICLE I – SPONSORSHIP AND PURPOSE OF PLAN
| 1.1 | Sponsorship |
Avis Budget Group, Inc. (the “Company”) a corporation organized under the laws of the State of Delaware, sponsors the Avis Budget Group, Inc. Savings Restoration Plan (the “Plan”), a non-qualified deferred compensation plan for the benefit of Participants and Beneficiaries (as defined herein). This Plan shall generally be effective as of January 1, 2001; however, the Plan will be effective as to each Participant pursuant to the effective date of the applicable Enrollment Agreement (as defined herein).
The terms and provisions of the Plan, as hereinafter set forth and as it hereinafter may be amended from time to time, establish the rights and obligations with respect to amounts deferred into the Plan on and after January 1, 2005, including any subsequent earnings thereon (“Non-Grandfathered Accounts”) and amounts which were deferred into the Plan that were vested prior to January 1, 2005, including any subsequent earnings thereon (“Grandfathered Accounts”).
Effective as of January 1, 2008, the Plan is amended and restated to conform to the provisions of Section 409A of the Code and the regulations thereunder.
Effective as of November 1, 2008, the Plan was further amended to provide Participants the opportunity to make a one-time distribution election change for Non-Grandfathered Accounts, if done so in accordance with the terms of the Plan and IRC section 409A. The Plan was also amended to provide a specified date as a distribution alternative and to add automatic distribution provisions upon a Change of Control, or the death or disability of the Participant for Non-Grandfathered Accounts.
| 1.2 | Purpose of Plan |
The Plan is intended to be an unfunded plan maintain primarily for the purpose of enabling a select group of management or highly compensated employees of the Employer (as defined herein) to enhance their retirement security by permitting the deferral of compensation in excess of certain limitations on contributions imposed by the Code on the Qualified Plan.
2
ARTICLE II – DEFINITIONS
Wherever used in the Plan, the following terms, when capitalized, shall have the meanings set forth in this Article, unless otherwise required by the context.
| 2.1 | Account means the book entries maintained by the Employer or its designee on behalf of each Participant reflecting Deferral Contributions that have been made and adjusted to reflect Earnings. A Participant shall, at all times, have a fully vested and non-forfeitable right to his Account; provided, however, that the existence of such Account shall not be deemed to vest in any Participant any right, title or interest in or to any specific assets of the Employer. Further, a Grandfathered Account is defined as a sub-account to track amounts which were deferred into the Plan and were vested prior to January 1, 2005, including any subsequent earnings thereon. Non-Grandfathered Account is defined as all other monies in the Plan. |
| 2.2 | Beneficiary means the person(s) or entity designated by the Participant in accordance with the provisions of Article VII to receive benefits under the Plan as a result of a Participant’s death. |
| 2.3 | Benefit Payment Direction Form means the agreement, in a form acceptable to the Committee (including the use of a Voice Response System), which will document the Participant’s elections as to the form of distribution. |
| 2.4 | Board means the Board of Directors of the Company. |
| 2.5 | Change of Control means the date on which: |
(a) any one person, or more than one person acting as a group, acquires ownership of stock of the Company that, together with stock held by such person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Company;
(b) any one person, or more than one person acting as a group, acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Company possessing 30% or more of the total voting power of the stock of the Company;
(c) a majority of members of the Company’s Board of Directors is replaced during any twelve-month period by directors whose appointment or election is not endorsed by a majority of the members of the Company’s Board of Directors before the date of the appointment or election; or
(d) any one person, or more than one person acting as a group, acquires (or has acquired during the twelve-month periods ending on the date of the most recent acquisition by such person or persons) assets from the corporation that have at total gross fair market value equal to more than 40% of the total gross fair market value of all of the assets of the Company immediately before such acquisition or acquisitions.
3
| 2.6 | Code means the Internal Revenue Code of 1986, as amended from time to time. Reference to any section or subsection of the Code includes reference to any comparable or succeeding provisions of any legislation which amends, supplements or replaces such section or subsection. |
| 2.7 | Committee means a Committee of one or more persons appointed by the Board to administer the Plan. In the absence of such appointment, or if, due to resignation or other cause, no appointed members remain, the Board shall be the Committee. |
| 2.8 | Compensation means the term as defined under the Qualified Plan, including certain bonus payments as determined in the sole discretion of the Committee, but without regard to the limitations provided under Code Section 401(a)(17). Any determination by the Committee to include bonus payments in Compensation shall be effective as of such date as determined by the Committee in accordance with Code Section 409A. |
| 2.9 | Deferral Contribution means the amount allocated to a Participant’s Account for any Plan Year pursuant to Section 4.1 hereof. |
| 2.10 | Disabled or Disability means the inability of a Participant to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months, and the permanence and degree of which shall be supported by medical evidence satisfactory to the Committee. |
| 2.11 | Earnings means the amount determined in accordance with Article V hereof by which the value of a Participant’s Account is adjusted. |
| 2.12 | Eligible Employee means, with respect to any Plan Year, any officer or other employee of the Employer who is (i) a Highly Compensated Employee, as such term is defined under Code Section 414(q), and is eligible to participate in the Qualified Plan under the terms thereof, or (ii) formally designated by the Committee by name or position as eligible to participate in the Plan. |
| 2.13 | Employer means the Company, any successor to all or a major portion of the Company’s assets or business which assumes the obligations of the Company, and each other entity that is affiliated with the Company which adopts the Plan with the consent of the Company, provided that the Company shall have the sole power to amend the Plan. |
| 2.14 | Enrollment Agreement means the agreement, in a form acceptable to the Committee (including the use of a voice response system or online administration system), by which an Eligible Employee may enroll as a Participant, and which will document the Participant’s elections under this Plan, including a Participant’s Deferral Contribution election, Investment Fund selection and Beneficiary designation. |
4
| 2.15 | Investment Fund means one or more investment vehicles in which amounts allocated to a Participant’s Account shall be deemed to have been invested and which shall be used to determine Earnings in accordance with Article V. |
| 2.16 | Participant means any Eligible Employee who has enrolled in the Plan upon the execution of an Enrollment Agreement, or any former Eligible Employee or Beneficiary for whom an Account is maintained. |
| 2.17 |
Plan Year means the twelve consecutive month period ending each December 31st. |
| 2.18 | Qualified Plan means the Avis Budget Group, Inc. Employee Savings Plan or other applicable 401(k) plan maintained by the Company in which the Participant is eligible to participate, as amended and restated from time to time. |
| 2.19 | Termination of Employment means a Participant’s separation from the service of the Employer by reason of resignation, discharge, or retirement. Separation from service as a result of a transfer to an affiliate or subsidiary of the Employer does not constitute Termination of Employment. |
| 2.20 | Valuation Date means the last day of each Plan Year and any date the value of a Participant’s Account is determinable from the custodial records. |
5
ARTICLE III – ENROLLMENT AND PARTICIPATION
| 3.1 | Enrollment |
An Eligible Employee shall enroll in the Plan and become a Participant by completing an Election Form and filing it either online or directly with the Committee in accordance with Article IV.
| 3.2 | Continuation of Participation |
A Participant shall continue to remain a Participant as long as he or she is entitled to benefits under the Plan.
| 3.3 | Inactive Participants |
In the event a Participant is no longer an Eligible Employee, such Participant shall become an inactive Participant, retaining all the rights described herein, except the right to make any future Deferral Contributions.
6
ARTICLE IV – DEFERRAL CONTRIBUTIONS
| 4.1 | Deferral Contribution |
For each Plan Year, a Participant may elect to defer up to 10% of the Compensation payable to such Participant. Such election to defer shall be reflected in the Enrollment Agreement in effect for the Participant or in such other manner acceptable to the Committee. A Participant’s Deferral Contribution shall not be made available to such Participant, except as provided in Article VI hereof, but instead shall be allocated to the Participant’s Account as soon as administratively feasible following the date such Compensation would otherwise have been paid to the Participant.
| 4.2 | Application of Deferral Contribution Election |
The amount of a Participant’s Deferral Contribution election shall be effective for Compensation earned in the Plan Year following the execution of the Enrollment Agreement. Such election will be required to be completed prior to the first day of each Plan Year. Such election shall be effective only for the Plan Year succeeding the Plan Year in which the election is made.
7
ARTICLE V – EARNINGS
| 5.1 | Investment Direction |
Each Participant has the right to select, subject to the approval of the Committee, the Investment Fund in which the Deferral Contributions and any related Earnings will be deemed to have been invested as of the date such amounts have been allocated to the Participant’s Account. Any selection made by the Participant shall be reflected on the Enrollment Agreement or in such other manner acceptable to the Committee. The Committee, in its sole discretion, may allow, limit or prohibit changes by a Participant to his or her selected Investment Funds. Neither the Employer nor the Committee is liable for any loss resulting from the Investment Fund vehicles offered for investment of a Participant’s Account or from a Participant’s direction of the investment of any part of his or her Account.
| 5.2 | Calculation of Earnings and Losses |
As of each Valuation Date, earnings or losses will be credited to each Participant’s Account for the period beginning with the previous Valuation Date and ending with the current Valuation Date. Earnings and losses shall be based on rate of return (including a negative return) determined by the performance of the Investment Fund.
8
ARTICLE VI – DISTRIBUTIONS AND FORM OF BENEFITS
| 6.1 | Timing of Distribution: Non-Grandfathered Accounts |
Effective November 1, 2008, a Participant shall elect the date at which distribution of his or her Non-Grandfathered Account will commence in writing in a manner acceptable to the Committee. Such election will be irrevocable and will be made in such Participant’s Benefit Payment Direction Form on the date of such Participant’s initial participation in the Plan. The Participant may elect distribution to occur on a specified date or the date that is six months after Termination of Employment.
The Participant shall also make an irrevocable election for distribution to be made in either:
| a. | A single lump-sum payment; or |
| b. | A series of installment paid over a period elected by the Participant of up to 5 years, the amount of each installment to equal the balance of his or her Account immediately prior to the installment divided by the number of installments remaining to be paid. The Participant shall elect whether such installments are made annually, semiannually, quarterly or monthly. |
Except as provided in Sections 6.2, 6.3, 6.4 or 6.7, payment of a Participant’s Non-Grandfathered Account shall be made in accordance with the Participant’s elections under this Section 6.1.
In accordance with Section 409A of the Code and the regulations thereunder, prior to December 31, 2008, each Participant shall have the opportunity to revoke their current distribution election on file and make a new distribution election which will apply to Non-Grandfathered Accounts. Amounts previously scheduled to be paid after the 2008 calendar year cannot be modified to be paid in the 2008 calendar year, but can be modified to be paid in any calendar year after 2008. The Committee, in its sole discretion, shall establish procedures to implement this special election process consistent with the requirements of Section 409A of the Code and the regulations thereunder.
| 6.2 | Change of Control: Non-Grandfathered Accounts |
Notwithstanding Section 6.1, as soon as possible following a Change of Control, each Participant shall be paid his or her Non-Grandfathered Account in a single lump sum.
| 6.3 | Disability: Non-Grandfathered Accounts |
Notwithstanding Section 6.1, if a Participant becomes Disabled prior to the complete distribution of his or her Non-Grandfathered Account, the Participant shall be paid his or her Non-Grandfathered Account in the form elected by the Participant pursuant to Section 6.1.
9
| 6.4 | Death: Non-Grandfathered Accounts |
Notwithstanding Section 6.1, if a Participant dies prior to the complete distribution of his or her Account, the Participant’s designated Beneficiary or Beneficiaries, as elected by the Participant pursuant to Article VII, shall be paid the Participant’s Non-Grandfathered Account in a single lump sum.
| 6.5 | Timing of Distribution: Grandfathered Accounts |
A Participant shall receive distribution of his or her Grandfathered Account during January of the year following the year of Termination of Employment.
The Participant shall make an irrevocable election for distribution to be made in:
| a. | A single lump-sum payment; |
| b. | A series of installment paid over a period elected by the Participant of up to 5 years, the amount of each installment to equal the balance of his or her Account immediately prior to the installment divided by the number of installments remaining to be paid. The Participant shall elect whether such installments are made annually, semiannually, quarterly or monthly; or |
| c. | A combination of the two. |
Except as provided in Section 6.7, payment of a Participant’s Grandfathered Account shall be made in accordance with the Participant’s elections under this Section 6.5.
| 6.6 | In-Service Distributions: Grandfathered Accounts |
With respect to Grandfathered Accounts, a Participant may request to receive a distribution prior to Termination of Employment in an amount equal to all or a portion of the Participant’s Account; provided, however, that the Participant shall forfeit an amount equal to ten (10) percent of the gross amount of such distribution. The amount forfeited shall remain with the Employer and can be used to Plan expenses or be removed from the trust established pursuant to Section 11.2. Distribution under this Section shall be made at such times as the Committee shall determine, and the Participant’s Accounts shall be reduced by the amount distributed including any related forfeitures.
| 6.7 | Automatic Cash-Out |
If there is no valid election in effect at the time of a Participant’s Termination of Employment, or (ii) the Account of a Participant on the date of such Participant’s Termination of Employment is less than $25,000, the Committee will distribute the Account balance in a single lump sum following a Participant’s Termination of Employment; provided, however, that such distribution of a Non-Grandfathered Account shall not be paid until the date that is six month after Termination of Employment.
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ARTICLE VII – BENEFICIARY DESIGNATION
| 7.1 | Designation |
Upon enrollment in the Plan, each Participant shall file with the Committee a written designation of one or more persons as the Beneficiary who shall be entitled to receive the amount, if any, payable under the Plan upon the Participant’s death. A Participant may, from time to time, revoke or change his or her Beneficiary designation without the consent of any prior Beneficiary by filing a new such designation with the Committee on a form designated by the Committee for such purpose. The most recent such designation received by the Committee shall be controlling and shall be effective upon receipt and acceptance by the Committee; provided, however, that no designation, or change or revocation thereof, shall be effective unless received by the Committee prior to the Participant’s death.
| 7.2 | Failure to Designate Beneficiary |
If no such Beneficiary designation is in effect at the time of a Participant’s death, or if no designated Beneficiary survives the Participant, or if such designation conflicts with law, the Participant’s estate shall be deemed to have been designated as the Beneficiary and shall receive the payment of the amount, if any, payable under the Plan upon the Participant’s death. If the Committee is in doubt as to the right of any person to receive such amount, the Committee may retain such amount, without liability for any interest thereon, until the rights thereto are determined, or the Committee may pay such amount into any court of appropriate jurisdiction and such payment shall be a complete discharge of the obligations of the Employer under the Plan.
| 7.3 | Payment to Representatives |
If the Committee determines that a Participant or Beneficiary is legally incapable of giving valid receipt and discharge for the payment due from this Plan, such amounts shall be paid to a duly appointed and acting guardian, if any. If no such guardian is appointed and acting, the Committee may retain such amount, without liability for any interest thereon, until the rights thereto are determined, or the Committee may pay such amount into any court of appropriate jurisdiction on behalf of the Participant or Beneficiary and such payment shall be a complete discharge of the obligations of the Employer under the Plan.
11
ARTICLE VIII – PLAN ADMINISTRATION
| 8.1 | Powers and Duties of the Committee |
The Committee shall have absolute discretion with respect to the operation, interpretation and administration of the Plan. The Committee’s powers and duties shall include, but not be limited to:
| f) | Establishing Accounts for Participants; |
| g) | Determining eligibility for, and amount of, distributions from the Plan; |
| h) | Adopting, interpreting, altering, amending or revoking rules and regulations necessary to administer the Plan; |
| i) | Delegating ministerial duties and employing outside professionals as may be required; and |
| j) | Entering into agreements or taking such other actions on behalf of the Employer as are necessary to implement the Plan. |
Participants are not prohibited from serving as members of the Committee. If an individual is both a Participant and a member of the Committee, such individual is prohibited from making any decision with respect to his or her own participation in, or individual benefits under, the Plan. Any action of the Committee may be taken by a vote or written consent of the majority of the Committee members entitled to act. Any Committee member shall be entitled to represent the Committee, including the signing of any certificate or other written direction, with regard to any action approved by the Committee.
| 8.2 | Information |
To enable the Committee to perform its functions, the Employer shall supply full and timely information to the Committee on all matters relating to the compensation of Participants, their employment, retirement, death, termination of employment, and such other pertinent facts as the Committee may require.
| 8.3 | Claims Procedure |
In the event a claim by a Participant relating to the amount of any distribution is denied, such person will be given written notice by the Committee of such denial, which shall set forth the reason for denial. The Participant may, within sixty (60) days after receiving the notice, request a review of such denial by filing notice in writing with the Committee. The Committee, in its discretion, may request a meeting with the Participant to clarify any matters it deems pertinent. The Committee will render a written decision within sixty (60) days after receipt of such request, stating the reason for its decision. If the Committee is unable to respond within sixty (60) days, an additional sixty (60) days may be taken by the Committee to respond. The Participant will be notified if the additional time is necessary by the end of the initial sixty (60) day period. The determination of the Committee as to any disputed questions or issues arising under the Plan and all interpretations, determinations and decisions of the Committee with respect to any claim hereunder shall be final, conclusive and binding upon all persons.
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ARTICLE IX – AMENDMENT AND TERMINATION
| 9.1 | Amendment |
Except as expressly provided in Section 9.3 hereof, the Company, in its sole discretion, by action of its Board or other governing body charged with the management of the Company, or its designee, may amend the Plan, in whole or in part, at any time.
| 9.2 | Termination |
This Plan is strictly a voluntary undertaking on the part of the Employer and shall not be deemed to constitute a contract between the Employer and any Eligible Employee (or any other employee) or a consideration for, or an inducement or condition of employment for, the performance of the services by any Eligible Employee (or other employee). The Company reserves the right to terminate the Plan at any time, subject to Section 8.3, by an instrument in writing which has been executed on the Company’s behalf by its duly authorized officer. Upon termination, the Company may (a) elect to continue to maintain the Trust to pay benefits hereunder as they become due as if the Plan had not terminated or (b) direct the Trustee to pay to Participants (or their beneficiaries) the balance of their Accounts no sooner than twelve months and no later then 24 months after the Plan termination is effective.
For purposes of the preceding sentence, in the event the Company chooses to implement clause (b), such termination and liquidation of the Plan shall be subject to the following limitations:
| (1) | The termination and liquidation may not occur proximate to a downturn in the financial health of the Company or the Employer; |
| (2) | The Employer must terminate and liquidate all other plans, programs and arrangements it sponsors that would be aggregated with the Plan under Treasury Regulation 1.409A-1(c) if any Participant had deferred compensation under such plans, programs and arrangements; and |
| (3) | The Employer may not adopt a new plan that would be aggregated with the Plan under Treasury Regulation 1.409A-1(c) if any Participant had participated in such plan for a period of three years following the date the termination and liquidation become irrevocable. |
| 9.3 | Protection of Benefit |
No amendment or termination of this Plan shall reduce the rights of any Participant with respect to amounts allocated to a Participant’s Account prior to the date of such amendment or termination without the Participant’s express written consent.
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ARTICLE X – MISCELLANEOUS
| 10.1 | Tax Withholding |
The Employer shall have the right to deduct an amount sufficient in the opinion of the Employer to satisfy all federal, state and other governmental tax withholding requirements relating to any distribution from the Plan.
| 10.2 | Offset to Benefits |
Amounts payable to the Participant under the Plan may be offset by any reasonable monetary claims the Employer has against the Participant.
| 10.3 | Inalienability |
Except as provided in Section 10.2 hereof, a Participant’s right to payments under this Plan are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors of the Participant. In no event shall the Employer make any payment under this Plan to any person or entity other than the Participant or Beneficiary, unless required by law.
| 10.4 | Employment |
The adoption and maintenance of this Plan does not constitute a contract between the Employer and any Participant and is not consideration for the employment of any person. Nothing contained herein gives any Participant the right to be retained in the employ of the Employer or derogates from the right of the Employer to discharge any Participant at any time and for any reason without regard to the effect of such discharge upon his or her rights as a Participant in the Plan.
| 10.5 | Indemnity of Committee |
The Employer indemnifies and holds harmless the Committee and its designees from and against any and all losses resulting from any liability to which the Committee may be subjected by reason of any act or conduct (except willful misconduct or gross negligence) in its official capacity in the administration of this Plan, including all costs and expenses reasonably incurred in its defense, in case the Employer fails to provide such defense.
| 10.6 | Liability |
No member of the Board, the Committee, or management of the Employer shall be liable to any person for any action taken under the Plan.
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| 10.7 | Rules of Construction |
| (a) | Governing Law. The construction and operation of this Plan are governed by the laws of the State of Delaware, except to the extent superseded by federal law. |
| (b) | Headings. The headings of Articles, Sections and Subsections are for reference only and are not to be utilized in construing the Plan. |
| (c) | Gender. Unless clearly inappropriate, all pronouns of whatever gender refer indifferently to persons or objects of any gender. |
| (d) | Singular and Plural. Unless clearly inappropriate, singular terms refer also to the plural number and vice versa. |
| (e) | Severability. If any provision of this Plan is held illegal or invalid for any reason, the remaining provisions are to remain in full force and effect and to be reformed, construed and enforced in accordance with the purposes of the Plan as if the illegal or invalid provision did not exist. |
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ARTICLE XI – FUNDING
| 11.1 | Unfunded Plan |
This Plan is intended to be unfunded for tax purposes and all distributions hereunder shall be made out of the general assets of the Employer. No Participant or Beneficiary shall have any right, title, interest, or claim in or to any assets of the Employer other than as an unsecured creditor. The Plan constitutes only an unsecured commitment by the Employer to pay benefits to the extent, and subject to the limitations, provided for herein. Although, this Plan constitutes an “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”), it is intended to cover only a select group of management or highly compensated employees pursuant to Sections 201, 301 and 401 of ERISA.
| 11.2 | Trust |
Notwithstanding the foregoing, the Employer shall contribute to an irrevocable grantor trust amounts allocated to a Participant’s Account under Article IV and V hereof. The assets of such trust shall be available to the creditors of the Employer in the event of bankruptcy or insolvency. To the extent of the trust assets, amounts due under the Plan shall be payable first from such trust to Participants before any claim is made against the Employer. The Committee may provide direction to the trustee or custodian on behalf of the Employer as it deems necessary to provide for the proper distribution of benefits from the trust.
16
IN WITNESS WHEREOF, and as evidence of the adoption of this Plan by the Company, it has caused the same to be signed by its officers thereunto duly authorized, and its corporate seal to be affixed thereto, this 21st day of November, 2008.
| ATTEST | AVIS BUDGET GROUP, INC. | |||||
|
|
By: |
| ||||
| [Corporate Seal] | Name: | Karen C. Sclafani | ||||
| Title: | Executive Vice President, General Counsel and Assistant Secretary | |||||
17
Exhibit 10.20
AVIS RENT A CAR SYSTEM, LLC
PENSION PLAN
EFFECTIVE JUNE 1, 2006
AVIS RENT A CAR SYSTEM, LLC PENSION PLAN
INTRODUCTION
This amended and restated Avis Rent A Car System, LLC Pension Plan (the “Plan”) is made effective as of June 1, 2006. The Plan is an amendment and restatement of Part II of the Cendant Corporation Pension Plan in connection with the spin-off of Realogy Corporation by Cendant Corporation (the “Sponsor”) as part of a special dividend distribution to its shareholders (the “Dividend Distribution”). This Plan is identical in all material respects to Part II of the Cendant Corporation Pension Plan.
In connection with the Dividend Distribution, the Sponsor and Realogy Corporation agreed to separate the Cendant Corporation Pension Plan into two plans, this Plan and the Realogy Corporation Pension Plan. The Realogy Corporation Pension Plan is effective June 1, 2006 and is identical in all material respects to Part I of the Cendant Corporation Pension Plan. Also effective on June 1, 2006, the Realogy Corporation Pension Plan assumed all liabilities and obligations under Part I of the Cendant Corporation Pension Plan, as a successor employer. Accordingly, the Plan is being amended pursuant to this restatement to reflect that the terms and provisions of the Cendant Corporation Pension Plan, Part I are no longer applicable, as the remaining assets and liabilities were transferred to the Realogy Corporation Pension Plan.
i
AVIS RENT A CAR SYSTEM, LLC PENSION PLAN
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE 1 |
DEFINITIONS | 1 | ||||
| 1.1 | “Absence in Military Service” | 1 | ||||
| 1.2 | “Absence on Authorized Leave” | 1 | ||||
| 1.3 | “Acquisition Date” | 1 | ||||
| 1.4 | “Annuity Starting Date” | 1 | ||||
| 1.5 | “Actuary” | 1 | ||||
| 1.6 | “Associated Company” | 1 | ||||
| 1.7 | “Average Final Compensation” | 2 | ||||
| 1.8 | “Beneficiary” | 2 | ||||
| 1.9 | “Board of Directors” | 2 | ||||
| 1.10 | “Code” | 2 | ||||
| 1.11 | “Committee” | 2 | ||||
| 1.12 | “Company” | 2 | ||||
| 1.13 | “Compensation” | 2 | ||||
| 1.14 | “Credited Service” | 3 | ||||
| 1.15 | “Date of Original Employment” | 5 | ||||
| 1.16 | “Effective Date of the Salaried Plan” | 6 | ||||
| 1.17 | “Employee” | 6 | ||||
| 1.18 | “Employment Commencement Date” | 7 | ||||
| 1.19 | “Equivalent Actuarial Value” | 7 | ||||
| 1.20 | “ERISA” | 7 | ||||
| 1.21 | “Fund” | 7 | ||||
| 1.22 | “Hour of Service” | 7 | ||||
| 1.23 | “Hourly Plan” | 7 | ||||
| 1.24 | “Joint Annuitant” | 7 | ||||
| 1.25 | “Member” | 7 | ||||
| 1.26 | “Participating Corporation” | 7 | ||||
| 1.27 | “Participating Division” | 8 | ||||
| 1.28 | (a) “Plan” | 8 | ||||
| (b) “Prior Plan” | 8 | |||||
| 1.29 | “Plan Year” | 8 | ||||
| 1.30 | (a) “Predecessor Corporation” | 8 | ||||
| (b) “Prior Company” | 8 | |||||
| 1.31 | “Prior Salaried Plan” | 8 | ||||
| 1.32 | “Retirement Pension” | 8 | ||||
| 1.33 | “Salaried Plan” | 8 | ||||
| 1.34 | “Service” | 8 | ||||
| 1.35 | “Social Security Benefit” | 10 | ||||
| 1.36 | “Spouse Joint and Survivor Annuity” | 10 | ||||
| 1.37 | “Terminated Member’s Spouse Joint and Survivor Annuity” | 11 | ||||
| 1.38 | “Termination of Employment” | 11 | ||||
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| 1.39 | “Total and Permanent Disability” | 11 | ||||
| 1.40 | “Trustee” | 11 | ||||
| ARTICLE 2 |
MEMBERSHIP | 12 | ||||
| 2.1 | Members on June 30, 1985 | 12 | ||||
| 2.2 | Break in Service | 12 | ||||
| 2.3 | Prior Plan Requirement | 12 | ||||
| 2.4 | Termination of Membership | 12 | ||||
| 2.5 | Furnishing Information Required by Committee | 12 | ||||
| ARTICLE 3 |
RETIREMENT DATES | 12 | ||||
| 3.1 | Normal Retirement Date | 12 | ||||
| 3.2 | Early Retirement Date | 12 | ||||
| 3.3 | Disability Retirement Date | 13 | ||||
| 3.4 | Deferred Retirement Date | 13 | ||||
| ARTICLE 4 |
RETIREMENT PENSIONS | 13 | ||||
| 4.1 | Normal Retirement Pension | 13 | ||||
| 4.2 | Early Retirement Pension | 14 | ||||
| 4.3 | Disability Retirement Pension | 14 | ||||
| 4.4 | Deferred Retirement Pension | 15 | ||||
| 4.5 | Employment After Normal Retirement Date and Reemployment After Normal Retirement Date | 15 | ||||
| 4.6 | Deductions from Benefits | 16 | ||||
| 4.7 | No Reduction in Benefits for Members of Salaries or Hourly Plans | 16 | ||||
| ARTICLE 5 |
NORMAL FORMS OF RETIREMENT PENSION | 16 | ||||
| 5.1 | Normal Form of Retirement Pension – Unmarried Member | 16 | ||||
| 5.2 | Normal Form of Retirement Pension – Married Member | 17 | ||||
| 5.3 | Small Payments | 18 | ||||
| 5.4 | Facility of Payments | 19 | ||||
| ARTICLE 6 |
TERMINATION OF SERVICE | 20 | ||||
| 6.1 | Termination Prior to Retirement | 20 | ||||
| 6.2 | Vested Benefit | 20 | ||||
| 6.3 | Early Commencement of Vested Benefit | 20 | ||||
| 6.4 | Normal Form of Vested Benefit – Unmarried Member | 21 | ||||
| 6.5 | Normal Form of Vested Benefit – Married Member | 21 | ||||
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| 6.6 | Termination Prior to January 1, 1976 | 22 | ||||
| ARTICLE 7 |
OPTIONAL FORMS OF BENEFITS | 22 | ||||
| 7.1 | Election of Optional Benefit | 22 | ||||
| 7.2 | Straight Life Annuity Option | 23 | ||||
| 7.3 | Joint and Survivor Annuity Option | 23 | ||||
| 7.4 | Ten Year Certain Option | 23 | ||||
| 7.5 | Social Security Level Income Option | 24 | ||||
| 7.6 | Exercise of Option | 24 | ||||
| 7.7 | Required Distributions | 24 | ||||
| 7.8 | Rollover Distribution | 30 | ||||
| ARTICLE 8 |
DEATH BENEFITS | 31 | ||||
| 8.1 | Qualified Pre-retirement Survivor Annuity | 31 | ||||
| 8.2 | Death in Service Option I | 31 | ||||
| 8.3 | Death in Service Option II | 32 | ||||
| 8.4 | Consent of Spouse | 33 | ||||
| 8.5 | Other Death Benefits | 33 | ||||
| ARTICLE 9 |
CONTRIBUTIONS | 34 | ||||
| 9.1 | Contributions of the Company | 34 | ||||
| 9.2 | Irrevocability of Contributions | 34 | ||||
| 9.3 | Use of Forfeitures | 34 | ||||
| ARTICLE 10 |
MANAGEMENT OF FUNDS | 34 | ||||
| 10.1 | Medium of Funding | 34 | ||||
| 10.2 | Fund to be for Exclusive Benefit of Members | 34 | ||||
| ARTICLE 11 |
THE COMMITTEE AND CLAIMS PROCEDURE | 34 | ||||
| 11.1 | Appointment of Committee | 34 | ||||
| 11.2 | Officers and Subcommittees | 35 | ||||
| 11.3 | Committee Procedures | 35 | ||||
| 11.4 | Committee Powers | 35 | ||||
| 11.5 | Information for Committee | 36 | ||||
| 11.6 | Plan Records | 36 | ||||
| 11.7 | Instructions to Trustees | 36 | ||||
| 11.8 | Allocation of Duties, etc. Among Committee Members | 37 | ||||
| 11.9 | Delegation by Committee | 37 | ||||
| 11.10 | Investment Managers | 37 | ||||
| 11.11 | Costs and Expenses | 37 | ||||
| 11.12 | Standard of Care | 37 | ||||
| 11.13 | Indemnification and Insurance | 37 | ||||
| 11.14 | Disputes | 38 | ||||
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| 11.15 | Committee Members as Participants | 38 | ||||
| 11.16 | Claims Procedure | 38 | ||||
| 11.17 | Compliance with Regulations | 39 | ||||
| ARTICLE 12 |
AMENDMENTS | 40 | ||||
| ARTICLE 13 |
TERMINATION OF THE PLAN | 40 | ||||
| 13.1 | Termination by the Company | 40 | ||||
| 13.2 | Certain Benefits Nonforfeitable | 40 | ||||
| 13.3 | Priority of Distribution on Termination | 40 | ||||
| 13.4 | Coordination with Article 15 | 41 | ||||
| ARTICLE 14 |
LIMITATION ON BENEFITS | 41 | ||||
| 14.1 | Code Section 415 Limitations | 41 | ||||
| 14.2 | Code Section 415 Definitions | 41 | ||||
| ARTICLE 15 |
TEMPORARY LIMITATIONS ON AMOUNT OF BENEFITS | 43 | ||||
| ARTICLE 16 |
SERVICE AND TRANSFER RULES | 45 | ||||
| 16.1 | Application of Provisions | 45 | ||||
| 16.2 | Service Other Than as an Employee | 45 | ||||
| 16.3 | Service Following Service as an Employee | 45 | ||||
| 16.4 | “Affiliated Company” | 45 | ||||
| ARTICLE 17 |
NON-ALIENATION OF BENEFITS | 46 | ||||
| ARTICLE 18 |
MISCELLANEOUS | 46 | ||||
| 18.1 | Rights of Employees | 46 | ||||
| 18.2 | Return of Contributions | 46 | ||||
| 18.3 | Mergers | 47 | ||||
| 18.4 | Monthly Benefits | 47 | ||||
| 18.5 | Governing Law | 47 | ||||
| 18.6 | Headings | 47 | ||||
| ARTICLE 19 |
TOP-HEAVY PLANS | 47 | ||||
| 19.1 | Effects of Top-Heavy Status | 47 | ||||
| 19.2 | Definition of Top-Heavy Plan | 49 | ||||
| 19.3 | Exception to Combined Limit Rule | 51 | ||||
| 19.4 | Miscellaneous Rules | 51 | ||||
v
ARTICLE 1.
Definitions
The following words and phrases shall, when used herein, have the meanings set forth below, unless a different meaning is clearly required by the context:
1.1. “Absence in Military Service” shall mean absence of an Employee in military service for the United States of America provided that the Employee returns to the employ of the Company by the end of any period prescribed by the laws of the United States during which he has reemployment rights with the Company. Notwithstanding any provision in the Plan to the contrary, effective as of December 12, 1994, contributions and benefits with respect to “qualified military service” will be provided in accordance with section 414(u) of the Code.
1.2. “Absence on Authorized Leave” shall mean any absence approved by the Company other than absence which qualifies as Absence in Military Service under Section 1.1. All such leaves of absence shall be granted in a nondiscriminatory manner so that all Employees in similar situations shall receive uniform treatment. The following periods of Absence on Authorized Leave shall be included in determining a Member’s Service:
(i) the period of any such absence, not exceeding two years, including any such absence during which the Member does not receive Compensation from the Company;
(ii) the period of any such absence, not exceeding two years, except as required by law, for service with any governmental agency or any department of the United States;
(iii) the period of any such absence during which sickness or accident benefits are being paid by the Company.
1.3. “Acquisition Date” shall mean, with respect to any Predecessor Corporation, the date on which the business and assets of such Predecessor Corporation, or such part thereof as shall have been acquired by the Company, were first acquired.
1.4. “Annuity Starting Date” shall mean the date as of which payment of a Member’s Retirement Pension or Vested Benefit is scheduled to commence in accordance with Articles 4 and 6 of this Plan.
1.5. “Actuary” shall mean the actuarial consultant or actuarial consultants designated from time to time to make actuarial computations in connection with the Plan.
1.6. “Associated Company” shall mean any division, subsidiary or affiliate of the Company designated by the Board of Directors, or by the Committee pursuant to authority delegated to it by the Board of Directors, as an Associated Company for purposes of the Plan
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during the period for which such designation exists. For the period of time before the Company was divested from International Telephone and Telegraph Corporation, Associated Company shall also mean any Company which was designated as an Associated Company under the Prior Salaried Plan.
1.7. “Average Final Compensation” means the average of a Member’s five highest consecutive years of Compensation during the ten calendar years prior to the earlier of: (a) the Member’s Normal, Deferred or Early Retirement Date or the date of his Termination of Employment, whichever is applicable or (b) January 1, 1999; provided, however, that if the Member’s Compensation for his last year of employment is included in the averaging period and such last year of employment is less than twelve months, his Average Final Compensation shall include Compensation during the last year of employment, the four preceding calendar years and a pro rata portion of Compensation in the fifth preceding calendar year in order to average Compensation for five full years.
For purposes of determining the Average Final Compensation of a Member whose consecutive years of Compensation during the ten calendar years prior to the Member’s Normal, Deferred or Early Retirement Date, or the date of his Termination of Employment, whichever is applicable, are interrupted by an Absence in Military Service, an Absence on Authorized Leave or any other absence if his Service prior to such absence is restored pursuant to Section 1.14.2, the years of Compensation preceding and following such absence shall be considered consecutive.
1.8. “Beneficiary” shall mean any person, including the spouse or Joint Annuitant of a Member, eligible to receive any benefits payable upon the death of the Member.
1.9. “Board of Directors” shall mean the Board of Directors of Cendant Corporation (the “Plan Sponsor”) or any successor by merger, purchase or otherwise.
1.10. “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
1.11. “Committee” shall mean the Committee appointed to administer the Plan pursuant to Article 11.
1.12. “Company” shall mean Cendant Car Rental, Inc. (formerly HFS Car Rental, Inc.), Avis Rent A Car System, Inc. or any successor by merger, purchase or otherwise, with respect to its Employees, and any other Participating Corporation or Participating Division with respect to its Employees. Effective, June 1, 2006, “Company” shall mean Avis Rent A Car System, LLC.
1.13. “Compensation” shall mean the total remuneration paid to a Member (whether before or after membership in the Plan) for service rendered to the Company, the Prior Company, an Associated Company, or a Predecessor Corporation, including any bonuses (but excluding any bonuses received pursuant to the Senior Executive Long-Term Bonus Plan) and including any severance or separation payments and final vacation pay (but only to the extent
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that such severance or separation payments and final vacation pay are granted by the Company on a nondiscriminatory basis to employees similarly situated), but excluding automobile, relocation or other special allowances of a similar nature, and provided that Compensation shall be determined before giving effect to any salary reduction or similar arrangement under a plan described in section 125 of the Code, or a transportation fringe benefit arrangement referred to in section 132(f)(4) of the Code or any elective deferral described in section 402(g)(3) of the Code. Effective for Plan Years beginning after December 31, 2001, the annual compensation limit shall remain $170,000 and shall not be adjusted for increases in the cost-of-living or other legislative increases in accordance with section 401(a)(17) of the Code.
A Member’s Compensation taken into account under the Plan for each Plan Year commencing after June 30, 1989 and prior to July 1, 1994, shall not exceed $200,000, as adjusted by the Secretary of the Treasury at the same time and in the same manner as under section 415(d) of the Code. In addition to other applicable limitations set forth in the Plan, and notwithstanding any other provision of the Plan to the contrary, for Plan Years beginning on or after July 1, 1994, the annual Compensation of each Member taken into account under the Plan shall not exceed the OBRA ‘93 annual compensation limit. The OBRA ‘93 annual compensation limit is $150,000, as adjusted by the Commissioner for increases in the cost-of-living in accordance with section 401(a)(17)(B) of the Code. The cost-of-living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which Compensation is determined (determination period) beginning in such calendar year. If a determination period consists of fewer than 12 months, the OBRA ‘93 annual compensation limit will be multiplied by a fraction, the numerator of which is the number of months in the determination period, and the denominator of which is 12.
For Plan Years beginning on or after July 1, 1994, any reference in this Plan to the limitation under section 401(a)(17) of the Code shall mean the OBRA ‘93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into account in determining a Member’s contributions in the current Plan Year, the Compensation for that prior determination period is subject to the OBRA ‘93 annual compensation limit in effect for that prior determination period. For this purpose, for determination periods beginning before the first day of the first Plan Year beginning on or after July 1, 1994, the OBRA ‘93 annual compensation limit is $150,000.
Furthermore, effective July 1, 1989 and for Plan years ending prior to January 1, 1997, in determining “Compensation,” the rules of section 414(q)(6) of the Code shall apply, except that in applying such rules, the term “family” shall include only the spouse of the Member and any lineal descendants of the Member who have not attained age 19 before the close of the calendar year. Notwithstanding the foregoing, effective January 1, 1997, the family aggregation rules of section 414(q)(6) of the Code shall no longer apply.
1.14. “Credited Service,” for purposes of determining the amount of any benefit payable to or on behalf of a Member, shall mean (a) the Member’s Credited Service as of December 31, 1975, as determined under the Salaried Plan and/or the Hourly Plan, including any
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periods of service prior to September 18, 1956 which were not treated as Credited Service under the Salaried Plan and/or the Hourly Plan only because such service was rendered prior to September 18, 1956, and (b) the Member’s Service as determined under Section 1.34(b).
1.14.1 Notwithstanding the foregoing or Section 1.14.4, a Member’s Credited Service shall not include (a) Service prior to January 1, 1976, when an Employee was not employed on a “full-time” basis (as hereinafter defined), and (b) Service during which a Member was not an “Employee” (as defined in Section 1.17). A “full-time” Employee is one who worked the regular schedule in effect for his job classification in accordance with Company policy in effect at such time.
1.14.2 If, after incurring a Break in Service after a Severance Date (as described in Sections 1.34.1 and 1.34.2) occurring on or after January 1, 1976, a Member is re-employed and completes a year of Service following his Reemployment Commencement Date, his prior years of Service and Credited Service shall be restored for all Plan purposes, if (a) he had fulfilled the requirements for a Vested Benefit under Section 6.2 as of such Severance Date, or (b) the period of the Member’s Break in Service, computed to the nearest 1/12th year, is less than the greater of (i) five and (ii) the aggregate number of his years of Service prior to such Severance Date.
1.14.3 If a Member who had fulfilled the requirements for a Vested Benefit under Section 6.2 shall not have received any distribution under the Plan following his prior Termination of Employment, his Service and Credited Service shall be reinstated, in accordance with the provisions of Section 1.14.2, following his Reemployment Commencement Date so that his Retirement Pension or Vested Benefit upon his subsequent Termination of Employment shall be determined on the basis of his Service, Credited Service and Average Final Compensation as of the date of such subsequent Termination of Employment. If the Member shall have received any distribution under the Plan following his prior Termination of Employment, his Service shall be so reinstated, but his Credited Service shall be so reinstated only if such distribution was not a lump sum payment made in lieu of all other benefits to which the Member may have become entitled under the Plan (a “lump sum distribution”). If such distribution was not a lump sum distribution, the Retirement Pension or Vested Benefit payable in respect of the Member upon his subsequent Termination of Employment shall be computed so as to give effect to any Retirement Pension or Vested Benefit previously paid to the Member on account of his prior Termination of Employment. Notwithstanding the foregoing, if the Member had received any distribution under the Plan following his prior Termination of Employment, his Credited Service shall, in all events, be reinstated if the Member repays the full amount of such distribution, together with interest thereon to the date of repayment computed at the rate currently determined by the Secretary of the Treasury pursuant to the provisions of section 411(c)(2)(C) of the Code, not later than the end of the five-year period beginning with the Member’s resumption of employment as an Employee.
1.14.4 A Member’s Credited Service shall include, in the case of an Employee who became a Member of the Prior Plan on January 1, 1976, and who had been excluded from membership in the Salaried Plan by reason of the fact that he had reached his fifty-fifth birthday prior to his Date of Original Employment, Service with the Company before January 1, 1976.
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1.14.5 For purposes of Section 1.14.1, in the case of a Member who was employed by a Predecessor Corporation prior to its acquisition by the Company, the Member’s Credited Service as of December 31, 1975 shall be the greater of (a) or (b) below:
(a) The Member’s most recent period of continuous employment with the Company which includes December 31, 1975; or
(b) If the Acquisition Date was before July 22, 1965, the Member’s period of continuous employment with both the Predecessor Corporation and the Company which includes December 31, 1975 and the Acquisition Date.
1.14.6 For purposes of Section 1.14, the Committee may, in its discretion, and subject to the provisions of applicable law, determine the extent to which a Member’s continuous employment with a Predecessor Corporation acquired by the Company on or after July 22, 1965, shall be deemed Credited Service under this Plan.
1.14.7 If a former Member of the Salaried Plan or the Hourly Plan, who had not fulfilled the requirements for a vested benefit under either Plan, incurred a Termination of Employment prior to January 1, 1976, and thereafter was re-employed by the Company and becomes a Member of the Plan, the Member’s Credited Service before such Termination of Employment shall be restored and included in his total Credited Service under the Plan, using the rule of either (a) or (b) below, whichever produces the greater total Credited Service:
(a) The Member’s prior Credited Service shall be restored if the period of time between the date of his Termination of Employment and the date of his reemployment by the Company is less than his aggregate Credited Service prior to such Termination of Employment.
(b) The Member’s prior Credited Service shall be restored if, after his reemployment by the Company, such Member renders a period of Credited Service equal to the lesser of (i) the period of his absence or (ii) ten years.
1.14.8 For purposes of Section 1.14.1, a Member’s Credited Service shall include any period during which such Member was employed by International Telephone and Telegraph Corporation prior to 1972, if such Member was employed or rehired by the Company prior to January 1, 1976.
1.14.9 Notwithstanding anything contained herein to the contrary, for purposes of Article 4, Service by a Member with the Company subsequent to December 31, 1998 shall not be recognized in determining the Member’s Credited Service. The Credited Service of a Member (i) whose employment with the Company has not terminated as of December 31, 1998 or (ii) who is named in Appendix B hereof, shall be equal to the sum of (A) the Member’s Credited Service as otherwise determined under Section 1.14 plus (B) two years.
1.15. “Date of Original Employment” shall mean the Date of Original Employment by the Company or by an Associated Company.
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1.16. “Effective Date of the Salaried Plan” shall mean January 1, 1972.
1.17. “Employee” shall mean any person employed by the Company and with respect to persons employed by Cendant Car Rental, Inc. only, those persons who were previously employed by the Prior Company, and who receives Compensation, whether on an annual or hourly basis or otherwise, other than a pension or retainer; provided, however, that except as the Board of Directors may otherwise provide on a basis uniformly applicable to all persons similarly situated, no person shall be an Employee for purposes of the Plan who (a) is engaged as a consultant or (b) is accruing benefits in respect of current service under any other pension, retirement, qualified profit-sharing or other similar plan of the Company or the Prior Company or of any Associated Company or of any subsidiary or affiliated company of the Company; and provided, further, that no person shall be an Employee for purposes of the Plan whose terms and conditions of employment are determined by a collective bargaining agreement with the Company which does not make this Plan applicable to him.
1.17.1 For all purposes of the Plan, any person who is an employee of an entity (herein referred to as a “Designated Foreign Corporation”) (a) which is created under the laws of a country other than the United States of America, (b) of which a majority interest is owned directly or indirectly by the Company, and (c) which has previously notified the Committee that an agreement hereinafter described has become effective, shall be deemed to be an Employee during his continuous employment thereafter by such Designated Foreign Corporation, provided that the Company has entered into an agreement under section 3121(1) of the Code and has satisfied the provisions of section 406 of the Code.
1.17.2 The Committee may designate on a non-discriminatory basis such resident aliens of the United States, who are employed by a Designated Foreign Corporation, who shall be deemed Employees under the Plan.
1.17.3 Resident aliens of the United States who are employed by the Company within the United States shall be treated as Employees for all Plan purposes while so employed.
1.17.4 Any person (other than an Employee) who provides services to the Company or an affiliate of the Company and who is treated as an Employee of the Company or such affiliate for purposes of certain pension requirements under section 414(n) of the Code (a “Leased Employee”), shall be deemed to be an Employee of the Company or such affiliate for purposes of the service definitions and rules of the Plan. Leased Employee means any person (other than an Employee of the Company or affiliate) who, pursuant to an agreement between the Company or affiliate and any other person (“leasing organization”), has performed services for the Company or affiliate (or for the Company or affiliate and any related persons determined in accordance with section 414(n)(6) of the Code) on a substantially full-time basis for a period of at least one (1) year, and such services are, prior to January 1, 1997, of a type historically performed by employees in the business field of the Company, and on or after January 1, 1997, performed under the primary direction and control of the Company or affiliate. Notwithstanding the foregoing, no Leased Employee shall be eligible to participate in this Plan by reason of this Section 1.17.4. For purposes of participation in the Plan, the term Employee shall exclude any
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person, including but not limited to a Leased Employee, who performs services for, and receives remuneration from, the Company or any affiliate of the Company under an agreement, contract or arrangement under which said individual is designated, characterized or classified as an independent contractor, as a consultant or in any category or classification other than as an employee of the Company or an affiliate of the Company, without regard to whether any determination by an agency, governmental or otherwise, or by a court concludes that such classification or characterization was in error, and without regard to whether the individual is treated as an employee of the Company pursuant to Sections 414(b), 414(c) or 414(m) of the Code or any regulations that may be issued under section 414(o) of the Code.
1.18. “Employment Commencement Date” or “Reemployment Commencement Date” shall mean the date upon which an Employee completes an Hour of Service for the Company or Prior Company following his initial employment or, in the case of reemployment, following his most recent Severance Date (as described in Sections 1.34.1 and 1.34.2).
1.19. “Equivalent Actuarial Value” shall mean, except as provided in Appendix A and Section 5.3.2 hereof, equivalent value when computed on the basis of the 1984 UP Mortality Table and the interest rate promulgated by the Pension Benefit Guaranty Corporation as applicable for valuing immediate annuities as of the first day of the Plan Year in which the Annuity Starting Date occurs.
In the case of a Member who continues employment with the Company after age 65, Equivalent Actuarial Value shall be computed on the basis of the actuarial factors in effect under the Plan on the date of the Member’s actual retirement.
1.20. “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.
1.21. “Fund” shall mean the cash, securities and other property held for the purposes of the Plan as set forth in Article 10.
1.22. “Hour of Service” shall mean each hour for which an Employee is directly or indirectly compensated by the Company or Prior Company.
1.23. “Hourly Plan” shall mean the ITT Avis, Inc. Pension Plan for Hourly Employees, effective April 1, 1968.
1.24. “Joint Annuitant” shall mean a person designated by a Member in accordance with Article 7 to receive payments under Section 7.3 in the event of the Member’s death.
1.25. “Member” shall mean any person included in the membership of the Plan as provided in Article 2.
1.26. “Participating Corporation” shall mean any Associated Company which has by appropriate action of the Board of Directors been designated as a Participating Corporation and the board of directors of which shall have taken appropriate action to adopt the Plan.
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The Board of Directors, if it so elects, may limit participation in the Plan to one or more operating or other units of any Participating Division or Participating Corporation or may exclude one or more of such units from participation in the Plan and in either such event persons employed by any operating or other unit of such Participating Division or Participating Corporation not covered by the designation thereof as such shall not be deemed to be Employees for purposes of the Plan until further action by the Board of Directors.
1.27. “Participating Division” shall mean any division of a Company or an Associated Company which has by appropriate action of the Board of Directors been designated as a Participating Division.
1.28. (a) “Plan” shall mean the Avis Rent A Car System, LLC Pension Plan as it may be amended from time to time. Any reference to “Plan” prior to June 1, 2006 shall refer to the Cendant Corporation Pension Plan, Part II, unless otherwise specifically identified or it is otherwise clear from the context.
(b) “Prior Plan” shall mean the Retirement Plan for Salaried and Hourly Employees of Avis Rent A Car System, Inc., as in effect on June 30, 1985.
1.29. “Plan Year” shall mean the calendar year.
1.30. (a) “Predecessor Corporation” shall mean any subsidiary or affiliated company of the Company, and any predecessor or subsidiary thereof, to the extent that all or part of the business and assets of any such corporation shall have been acquired by the Company either before or after the Effective Date of the Salaried Plan.
(b) “Prior Company” shall mean ARAC with respect to those Cendant Car Rental, Inc. employees who were previously employed by ARAC and who became employees of Cendant Car Rental, Inc. pursuant to an agreement between Cendant and ARAC, effective September 23, 1997.
1.31. “Prior Salaried Plan” shall mean the International Telephone Retirement Plan for Salaried Employees as in effect on December 31, 1971 as applicable to ARAC.
1.32. “Retirement Pension” shall mean a pension or other benefit payable to a Member or his Beneficiary pursuant to Articles 4, 6 or 8 hereof.
1.33. “Salaried Plan” shall mean the Retirement Plan for Salaried Employees of Avis Rent A Car System, Inc., effective as of January 1, 1972.
1.34. “Service” shall mean, (a) with respect to periods prior to January 1, 1976, a Member’s most recent period of continuous employment with the Company or Prior Company which includes December 31, 1975 and (b) with respect to periods after December 31, 1975,
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periods of his employment (i) beginning on the later of January 1, 1976 or his Employment or Reemployment Commencement Date and (ii) ending on his “Severance Date” (as described in Sections 1.34.1 and 1.34.2). In addition, for the purposes of Article 2 and Article 6 of the Plan, a Member’s Service, under clause (b) of the preceding sentence, shall include the period of his absence from employment after his most recent Severance Date, provided that he returns to employment with the Company or Prior Company within twelve months of such date.
1.34.1 A Member’s “Severance Date” shall mean the earlier of (a) the date on which he retires or dies or his employment with the Company or Prior Company as an Employee otherwise is terminated or (b) the first anniversary of the first date of a period in which he remains absent from employment with the Company or Prior Company for any other reason; provided, however, that if a Member retires or dies or his employment as an Employee otherwise is terminated during a period in which he is absent from employment with the Company or Prior Company for any other reason, his Severance Date shall be the date of such retirement, death or other termination of employment.
1.34.2 Notwithstanding the provisions of Section 1.34.1, no Severance Date shall occur for a Member during a period of his Absence in Military Service or Absence on Authorized Leave; provided, however, that periods of a Member’s Absence on Authorized Leave shall be included in his Service only to the extent provided in Section 1.1 or Section 1.2, as applicable.
1.34.3 In addition, in computing a Member’s Service for the purposes of Article 2 and Article 6 of the Plan, there shall be included (a) a Member’s last period of continuous employment with a Predecessor Corporation which includes the Acquisition Date and (b) the period of employment during which an Employee previously performed work for the Company or Prior Company and did not accrue benefits under either the Salaried Plan or the Hourly Plan but instead accrued benefits for such work under a pension plan sponsored by an organization other than the Company or Prior Company.
1.34.4 In addition, the period of time with respect to which a Member receives any severance or separation payment or final vacation pay shall, for all Plan purposes, be included in such Member’s Service, unless the severance or separation payment or final vacation pay is paid to the Member as a single lump sum payment.
1.34.5 A Member’s Service for all Plan purposes shall be expressed in terms of completed years and months, rounding up or down, as the case may be, to the nearest whole month.
1.34.6 A Member’s Service shall also include any period of employment by the Company or Prior Company or by an Affiliated Company (as defined in Section 16.4), to the extent recognized as such under Article 16 of the Plan relating to Transfers.
1.34.7 “Break in Service” shall mean any Severance Period greater than twelve (12) months, excluding any period of up to twelve (12) months during which an Employee is on a maternity/paternity leave. The term “maternity/paternity leave” means any absence of an Employee from work for reasons of (i) the pregnancy of the Employee, (ii) the birth of a child of the Employee or the placement of a child with the Employee for the purposes of adoption, or (iii) the care of a child for a period beginning immediately following such birth or placement.
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1.34.8 “Severance Period” means each period beginning on an Employee’s Severance Date and ending on his next Reemployment Commencement Date.
1.35. “Social Security Benefit” shall mean, except as otherwise specified below, the estimated amount which is payable to a Member at age 65 under Title II of the Social Security Act as in effect on the date his Service terminates, or the estimated amount which would be payable to a Member if he were not disqualified from receiving benefits by continuing in employment, or for any other reason. Notwithstanding the foregoing, any Social Security Benefit determined under this Section 1.35 subsequent to December 31, 1998, shall be based on the provisions of Title II of the Social Security Act as in effect on December 31, 1998. In the case of a Member who has reached his fifty-fifth birthday and has completed ten years of Service as of December 31, 1998, his Social Security Benefit shall be the estimated amount which would be payable to the Member at age 65, calculated on the assumption that the Member would have no further earnings for Social Security purposes after the earlier of his Early Retirement Date or December 31, 1998. In the case of a Member who has not reached his fifty-fifth birthday and who has not completed ten years of Service as of December 31, 1998, his Social Security Benefit shall be the estimated amount which would be payable to the Member at age 65, calculated on the assumption that the Member will continue to receive earnings until his Normal Retirement Date at his rate of Compensation as in effect at the earlier of the date his Service terminates or December 31, 1998. All such estimated amounts shall be determined by the Committee on the advice of the Actuary in accordance with rules applied in a nondiscriminatory manner and without regard to Service, Compensation or changes in Title II of the Social Security Act after December 31, 1998.
Notwithstanding the foregoing, the benefit of a Member shall be calculated or recalculated based on his actual Social Security earnings history, if such Member submits an official copy of his Social Security earnings history to the Committee within six months of the later of his Severance Date or the date he is first notified of this right. Any Member whose benefit is recalculated in accordance with the preceding sentence shall have his benefit adjusted retroactive to his Annuity Starting Date, if appropriate.
1.36. “Spouse Joint and Survivor Annuity” shall mean an annuity which provides (i) actuarially reduced monthly payments to the Member during the Member’s lifetime commencing on his Annuity Starting Date, and (ii) if the Member predeceases his spouse, monthly payments to such spouse for the spouse’s lifetime, equal to 50 percent of the monthly payment which the Member was receiving as of the date of his death. The Spouse Joint and Survivor Annuity referred to in Section 5.2 shall be subsidized, in that the actuarial reduction of the Member’s Retirement Pension for purposes of calculating the Spouse Joint and Survivor Annuity shall be equal to one-half of the actuarial reduction which would otherwise be required to establish for such Member an Equivalent Actuarial Value between this form of benefit and an unsubsidized 50 percent joint and survivor annuity benefit.
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1.37. “Terminated Member’s Spouse Joint and Survivor Annuity” shall mean an annuity which provides (i) actuarially reduced monthly payments to the Member during the Member’s lifetime commencing on his Annuity Starting Date, and (ii) if the Member predeceases his spouse, monthly payments to such spouse for the spouse’s lifetime equal to 50 percent of the monthly payment which the Member was receiving as of the date of his death. The Terminated Member’s Spouse Joint and Survivor Annuity shall be the Equivalent Actuarial Value of the Vested Benefit which would be payable to the Member under Section 6.4 if he were not married.
1.38. “Termination of Employment” shall mean a Member’s ceasing to be employed by the Company other than by reason of death. A Member’s ceasing to be an Employee (as defined herein) shall not be deemed a Termination of Employment if such Member either (i) continues to be employed by the Company other than as an Employee, or (ii) continues to be employed by an Affiliated Company (as defined in Section 16.4).
1.39. “Total and Permanent Disability” shall mean disability due to bodily or mental injury or disease, either occupationally or non-occupationally caused, which the Committee determines, on the basis of medical evidence satisfactory to it, is likely to be permanent and has disabled the Member from further performance of his normal work. The Committee shall apply uniform standards, including reference to medical certification, in determining whether such a disability exists. In the event that a dispute arises between the Member and the Committee as to the existence of such a disability, it shall be settled by a majority decision of three licensed physicians, one to be appointed by the Committee, one by the Member, and a third to be appointed by the two physicians so appointed.
1.40. “Trustee” shall mean the trustee or trustees by which the funds of the Plan are held as provided in Article 10.
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ARTICLE 2.
Membership
2.1. Members on June 30, 1985. Each Employee of the Company or Prior Company on July 1, 1985 (including an Employee on an Absence on Authorized Leave or Total and Permanent Disability) who was a Member of the Prior Plan on June 30, 1985 shall be a Member of the Plan on July 1, 1985.
2.2. Break in Service. Each Member who has a Reemployment Commencement Date after incurring a Break in Service and each Employee who (i) was a Member of the Prior Plan at any time prior to June 30, 1985, (ii) did not become a Member on July 1, 1985 and (iii) has a Reemployment Commencement Date after incurring a Break in Service occurring on or after January 1, 1976, shall not be eligible to participate in the Plan, except that such Member or Employee shall be reinstated as a Member of the Plan, as of the first day of the month coincident with or next following his Reemployment Commencement Date, if his Service is restored pursuant to Section 1.14.2.
2.3. Prior Plan Requirement. Except as otherwise provided in Section 2.2 hereof, no person who was not a member of the Prior Plan on June 30, 1985 shall become a Member of this Plan.
2.4. Termination of Membership. A Member’s membership in the Plan shall terminate if he (i) ceases to be an Employee, other than by reason of retirement under the Plan, and (ii) does not have a Reemployment Commencement Date before incurring a Break in Service, except that a Member’s membership shall continue during any period of Absence in Military Service or Absence on Authorized Leave or while he is not an Employee (as defined in Section 1.17) but is in the employ of the Company, an Associated Company, or an Affiliated Company (as defined in Section 16.4).
2.5. Furnishing Information Required by Committee. Before any Retirement Pension shall be payable to or on the account of a Member or former Member entitled to a Vested Benefit under the Plan, such Member or former Member shall file with the Committee such information as it shall require to establish his rights under the Plan.
ARTICLE 3.
Retirement Dates
3.1. Normal Retirement Date. The “Normal Retirement Date” of a Member shall be the first day of the month coinciding with or next following his sixty-fifth birthday; provided, however, that each Member’s accrued benefit under the Plan shall become one hundred percent (100%) vested and nonforfeitable upon his sixty-fifth birthday notwithstanding any contrary provision of the Plan.
3.2. Early Retirement Date. A Member who has reached his fifty-fifth birthday and has completed ten years of Service may thereafter elect to retire on the first day of any calendar month (herein referred to as his “Early Retirement Date”) prior to his Normal Retirement Date.
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Notwithstanding the foregoing, the “Early Retirement Date” of a Member who was a participant in the Hourly Plan on December 31, 1975 shall be the first day of any month prior to his Normal Retirement Date and coinciding with or next following the date on which he completes three years of Service and reaches his sixtieth birthday, on which he elects to retire, if such date is earlier than the date specified above.
3.3. Disability Retirement Date. A Member who suffers Total and Permanent Disability before his Normal Retirement Date shall retire on the first day of any calendar month (herein referred to as his “Disability Retirement Date”) coincident with or next following the date on which it is determined that he suffered such Total and Permanent Disability.
3.4. Deferred Retirement Date. The “Deferred Retirement Date” of a Member shall be the first day of the month coincident with or next following the date of his actual retirement after his Normal Retirement Date.
ARTICLE 4.
Retirement Pensions
4.1. Normal Retirement Pension. A Member who retires on his Normal Retirement Date shall be entitled to an annual “Normal Retirement Pension” equal to 1-1/2 percent of the Member’s Average Final Compensation multiplied by the number of years of his Credited Service, not in excess of 35 years (37 years with respect to any Member who receives an additional two years of Credited Service pursuant to section 1.14.9(ii)), less 1-3/7 percent of his annual Social Security Benefit multiplied by the number of years of the Member’s Credited Service not in excess of 35 years (37 years with respect to any Member who receives an additional two years of Credited Service pursuant to section 1.14.9(ii)). A Normal Retirement Pension shall commence on the Member’s Normal Retirement Date.
Unless otherwise provided under the Plan, effective on January 1, 1994, each Section 401(a)(17) Employee’s accrued benefit under this Plan shall be the greater of the Accrued Benefit determined for the Employee under (a) or (b) below:
(a) the Employee’s accrued benefit determined with respect to the benefit formula applicable for the Plan Year beginning on or after January 1, 1994, as applied to the Employee’s total years of Credited Service taken into account under the Plan for the purposes of benefit accruals, or
(b) the sum of:
(i) the Employee’s accrued benefit as of June 30, 1994, frozen in accordance with Section 1.401(a)(4)-13 of the Treasury Regulations, and
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(ii) the Employee’s accrued benefit determined under the benefit formula applicable for the Plan Year beginning on or after January 1, 1994, as applied to the Employee’s years of Credited Service credited to the Employee for Plan Years beginning on or after January 1, 1994, for purposes of benefit accruals.
A Section 401(a)(17) Employee means an Employee whose current accrued benefit as of a date on or after the first day of the first Plan Year beginning on or after January 1, 1994, is based on Compensation for a year beginning prior to the first day of the first Plan Year beginning on or after January 1, 1994, that exceeded $150,000.
4.2. Early Retirement Pension. A Member who elects to retire on an Early Retirement Date shall be entitled to an annual “Early Retirement Pension” determined in the manner of a Normal Retirement Pension but based on his Average Final Compensation and Credited Service as of his Early Retirement Date. An Early Retirement Pension shall commence on the Member’s Normal Retirement Date.
Notwithstanding this Section 4.2, a Member may elect to receive his Early Retirement Pension commencing on his Early Retirement Date, or on the first day of any calendar month following his Early Retirement Date and prior to his Normal Retirement Date. If payment of a Member’s Early Retirement Pension commences prior to his Normal Retirement Date, the Member’s Early Retirement Pension determined under Section 4.2 shall be reduced by 1/4 of 1 percent for each full month by which the commencement of benefits precedes the Member reaching age 62.
4.3. Disability Retirement Pension. A Member who has suffered Total and Permanent Disability shall be entitled to an annual “Disability Retirement Pension” determined in the manner of a Normal Retirement Pension but based on the Member’s Average Final Compensation and Credited Service as computed in Section 4.3.1 or Section 4.3.2, as applicable. A Disability Retirement Pension shall commence on the Member’s Normal Retirement Date.
4.3.1 For purposes of Section 4.3 only, the Average Final Compensation of a Member who suffers Total and Permanent Disability prior to December 31, 1994, shall be computed assuming that he continues to receive Compensation during the period between the date he suffers Total and Permanent Disability and the date his Disability Retirement Pension commences at an annual rate of Compensation equal to his rate of Compensation for the 12 month period immediately preceding such Total and Permanent Disability; and such a Member’s Credited Service shall include any portion of the period between the date he suffers Total and Permanent Disability and the date his Disability Retirement Pension commences during which he either (1) receives (or would receive if he were eligible) long-term disability benefits under any plan funded by the Company or Prior Company or (2) receives disability benefits under the Social Security Act then in effect.
4.3.2 For purposes of Section 4.3 only, the Average Final Compensation of a Member who suffers Total and Permanent Disability on or after December 31, 1994, shall be computed assuming that he does not continue to receive Compensation during the period between the date he suffers Total and Permanent Disability and the date his Disability
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Retirement Pension commences; and such a Member’s Credited Service shall not include any portion of the period between the date he suffers Total and Permanent Disability and the date his Disability Retirement Pension commences.
4.3.3 A Member entitled to a Disability Retirement Pension may elect to have such Retirement Pension commence at any time prior to his Normal Retirement Date after he both reaches his fifty-fifth birthday and completes ten years of Service. In such event, his Disability Retirement Pension determined under Sections 4.3 and 4.3.1 shall be reduced by 1/4 of 1 percent for each full month by which the commencement of benefits precedes the Member reaching age 65.
4.3.4 If a Member entitled to a Disability Retirement Pension ceases to have a Total and Permanent Disability prior to qualifying for a Vested Benefit, such Member shall not be entitled to a Disability Retirement Pension hereunder, but the period of such Total and Permanent Disability shall be recognized as Service under the Plan.
4.4. Deferred Retirement Pension. A Member who retires on a Deferred Retirement Date shall be entitled to an annual “Deferred Retirement Pension” determined in the manner of a Normal Retirement Pension but based on his Average Final Compensation and Credited Service on his Deferred Retirement Date; provided, however, that the Deferred Retirement Pension of a Member whose Normal Retirement Date occurred prior to January 1, 1979 and who did not have a Termination of Employment prior to January 1, 1979 shall be the greater of (i) the amount determined under this Section 4.4 or (ii) the Equivalent Actuarial Value of the Normal Retirement Pension determined under Section 4.1 which would have been payable if he had retired on his Normal Retirement Date. A Deferred Retirement Pension shall commence on the Member’s Deferred Retirement Date.
4.5. Employment After Normal Retirement Date and Reemployment After Normal Retirement Date. In the case of a former Member who is re-employed by the Company or an Associated Company (a “Re-employed Member”), and who has a Reemployment Commencement Date more than twelve months after a Severance Date (as described in Sections 1.34.1 and 1.34.2), the total benefit payable to him upon his subsequent Termination of Employment, including any earlier benefit he may have retained under the Plan, shall be limited to the amount it would have been if the Re-employed Member’s total periods of Service had been one continuous period of Service. Payment of any Retirement Pension or Vested Benefit to a Re-employed Member and payment of a Normal Retirement Pension to a Member who continues his employment with the Company or an Affiliated Company after his Normal Retirement Date, shall be suspended effective with the first monthly benefit payable after the date of his reemployment or his continued employment after his Normal Retirement Date. In order for the benefit payment to be suspended under this Section 4.5, with respect to any calendar month, a Re-employed Member or a Member continuing his employment after his Normal Retirement Date must (i) complete at least eight (8) days of employment during such calendar month (or such other standard as may be applicable under Section 203(a)(3)(B) of ERISA) which employment constitutes “Section 203(a)(3)(B) Service” as defined in Section 2530.203-3(c) of the Code of Federal Regulations and (ii) be furnished with a notice containing:
| (a) | a description of the specific reasons for the discontinuance of payments; |
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| (b) | a general description of the Plan provisions relating to the discontinuance; |
| (c) | a copy of such Plan provisions; |
| (d) | a statement to the effect that applicable Department of Labor regulations may be found in Section 2530.203-3 of the Code of Federal Regulations; and |
| (e) | a description of the Plan’s claims procedure. |
4.6. Deductions from Benefits. Unless the Board of Directors otherwise provides under rules uniformly applicable to all Employees similarly situated, the Committee shall deduct from the amount of any Retirement Pension or Vested Benefit under the Plan any amount paid or payable to or on account of any Member under the provisions of any present or future law, pension or benefit scheme of any sovereign government, or any political subdivision thereof, or any fund or organization or government agency or department, on account of which contributions have been made or premiums or taxes paid by the Company, the Prior Company, any Participating Corporation, any Associated Company or any Predecessor Corporation with respect to any service which is Credited Service for purposes of computation of benefits under the Plan; provided, however, that pensions payable for governmental service or benefits under Title II of the Social Security Act are not to be used to reduce the benefits otherwise provided under this Plan except as specifically provided herein.
There shall be deducted from any Retirement Pension or Vested Benefit payable under this Plan the part of any pension or comparable benefit, including any lump sum payment, provided by employer contributions of the Company or the Prior Company, an Affiliated Company (as defined in Section 16.4) or a Predecessor Corporation under any pension plan or other agreement with respect to any service which is treated as Credited Service under this Plan; provided, however, that no such deduction from the Retirement Pension or Vested Benefit payable under this Plan shall occur if the pension plan or other agreement of any such Affiliated Company (as defined in Section 16.4) contains a deduction provision comparable to this Section 4.6.
4.7. No Reduction in Benefits for Members of Salaried or Hourly Plans. Notwithstanding anything to the contrary herein, in the case of any Member who was a member of the Salaried Plan or the Hourly Plan prior to January 1, 1976, the portion of his Retirement Pension attributable to Service prior to January 1, 1976 shall not be less than the retirement pension he had accrued under such Salaried Plan or Hourly Plan.
ARTICLE 5.
Normal Forms of Retirement Pension
5.1. Normal Form of Retirement Pension — Unmarried Member. For a Member who is not married on his Annuity Starting Date, the Member’s Retirement Pension shall be in the form of an annuity, payable monthly for life, commencing on the Member’s Annuity Starting Date and terminating with the last monthly payment preceding such Member’s death.
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5.2. Normal Form of Retirement Pension — Married Member. For a Member who is married on his Annuity Starting Date, the Member’s Retirement Pension shall be in the form of a Spouse Joint and Survivor Annuity.
5.2.1 A married Member may elect (and may revoke such election and thereafter re-elect) pursuant to a Qualified Election (as defined below), at any time before the end of the period described in Section 5.2.2 (herein referred to as the “Election Period”), not to have his Retirement Pension paid as a Spouse Joint and Survivor Annuity pursuant to Section 5.2. The election under this Section 5.2.1 shall be made in writing by the Member to the Committee.
5.2.2 The Election Period shall be the ninety-day (90-day) period ending on the Member’s Annuity Starting Date; provided, however, that in no event shall the Election Period end within ninety (90) days after the information described in Section 5.2.3 is mailed or delivered to the Member, unless he requests the additional information described in Section 5.2.4, in which case the Election Period shall end, if later, sixty (60) days after the additional information is mailed or delivered to him. Notwithstanding the foregoing and pursuant to the requirements of section 417(a)(7)(B) of the Code, a Member may elect, with the consent of the Member’s spouse, to commence his distribution in the Spouse Joint and Survivor Annuity form of payment, as provided in this Section 5.2 or Section 6.5 or an optional form of payment, as provided in Section 7.6, on an Annuity Starting Date which is less than thirty (30) days after the written explanation required herein has been provided to the Member by the Committee or as of an Annuity Starting Date which precedes the date as of which such written explanation is provided to the Member by the Committee, provided that (i) the Committee informs the Member that the Member has the right to a period of at least thirty (30) days after receiving such written explanation to consider whether to waive the Spouse Joint and Survivor Annuity payable under the terms of this Plan and to elect a method of distribution provided in Section 7.6; (ii) the Member is permitted to revoke an affirmative distribution election at any time prior to the Annuity Starting Date or, if later, at any time prior to the expiration of the seven (7) day period that begins on the day after the day the Member receives such written explanation; and (iii) the commencement of payments does not occur prior to the expiration of the seven (7) day period that begins on the day after the day the Member receives such written explanation.
5.2.3 At least nine (9) months prior to the Member’s earliest Annuity Starting Date, the Committee shall furnish to him (by mail or personal delivery) a written explanation of: (i) the terms and conditions of the Spouse Joint and Survivor Annuity; (ii) the Member’s right to make and the effect of an election to waive the Spouse Joint and Survivor Annuity form of benefit; (iii) the rights of a Member’s spouse; (iv) the right to make, and effect of, a revocation of a previous election to waive the Spouse Joint and Survivor Annuity; and (v) the relative value of the various optional forms of benefit under the Plan. The explanation shall also state that the Committee will provide the information described in Section 5.2.4, if he requests such information in writing within sixty (60) days after the foregoing statement is mailed or delivered.
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5.2.4 Upon written request made by the Member within sixty (60) days of the date the statement described in Section 5.2.3 was mailed or delivered, the Committee shall furnish to him (by mail or personal delivery) a written explanation in nontechnical language of the terms and conditions of the Spouse Joint and Survivor Annuity provisions of the Plan and the financial effects upon the Member’s Retirement Pension of his making the election under Section 5.2.1. Such explanation shall be personally delivered or mailed to the Member within thirty (30) days from the date of the Member’s written request.
5.2.5 A “Qualified Election” means a waiver of a Spouse Joint and Survivor Annuity. The waiver must be in writing and must be consented to by the Member’s spouse. The spouse’s consent to a waiver must be witnessed by a representative of the Committee or a notary public. Notwithstanding this consent requirement, if the Member establishes to the satisfaction of the Committee that such written consent cannot be obtained because there is no spouse or the spouse cannot be located, a waiver by the Member shall be deemed a Qualified Election. Any consent necessary under this provision shall be valid only with respect to the spouse who signs the consent, or in the event of a deemed Qualified Election, the designated spouse. Additionally, a revocation of a prior waiver may be made by a Member without the consent of the spouse at any time before the Member’s Annuity Starting Date. The number of such revocations shall not be limited.
5.3. Small Payments. If the monthly benefit payable to a Member at his Normal Retirement Date is less than $25 per month, the Equivalent Actuarial Value of such benefit on a lump sum basis shall be paid to the Member at the time of his Termination of Employment. If the monthly benefit payable to a Member at any other Annuity Starting Date is less than $25 per month, the Equivalent Actuarial Value of such benefit on a lump sum basis shall be paid to the Member at such Annuity Starting Date.
5.3.1 If the actuarial equivalent lump sum value, as determined in Section 5.3.2, of a Member’s benefit payable under the Plan is less than or equal to $3,500 ($5,000 effective January 1, 1998), such lump sum shall be paid to the Member at the time of his Termination of Employment. If such lump sum value exceeds $3,500 ($5,000 effective January 1, 1998), no such lump sum payment shall be made to a Member prior to the Member’s Normal Retirement Date without the consent of such Member and the Member’s spouse, if any. If the value of the Member’s vested benefit at the time of any distribution amounts to $3,500 ($5,000 effective January 1, 1998), the value of the Member’s vested benefit at any subsequent time will be deemed to exceed the applicable amount. The preceding sentence shall be inapplicable to distributions made on or after October 17, 2000.
5.3.2 For periods prior to January 1, 2000, solely for purposes of determining whether a payout may be made under this Section 5.3 the actuarial value shall be computed as of the Annuity Starting Date by using an interest rate: (i) if the Member’s benefit does not exceed $25,000, not in excess of the applicable rate that would be used by the Pension Benefit Guaranty Corporation (“PBGC”) (determined as of the first month of the Plan Year during which falls the Member’s Annuity Starting Date) for purposes of determining the present value of a lump sum distribution for single employer plan terminations (the “PBGC Rate”) and (ii) if the Member’s benefit exceeds $25,000, not in excess of 120% of the PBGC Rate.
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For periods on and after January 1, 2000, but prior to January 1, 2002, the amount of benefits payable as a lump sum shall not be less than the greater of (i) the amount of such benefit determined under the actuarial assumptions specified above or (ii) the amount of such benefit determined using the “Applicable Interest Rate” and the “Applicable Mortality Table” as defined herein.
For periods on and after January 1, 2002, the amount of benefits payable as a lump sum shall be determined using the “Applicable Interest Rate” and the “Applicable Mortality Table” as defined herein.
Notwithstanding the foregoing, effective for distributions with an Annuity Starting Date on or after December 31, 2002, the “Applicable Mortality Table” shall mean the mortality table prescribed in Revenue Ruling 2001-62.
For purposes of this Section 5.3.2, (1) “Applicable Interest Rate” means the annual interest rate on 30-year Treasury securities, as specified by the Commissioner of Internal Revenue in revenue rulings, notices or other guidance published in the Internal Revenue Bulletin, based on such interest rate as of the November of the immediately preceding Plan Year (except that for periods prior to January 1, 2003, the rate determined as of the first month of the Plan Year during which falls the Member’s Annuity Starting Date shall be used, if such rate produces a greater benefit) and (2) “Applicable Mortality Table” means the mortality table based on the prevailing Commissioner’s standard table (described in section 807(d)(5)(A) of the Code) used to determine reserves for group annuity contracts issued on the date as of which present value is being determined (without regard to any other subparagraph of section 807(d)(5)(A) of the Code), that is prescribed by the Commissioner of Internal Revenue in revenue rulings, notices or other guidance published in the Internal Revenue Bulletin.
Notwithstanding the foregoing, for purposes of making the actuarial adjustment required by Code section 415(b)(2)(E)(ii) for Plan Years beginning in 2004 or 2005, the interest rate shall be the greater of the “Applicable Interest Rate” as defined herein or 5.5%; provided, however, that in the case of a Participant receiving a distribution after December 31, 2003 and before January 1, 2005, the substitution of 5.5% for the “Applicable Interest Rate” may not reduce the benefit payable to the Participant below the amount determined using the “Applicable Interest Rate” in effect as of the last day of the last Plan Year beginning before January 1, 2004.
5.4. Facility of Payments. In the event that the Committee shall find that any person to whom benefits are payable is unable to care for his affairs because of illness or accident, or is a minor, or has died, then unless claim shall have been made therefor by a duly appointed legal representative, the Committee may direct that any benefit payment due be paid to such person’s spouse, child, parent or other blood relative, or to any individual appointed by a court of competent jurisdiction, or to any person deemed by the Committee to have incurred expense for such person otherwise entitled to payment, and any such payments made shall be a complete discharge of the liabilities of the Plan therefor.
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ARTICLE 6.
Termination of Service
6.1. Termination Prior to Retirement. There are no benefits payable under the Plan if a Member’s employment terminates after January 1, 1976 and prior to his retirement under the Plan unless the Member meets the requirements of Section 6.2.
6.2. Vested Benefit. A Member who is not eligible for a Retirement Pension under Article 4 of the Plan shall be entitled to receive an annual “Vested Benefit” if (i) he has completed ten years of Service (effective for Plan Years commencing after June 30, 1989, five years of Service) at the date of his Termination of Employment, (ii) his Termination of Employment results from an involuntary layoff (other than a termination for cause) and the sum of his age and his years of Service at the date of his Termination of Employment is at least sixty-five (65), or (iii) the Member is an employee of We Try Harder, Inc. on September 30, 1986. For purposes of the preceding sentence, all Members similarly situated shall be treated in similar fashion. If the amount of the Member’s Vested Benefit at the time of his Termination of Employment is zero, the Member shall be deemed to have received a distribution of such zero Vested Benefit. For purposes of this Section 6.2, years of Service shall include (a) all years of Service as an Employee and all other years of Service during a Member’s last period of continuous Service, if any, prior to January 1, 1976, and, (b) from and after January 1, 1976, all years of Service, subject to the rules relating to reemployment set forth in Section 1.14.2 and 1.14.3. Such Vested Benefit shall be determined in the manner of a Normal Retirement Pension but based on the Member’s Average Final Compensation and Credited Service on the date of his Termination of Employment. Such Vested Benefit shall commence on a Member’s Normal Retirement Date except as provided in Section 6.3.
A Member who is not eligible for a Vested Benefit pursuant to the foregoing provisions of this Section 6.2 upon his Termination of Employment shall, in all events, be entitled to an annual Vested Benefit, computed and paid as set forth above, provided, however, that such Vested Benefit shall be determined in the manner of a Normal Retirement Pension but based on the Member’s Average Final Compensation and Credited Service on June 30, 1985.
6.3. Early Commencement of Vested Benefits. A Member whose employment has terminated and who is entitled to a Vested Benefit may elect to have his benefit commence at any time after he reaches his fifty-fifth birthday and prior to his Normal Retirement Date. In such event, the Member’s Vested Benefit determined under Section 6.2 shall be reduced by (i) 5/12 of 1 percent for each full month by which the commencement of benefits precedes the Member reaching age 65, (ii) if the Member’s Termination of Employment results from an involuntary layoff (other than a termination for cause) and he has completed at least twenty-five years of Credited Service, 1/4 of 1 percent for each full month by which the commencement of benefits precedes the Member reaching age 62, or (iii) if the Member was an employee of We Try Harder, Inc. on September 30, 1986, and the sum of
(a) his Service under the Plan, and
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(b) his participation in PHH Group, Inc. Pension Plan exceeds 10 years and he is no longer a participant in PHH Group, Inc. Pension Plan, 1/4 of 1 percent for each full month by which the commencement of benefits precedes the Member reaching age 62.
6.4. Normal Form of Vested Benefit — Unmarried Member. For a Member who is entitled to a Vested Benefit in accordance with Section 6.2, and who is not married on his Annuity Starting Date, the Member’s Vested Benefit shall be in the form of an annuity, payable monthly for life, commencing on the Member’s Annuity Starting Date and terminating with the last monthly payment preceding such Member’s death.
6.5. Normal Form of Vested Benefit — Married Member. For a Member who is entitled to a Vested Benefit in accordance with Section 6.2, and who is married on his Annuity Starting Date, the Member’s Retirement Pension shall be in the form of a Terminated Member’s Spouse Joint and Survivor Annuity.
6.5.1 A married Member may elect (and may revoke such election and thereafter re-elect) pursuant to a Qualified Election (as defined below), at any time before the end of the period described in Section 6.5.2 (herein referred to as the “Election Period”), not to have his Vested Benefit paid as a Terminated Member’s Spouse Joint and Survivor Annuity pursuant to Section 6.5. The election under this Section 6.5.1 shall be made in writing by the Member to the Committee.
6.5.2 The Election Period shall be the ninety day (90-day) period ending on the Member’s Annuity Starting Date; provided, however, that in no event shall the Election Period end within ninety (90) days after the information described in Section 6.5.3 is mailed or delivered to the Member, unless he requests the additional information described in Section 6.5.4 in which case the Election Period shall end, if later, sixty (60) days after the additional information is mailed or delivered to him. Notwithstanding the foregoing and pursuant to the requirements of section 417(a)(7)(B) of the Code, a Member may elect, with the consent of the Member’s spouse, to commence his distribution in the Spouse Joint and Survivor Annuity form of payment, as provided in Section 5.2 or this Section 6.5 or an optional form of payment, as provided in Section 7.6, on an Annuity Starting Date which is less than thirty (30) days after the written explanation required herein has been provided to the Member by the Committee or as of an Annuity Starting Date which precedes the date as of which such written explanation is provided to the Member by the Committee, provided that (i) the Committee informs the Member that the Member has the right to a period of at least thirty (30) days after receiving such written explanation to consider whether to waive the Spouse Joint and Survivor Annuity payable under the terms of this Plan and to elect a method of distribution provided in Section 7.6; (ii) the Member is permitted to revoke an affirmative distribution election at any time prior to the Annuity Starting Date or, if later, at any time prior to the expiration of the seven (7) day period that begins on the day after the day the Member receives such written explanation; and (iii) the commencement of payments does not occur prior to the expiration of the seven (7) day period that begins on the day after the day the Member receives such written explanation.
6.5.3 At least nine (9) months prior to the Member’s earliest Annuity Starting Date, the Committee shall furnish to him (by mail or personal delivery) a written explanation of:
(i) the terms and conditions of the Terminated Member’s Spouse Joint and Survivor Annuity; (ii) the Member’s right to make and the effect of an election to waive the Terminated Member’s Spouse Joint and Survivor Annuity form of benefit; (iii) the rights of a Member’s spouse; (iv) the right to make, and the effect of, a revocation of a previous election to waive the Terminated Member’s Spouse Joint and Survivor Annuity and (v) the relative values of the various optional forms of benefit under the Plan. The explanation shall also state that the Committee will provide the information described in Section 6.5.4, if he requests such information in writing within sixty (60) days after the foregoing statement is mailed or delivered.
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6.5.4 Upon written request made by the Member within sixty (60) days of the date the statement described in Section 6.5.3 was mailed or delivered, the Committee shall furnish to him (by mail or personal delivery) a written explanation in nontechnical language of the terms and conditions of the Terminated Member’s Spouse Joint and Survivor Annuity provisions of the Plan and the financial effects upon the Member’s Vested Benefit of his making the election under Section 6.5.1. Such explanation shall be personally delivered or mailed to the Member within thirty (30) days from the date of the Member’s written request.
6.5.5 A “Qualified Election” means a waiver of a Terminated Member’s Spouse Joint and Survivor Annuity. The waiver must be in writing and must be consented to by the Member’s spouse. The spouse’s consent to a waiver must be witnessed by a representative of the Committee or a notary public. Notwithstanding this consent requirement, if the Member establishes to the satisfaction of the Committee that such written consent cannot be obtained because there is no spouse or the spouse cannot be located, a waiver by the Member shall be deemed a Qualified Election. Any consent necessary under this provision shall be valid only with respect to the spouse who signs the consent, or in the event of a deemed Qualified Election, the designated spouse. Additionally, a revocation of a prior waiver may be made by a Member without the consent of the spouse at any time before the Member’s Annuity Starting Date. The number of such revocations shall not be limited.
6.6. Termination Prior to January 1, 1976. If a Member’s employment terminated prior to January 1, 1976, his benefits, if any, shall be determined in accordance with the provisions of the Prior Plan as in effect at the date of such termination of employment.
ARTICLE 7.
Optional Forms of Benefits
7.1. Election of Optional Benefit. In lieu of the normal form of Retirement Pension referred to in Section 5.1 or Section 5.2, or in lieu of the normal form of Vested Benefit referred to in Section 6.4 or Section 6.5, whichever is applicable, a Member may elect, in accordance with the provisions of Section 7.6, to have his Retirement Pension or Vested Benefit paid under one of the optional forms of benefits set forth in this Article. All optional forms of benefits shall be determined by the Actuary on the basis of Equivalent Actuarial Values. Regardless of the form of payment, all distributions shall comply with section 401(a)(9) of the Code and the Treasury Regulations thereunder, including the minimum distribution incidental death benefit requirement of section 401(a)(9)(G) of the Code and the Treasury Regulations thereunder, and such provisions shall override any Plan provisions otherwise inconsistent therewith.
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7.2. Straight Life Annuity Option. A married Member may elect, in accordance with the provisions of Section 7.6, to receive the Retirement Pension or Vested Benefit to which he is entitled under the Plan in the form of an annuity payable for the Member’s life and terminating with the last monthly payment preceding such Member’s death.
7.3. Joint and Survivor Annuity Option. A Member may elect, in accordance with the provisions of Section 7.6, to receive the Retirement Pension or Vested Benefit to which he is entitled under the Plan in the form of a joint and survivor annuity with a “Joint Annuitant” selected by the Member. Such joint and survivor annuity shall provide (i) actuarially reduced monthly payments to the Member during the Member’s lifetime and (ii) if the Member predeceases the Joint Annuitant, monthly payments in the same amount or one half thereof, as designated by the Member, to such Joint Annuitant for his life. If a Member dies prior to his Normal Retirement Date and without having elected to retire on an Early Retirement Date, the election under this Section 7.3 shall be void and no benefit will be paid under this option. If the Member dies after his Normal Retirement Date, or after the commencement of his Retirement Pension or Vested Benefit, the Joint Annuitant shall receive the reduced amount of benefit provided for him under this option. If the Joint Annuitant dies prior to the commencement of a Retirement Pension or a Vested Benefit to the Member and prior to the Member’s Normal Retirement Date, the election shall be void and the Member will receive his Retirement Pension or Vested Benefit pursuant to Sections 5.1, 5.2, 6.4 or 6.5, whichever is applicable. If the Joint Annuitant dies after the Member’s Normal Retirement Date or after the commencement of his Retirement Pension or Vested Benefit, the Member will receive the reduced Retirement Pension or Vested Benefit provided for him under this option.
7.4. Ten Year Certain Option. A Member may elect, in accordance with the provisions of Section 7.6, to receive the Retirement Pension or Vested Benefit to which he is entitled in the form of an actuarially reduced annuity during his lifetime, with the provision that if he dies after his Normal Retirement Date, or after his benefits commenced but prior to receiving one hundred twenty (120) monthly payments, the entire amount or, as the case may be, the balance of such one hundred twenty (120) monthly payments shall be paid to the Member’s Beneficiary. The Committee shall, at the Beneficiary’s election, provide that all payments to the Beneficiary under this Section shall be commuted and paid in a lump sum.
A Member who elects a Ten Year Certain Option shall, at the time of such election, designate a primary Beneficiary or Beneficiaries to receive any payments under such Ten Year Certain Option after the death of the Member. Such Member shall also designate one or more secondary or contingent Beneficiaries to receive any payments under such Ten Year Certain Option after the death of the Member in the event that the designated primary Beneficiary or Beneficiaries predecease the Member. Such designations shall be held on file by the Committee and may be changed by the Member at any time prior to his death. In the event that neither the Member nor any designated primary or secondary Beneficiary survives to receive all payments which become due under such Ten Year Certain Option, the remaining payments shall be made to the estate of either the Member or his Beneficiary or Beneficiaries, whoever is last to survive.
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7.5. Social Security Level Income Option. A Member who is entitled to an Early Retirement Pension or to a Vested Benefit and who commences payment of such Pension or Benefit prior to his Normal Retirement Date may elect, in accordance with the provisions of Section 7.6, to receive such Pension or Benefit in a form which is actuarially adjusted so as to be larger for the months before he becomes eligible for federal Social Security benefits and smaller for the months after he becomes eligible for federal Social Security benefits. The effect of an election of this Social Security Level Income Option shall be that the monthly payments received by the Member, including both the benefits from this Plan and the benefits under Social Security to which the Member is entitled, will be approximately equal both before and after he becomes eligible for Social Security benefits. For purposes of determining the amount of Social Security benefits under this Social Security Level Income Option, the estimated amount payable to a Member at age 62 under Title II of the Social Security Act as in effect on the Member’s Annuity Starting Date shall be used.
7.6. Exercise of Option. The Member’s election of an option described in Sections 7.2, 7.3, 7.4, or 7.5 must be consented to by the Member’s spouse, if any, in the manner prescribed in and subject to the rules of Sections 5.2.2 and 5.2.5. Any such election shall become effective on the Member’s Annuity Starting Date. Until such election becomes effective, the Member may change his prior beneficiary or contingent annuitant designation (without notice to any prior or new designee) or may revoke such election entirely by delivering a new election form to the Committee; provided, however, that any such change shall require the consent, in the manner referred to above, of the Member’s spouse, if any, unless such change will result in payment of the Member’s benefit in the form of a Spouse Joint and Survivor Annuity, as defined in Section 5.2, or a Terminated Member’s Spouse Joint and Survivor Annuity, as defined in Section 6.5. Benefits shall be paid (if any are payable) in accordance with the last duly made election received by the Committee prior to the Member’s Annuity Starting Date.
7.7. Required Distributions. Notwithstanding any provision in the Plan to the contrary, distributions to any Member who (i) attains age 70- 1/2 prior to January 1, 2001 or (ii) is a 5-percent owner (as defined in Section 416(i) of the Code) shall be made or commence no later than April 1st of the calendar year following the year in which such Member attains age 70- 1/2 . Distributions to Members who are non-5-percent owners and who attain age 70- 1/2 on or after January 1, 2001 shall be made or commence no later than April 1st of the calendar year following the later of (i) the calendar year in which the Member attains age 70- 1/2, or (ii) the calendar year in which the Member terminates employment.
7.7.1 Notwithstanding the foregoing, a Member who attains age 70 1 /2 on or after January 1, 2001, but before January 1, 2002, and who has not terminated employment with the Company, shall have the right but not the obligation to have distribution commence not later than April 1 of the calendar year following the calendar year in which the Member attains age 70 1/2 and in the same form as provided in Sections 5.1, 5.2, 6.4, 6.5 and 7.6. Such distributions shall not be less than the amount required to satisfy the requirements of section 401(a)(9) of the Code.
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7.7.2 The amount of the minimum distributions required under this Section 7.7 shall be the minimum amounts required under Section 401(a)(9) of the Code and the Treasury Regulations issued thereunder based upon the life expectancy of an unmarried Member or the joint life expectancy of a married Member and his spouse and shall be payable no less frequently than annually. The life expectancies determined pursuant to this Section 7.7.2 shall not be recalculated. After the initial benefit payment has been made, the amount of the succeeding benefit payments must be made by the end of each of the next following calendar years. With respect to distributions under the Plan made for calendar years beginning on or after January 1, 2001, the Plan will apply the minimum distribution requirements of section 401(a)(9) of the Internal Revenue Code in accordance with the regulations under section 401(a)(9) that were proposed in January 2001, notwithstanding any provision of the Plan to the contrary. This amendment shall continue in effect until the end of the last calendar year beginning before the effective date of final regulations under section 401(a)(9) or such other date specified in guidance published by the Internal Revenue Service.
7.7.3 With respect to a Member who is not a 5-percent owner and whose required distribution hereunder does not commence as of the April 1 following attainment of age 70 1/2 because such Member has not terminated employment with the Company, such Member’s Retirement Pension shall be actuarially increased to take into account the period after age 70 1/2 during which such Member did not receive a Retirement Pension. Such actuarial increase shall be the actuarial equivalent of the Member’s Retirement Pension using an interest rate of 8% and the 1984 UP Mortality Table and shall be determined beginning as of the April 1 following the calendar year in which the Member attains age 70 1/2 (or January 1, 1997, if the Member attains age 70 1/2 prior to 1996) and ending on the date on which the Member’s Retirement Pension commences after retirement in an amount sufficient to satisfy the requirements of section 401(a)(9) of the Code. The amount of the actuarial increase payable as of the end of the period for which such actuarial increase must be made shall not be less than the Actuarial Equivalent of the Member’s Retirement Pension that would have been payable as of the date the actuarial increases must commence, plus the Actuarial Equivalent of the additional benefits accrued after that date and reduced by the Actuarial Equivalent of any distributions made after that date. To the extent permitted under section 411(b)(1)(H) of the Code, the actuarial increase otherwise required under section 401(a)(9)(C)(iii) of the Code shall reduce the benefit accrual otherwise required under section 411(b)(1)(H) of the Code.
7.7.4 The commencement of Member’s minimum required distribution shall not affect his entitlement to accrue further benefits under the Plan.
7.7.5 If the Member dies before distribution of his or her interest begins, distribution of the Member’s entire interest shall be completed by December 31 of the calendar year containing the fifth anniversary of the Member’s death except to the extent that an election is made to receive distributions in accordance with (a) or (b) below:
(a) if any portion of the Member’s interest is payable to a designated beneficiary, distributions may be made over the life or over a period certain not greater than the life expectancy of the designated beneficiary commencing on or before December 31 of the calendar year immediately following the calendar year in which the Member died;
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(b) if the designated beneficiary is the Member’s surviving spouse, the date distributions are required to begin in accordance with (a) above shall not be earlier than the later of (1) December 31 of the calendar year immediately following the calendar year in which the Member died and (2) December 31 of the calendar year in which the Member would have attained age 70 1/2.
7.7.6 (i) Final Regulations.
(a) Effective Date. The provisions of this Final Regulations Section will apply for purposes of determining required minimum distributions for calendar years beginning with the 2003 calendar year.
(b) Precedence. The requirements of this Final Regulations Section will take precedence over any inconsistent provisions of the Plan.
(c) Requirements of Treasury Regulations Incorporated. All distributions required under this Final Regulations Section will be determined and made in accordance with the Treasury regulations under section 401(a)(9) of the Code.
(d) TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of this Final Regulations section, other than Section (i)(d), distributions may be made under a designation made before January 1, 1984, in accordance with section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the plan that relate to section 242(b)(2) of TEFRA.
(ii) Time and Manner of Distribution.
(a) Required Beginning Date. The Member’s entire interest will be distributed, or begin to be distributed, to the Member no later than the Member’s required beginning date.
(b) Death of Member Before Distributions Begin. If the Member dies before distributions begin, the Member’s entire interest will be distributed, or begin to be distributed, no later than as follows:
(1) If the Member’s surviving spouse is the Member’s sole designated beneficiary, then, except as provided in the adoption agreement, distributions to the surviving spouse will begin by December 31 of the calendar year immediately following the calendar year in which the Member died, or by December 31 of the calendar year in which the Member would have attained age 70 1/2, if later.
(2) If the Member’s surviving spouse is not the Member’s sole designated beneficiary, then, except as provided in the adoption agreement, distributions to the designated beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the Member died.
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(3) If there is no designated beneficiary as of September 30 of the year following the year of the Member’s death, the Member’s entire interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the Member’s death.
(4) If the Member’s surviving spouse is the Member’s sole designated beneficiary and the surviving spouse dies after the Member but before distributions to the surviving spouse begin, this Section (ii)(b), other than Section (ii)(b)(1), will apply as if the surviving spouse were the Member.
For purposes of this Sections (ii)(b) and (v), distributions are considered to begin on the Member’s required beginning date (or, if Section (ii)(b)(4) applies, the date distributions are required to begin to the surviving spouse under Section (ii)(b)(1)). If annuity payments irrevocably commence to the Member before the Member’s required beginning date (or to the Member’s surviving spouse before the date distributions are required to begin to the surviving spouse under Section (ii)(b)(1)), the date distributions are considered to begin is the date distributions actually commence.
(c) Form of Distribution. Unless the Member’s interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the required beginning date, as of the first distribution calendar year distributions will be made in accordance with Sections (iii), (iv) and (v) of this Final Regulations section. If the Member’s interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements of section 401(a)(9) of the Code and the Treasury regulations. Any part of the Member’s interest which is in the form of an individual account described in section 414(k) of the Code will be distributed in a manner satisfying the requirements of section 401(a)(9) of the Code and the Treasury regulations that apply to individual accounts.
(iii) Determination of Amount to be Distributed Each Year.
(a) General Annuity Requirements. If the Member’s interest is paid in the form of annuity distributions under the Plan, payments under the annuity will satisfy the following requirements:
(1) the annuity distributions will be paid in periodic payments made at intervals not longer than one year;
(2) the distribution period will be over a life (or lives) or over a period certain not longer than the period described in Section (iv) or (v);
(3) once payments have begun over a period certain, the period certain will not be changed even if the period certain is shorter than the maximum permitted;
(4) payments will either be nonincreasing or increase only as follows:
(A) by an annual percentage increase that does not exceed the annual percentage increase in a cost-of-living index that is based on prices of all items and issued by the Bureau of Labor Statistics;
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(B) to the extent of the reduction in the amount of the Member’s payments to provide for a survivor benefit upon death, but only if the beneficiary whose life was being used to determine the distribution period described in Section (iv) dies or is no longer the Member’s beneficiary pursuant to a qualified domestic relations order within the meaning of section 414(p);
(C) to provide cash refunds of employee contributions upon the Member’s death; or
(D) to pay increased benefits that result from a plan amendment.
(b) Amount Required to be Distributed by Required Beginning Date. The amount that must be distributed on or before the Member’s required beginning date (or, if the Member dies before distributions begin, the date distributions are required to begin under Section (ii)(b)(1) or (ii)(b)(2)) is the payment that is required for one payment interval. The second payment need not be made until the end of the next payment interval even if that payment interval ends in the next calendar year. Payment intervals are the periods for which payments are received, e.g., bi-monthly, monthly, semi-annually, or annually. All of the Member’s benefit accruals as of the last day of the first distribution calendar year will be included in the calculation of the amount of the annuity payments for payment intervals ending on or after the Member’s required beginning date.
(c) Additional Accruals After First Distribution Calendar Year. Any additional benefits accruing to the Member in a calendar year after the first distribution calendar year will be distributed beginning with the first payment interval ending in the calendar year immediately following the calendar year in which such amount accrues.
(iv) Requirements For Annuity Distributions That Commence During Member’s Lifetime.
(a) Joint Life Annuities Where the Beneficiary Is Not the Member’s Spouse. If the Member’s interest is being distributed in the form of a joint and survivor annuity for the joint lives of the Member and a nonspouse beneficiary, annuity payments to be made on or after the Member’s required beginning date to the designated beneficiary after the Member’s death must not at any time exceed the applicable percentage of the annuity payment for such period that would have been payable to the Member using the table set forth in Q&A-2 of section 1.401(a)(9)-6T of the Treasury regulations. If the form of distribution combines a joint and survivor annuity for the joint lives of the Member and a nonspouse beneficiary and a period certain annuity, the requirement in the preceding sentence will apply to annuity payments to be made to the designated beneficiary after the expiration of the period certain.
(b) Period Certain Annuities. Unless the Member’s spouse is the sole designated beneficiary and the form of distribution is a period certain and no life annuity, the period certain for an annuity distribution commencing during the Member’s lifetime may not exceed the applicable distribution period for the Member under the Uniform Lifetime Table set
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forth in section 1.401(a)(9)-9 of the Treasury regulations for the calendar year that contains the annuity starting date. If the annuity starting date precedes the year in which the Member reaches age 70, the applicable distribution period for the Member is the distribution period for age 70 under the Uniform Lifetime Table set forth in section 1.401(a)(9)-9 of the Treasury regulations plus the excess of 70 over the age of the Member as of the Member’s birthday in the year that contains the annuity starting date. If the Member’s spouse is the Member’s sole designated beneficiary and the form of distribution is a period certain and no life annuity, the period certain may not exceed the longer of the Member’s applicable distribution period, as determined under this section (iv)(b), or the joint life and last survivor expectancy of the Member and the Member’s spouse as determined under the Joint and Last Survivor Table set forth in section 1.401(a)(9)-9 of the Treasury regulations, using the Member’s and spouse’s attained ages as of the Member’s and spouse’s birthdays in the calendar year that contains the annuity starting date.
(v) Requirements For Minimum Distributions Where Member Dies Before Date Distributions Begin.
(a) Member Survived by Designated Beneficiary. Except as provided in the adoption agreement, if the Member dies before the date distribution of his or her interest begins and there is a designated beneficiary, the Member’s entire interest will be distributed, beginning no later than the time described in section (ii)(b)(1) or (ii)(b)(2), over the life of the designated beneficiary or over a period certain not exceeding:
(1) unless the annuity starting date is before the first distribution calendar year, the life expectancy of the designated beneficiary determined using the beneficiary’s age as of the beneficiary’s birthday in the calendar year immediately following the calendar year of the Member’s death; or
(2) if the annuity starting date is before the first distribution calendar year, the life expectancy of the designated beneficiary determined using the beneficiary’s age as of the beneficiary’s birthday in the calendar year that contains the annuity starting date.
(b) No Designated Beneficiary. If the Member dies before the date distributions begin and there is no designated beneficiary as of September 30 of the year following the year of the Member’s death, distribution of the Member’s entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Member’s death.
(c) Death of Surviving Spouse Before Distributions to Surviving Spouse Begin. If the Member dies before the date distribution of his or her interest begins, the Member’s surviving spouse is the Member’s sole designated beneficiary, and the surviving spouse dies before distributions to the surviving spouse begin, this Section (v) will apply as if the surviving spouse were the Member, except that the time by which distributions must begin will be determined without regard to Section (ii)(b)(1).
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(vi) Definitions.
(a) Designated beneficiary. The individual who is designated as the beneficiary under Section 1.8 of the Plan and is the designated beneficiary under section 401(a)(9) of the Internal Revenue Code and section 1.401(a)(9)-1, Q&A-4, of the Treasury regulations.
(b) Distribution calendar year. A calendar year for which a minimum distribution is required. For distributions beginning before the Member’s death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the Member’s required beginning date. For distributions beginning after the Member’s death, the first distribution calendar year is the calendar year in which distributions are required to begin pursuant to section (ii)(b).
(c) Life expectancy. Life expectancy as computed by use of the Single Life Table in section 1.401(a)(9)-9 of the Treasury regulations.
(d) Required beginning date. The date specified in Section 7.7 of the Plan.
7.8. Rollover Distribution. Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee’s election under this Section 7.8, effective January 1, 1993, a distributee may elect, at the time and in the manner prescribed by the Committee, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover.
If a mandatory distribution under Section 5.3.1 is an eligible rollover distribution to a Participant that exceeds $1,000 (other than a distribution to a spouse or Code Section 414(p) alternate payee of a Participant), and if the Participant does not affirmatively elect to have such distribution paid directly to an eligible retirement plan specified by the Participant in a direct rollover in accordance with this Section 7.8 or to receive the distribution directly, the Plan shall pay the distribution in a direct rollover to an individual retirement plan designated by the Plan Administrator and established in the name of the Participant.
7.8.1 An eligible rollover distribution is a distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include: (i) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee’s designated beneficiary, or for a specified period of ten (10) years or more; (ii) any distribution to the extent such distribution is required under section 401(a)(9) of the Code; and (iii) any hardship distribution.
7.8.2 An eligible retirement plan is (i) a plan qualified under section 401(a) or 403(a) of the Code, (ii) a tax-sheltered annuity described in section 403(b) of the Code, (iii) an eligible plan under section 457(b) of the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from the Plan, and (iv) an individual retirement arrangement under section 408 of the Code. The definition of eligible retirement plan shall also apply in the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the alternate payee under a qualified domestic relation order, as defined in section 414(p) of the Code.
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7.8.3 A distributee is an Employee or Former Employee, the surviving spouse of an Employee or Former Employee or an alternate payee under a qualified domestic relations order who is the spouse or former spouse of the Participant. A direct rollover is a payment by the Plan to the eligible retirement plan specified by the distributee.
7.8.1 In the event that the provisions of this Section 7.8 or any part thereof cease to be required by law as a result of subsequent legislation or otherwise, this Section 7.8 or applicable part thereof shall be ineffective without necessity of further amendment of the Plan.
ARTICLE 8.
Death Benefits
8.1. Qualified Pre-retirement Survivor Annuity. In the event a Member dies on or after the first date as of which he has attained a nonforfeitable right to any part of his accrued benefit under the Plan but prior to his Annuity Starting Date, and such Member is survived by a spouse who has been married to the Member throughout the one (1) year period preceding the Member’s death, a “Qualified Pre-retirement Survivor Annuity” shall be payable for the life of such surviving spouse.
8.1.1 In the case of a Member who dies prior to his Annuity Starting Date at the time when (i) he is eligible for Early Retirement under Section 4.2, (ii) he has retired with a Disability Retirement Pension under Section 4.3, (iii) he has retired with a deferred benefit under Section 4.2, or (iv) he is eligible for early commencement of his Vested Benefit under Section 6.3, the Qualified Pre-retirement Survivor Annuity shall be a monthly amount equal to 50% of the reduced monthly benefit to which the Member would have been entitled had he commenced receiving benefits on the day before his death with an immediate Spouse Joint and Survivor Annuity or Terminated Member’s Spouse Joint and Survivor Annuity in effect. Such Qualified Pre-retirement Survivor Annuity shall commence to be paid beginning as of the first day of the month coincident with or next following the date of the Member’s death.
8.1.2 In the case of a Member who dies prior to the time he is eligible for Early Retirement pursuant to Section 4.2, Disability Retirement pursuant to Section 4.3, or early commencement of his Vested Benefit under Section 6.3, the Qualified Pre-retirement Survivor Annuity shall be a monthly amount equal to 50% of the reduced monthly benefit to which the Member would have been entitled at his earliest Annuity Starting Date, assuming such Member had (i) separated from service on the date of his death (if he had not previously separated from service), (ii) survived to such Annuity Starting Date, and (iii) commenced receiving his benefit on such Annuity Starting Date with an immediate Terminated Member’s Spouse Joint and Survivor Annuity in effect. Payment of the Qualified Pre-retirement Survivor Annuity in such case shall commence on such earliest Annuity Starting Date.
8.2. Death in Service Option I. An active Member who is still employed by the Company on or after his Early Retirement Date or, if applicable, on or after his Normal
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Retirement Date and who has a spouse may elect, in accordance with the provisions of Section 8.4, to have a Retirement Pension payable to the Member’s spouse in an amount equal to the Retirement Pension that would have been payable to such spouse if the Member had retired and the payment of his Retirement Pension commenced in the month in which his death occurred, computed as if he had elected a Joint and Survivor Annuity Option (within the meaning of Section 7.3) with 100% continued to his spouse as Joint Annuitant, reduced by 1/2 of 1 percent per annum for each year the election is in effect. The reduced Retirement Pension payable to a Member who makes an election under the preceding sentence shall be equal to the Retirement Pension to which he would otherwise be entitled, reduced by 1/2 of 1 percent per annum for each year between the date on which his election became effective and the earlier of his retirement date or the date of death of his spouse.
8.3. Death in Service Option II. An active Member who is eligible to elect to receive an Early Retirement Pension and who has not reached his Normal Retirement Date may, by written notice received by the Committee, elect to receive a reduced Retirement Pension upon his retirement with the provision that if he should die after his election becomes effective but prior to the date distribution of his Retirement Pension would have commenced but for his death, a Retirement Pension shall be payable to any person designated by him for the remainder of the lifetime of such person, provided, however, that a Member to whom Section 8.1 applies may designate, in accordance with the provisions of Section 8.4, only a person other than his spouse to receive the benefit provided by this Section 8.3.
8.3.1 An election made under Section 8.2 or Section 8.3 above shall become effective on the later of (i) the first day of the calendar month coincident with or next following the date on which such election was made or, (ii) the date the Member first becomes eligible to elect to receive an Early Retirement Pension.
8.3.2 The reduced Retirement Pension payable to a Member who has made an effective election under Section 8.3 above shall be equal to the Retirement Pension to which he would otherwise be entitled, reduced for each year between the date on which his election became effective and the earlier of his retirement date or the date of death of the designated person, by either (i) 1 percent per annum in the case of a Member who elects to have the Retirement Pension provided by Section 8.3.3 below paid to such designated person or (ii) 1/2 of 1 percent per annum in the case of a Member who elects to have the Retirement Pension provided by Section 8.3.4 below paid to such designated person.
8.3.3 The reduced Retirement Pension payable to the designated person under this Section 8.3.3 shall be equal to the amount of the Retirement Pension that would have been payable to such designated person under Section 7.3 if the Member had retired and the payment of his Retirement Pension had commenced in the month in which his death occurred, computed as if the Member had Elected a Joint and Survivor Annuity Option under Section 7.3 with 100% continued to his Joint Annuitant with the designated person nominated as his Joint Annuitant, reduced by 1 percent per annum for each year between the date on which the Member’s election became effective and the date of his death.
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8.3.4 The reduced Retirement Pension payable to the designated person under this Section 8.3.4 shall be equal to the amount of the Retirement Pension that would have been payable to such designated person under Section 7.3 if the Member had retired and the payment of his Retirement Pension had commenced in the month in which his death occurred, computed as if the Member had elected a Joint and Survivor Annuity Option under Section 7.3 with 50% continued to his Joint Annuitant with the designated person nominated as his Joint Annuitant, reduced by 1/2 of 1 percent per annum for each year between the date on which the Member’s election became effective and the date of his death.
8.4. Consent of Spouse. Any election made under Section 8.2 or Section 8.3 by a Member to whom Section 8.1 applies must be made by the Member in writing during the election period described in Section 8.4.1 and must be consented to by the Member’s spouse in the manner prescribed in and subject to the rules of Sections 5.2.2 and 5.2.5.
8.4.1 The election period to waive the Qualified Pre-retirement Survivor Annuity shall begin on the first day of the Plan Year in which the Member attains age 35 and end on the date of the Member’s death. In the event a Member who is eligible for a Vested Benefit separates from service prior to the beginning of the election period, the election period shall begin on the date of such separation from service.
8.4.2 With regard to the election described in Section 8.4.1, the Committee shall provide each Member within the applicable period for such Member a written explanation of the Qualified Pre-retirement Survivor Annuity in such terms and in such a manner as would be comparable to the explanation provided for meeting the requirements of Sections 5.2.2 and 5.2.3 applicable to a Spouse Joint and Survivor Annuity.
The applicable period for a Member is whichever of the following periods ends last: (i) the period beginning with the first day of the Plan Year in which the Member attains age 32 and ending with the close of the Plan Year preceding the Plan Year in which the Member attains age 35 and (ii) a reasonable period ending after the individual becomes a Member. Notwithstanding the foregoing, notice must be provided within a reasonable period ending after separation of service in the case of a Member who separates from service before attaining age 35.
For purposes of the preceding paragraph, a reasonable period ending after the event described in (ii) is the end of the two year period beginning one year prior to the date the event occurs and ending one year after that date. In the case of a Member who separates from service before the Plan Year in which age 35 is attained, notice shall be provided within the two year period beginning one year prior to separation and ending one year after separation. If such a Member thereafter returns to employment with the Company, the applicable period for such Member shall be redetermined.
8.5. Other Death Benefits. If a Member dies at any time on or after his Annuity Starting Date, his benefit (if any is payable) shall be paid in accordance with the Plan provisions governing the form of payment in effect as of the date of his death. Except as provided in this Article 8, no death benefits shall be provided under the Plan.
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ARTICLE 9.
Contributions
9.1. Contributions of the Company. In order to provide for the benefits established by this Plan, the Company shall make such contributions to the Fund as may be required to maintain the Plan on a sound actuarial basis and meet the funding standards of ERISA.
9.2. Irrevocability of Contributions. Except as provided in Section 18.2, the contributions made by the Company shall be irrevocable and shall be transferred to the Trustee or insurance company, as provided for in Article 10, to be used in accordance with the provisions of the Plan to pay the benefits established by the same. Neither such contributions nor the income therefrom shall be used for or applied to purposes other than the exclusive benefit of the Members or their Beneficiaries prior to satisfaction of all liabilities hereunder.
9.3. Use of Forfeitures. Any amounts forfeited by Members shall be used to reduce future Company contributions hereunder and shall not be used to increase the benefits any Member or other person would otherwise receive under the Plan.
ARTICLE 10.
Management of Funds
10.1. Medium of Funding. The Fund shall be held by a Trustee or Trustees appointed from time to time by the Board of Directors, in one or more trusts (such trusts being herein collectively referred to as the “Trust”), under a trust instrument or instruments approved or authorized by the Board of Directors for use in providing the benefits of the Plan and paying any expenses of the Plan not paid directly by the Company; provided, however, that the Company may, in its discretion, also enter into any type of contract with any insurance company or companies selected by it for providing benefits under the Plan.
10.2. Fund to be for Exclusive Benefit of Members. Prior to the satisfaction of all liabilities with respect to persons entitled to benefits, except for the payment of expenses, no part of the corpus or income of the Fund shall be used for, or diverted to, purposes other than for the exclusive benefit of Members, former Members entitled to Vested Benefits, retired Members, Beneficiaries of Members and other persons who are or may become entitled to benefits hereunder.
ARTICLE 11.
The Committee and Claims Procedure
11.1 Appointment of Committee. The administration of the Plan, as provided herein, including the supervision of the payment of all benefits to Participants and Beneficiaries, shall be vested in and be the responsibility of the Employee Benefits Committee which shall be called the “Committee” herein. The Committee shall be the Plan Administrator and a Named Fiduciary of the Plan for purposes of the Act. The Committee shall consist of such number of
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persons, not less than three (3), as shall from time to time be determined by the Compensation Committee of the Board. The members of the Committee and their successors shall be appointed from time to time by the Compensation Committee of the Board. If no Committee is appointed, the term Committee shall refer to the Board of Directors of the Company.
11.2 Officers and Subcommittees. The Committee shall elect a Chairman and shall appoint such subcommittees as it shall deem necessary and appropriate.
11.3 Committee Procedures. A majority of the members of the Committee then serving shall constitute a quorum for the transaction of business. All resolutions or other action taken by the Committee shall be by vote of a majority of those present at such meeting and entitled to vote. Resolutions may be adopted or other action taken without a meeting of the Committee. Any member of the Committee shall nave the power to execute on behalf of the Committee all instruments and documents necessary or required by the Trustee in connection with the application for contracts on the lives of Participants, and the act of such member for such purpose shall be binding on the Committee to the same extent as though such instrument or instruments had been executed by the Committee. Subject to the foregoing, the chairman of the Committee may act on the Committee’s behalf and may contract for actuarial, legal, investment, advisory, medical, accounting, clerical, and other services determined necessary by it for the administration of the Plan and the Fund.
11.4 Committee Powers. The Committee shall have all powers necessary to carry out its duties hereunder, including, but not limited to, the power to:
(a) Determine all questions affecting the eligibility of any Employee to participate herein;
(b) Compute the amount of benefits payable hereunder to any Participant or Beneficiary;
(c) Make rules and regulations for the implementation, administration and interpretation of the Plan, which are not inconsistent with the terms and provisions of the Plan. Such rules and regulations as are adopted by the Committee shall be binding upon any persons having an interest in or under the Plan;
(d) Communicate the funding policy to the Trustee and other investment managers whose duties are to determine the investment policy of the Fund; and
(e) Appoint such investment managers with respect to all or any designated part of the Fund as it shall deem appropriate.
In carrying out its duties herein, the Committee shall have discretionary authority to exercise all powers and to make all determinations, consistent with the terms of the Plan, in all matters entrusted to it, and its determinations shall be given deference and shall be final and binding on all interested parties. Notwithstanding the foregoing, the Committee shall administer the Plan in accordance with its terms, and shall have all powers necessary to carry out the
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provisions of the Plan not otherwise reserved to the Company, the Board of Directors or the Trustee. The Committee shall have all powers to administer the Plan, within its discretion, other than the power to invest or reinvest the assets of the Plan to the extent such powers have been delegated to the Trustee, an insurance company and/or an asset manager. The Committee shall have total and complete discretion to interpret the Plan and to determine all questions arising in the administration, interpretation and application of the Plan including the power to construe and interpret the Plan; to decide the questions relating to an individual’s eligibility to participate in the Plan and/or eligibility for benefits and the amounts thereof; to have fact finder discretionary authority to decide all facts relevant to the determination of eligibility for benefits or participation; to make such adjustments as it deems necessary or desirable to correct any arithmetical or accounting errors; to determine the amount, form and timing of any distribution to be made hereunder; as well as to resolve any conflict. The Committee shall have the discretion to make factual determinations as well as decisions and determinations relating to the amount and manner of allocations and distributions of benefits. In making its decisions, the Committee shall be entitled to, but need not rely upon, information supplied by a Member, Beneficiary or representative thereof. The Committee shall have full and complete discretion to determine whether a domestic relations order constitutes a “qualified domestic relations order” under applicable law and whether the putative alternate payee under such an order otherwise qualifies for benefits hereunder. The Committee may correct any defect, supply any omission or reconcile any inconsistency in such manner and to such extent as it shall deem necessary to carry out the purposes of this Plan. The Committee’s decision in such matters shall be binding and conclusive as to all parties.
11.5 Information for Committee. The members of the Committee may inspect the records of the Company to the extent that it may reasonably be necessary for them to determine any fact in connection with acts to be performed by them under this Plan, but the members of the Committee shall not be required to make such inspection but may rely upon any written statement or other communication believed by them to be genuine and to be signed by an authorized officer of the Company. In this connection, the Company agrees to furnish the Committee with such information and data relative to the Plan as is necessary for the proper administration thereof.
11.6 Plan Records. The Committee, or the Secretary of the Committee shall keep or cause to be kept records reflecting administration of the Plan, which records shall be subject to audit by the Company. A Participant may examine only those records pertaining directly to him.
11.7 Instructions to Trustees. The Committee shall provide appropriate written instructions to the Trustee signed by an authorized member or members of the Committee to enable it to make the distributions provided for in the Plan. The Trustee shall be entitled to rely upon any written notice, instruction, direction, certificate or other communication reasonably believed by it to be genuine and to be signed by an authorized member of the Committee or an officer of the Company, and the Trustee shall be under no duty to make investigation or inquiry as to the truth or accuracy of any statement contained therein, unless it knows that the direction or instruction constitutes a breach of the Committee’s or the Company’s fiduciary responsibility with respect to the Plan.
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11.8 Allocation of Duties, etc. Among Committee Members. The duties, powers and responsibilities reserved to the Committee may be allocated among its respective members so long as such allocation is pursuant to action of a majority of its respective members or by written agreement executed by a majority of its respective members, in which case, except as may be required by the Act, no member of the Committee shall have any responsibility or liability with respect to any duties, powers or responsibilities not allocated to him or for the acts or omissions of any other member.
11.9 Delegation by Committee. The Committee shall have full power and authority to delegate powers and duties to any persons or firms (including, but not limited to, corporate resources departments, accountants, trustee(s), counsel, investment manager(s), actuaries, physicians, appraisers, consultants, professional plan administrators, insurers and other specialists), or otherwise act to secure specialized advice or assistance, as it deems necessary or desirable in connection with the management of the Plan; to the extent not prohibited by the Act, the Committee shall be entitled to rely conclusively upon, and shall be fully protected in any action or omission taken by it in good faith reliance upon, the advice or opinion of such persons or firms provided such persons or firms were prudently chosen by the Committee, taking into account the interests of the Participants and Beneficiaries and with due regard to the ability of the persons or firms to perform their assigned functions.
11.10 Investment Managers. The Committee’s power to retain the services of an investment manager(s) for the management of (including the power to acquire and dispose of) all or any part of the Fund’s assets, shall be limited to the retention of such persons or firms that are registered as investment managers under the Investment Advisers Act of 1940, as Banks (as defined in that Act), or which are insurance companies qualified to manage, acquire or dispose of the Fund’s assets under the laws of more than one state, and provided that each of such persons or firms has acknowledged to the Committee and the Trustee in writing that he is a fiduciary with respect to the Plan. In such event, the Trustee shall not be liable for the acts or omissions of such investment manager or managers, nor shall it be under any obligation to invest or otherwise manage any assets which are subject to the management of such investment manager or managers.
11.11 Costs and Expenses. Unless otherwise determined by the Compensation Committee of the Board, the Committee shall serve without compensation for its services as such. However, the expenses of administering the Plan, including the printing of literature and forms related thereto, the disbursement of benefits thereunder, the compensation of professional plan administrators, agents, appraisers, actuaries, consultants, counsel, investment advisors, insurers or other specialists may be paid from the Fund unless otherwise directed by the Company.
11.12 Standard of Care. The members of the Committee shall use ordinary care and reasonable diligence in the performance of their administrative duties.
11.13 Indemnification and Insurance. To the extent permitted by law, neither the Committee, nor its members, nor any other person performing duties hereunder, shall incur
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any liability for any act done, determination made or failure to act, if in good faith, and the Company shall indemnify the Committee, its members and such other persons against any and all liability which is incurred as a result of the good faith performance or good faith nonperformance of their duties hereunder. Nothing in this Plan shall preclude the Company from purchasing liability insurance to protect such persons with respect to their duties under this Plan. The protection provided in this Section applies only to those Committee members and other persons who are Employees.
11.14 Disputes. In the event that any dispute shall arise as to any act to be performed by the Committee, the Committee may postpone the performing of such act until actual adjudication of such dispute shall have been made in a court of competent jurisdiction or until they shall be indemnified against loss, to their satisfaction, by the Company.
11.15 Committee Members as Participants. No member of the Committee shall be precluded from becoming a Participant of the Plan if he would be otherwise eligible, but he shall not be entitled to vote or act upon, or sign any documents relating specifically to, his own participation under the Plan except when it relates to benefits generally. If this disqualification results in the lack of a Committee quorum, then the Compensation Committee of the Board of Directors shall appoint a sufficient number of temporary members of the Committee who shall serve for the sole purpose of determining such a question.
11.16 Claims Procedure.
(a) Initial Claim. If an eligible Employee or an eligible Employee’s surviving spouse or other beneficiary (hereinafter referred to as a “Claimant”) is denied any benefit under this Plan, the Claimant may file a claim in writing with the Committee. The Committee shall review the claim itself or appoint an individual or an entity to review the claim. The Claimant shall be notified within ninety (90) days after receipt of the claim by the Committee, whether the claim is allowed or denied, unless the Claimant receives written notice prior to the end of the ninety (90) day period stating that circumstances require an extension of the time for decision and the date that a decision is expected to be provided to the Claimant. Such notification shall be given within one hundred and eighty (180) days after the claim is filed. The notice of the decision shall be in writing, in a manner calculated to be understood by the Claimant, sent by mail to the Claimant’s last known address, and, if the notice is a denial of the claim, the notice must contain the following information:
(1) the specific reason or reasons for the denial;
(2) a reference to specific provisions of the Plan on which the denial is based; and
(3) if applicable, a description of any additional material or information necessary to perfect the claim and an explanation of why such material or information is necessary; and
(4) an explanation of the Plan’s claims review procedure for the denied or partially denied claim and any applicable time limits, and a statement that the Claimant has a right to bring a civil action under Section 502(a) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), following an adverse benefit determination on review.
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(b) Review Procedure. A Claimant or his duly authorized representative is entitled to request a review by the Committee of any denial of the Claimant’s claim. The request for review must be submitted to the Committee in writing within sixty (60) days of receipt of notice of the denial. Absent a request for review within the sixty (60) day period, the claim will be deemed to be conclusively denied. The review of a denial of a claim shall be conducted by the Committee or an individual or entity appointed by the Committee. The reviewer shall afford the Claimant or the Claimant’s representative upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the Claimant’s claim for benefits. The review shall take into account all comments, documents, records, and other information submitted by the Claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. The reviewer shall render a review decision in writing, within sixty (60) days after receipt of a request for a review, provided that, the reviewer may extend the time for decision (if special circumstances require) by not more than sixty (60) days upon written notice to the Claimant (such written notice shall state the circumstances that require an extension of time for the decision and the date a decision is expected to be provided to the Claimant). The Claimant shall receive written notice of the reviewer’s decision in a manner calculated to be understood by the Claimant. The notice shall set forth:
(1) the specific reason or reasons for the denial of the appeal of the claim;
(2) a reference to specific provisions of the Plan on which the denial is based; and
(3) a statement of the Claimant’s right to bring a civil action under ERISA section 502(a) and a description of any applicable limitation under the Plan.
A Claimant may not commence a civil action in court for any benefit claim until he has fully exhausted these claims procedures.
In reviewing claims, the Committee shall have sole and full discretionary authority to interpret the terms of the Plan, including any uncertain terms, to determine eligibility for, entitlement to, and the amount of any benefits, and to make factual findings and determine any other claims related to the Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect and shall be final, binding and conclusive on all interested parties and shall be afforded the maximum deference permitted by law.
11.17 Compliance With Regulations. The review of all claims hereunder shall be made in accordance with applicable regulations under the Act.
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ARTICLE 12.
Amendments
12.1. The Board of Directors shall have the power to modify or amend the Plan at any time in accordance with its established rules of procedure; provided, however, that none of the assets of the Plan, because of any modification or amendment, may be used for any purpose other than the exclusive benefit of active Members and retired Members and their Beneficiaries prior to the satisfaction of all liabilities hereunder. In no case shall such amendments or modifications directly or indirectly cause any portion of the assets of the Plan to revert to the Company or to be used for any purpose other than the exclusive benefit of such Members prior to the satisfaction of all liabilities under the Plan.
12.2. No amendment to the Plan shall retroactively adversely affect benefits to which the Members and their Beneficiaries are entitled, without their consent, unless such amendment is necessary in order to conform the Plan to the requirements of sections 401 and 501 of the Code.
ARTICLE 13.
Termination of the Plan
13.1. Termination by the Company. This Plan may be terminated by vote of the Board of Directors at any time in accordance with its established rules of procedure; provided, however, that such termination shall not cause any of the assets held under the Plan to be used for any purpose other than the exclusive benefit of active Members and retired Members and their Beneficiaries or to revert to the Company prior to the satisfaction of all liabilities under the Plan. Notwithstanding the foregoing or the provisions of Section 9.2, 10.2, 12.1 or any other provision of the Plan to the contrary, any assets held under the Plan after the satisfaction of all liabilities under the Plan subsequent to its termination shall revert to the Company.
13.2. Certain Benefits Nonforfeitable. In case of termination of the Plan due to any cause, or partial termination in accordance with the regulations of the Treasury, the right of all Members to benefits will become nonforfeitable to the extent funded or, if greater, to the extent as guaranteed by the Pension Benefit Guaranty Corporation.
13.3. Priority of Distribution on Termination. Except as provided in Section 13.1 hereof, in the event of termination of the Plan, the assets remaining in the Plan shall be used and disposed of for the benefit of the Members and their Beneficiaries in accordance with the provisions of Title IV of ERISA. Without limiting the generality of the foregoing, if the Internal Revenue Service determines that any allocation made pursuant to this Section 13.3 results in “discrimination” (within the meaning of section 401(a)(4) of the Code) then, if required to prevent disqualification of the Plan (or any trust under the Plan) under section 401(a) of the Code, the assets allocated under section 4044(a) of ERISA shall be reallocated to the extent necessary to avoid such discrimination. Subject to regulations of the Pension Benefit Guaranty Corporation, any amount allocated for the benefit of a Member, spouse, or Beneficiary shall be applied for his benefit, as the Committee determines in its sole discretion, either by a cash
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payment or by the purchase of an insurance company contract or by the continuance of the Trust Fund and the payment of benefits thereunder in such amounts as may be provided by the property so allocated, or by any combination of the foregoing.
13.4. Coordination with Article 15. The priorities for distribution of Plan assets established under Section 13.3 shall be subject to the limitations provided in Article 15 if the termination of the Plan occurs prior to the tenth anniversary of the commencement date (as defined in Section 15.1), or prior to the time when the full current costs of the Plan for the first ten years from the establishment date have been funded. In the event that the limitations provided in Article 15 become applicable, adjustments shall be made in such priorities of distribution as may be required to satisfy the requirements of Article 15.
ARTICLE 14.
Limitation on Benefits
14.1. Code Section 415 Limitations. In addition to other limitations set forth in the Plan and notwithstanding any other provision of the Plan, the Retirement Pension, including the right to any optional benefits provided in the Plan (and all other defined benefit plans required to be aggregated with this Plan under the provisions of section 415 of the Code), shall not increase to an amount in excess of the amount permitted under section 415 of the Code at any time. This shall not require the re-computation of benefits accrued in “limitation years” beginning before July 1, 1987. For purposes of this Article 14, the “limitation year” shall be the Plan Year. Effective for Limitation Years ending after December 31, 2001 (“EGTRRA Effective Date”) and notwithstanding any other provision in the Plan to the contrary, the accrued benefit for any Member shall be determined by applying the terms of the Plan implementing the limitations of Section 415(b) of the Code as was in effect on the day immediately prior to the EGTRRA Effective Date.
14.1.2 Combined Limitations. In the case where (i) this Plan and another defined benefit plan or defined contribution plan of the Company cover the same Member and (ii) reductions in either the amount of the annual benefit payable under this Plan or the amount of annual benefit or annual addition under such other plan with respect to the Member (or both) are necessary in order to comply with section 415 of the Code, a reduction in the annual benefit payable under this Plan to the Member shall be made to the extent necessary to comply with section 415 of the Code prior to any reduction in the annual benefit or annual addition under such other plan with respect to the Member. Effective for Limitation Years beginning on or after January 1, 2000 (the “SBJPA Effective Date”), and notwithstanding any other provision of the Plan, the retirement benefit for any Member shall be determined by applying the terms of the Plan implementing the limitations of section 415 of the Code as if the limitations of section 415 of the Code continued to include the limitations of section 415(e) of the Code as in effect on the day immediately prior to the SBJPA Effective Date. For this purpose, a Member’s defined contribution fraction is set equal to the Member’s defined contribution fraction as of the day immediately prior to the SBJPA Effective Date.
14.1.3 Commencement Prior to Age 62. Notwithstanding the above, if a Member’s annual pension benefit begins before the Member’s 62nd birthday, the determination as to whether the benefit limitation under section 415 of the Code has been satisfied shall be made by
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adjusting such limitations so that it is the actuarial equivalent of the section 415 limit annual benefit beginning at age 62. For purposes of making such an adjustment, actuarial equivalent shall mean, of the two reductions below, the one which will result in the lesser benefit payable to the Member:
(i) The reduction based on the Plan’s early retirement reduction factors under Section 4.2 hereof, or
(ii) The actuarial reduction based on a 5% interest rate and the mortality table described in Section 5.3.2 hereof.
14.1.4 Commencement Prior to Social Security Retirement Age. Notwithstanding the above, if a Member’s annual pension benefit begins after attaining age 62, but prior to the Member’s Social Security Retirement Age, the determination as to whether the benefit limitation under section 415 of the Code has been satisfied shall be made by adjusting such limitations so that it is the actuarial equivalent of the section 415 limit annual benefit beginning at Social Security Retirement Age. For purposes of making such an adjustment, the limitation shall be reduced by 6 2/3% per year for the first three years, and 5% per year for any additional years, by which the Member’s annual pension benefit commences after age 62, but prior to the Member’s Social Security Retirement Age. The interest rate assumption used to adjust the limitation under this section shall not be less than the greater of 5% or the rate otherwise specified herein.
14.1.5 Adjustment for Certain Other Forms of Benefit. If the benefit to the Member is payable in any form other than a straight life annuity, the determination as to whether the benefit limitation under section 415 of the Code has been satisfied shall be made by adjusting such limitations so that it is the actuarial equivalent of the section 415 limit annual benefit payable in the form of a straight life annuity. For purposes of making such an adjustment, actuarial equivalent shall mean, of the two reductions below, the one which will result in the greater benefit:
(i) The reduction based on the Plan’s factors, or
(ii) The actuarial reduction based on a 5% interest rate (or with respect to lump sum payments or other decreasing annuities (i.e., Level Income Option) the interest rate described in Section 5.3.2 hereof) and the mortality table described in Section 5.3.2 hereof.
14.2. Code Section 415 Definitions. For purposes of this Article 14, the following terms shall have the following meanings:
14.2.1 “Related Company” means any other company which is, together with the Company, a member of a “controlled group of corporations” or under “common control” as determined under sections 414(b) and (c) of the Code as modified by section 415(h) of the Code, or a member of an “affiliated service group” within the meaning of section 414(m) of the Code, and any other entity required to be aggregated with the Company pursuant to regulations that may be issued under section 414(o) of the Code.
14.2.2 “Compensation,” for purposes of section 415 of the Code and this Article 14, means a Member’s earned income, wages, salaries, and fees for professional services, and other amounts received for personal services actually rendered in the course of employment with the Company or any Related Company (including, but not limited to, commissions paid
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salesmen, compensation for services on the basis of a percentage of profits, commissions on insurance premiums, tips and bonuses); and effective January 1, 1998, any elective deferral (as defined in section 402(g)(3) of the Code) and any amount contributed or deferred by the Company or any Related Company at the election of the Member which is not includible in the gross income of the Member under section 125, section 132(f)(4) or section 457 of the Code for a Plan Year but excluding the following:
(i) Company or Related Company contributions to a plan of deferred compensation which are not included in the Member’s gross income for the taxable year in which contributed, or Company or Related Company contributions under a simplified employee pension plan to the extent such contributions are deductible by the Member or any distributions from a plan of deferred compensation;
(ii) amounts realized from the exercise of a nonqualified stock option, or when restricted stock (or property) held by the Member either becomes freely transferable or is no longer subject to a substantial risk of forfeiture;
(iii) amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option;
(iv) other amounts which received special tax benefits, or contributions made by the Company or any Related Company (whether or not under a salary reduction agreement) towards the purchase of an annuity described in section 403(b) of the Code (whether or not the amounts are actually excludable from the gross income of the Member).
Compensation for any Plan Year is the compensation actually paid or includible in gross income during such year or, effective January 1, 1998, which would have been paid or includible during such year had such compensation not been subject to elective deferral or exclusion under section 402(g)(3), 125, 132(f)(4) or 457 of the Code.
14.2.3 “Social Security Retirement Age” means the Social Security retirement age as defined under section 415(b)(8) of the Code which shall mean age 65 in the case of a Member attaining age 62 before January 1, 2000 (i.e., born before January 1, 1938), age 66 for a Member attaining age 62 after December 31, 1999, and before January 1, 2017 (i.e., born after December 31, 1937, but before January 1, 1955), and age 67 for a Member attaining age 62 after December 31, 2016 (i.e., born after December 31, 1954).
ARTICLE 15.
Temporary Limitations on Amount of Benefits
15.1. Effective January 1, 1994, the provisions of this Article 15 shall apply (a) in the event the Plan is terminated, to any Member who is a highly compensated employee or highly compensated former employee (as defined in section 414(q)(1) of the Code) of the Company and (b) in any other event, to any Member who is one of the twenty-five highest compensated Employees or former Employees of the Company for a Plan Year. The amount of the annual payments under the Plan to any Member to whom this Section 15.1 applies shall not
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exceed an amount equal to the payments that would be made under the Plan during the Plan Year on behalf of the Member under a single life annuity which is of Equivalent Actuarial Value to the sum of all of the Member’s accrued benefits under the Plan.
15.2. The provisions of Section 15.1 shall not apply if (a) the value of the benefits which would be payable under the Plan to a Member described in the immediately preceding paragraph is less than one percent of the value of the current liabilities (as defined in section 412(l)(7) of the Code) under the Plan or (b) the value of the Plan’s assets equals or exceeds, immediately after payment of a benefit under the Plan to a Member described in the immediately preceding paragraph, one hundred ten percent of the value of the current liabilities under the Plan.
15.3. Notwithstanding the preceding provisions of this Article 15, in the event the Plan is terminated, the restrictions contained in Section 15.1 shall not be applicable if the benefits payable under the Plan to any Member who is a highly compensated Employee or a highly compensated former Employee are limited to benefits which are non-discriminatory under section 401(a)(4) of the Code.
15.4. If it should subsequently be determined by statute, court decision acquiesced in by the Commissioner of Internal Revenue or ruling by the Commissioner of Internal Revenue that the provisions of this Article 15 are no longer necessary to qualify the Plan under section 401(a) of the Code, this Article 15 shall be ineffective without the necessity of further amendment to the Plan.
15.5. For the purposes of this Article 15, “highly compensated employee” means, effective for years beginning after December 31, 1996, any Employee who: (1) was a 5-percent owner at any time during the year or the preceding year, or (2) for the preceding year had compensation from the Employer in excess of $80,000 and, if the Employer so elects, was in the top-paid group for the preceding year. The $80,000 amount is adjusted at the same time and in the same manner as under section 415(d) of the Code, except that the base period is the calendar quarter ending September 30, 1996.
For this purpose the applicable year of the plan for which a determination is being made is called a determination year and the preceding 12-month period is called a look-back year.
A highly compensated former employee is based on the rules applicable to determining highly compensated employee status as in effect for that determination year, in accordance with section 1.414(q)-1T, A-4 of the temporary Income Tax Regulations and Notice 97-45.
In determining whether an Employee is a highly compensated employee for years beginning in 1997, this Section is treated as having been in effect for years beginning in 1996.
For this purpose the definition of compensation shall mean compensation as
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defined in section 415(c)(3) of the Code. Notwithstanding the above, for limitation years beginning after December 31, 1997, compensation shall include elective amounts that are not includible in the gross income of the Member by reason of section 132(f)(4) of the Code.
ARTICLE 16.
Service and Transfer Rules
16.1. Application of Provisions. Notwithstanding any provision to the contrary contained in the Plan, the provisions of this Article 16 shall apply to (a) any Member who ceases to be an Employee and who either (i) remains in the employ of the Company as other than an Employee or (ii) transfers to the employ of an Affiliated Company (as defined in Section 16.4), and (b) any individual either (i) in the employ of the Company other than as an Employee, or (ii) in the employ of an Affiliated Company (as defined in Section 16.4), who ceases such employment and simultaneously becomes an Employee.
16.2. Service Other Than as an Employee. All service rendered by an individual in the employ of the Company, or in the employ of an Affiliated Company (as defined in Section 16.4), which is rendered immediately prior to his transfer to employment as an Employee shall be included as Service under Section 1.34 for the purposes of Article 2 and Article 6 of the Plan, but shall not be included as Credited Service for the purpose of computing the amount of any benefits pursuant to Articles 4 and 6 of the Plan.
16.3. Service Following Service as an Employee. Transfer of a Member from employment as an Employee to other employment with the Company, or to employment with an Affiliated Company (as defined in Section 16.4), shall not be deemed Termination of Employment with the Company for purposes of the Plan and shall not terminate such Employee’s participation in the Plan; provided (i) that any such employment with the Company or with an Affiliated Company (as defined in Section 16.4) rendered on and after the date of such transfer shall be included as Service only for the purposes of Article 2 and Article 6 of the Plan and as Credited Service only for purposes of Section 6.3(ii) of the Plan, and (ii) that the benefits payable to such a Member under the Plan shall be computed under the terms of the Plan in effect on the date on which such Member’s employment with the Company and all Affiliated Companies (as defined in Section 16.4) terminates, but only on the basis of the Member’s accrued Credited Service and Compensation as an Employee.
16.4. “Affiliated Company,” for purposes of Articles 16 and 19, shall mean any other entity, whether or not incorporated, which is, together with the Company, a member of a “controlled group of corporations” or under “common control,” as determined under sections 414(b) and (c) of the Code, or a member of an “affiliated service group” as defined in section 414(m) of the Code; and any other entity required to be aggregated with the Company pursuant to regulations that may be issued under section 414(o) of the Code, provided, however, that except as otherwise specifically provided herein, service with any such other entity shall be recognized for purposes of this Plan only for the period of such affiliation.
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ARTICLE 17.
Non-Alienation of Benefits
No benefit under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt so to do shall be void, except as specifically provided in the Plan, nor shall any such benefit be in any manner liable for or subject to garnishment, attachment, execution or levy, or liable for or subject to the debts, contracts, liabilities, engagements or torts of the person entitled to such benefit. Notwithstanding any provision of the Plan to the contrary, with respect to certain judgments, orders, decrees and/or settlements issued or entered into on or after August 5, 1997, this Article 17 shall not preclude any offset of a Member’s Retirement Pension in an amount which a Member is required to pay to the Plan in accordance with section 401(a)(13)(C) of the Code.
This Article 17 shall also apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a Member pursuant to a domestic relations order, unless such order is determined by the Committee to be a qualified domestic relations order, within the meaning of section 414(p) of the Code or such order was entered before January 1, 1985.
Upon written receipt of a domestic relations order, the Committee shall review this order, inform the Trustee, and gather such facts as it may deem appropriate. The Committee may consult with legal counsel for the Plan in such matters. The Committee shall reach a decision within eighteen (18) months of receipt of the order whether it is a Qualified Domestic Relations Order.
ARTICLE 18.
Miscellaneous
18.1. Rights of Employees. Nothing herein contained shall be deemed to give any Employee the right to be retained in the employ of the Company or to interfere with the right of the Company to discharge such Employee at any time, nor shall it be deemed to give the Company the right to require the Employee to remain in its employ, nor shall it interfere with the Employee’s right to terminate his employment at any time.
18.2. Return of Contributions.
18.2.1 The obligation of the Company to make any contribution to the Plan hereby is conditioned upon the continued qualification of the Plan under section 401(a) of the Code and the exempt status of the Trust Fund under section 501(a) of the Code and upon the deductibility of such contribution under section 404(a) of the Code. To the extent any such deduction is disallowed, the Company shall, within one year following the disallowance of the deduction, demand repayment of such disallowed contribution and the Trustee shall return such contribution within one year following the disallowance. Earnings of the Plan attributable to the excess contribution may not be returned to the Company, but any losses attributable thereto must reduce the amount so returned.
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18.2.2 Notwithstanding the provisions of Section 9.2 or any provision of the Plan, that portion of any Company contribution which is made by reason of a good faith mistake in determining the deductibility of such contribution or a good faith mistake of fact shall be returned to the Company, provided that the twelve-month period commencing on the date the deduction was disallowed or the date such contribution was made, whichever is applicable, has not expired. The amount which shall be returned to the Company pursuant to the preceding sentence shall be an amount equal to the excess of the amount actually contributed over the amount that would have been contributed if the mistake had not been made; provided, however, that gains attributable to the returnable portion shall be retained in the Trust Fund; and provided, further, that the returnable portion shall be reduced by any losses attributable thereto.
18.3. Mergers. This Plan shall not be merged into any other pension or retirement plan under circumstances resulting in a transfer of assets or liabilities from this Plan to any other Plan unless immediately after any such merger, consolidation, or transfer each Member would (if the Plan then terminated) receive a benefit which would be equal to or greater than the benefit he would have been entitled to receive immediately before such merger, consolidation, or transfer.
18.4. Monthly Benefits. All monthly benefits shall be payable on the first date of each month.
18.5. Governing Law. Except to the extent preempted by federal law, the provisions of the Plan will be construed according to the laws of the State of New York.
18.6. Headings. The headings of this Plan are inserted for convenience of reference only and shall have no effect upon the meaning of the provisions hereof.
ARTICLE 19.
Top-Heavy Plans
19.1. Effects of Top-Heavy Status. In the event that the Plan shall be deemed to be a Top-Heavy Plan in accordance with the provisions of Section 19.2 at any time on or after July 1, 1985, the following provisions shall automatically become applicable and shall supersede any contrary provision of the Plan:
19.1.1 The vested portion of any Member’s Accrued Benefit derived from Company contributions shall be a percentage of such Member’s Accrued Benefit derived from Company contributions determined on the basis of the Member’s years of Service, in accordance with the following tables:
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(i) For Plan Years commencing prior to July 1, 1989:
| Years of Service |
Percentage | ||
| 2 |
20 | % | |
| 3 |
40 | % | |
| 4 |
60 | % | |
| 5 |
80 | % | |
| 6 or more |
100 | % |
(ii) For Plan Years commencing on or after July 1, 1989:
| Years of Service |
Percentage | ||
| Less than 3 |
0 | % | |
| 3 or more |
100 | % |
In the event a Member’s vested portion of his Accrued Benefit derived from Company contributions under the terms of the Plan determined without regard to this Subsection 19.1.1 at any time exceeds the percentage determined above, such Member shall be entitled to such greater percentage.
The vesting schedule under this Section 19.1.1 shall not apply if the Plan ceases to be Top-Heavy except to the extent that the Plan resumes Top-Heavy status or to the extent that Members with 5 or more years of Service (effective for Plan Years commencing after June 30, 1989, 3 or more years of Service) elect in accordance with section 411(a)(10) of the Code to have it continue to determine the nonforfeitable percentage of their Accrued Benefit.
19.1.2 In any year in which the Plan is a Top-Heavy Plan, a Member who is not a Key Employee shall accrue a benefit derived from Company contributions which, when expressed as an Annual Retirement Benefit, shall not be less than the Applicable Percentage of the Member’s Average Compensation.
19.1.3 The term “Annual Retirement Benefit” means a benefit in the form of an annuity for the Member’s life (with no ancillary benefits) beginning at age 65.
19.1.4 A Member’s “Applicable Percentage” means the lesser of (A) 2% multiplied by his number of years of Service, or (B) 20%. For purposes of the preceding sentence, years of Service shall be determined under the rules of paragraphs (4), (5) and (6) of section 411(a) of the Code. Years of Service shall be disregarded to the extent that (i) they were completed within a Plan Year beginning prior to January 1, 1984 or (ii) the Plan was not a Top-Heavy Plan during the Plan Year ending within such year of Service. Notwithstanding the foregoing, if a Member is also a Member in one or more defined contribution plans maintained by the Company or an Affiliated Company, the percentage in (A) above shall be reduced by .4% for each 1% (and proportionately for fractions thereof) of the Member’s compensation that is contributed by the Company or an Affiliated Company (including forfeitures and for plan years beginning on or after January 1, 1985, salary reduction contributions made by the Member under a plan qualifying under section 401(k) of the Code) to such plan on behalf of the Member.
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19.1.5 A Member’s “Average Compensation” means his average compensation during the period of consecutive years of Service (not exceeding five) during which his aggregate compensation from the Company and/or Prior Company is the greatest. Years of Service (and compensation paid to the Member during such periods) shall be excluded in computing a Member’s Average Compensation if such years of Service are (A) completed prior to January 1, 1984 or (B) begin after the close of the last Plan Year in which the Plan was a Top-Heavy Plan.
19.1.6 Prior to January 1, 2000, the requirements of sections 415(e)(2)(B) and (3)(B) of the Code as set forth in Section 14.3 hereof shall be applied to the Plan by substituting “1.0” for “1.25” wherever the latter appears therein.
19.1.7 For purposes of this Article 19, the term “compensation” shall have the same meaning as set forth in section 414(q) of the Code.
19.2. Definition of Top-Heavy Plan. This Plan shall be a “Top-Heavy Plan” in any Plan Year if the present value of the cumulative accrued benefits (as that phrase is used in section 416(g) of the Code) under the Plan for Key Employees as of the Determination Date exceeds 60% of the present value of the cumulative accrued benefits under the Plan for all Members as of such date. In the event the Plan is part of an Aggregation Group, it shall be a “Top-Heavy Plan” in any Plan Year if the sum of the present value of the cumulative accrued benefits for Key Employees under all defined benefit plans which are part of the Aggregation Group plus the aggregate account balances of Key Employees under all defined contribution plans which are part of such group as of the Determination Date exceeds 60% of the sum of all benefits accrued by and the account balances of, participants in all such plans as of such date.
19.2.1 The term “Aggregation Group” includes all plans of the Company and any Affiliated Company in which a Key Employee participates, all other plans maintained by the Company and any Affiliated Company which enable a plan in which a Key Employee participates to comply with the requirements of sections 401(a)(4) or 410 of the Code and any other plans of the Company and any Affiliated Group which are designated as part of the Aggregation Group, provided that all such plans in such group would continue to satisfy the requirements of sections 401(a)(4) and 410 of the Code.
19.2.2 The term “Key Employee” means any Member or former Member (or beneficiary of such Member) who at any time during the Plan Year or any of the four preceding Plan Years is:
(i) an officer of the Company or any Affiliated Company having an annual compensation (as defined in section 414(q) of the Code) greater than: (a) for all Plan Years prior to January 1, 1989, 150% of the amount in effect under section 415(c)(1)(A) of the Code for any such Plan Year, and (b) for all Plan Years after December 31, 1988, 50% of the amount in effect under section 415(b)(1)(A) of the Code for any such Plan Year;
(ii) one of the ten employees having annual compensation (as defined in section 414(q) of the Code) from the Company or any Affiliated Company of more than the limitation in
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effect under section 415(c)(1)(A) of the Code and owning (or considered as owning within the meaning of section 318 of the Code) the largest interest in the Company or any Affiliated Company;
(iii) a 5% owner of the Company or any Affiliated Company; or
(iv) a 1% owner of the Company or any Affiliated Company if his compensation (as defined in section 414(q) of the Code) from the Company or such Affiliated Company exceeds $150,000.
For purposes of (i) above, the number of Members who shall be deemed officers (and therefore Key Employees) shall not exceed the lesser of (1) 50 or (2) the greater of 3 or 10% of the total number of employees of the Company and all Affiliated Companies. For the purpose of (ii) above, if two employees have the same interest in the Company or an Affiliated Company, the employee having greater annual compensation (as defined in section 414(q) of the Code) from the Company or Affiliated Company shall be treated as having a larger interest. For the purposes of (iii) and (iv) above, the terms “5% owner” and “1% owner” shall have the meanings set forth in section 416(i)(1)(B) and (C) of the Code. For purposes of this Section 19.2.2, the term “compensation” shall have the same meaning as under section 414(q)(7) of the Code.
A “non-Key Employee” is any individual who is not a Key Employee.
Notwithstanding the foregoing, effective January 1, 2002, Key Employee means any Member or former Member (including any deceased employee) who at any time during the Plan Year that includes the determination date was an officer of the plan sponsor (or of any corporation required to be aggregated with the plan sponsor under section 414(b), (c), (m) or (o) of the Code) having annual compensation greater than $130,000 (as adjusted under section 416(i)(1) of the Code for Plan Years beginning after December 31, 2002), a 5-percent owner of the plan sponsor, or a 1-percent owner of the plan sponsor having annual compensation of more than $150,000. For this purpose, annual compensation means compensation within the meaning of section 415(c)(3) of the Code. The determination of who is a Key Employee will be made in accordance with section 416(i)(1) of the Code and the applicable regulations and other guidance of general applicability issued thereunder.
19.2.3 “Determination Date” means (i) the last day of the preceding Plan Year, or (ii) in the case of the first Plan Year, the last day of such Plan Year.
19.2.4 For purposes of this Article 19, the present value of the cumulative accrued benefits shall be determined in accordance with the actuarial factors set forth in Appendix A hereto. If the plans in the Aggregation Group use different actuarial assumptions for purposes of determining the present value of the cumulative accrued benefits for Key Employees under all defined benefit plans which are part of the Aggregation Group, (i) for Key Employees, the actuarial funding assumptions used to maintain the funding standard account under a selected plan in the Aggregation Group, shall be used, and (ii) for Members who are non-Key Employees, such benefit shall accrue not more rapidly than the slowest accrual rate permitted under section 411(b)(1)(C) of the Code.
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19.3. Exception to Combined Limit Rule. Prior to January 1, 2000, the requirements of Section 19.1.6 shall not apply notwithstanding the fact that the Plan may be a Top-Heavy Plan in the event that (i) the present value of the cumulative accrued benefits under the Plan for Key Employees as of the Determination Date does not exceed 90% of the present value of the cumulative accrued benefits for all Members as of such date, and (ii) the definition of Applicable Percentage is modified, in Plan Years for which a Key Employee exceeds the limits of Section 19.1.4, by substituting “3%” for “2%,” and increasing the 20% limit by 1% (up to a maximum of 10%) for each Plan Year in which the Plan is a Top-Heavy Plan.
19.4. Miscellaneous Rules.
19.4.1 Effective January 1, 2002, for purposes of determining the present value of accrued benefits and the amounts of account balances for any Member as of the Determination Date, such present value shall be increased by the aggregate distributions made with respect to such individual from the Plan and any plan aggregated with the Plan under section 416(g)(2) of the Code during the one-year period ending on the Determination Date (even if such Plan had been terminated), and, in the case of a distribution made for a reason other than severance from employment, death, or disability, this provision shall be applied by substituting “five-year period” for “one-year period.
19.4.2 Except to the extent provided by Treasury Regulations, the actuarial value of the cumulative accrued benefit for any Member shall not include any rollover contributions made by the Member into the Plan from a plan that was not maintained by the Company or an Affiliated Company if initiated by the Member and occurring after December 31, 1983.
19.4.3 If a Member is a non-Key Employee with respect to a Plan Year but was a Key Employee with respect to any prior Plan Year, the accrued benefit of such Member (and the account of such Member) shall not be taken into account for purposes of determining whether the Plan is a Top-Heavy Plan.
19.4.4 The determination of whether the benefit and vesting requirements of Section 19.1 have been met when the Plan is a Top-Heavy Plan shall be made without taking into account any benefits or contributions under chapters 2 or 21 of Title II of the Social Security Act or any other federal or state law.
19.4.5 Effective January 1, 2002, the accrued benefits and accounts of any individual who has not performed services for the for the Company or any Affiliated Company during the one-year period ending on the Determination Date shall not be taken into account.
19.4.6 Notwithstanding anything contained in this Article 19 to contrary, effective January 1, 2002, for purposes of satisfying the minimum benefit requirements of section 416(c)(1) of the Code and the Plan, in determining years of service with the Company or any Affiliated Company, any service with the Company or any Affiliated Company shall be disregarded to the extent that such service occurs during a Plan Year when the Plan benefits (within the meaning of section 410(b) of the Code) no Key Employee or former Key Employee.
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IN WITNESS WHEREOF, and as evidence of the adoption of this Plan by the Company, it has caused the same to be signed by its officers thereunto duly authorized, and its corporate seal to be affixed thereto, this 30th day of May, 2006.
| AVIS RENT A CAR SYSTEM, LLC | ||||||
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| Name: | ||||||
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| Assistant Secretary | ||||||
[Corporate Seal]
Exhibit 10.33(b)
CONFORMED COPY
FIRST AMENDMENT TO THE AMENDED AND RESTATED SERIES 2005-2
SUPPLEMENT
This FIRST AMENDMENT (this “Amendment”), dated as of November 11, 2008, amends the Amended and Restated Series 2005-2 Supplement (the “Series 2005-2 Supplement”), dated as of May 20, 2008, and is between AVIS BUDGET RENTAL CAR FUNDING (AESOP) LLC (formerly known as Cendant Rental Car Funding (AESOP) LLC), a special purpose limited liability company established under the laws of Delaware (“ABRCF”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (as successor in interest to The Bank of New York Trust Company, N.A.), a national banking association, as trustee (in such capacity, the “Trustee”) and as agent for the benefit of the Series 2005-2 Noteholders and the Surety Provider (in such capacity, the “Series 2005-2 Agent”), to the Second Amended and Restated Base Indenture, dated as of June 3, 2004, between ABRCF and the Trustee (as amended, modified or supplemented from time to time, exclusive of Supplements creating a new Series of Notes, the “Base Indenture”). All capitalized terms used herein and not otherwise defined herein shall have the respective meanings provided therefor in the Definitions List attached as Schedule I to the Base Indenture (as amended through the date hereof) or the Series 2005-2 Supplement, as applicable.
W I T N E S S E T H:
WHEREAS, pursuant to Section 12.2(i) of the Base Indenture, an amendment to any Supplement requires the consent of ABRCF, the Trustee, the applicable Enhancement Provider and each affected Noteholder of the applicable Series of Notes;
WHEREAS, pursuant to Section 6.11 of the Series 2005-2 Supplement, the Surety Provider is deemed to be the sole holder of the Series 2005-2 Notes for the purpose of giving all consents, waivers and approvals under the Series 2005-2 Supplement and the Base Indenture on behalf of the Series 2005-2 Notes;
WHEREAS, ABRCF has requested the Trustee, the Series 2005-2 Agent and the Surety Provider to, and, upon the effectiveness of (i) this Amendment and (ii) the letter (the “Consent Letter”), dated as of the date hereof, among ABRCF and the Surety Provider, ABRCF, the Trustee, the Series 2005-2 Agent and the Surety Provider have agreed to, amend certain provisions of the Series 2005-2 Supplement as set forth herein;
WHEREAS, the parties desire to amend the Series 2005-2 Supplement (1) to increase the Series 2005-2 Maximum Non-Program Vehicle Percentage, (2) to increase the number of Kia, Suzuki and Hyundai vehicles ABRCF can purchase for inclusion in the AESOP I Operating Lease Loan Agreement Borrowing Base (the “Borrowing Base”) and (3) to require a certain percentage of Kia and Hyundai Vehicles to be included at the Series 2005-2 Standard & Poor’s Highest Enhanced Vehicle Percentage in the Borrowing Base; and
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WHEREAS, ABRCF has requested the Trustee, the Series 2005-2 Agent and each Noteholder to, and, upon this Amendment becoming effective, ABRCF, the Trustee, the Series 2005-2 Agent and the Surety Provider voting as the deemed sole Noteholder have agreed to, amend certain provisions of the Series 2005-2 Supplement as set forth herein;
NOW, THEREFORE, it is agreed:
1. Each of the following defined terms, as set forth in Article I(b) of the Series 2005-2 Supplement, is hereby amended and restated in its entirety as follows:
“Series 2005-2 Maximum Manufacturer Amount” means, as of any day, any of the Series 2005-2 Maximum Mitsubishi Amount, the Series 2005-2 Maximum Individual Isuzu/Subaru Amount, the Series 2005-2 Maximum Hyundai Amount, the Series 2005-2 Maximum Kia Amount or the Series 2005-2 Maximum Suzuki Amount.
“Series 2005-2 Maximum Non-Program Vehicle Percentage” means, as of any date of determination, the sum of (a) 85% and (b) a fraction, expressed as a percentage, the numerator of which is the aggregate Net Book Value of all Redesignated Vehicles manufactured by a Bankrupt Manufacturer or a Manufacturer with respect to which a Manufacturer Event of Default has occurred, and in each case leased under the AESOP I Operating Lease or the Finance Lease as of such date, and the denominator of which is the aggregate Net Book Value of all Vehicles leased under the Leases as of such date.
“Series 2005-2 Required Enhancement Amount” means, as of any date of determination, the sum of (i) the product of the Series 2005-2 Required Enhancement Percentage as of such date and the Series 2005-2 Invested Amount as of such date, (ii) the Series 2005-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the Non-Program Vehicle Amount as of such date over the Series 2005-2 Maximum Non-Program Vehicle Amount as of such date, (iii) the Series 2005-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Mitsubishi and leased under the Leases as of such date over the Series 2005-2 Maximum Mitsubishi Amount as of such date, (iv) the Series 2005-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Isuzu or Subaru, individually, and leased under the Leases as of such date over the Series 2005-2 Maximum Individual Isuzu/Subaru Amount as of such date, (v) the Series 2005-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Hyundai and leased under the Leases as of such date over the Series 2005-2 Maximum Hyundai Amount as of such date, (vi) the Series 2005-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles
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manufactured by Kia and leased under the Leases as of such date over the Series 2005-2 Maximum Kia Amount as of such date, (vii) the Series 2005-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Suzuki and leased under the Leases as of such date over the Series 2005-2 Maximum Suzuki Amount as of such date, (viii) the Series 2005-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the Specified States Amount as of such date over the Series 2005-2 Maximum Specified States Amount as of such date and (ix) the Series 2005-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the Non-Eligible Manufacturer Amount as of such date over the Series 2005-2 Maximum Non-Eligible Manufacturer Amount as of such date.
“Series 2005-2 Standard & Poor’s Highest Enhanced Vehicle Percentage” means, as of any date of determination, a fraction, expressed as a percentage, (a) the numerator of which is the sum, without duplication, of (i) the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease that are manufactured by either of the Standard & Poor’s Specified Non-Investment Grade Manufacturers as of such date, (ii) the excess, if any, of (A) the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease that are manufactured by a Standard & Poor’s Non-Investment Grade Manufacturer other than a Standard & Poor’s Specified Non-Investment Grade Manufacturer, as of such date over (B) 30.00% of the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease as of such date, (iii) the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease that are manufactured by a Bankrupt Manufacturer and (iv) the Series 2005-2 Standard & Poor’s Kia/Hyundai Highest Enhanced Vehicle Percentage Amount on such day and (b) the denominator of which is the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease as of such date.
“Series 2005-2 Standard & Poor’s Lowest Enhanced Vehicle Percentage” means, as of any date of determination, a fraction, expressed as a percentage, (a) the numerator of which is an amount equal to (X) the sum, without duplication, of (1) the aggregate Net Book Value of all Program Vehicles leased under the AESOP I Operating Lease that are manufactured by Eligible Program Manufacturers having long-term senior unsecured debt ratings of “BBB+” or higher from Standard & Poor’s as of such date, (2) so long as any Eligible Non-Program Manufacturer has a long-term senior unsecured debt rating of “BBB+” or higher from Standard & Poor’s and no Manufacturer Event of Default has occurred and is continuing with respect to such Eligible Non-Program Manufacturer, the aggregate Net Book Value of all Non-Program Vehicles leased under the AESOP I Operating Lease manufactured by each such Eligible Non-Program Manufacturer that are subject to a Manufacturer Program and remain eligible for repurchase thereunder as of such date and (3) the lesser of (A) the sum of (x) if as of such date any Eligible Program Manufacturer has a long-term senior unsecured debt rating of “BBB” from Standard & Poor’s, the aggregate Net Book Value of all Program Vehicles leased under the AESOP I Operating Lease manufactured by each such Eligible Program Manufacturer as of such
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date and (y) if as of such date any Eligible Non-Program Manufacturer has a long-term senior unsecured debt rating of “BBB” from Standard & Poor’s and no Manufacturer Event of Default has occurred and is continuing with respect to such Eligible Non-Program Manufacturer, the aggregate Net Book Value of all Non-Program Vehicles leased under the AESOP I Operating Lease manufactured by each such Eligible Non-Program Manufacturer that are subject to a Manufacturer Program and remain eligible for repurchase thereunder as of such date and (B) 10% of the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease as of such date minus (Y) the Series 2005-2 Standard & Poor’s Kia/Hyundai Lowest Enhanced Vehicle Percentage Adjustment Amount as of such date and (b) the denominator of which is the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease as of such date.
2. Each of the following defined terms are hereby added, in appropriate alphabetical order, to Article I(b) of the Series 2005-2 Supplement:
“Series 2002-2 Supplement” means, the Amended and Restated Series 2002-2 Supplement, dated as of November 22, 2002, as amended, modified or supplemented from time to time, among ABRCF, ABCR, as administrator, JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as administrative agent, the CP Conduit Purchasers, Funding Agents and APA Banks named therein, and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to The Bank of New York), as trustee and as agent for the benefit of the Series 2002-2 Noteholders, to the Base Indenture.
“Series 2002-3 Supplement” means, the Series 2002-3 Supplement, dated as of September 12, 2002, as amended, modified or supplemented from time to time, among ABRCF, ABCR, as administrator, Park Avenue Receivables Corporation, as CP Conduit Purchaser, JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Funding Agent and an APA Bank, and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to The Bank of New York), as trustee and as agent for the benefit of the Series 2002-3 Noteholders, to the Base Indenture.
“Series 2005-4 Supplement” means, the Series 2005-4 Supplement, dated as of June 1, 2005, as amended, modified or supplemented from time to time, between ABRCF and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to The Bank of New York), as trustee and as agent for the benefit of the Series 2005-4 Noteholders, to the Base Indenture.
“Series 2007-2 Supplement” means, the Series 2007-2 Supplement, dated as of June 6, 2007, as amended, modified or supplemented from time to time, between ABRCF and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to The Bank of New York Trust Company, N.A.), as trustee and as agent for the benefit of the Series 2007-2 Noteholders, to the Base Indenture.
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“Series 2008-1 Supplement” means, the Series 2008-1 Supplement, dated as of February 15, 2008, as amended, modified or supplemented from time to time, among ABRCF, ABCR, as administrator, JPMorgan Chase Bank, N.A., as administrative agent, the CP Conduit Purchasers, Funding Agents and APA Banks named therein, and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to The Bank of New York Trust Company, N.A.), as trustee and as agent for the benefit of the Series 2008-1 Noteholders, to the Base Indenture.
“Series 2005-2 Maximum Hyundai Amount” means, as of any day, with respect to Hyundai, an amount equal to 20% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2005-2 Maximum Individual Isuzu/Subaru Amount” means, as of any day, with respect to Isuzu or Subaru, individually, an amount equal to 5% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2005-2 Maximum Kia Amount” means, as of any day, with respect to Kia, an amount equal to 10% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2005-2 Maximum Suzuki Amount” means, as of any day, with respect to Suzuki, an amount equal to 7.5% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2005-2 Standard & Poor’s Kia/Hyundai Highest Enhanced Vehicle Percentage Amount” means, as of any day, the sum, without duplication, of (i) the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease that are manufactured by Hyundai in excess of 15% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day, (ii) the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease that are manufactured by Kia in excess of 7.5% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day, and (iii) the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease that are manufactured by Hyundai and Kia, in the aggregate in excess of 20% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2005-2 Standard & Poor’s Kia/Hyundai Lowest Enhanced Vehicle Percentage Adjustment Amount” means, (i) as of any date of determination on which either Kia or Hyundai has a long-term senior unsecured debt rating of at least “BBB” from Standard & Poor’s, the sum without duplication of the Net Book Values as of such date of each Vehicle manufactured by Kia and/or Hyundai (as the case may be) that is included both in (x) the calculation of the Series 2005-2 Standard & Poor’s Kia/Hyundai Highest Enhanced Vehicle Percentage Amount on such date and (y) the calculation of subclause (a)(X) of the definition of Series 2005-2 Standard & Poor’s Lowest Enhanced Vehicle Percentage on such date and (ii) as of any other date, zero.
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3. Each of the following defined terms, as set forth in Article I(b) of the Series 2005-2 Supplement, is hereby deleted in its entirety: “Series 2005-2 Maximum Aggregate Kia/Isuzu/Subaru/Hyundai/Suzuki Amount”, “Series 2005-2 Maximum Individual Hyundai/Suzuki Amount” and “Series 2005-2 Maximum Individual Kia/Isuzu/Subaru Amount.”
4. Article 6 of the Series 2005-2 Supplement is hereby amended by adding the following clauses as Section 6.23 and Section 6.24:
“Section 6.23 Capitalized Cost Covenant. ABRCF hereby agrees that (i) it shall not permit the aggregate Capitalized Cost for all Vehicles purchased in any model year that are not subject to a Manufacturer Program to exceed 85% of the aggregate MSRP (Manufacturer Suggested Retail Price) of all such Vehicles and (ii) it shall not modify its buying patterns or purchasing criteria with respect to the Vehicles where the primary purpose of such modification is compliance with clause (i) of this covenant.”
“Section 6.24 Concentration Limit Representation. ABRCF hereby represents that, as of November 11, 2008, (i) the concentration limits with respect to Kia, Hyundai, Suzuki, Mitsubishi, Subaru and Isuzu in the Series 2005-2 Supplement are identical in all material respects to the concentration limits for such Manufacturers in each of the Series 2002-2 Supplement, the Series 2002-3 Supplement, the Series 2007-2 Supplement and the Series 2008-1 Supplement, (ii) the treatment of Hyundai and Kia Vehicles in the Series 2005-2 Standard & Poor’s Highest Enhancement Percentage is identical in all material respects to the treatment of Hyundai and Kia Vehicles in the Standard & Poor’s Highest Enhancement Percentage in the Series 2002-2 Supplement, the Series 2002-3 Supplement, the Series 2007-2 Supplement and the Series 2008-1 Supplement and (ii) the Series 2005-2 Maximum Non-Program Vehicle Percentage is identical in all material respects to the Maximum Non-Program Vehicle Percentage with respect to each of the Series 2002-2 Supplement, the Series 2002-3 Supplement, the Series 2005-4 Supplement, the Series 2007-2 Supplement and the Series 2008-1 Supplement.”
5. This Amendment is limited as specified and, except as expressly stated herein, shall not constitute a modification, acceptance or waiver of rights under, or of any other provision of, the Series 2005-2 Supplement.
6. This Amendment shall become effective as of the date (the “Amendment Date”) on which each of the following has occurred: (i) each of the parties hereto shall have executed and delivered this Amendment to the Trustee, (ii) the Rating Agency Consent Condition shall have been satisfied with respect to each outstanding Series of Notes and each Enhancement Provider pursuant to the Base Indenture and related Supplements, (iii) all certificates and opinions of counsel required under the Base Indenture or otherwise deliverable with respect to this Amendment shall have been delivered to the Trustee and the Surety Provider, (iv) the Surety Provider, as the Requisite Noteholder and third-party beneficiary of this Amendment, shall have executed the Consent Letter consenting hereto and (v) a majority of the Managers of ABRCF has approved this Amendment.
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7. From and after the Amendment Date, (i) all references to the Series 2005-2 Supplement shall be deemed to be references to the Series 2005-2 Supplement as amended hereby, (ii) the Series 2005-2 Supplement, as amended hereby, shall remain in full force and effect and (iii) this Amendment shall constitute a Transaction Document as defined in the Insurance Agreement.
8. ABRCF hereby reaffirms that each of the representations and warranties of ABRCF in the Transaction Documents that are qualified by materiality or by material adverse effect are true and correct, and that each of the representations and warranties of ABRCF in the Transaction Documents that are not qualified by materiality or by material adverse effect are true and correct in all material respects, in each case on and as of the date hereof as if made on the date hereof.
9. ABRCF hereby confirms that it is in compliance in all material respects with its covenants in the Transaction Documents, and that the Surety Provider is an express third-party beneficiary of this Amendment and ABRCF’s reaffirmations and confirmations set forth herein.
10. This Amendment may be executed in separate counterparts by the parties hereto, each of which when so executed and delivered shall be an original but all of which shall together constitute one and the same instrument.
11. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective duly authorized officers as of the date above first written.
| AVIS BUDGET RENTAL CAR FUNDING | ||
| By: | /s/ Rochelle Tarlowe | |
| Name: | Rochelle Tarlowe | |
| Title: | Vice President and Treasurer | |
| THE BANK OF NEW YORK MELLON TRUST | ||
| By: | /s/ Sally R. Tokich | |
| Name: | Sally R. Tokich | |
| Title: | Assistant Vice President | |
Exhibit 10.34(d)
THIRD AMENDMENT TO THE SERIES 2005-4 SUPPLEMENT
This THIRD AMENDMENT (this “Amendment”), dated as of November 11, 2008, amends the Series 2005-4 Supplement (the “Series 2005-4 Supplement”), dated as of June 1, 2005, as amended by the First Amendment thereto, dated December 23, 2005 and the Second Amendment thereto, dated May 9, 2007, and is between AVIS BUDGET RENTAL CAR FUNDING (AESOP) LLC (formerly known as Cendant Rental Car Funding (AESOP) LLC), a special purpose limited liability company established under the laws of Delaware (“ABRCF”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (as successor in interest to The Bank of New York), a national banking association, as trustee (in such capacity, the “Trustee”) and as agent for the benefit of the Series 2005-4 Noteholders and the Surety Provider (in such capacity, the “Series 2005-4 Agent”), to the Second Amended and Restated Base Indenture, dated as of June 3, 2004, between ABRCF and the Trustee (as amended, modified or supplemented from time to time, exclusive of Supplements creating a new Series of Notes, the “Base Indenture”). All capitalized terms used herein and not otherwise defined herein shall have the respective meanings provided therefor in the Definitions List attached as Schedule I to the Base Indenture (as amended through the date hereof) or the Series 2005-4 Supplement, as applicable.
W I T N E S S E T H:
WHEREAS, pursuant to Section 12.2(i) of the Base Indenture, an amendment to any Supplement requires the consent of ABRCF, the Trustee, the applicable Enhancement Provider and each affected Noteholder of the applicable Series of Notes;
WHEREAS, pursuant to Section 6.11 of the Series 2005-4 Supplement, the Surety Provider is deemed to be the sole holder of the Series 2005-4 Notes for the purpose of giving all consents, waivers and approvals under the Series 2005-4 Supplement and the Base Indenture on behalf of the Series 2005-4 Notes;
WHEREAS, ABRCF has requested the Trustee, the Series 2005-4 Agent and the Surety Provider to, and, upon the effectiveness of (i) this Amendment and (ii) the letter (the “Consent Letter”), dated as of the date hereof, among ABRCF and the Surety Provider, ABRCF, the Trustee, the Series 2005-4 Agent and the Surety Provider have agreed to, amend certain provisions of the Series 2005-4 Supplement as set forth herein;
WHEREAS, the parties desire to amend the Series 2005-4 Supplement (1) to increase the Series 2005-4 Maximum Non-Program Vehicle Percentage and (2) increase the number of Kia, Suzuki and Hyundai Vehicles ABRCF can purchase for inclusion in the AESOP I Operating Lease Loan Agreement Borrowing Base; and
WHEREAS, ABRCF has requested the Trustee, the Series 2005-4 Agent and each Noteholder to, and, upon this Amendment becoming effective, ABRCF, the Trustee, the Series 2005-4 Agent and the Surety Provider, voting as the deemed sole Noteholder, have agreed to, amend certain provisions of the Series 2005-4 Supplement as set forth herein;
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NOW, THEREFORE, it is agreed:
12. Each of the following defined terms, as set forth in Article I(b) of the Series 2005-4 Supplement, is hereby amended and restated in its entirety as follows:
“Series 2005-4 Maximum Manufacturer Amount” means, as of any day, any of the Series 2005-4 Maximum Mitsubishi Amount, the Series 2005-4 Maximum Individual Isuzu/Subaru Amount, the Series 2005-4 Maximum Hyundai Amount, the Series 2005-4 Maximum Kia Amount, the Series 2005-4 Maximum Suzuki Amount or the Series 2005-4 Maximum Aggregate Hyundai/Kia Amount.
“Series 2005-4 Maximum Non-Program Vehicle Percentage” means, as of any date of determination, 85%; provided that the Series 2005-4 Maximum Non-Program Vehicle Percentage as of any date of determination shall be increased by a fraction, expressed as a percentage, the numerator of which is the aggregate Net Book Value of all Redesignated Vehicles manufactured by each Bankrupt Manufacturer and each other Manufacturer with respect to which a Manufacturer Event of Default has occurred and leased as of such date under the AESOP I Operating Lease or the Finance Lease as of such date and the denominator of which is the aggregate Net Book Value of all Vehicles leased under the Leases as of such date.
“Series 2005-4 Required Enhancement Amount” means, as of any date of determination, the sum of (i) the product of the Series 2005-4 Required Enhancement Percentage as of such date and the Series 2005-4 Invested Amount as of such date, (ii) the Series 2005-4 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the Non-Program Vehicle Amount as of such date over the Series 2005-4 Maximum Non-Program Vehicle Amount as of such date, (iii) the Series 2005-4 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Mitsubishi and leased under the Leases as of such date over the Series 2005-4 Maximum Mitsubishi Amount as of such date, (iv) the Series 2005-4 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Isuzu or Subaru, individually, and leased under the Leases as of such date over the Series 2005-4 Maximum Individual Isuzu/Subaru Amount as of such date, (v) the Series 2005-4 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Hyundai and leased under the Leases as of such date over the Series 2005-4 Maximum Hyundai Amount as of such date, (vi) the Series 2005-4 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Kia and leased under the Leases as of such date over the Series 2005-4 Maximum Kia Amount as of such date, (vii) the Series 2005-4 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Suzuki and leased under the Leases as of such date over the Series 2005-4 Maximum Suzuki Amount as of such date, (viii) the Series 2005-4 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Hyundai or Kia, in the aggregate, and leased under the Leases as of such date over the Series 2005-4 Maximum Aggregate Hyundai/Kia Amount as of such date, (ix) the Series 2005-4 AESOP I Operating Lease Percentage as of the immediately
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preceding Business Day of the excess, if any, of the Specified States Amount as of such date over the Series 2005-4 Maximum Specified States Amount as of such date, (x) the Series 2005-4 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the Non-Eligible Manufacturer Amount as of such date over the Series 2005-4 Maximum Non-Eligible Manufacturer Amount as of such date and (xi) the Series 2005-4 Percentage of any Aggregate Adjustment Amount.
13. Each of the following defined terms are hereby added, in appropriate alphabetical order, to Article I(b) of the Series 2005-4 Supplement:
“Series 2005-4 Maximum Aggregate Hyundai/Kia Amount” means, as of any day, with respect to Hyundai or Kia, in the aggregate, an amount equal to 20% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2005-4 Maximum Hyundai Amount” means, as of any day, with respect to Hyundai, an amount equal to 15% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2005-4 Maximum Individual Isuzu/Subaru Amount” means, as of any day, with respect to Isuzu or Subaru, individually, an amount equal to 5% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2005-4 Maximum Kia Amount” means, as of any day, with respect to Kia, an amount equal to 7.5% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2005-4 Maximum Suzuki Amount” means, as of any day, with respect to Suzuki, an amount equal to 7.5% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
14. Each of the following defined terms, as set forth in Article I(b) of the Series 2005-4 Supplement, is hereby deleted in its entirety: “Series 2005-4 Maximum Aggregate Kia/Isuzu/Subaru/Hyundai/Suzuki Amount”, “Series 2005-4 Maximum Individual Hyundai/Suzuki Amount” and “Series 2005-4 Maximum Individual Kia/Isuzu/Subaru Amount.”
15. Article 6 of the Series 2005-4 Supplement is hereby amended by adding the following clause as Section 6.22:
“Section 6.22 Capitalized Cost Covenant. ABRCF hereby agrees that (i) it shall not permit the aggregate Capitalized Cost for all Vehicles purchased in any model year that are not subject to a Manufacturer Program to exceed 85% of the aggregate MSRP (Manufacturer Suggested Retail Price) of all such Vehicles and (ii) it shall not modify its buying patterns or purchasing criteria with respect to the Vehicles where the primary purpose of such modification is compliance with clause (i) of this covenant.”
16. This Amendment is limited as specified and, except as expressly stated herein, shall not constitute a modification, acceptance or waiver of rights under, or of any other provision of the Series 2005-4 Supplement.
17. This Amendment shall become effective as of the date (the “Amendment Date”) on which each of the following has occurred: (i) each of the parties hereto shall have executed and delivered this Amendment to the Trustee, (ii) the Rating Agency Consent Condition shall have been
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satisfied with respect to each outstanding Series of Notes and each Enhancement Provider pursuant to the Base Indenture and related Supplements, (iii) all certificates and opinions of counsel required under the Base Indenture shall have been delivered to the Trustee and (as applicable) the Surety Provider, (iv) the Surety Provider, as the Requisite Noteholder and third-party beneficiary of this Amendment, shall have executed the Consent Letter consenting hereto and (v) a majority of the Managers of ABRCF has approved this Amendment.
18. From and after the Amendment Date, (i) all references to the Series 2005-4 Supplement shall be deemed to be references to the Series 2005-4 Supplement as amended hereby, (ii) the Series 2005-4 Supplement, as amended hereby, shall remain in full force and effect and (iii) this Amendment shall constitute a Transaction Document as defined in the Insurance Agreement.
19. ABRCF hereby reaffirms that each of the representations and warranties of ABRCF in the Transaction Documents dated other than the date hereof was true and correct in all material respects as of the date it was originally made (or as of such other date as specified therein) and each of the representations and warranties of the Issuer contained in the Transaction Documents dated as of the Amendment Date is true and correct in all material respects as of the Amendment Date.
20. ABRCF hereby confirms that it is incompliance in all material respects with its covenants in the Transaction Documents.
21. This Amendment may be executed in separate counterparts by the parties hereto, each of which when so executed and delivered shall be an original but all of which shall together constitute one and the same instrument.
22. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective duly authorized officers as of the date above first written.
| AVIS BUDGET RENTAL CAR FUNDING | ||
| By: | /s/ Rochelle Tarlowe | |
| Name: | Rochelle Tarlowe | |
| Title: | Vice President and Treasurer | |
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee and as Series 2005-4 Agent | ||
| By: | /s/ Sally R. Tokich | |
| Name: | Sally R. Tokich | |
| Title: | Assistant Vice President | |
Exhibit 10.36(b)
CONFORMED COPY
FIRST AMENDMENT TO THE SERIES 2007-2 SUPPLEMENT
This FIRST AMENDMENT (this “Amendment”), dated as of November 11, 2008, amends the Series 2007-2 Supplement (the “Series 2007-2 Supplement”), dated as of June 6, 2007, and is between AVIS BUDGET RENTAL CAR FUNDING (AESOP) LLC (formerly known as Cendant Rental Car Funding (AESOP) LLC), a special purpose limited liability company established under the laws of Delaware (“ABRCF”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (as successor in interest to The Bank of New York Trust Company, N.A.), a national banking association, as trustee (in such capacity, the “Trustee”) and as agent for the benefit of the Series 2007-2 Noteholders and the Surety Provider (in such capacity, the “Series 2007-2 Agent”), to the Second Amended and Restated Base Indenture, dated as of June 3, 2004, between ABRCF and the Trustee (as amended, modified or supplemented from time to time, exclusive of Supplements creating a new Series of Notes, the “Base Indenture”). All capitalized terms used herein and not otherwise defined herein shall have the respective meanings provided therefor in the Definitions List attached as Schedule I to the Base Indenture (as amended through the date hereof) or the Series 2007-2 Supplement, as applicable.
W I T N E S S E T H:
WHEREAS, pursuant to Section 12.2(i) of the Base Indenture, an amendment to any Supplement requires the consent of ABRCF, the Trustee, the applicable Enhancement Provider and each affected Noteholder of the applicable Series of Notes;
WHEREAS, pursuant to Section 6.11 of the Series 2007-2 Supplement, the Surety Provider is deemed to be the sole holder of the Series 2007-2 Notes for the purpose of giving all consents, waivers and approvals under the Series 2007-2 Supplement and the Base Indenture on behalf of the Series 2007-2 Notes;
WHEREAS, ABRCF has requested the Trustee, the Series 2007-2 Agent and the Surety Provider to, and, upon the effectiveness of (i) this Amendment and (ii) the letter (the “Consent Letter”), dated as of the date hereof, among ABRCF and the Surety Provider, ABRCF, the Trustee, the Series 2007-2 Agent and the Surety Provider have agreed to, amend certain provisions of the Series 2007-2 Supplement as set forth herein;
WHEREAS, the parties desire to amend the Series 2007-2 Supplement (1) to increase the Series 2007-2 Maximum Non-Program Vehicle Percentage, (2) to increase the number of Kia, Suzuki and Hyundai Vehicles ABRCF can purchase for inclusion in the AESOP I Operating Lease Loan Agreement Borrowing Base and (3) to require a certain percentage of Kia and Hyundai vehicles to be included at the Series 2007-2 Standard & Poor’s Highest Enhanced Vehicle Percentage in the AESOP I Operating Lease Loan Agreement Borrowing Base; and
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WHEREAS, ABRCF has requested the Trustee, the Series 2007-2 Agent and each Noteholder to, and, upon this Amendment becoming effective, ABRCF, the Trustee, the Series 2007-2 Agent and the Surety Provider, voting as the deemed sole Noteholder, have agreed to, amend certain provisions of the Series 2007-2 Supplement as set forth herein;
NOW, THEREFORE, it is agreed:
23. Each of the following defined terms, as set forth in Article I(b) of the Series 2007-2 Supplement, is hereby amended and restated in its entirety as follows:
“Series 2007-2 Maximum Manufacturer Amount” means, as of any day, any of the Series 2007-2 Maximum Mitsubishi Amount, the Series 2007-2 Maximum Individual Isuzu/Subaru Amount, the Series 2007-2 Maximum Hyundai Amount, the Series 2007-2 Maximum Kia Amount or the Series 2007-2 Maximum Suzuki Amount.
“Series 2007-2 Maximum Non-Program Vehicle Percentage” means, as of any date of determination, the sum of (a) 85% and (b) a fraction, expressed as a percentage, the numerator of which is the aggregate Net Book Value of all Redesignated Vehicles manufactured by a Bankrupt Manufacturer or a Manufacturer with respect to which a Manufacturer Event of Default has occurred, and in each case leased under the AESOP I Operating Lease or the Finance Lease as of such date, and the denominator of which is the aggregate Net Book Value of all Vehicles leased under the Leases as of such date.
“Series 2007-2 Required Enhancement Amount” means, as of any date of determination, the sum of (i) the product of the Series 2007-2 Required Enhancement Percentage as of such date and the Series 2007-2 Invested Amount as of such date, (ii) the Series 2007-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the Non-Program Vehicle Amount as of such date over the Series 2007-2 Maximum Non-Program Vehicle Amount as of such date, (iii) the Series 2007-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Mitsubishi and leased under the Leases as of such date over the Series 2007-2 Maximum Mitsubishi Amount as of such date, (iv) the Series 2007-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Isuzu or Subaru, individually, and leased under the Leases as of such date over the Series 2007-2 Maximum Individual Isuzu/Subaru Amount as of such date, (v) the Series 2007-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Hyundai and leased under the Leases as of such date over the Series 2007-2 Maximum Hyundai Amount as of such date, (vi) the Series 2007-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Kia and leased under the Leases as of such date over the Series 2007-2 Maximum Kia Amount as of such date, (vii) the Series 2007-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the aggregate Net Book Value of all Vehicles manufactured by Suzuki and leased under the Leases as of such date over the Series 2007-2 Maximum Suzuki Amount as of
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such date, (viii) the Series 2007-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the Specified States Amount as of such date over the Series 2007-2 Maximum Specified States Amount as of such date and (ix) the Series 2007-2 AESOP I Operating Lease Vehicle Percentage as of the immediately preceding Business Day of the excess, if any, of the Non-Eligible Manufacturer Amount as of such date over the Series 2007-2 Maximum Non-Eligible Manufacturer Amount as of such date.
“Series 2007-2 Standard & Poor’s Highest Enhanced Vehicle Percentage” means, as of any date of determination, a fraction, expressed as a percentage, (a) the numerator of which is the sum, without duplication, of (i) the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease that are manufactured by either of the Standard & Poor’s Specified Non-Investment Grade Manufacturers as of such date, (ii) the excess, if any, of (A) the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease that are manufactured by a Standard & Poor’s Non-Investment Grade Manufacturer other than a Standard & Poor’s Specified Non-Investment Grade Manufacturer, as of such date over (B) 30.00% of the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease as of such date, (iii) the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease that are manufactured by a Bankrupt Manufacturer and (iv) the Series 2007-2 Standard & Poor’s Kia/Hyundai Highest Enhanced Vehicle Percentage Amount as of such date and (b) the denominator of which is the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease as of such date.
“Series 2007-2 Standard & Poor’s Lowest Enhanced Vehicle Percentage” means, as of any date of determination, a fraction, expressed as a percentage, (a) the numerator of which is an amount equal to (X) the sum, without duplication, of (1) the aggregate Net Book Value of all Program Vehicles leased under the AESOP I Operating Lease that are manufactured by Eligible Program Manufacturers having long-term senior unsecured debt ratings of “BBB” or higher from Standard & Poor’s as of such date, (2) so long as any Eligible Non-Program Manufacturer has a long-term senior unsecured debt rating of “BBB” or higher from Standard & Poor’s and no Manufacturer Event of Default has occurred and is continuing with respect to such Eligible Non-Program Manufacturer, the aggregate Net Book Value of all Non-Program Vehicles leased under the AESOP I Operating Lease manufactured by each such Eligible Non-Program Manufacturer that are subject to a Manufacturer Program and remain eligible for repurchase thereunder as of such date and (3) the lesser of (A) the sum of (x) if as of such date any Eligible Program Manufacturer has a long-term senior unsecured debt rating of “BBB-” from Standard & Poor’s, the aggregate Net Book Value of all Program Vehicles leased under the AESOP I Operating Lease manufactured by each such Eligible Program Manufacturer as of such date and (y) if as of such date any Eligible Non-Program Manufacturer has a long-term senior unsecured debt rating of “BBB-” from Standard & Poor’s and no Manufacturer Event of Default has occurred and is continuing with respect to such Eligible Non-Program Manufacturer, the aggregate Net Book Value of all Non-Program Vehicles leased under the AESOP I Operating Lease manufactured by each such Eligible Non-Program Manufacturer that are subject to a Manufacturer Program and remain eligible for repurchase thereunder as of such date and (B) 10% of the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease as of such date minus (Y) the Series 2007-2 Standard & Poor’s Kia/Hyundai Lowest Enhanced Vehicle Percentage Adjustment Amount as of such date and (b) the denominator of which is the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease as of such date.
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24. Each of the following defined terms are hereby added, in appropriate alphabetical order, to Article I(b) of the Series 2007-2 Supplement:
“Series 2007-2 Maximum Hyundai Amount” means, as of any day, with respect to Hyundai, an amount equal to 20% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2007-2 Maximum Individual Isuzu/Subaru Amount” means, as of any day, with respect to Isuzu or Subaru, individually, an amount equal to 5% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2007-2 Maximum Kia Amount” means, as of any day, with respect to Kia, an amount equal to 10% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2007-2 Maximum Suzuki Amount” means, as of any day, with respect to Suzuki, an amount equal to 7.5% of the aggregate Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2007-2 Standard & Poor’s Kia/Hyundai Highest Enhanced Vehicle Percentage Amount” means, as of any date of determination, the sum, without duplication, of (i) the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease that are manufactured by Hyundai in excess of 15% of the aggregate Net Book Value of all Vehicles leased under the Leases on such date, (ii) the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease that are manufactured by Kia in excess of 7.5% of the aggregate Net Book Value of all Vehicles leased under the Leases on such date, and (iii) the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating Lease that are manufactured by Hyundai and Kia, in the aggregate in excess of 20% of the aggregate Net Book Value of all Vehicles leased under the Leases on such date.
“Series 2007-2 Standard & Poor’s Kia/Hyundai Lowest Enhanced Vehicle Percentage Adjustment Amount” means, (i) as of any date of determination on which either Kia or Hyundai has a long-term senior unsecured debt rating of at least “BBB-” from Standard & Poor’s, the sum of the Net Book Values as of such date of each Vehicle manufactured by Kia or Hyundai that is included both in (x) the calculation of the Series 2007-2 Standard & Poor’s Kia/Hyundai Highest Enhanced Vehicle Percentage Amount on such date and (y) the calculation of subclause (a)(X) of the definition of Series 2007-2 Standard & Poor’s Lowest Enhanced Vehicle Percentage on such date and (ii) as of any other date, zero.
25. Each of the following defined terms, as set forth in Article I(b) of the Series 2007-2 Supplement, is hereby deleted in its entirety: “Series 2007-2 Maximum Aggregate Kia/Isuzu/Subaru/Hyundai/Suzuki Amount”, “Series 2007-2 Maximum Individual Hyundai/Suzuki Amount” and “Series 2007-2 Maximum Individual Kia/Isuzu/Subaru Amount.”
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26. Article 6 of the Series 2007-2 Supplement is hereby amended by adding the following clause as Section 6.22:
“Section 6.22 Capitalized Cost Covenant. ABRCF hereby agrees that (i) it shall not permit the aggregate Capitalized Cost for all Vehicles purchased in any model year that are not subject to a Manufacturer Program to exceed 85% of the aggregate MSRP (Manufacturer Suggested Retail Price) of all such Vehicles and (ii) it shall not modify its buying patterns or purchasing criteria with respect to the Vehicles where the primary purpose of such modification is compliance with clause (i) of this covenant.”
27. This Amendment is limited as specified and, except as expressly stated herein, shall not constitute a modification, acceptance or waiver of rights under, or of any other provision of the Series 2007-2 Supplement.
28. This Amendment shall become effective as of the date (the “Amendment Date”) on which each of the following has occurred: (i) each of the parties hereto shall have executed and delivered this Amendment to the Trustee, (ii) the Rating Agency Consent Condition shall have been satisfied with respect to each outstanding Series of Notes and each Enhancement Provider pursuant to the Base Indenture and related Supplements, (iii) all certificates and opinions of counsel required under the Base Indenture shall have been delivered to the Trustee and (as applicable) the Surety Provider, (iv) the Surety Provider, as the Requisite Noteholder and third-party beneficiary of this Amendment, shall have executed the Consent Letter consenting hereto and (v) a majority of the Managers of ABRCF has approved this Amendment.
29. From and after the Amendment Date, (i) all references to the Series 2007-2 Supplement shall be deemed to be references to the Series 2007-2 Supplement as amended hereby, (ii) the Series 2007-2 Supplement, as amended hereby, shall remain in full force and effect and (iii) this Amendment shall constitute a Transaction Document as defined in the Insurance Agreement.
30. ABRCF hereby reaffirms that each of the representations and warranties of ABRCF in the Transaction Documents dated other than the date hereof was true and correct in all material respects as of the date it was originally made (or as of such other date as specified therein) and each of the representations and warranties of the Issuer contained in the Transaction Documents dated as of the Amendment Date is true and correct in all material respects as of the Amendment Date.
31. ABRCF hereby confirms that it is in compliance in all material respects with its covenants in the Transaction Documents.
32. This Amendment may be executed in separate counterparts by the parties hereto, each of which when so executed and delivered shall be an original but all of which shall together constitute one and the same instrument.
33. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective duly authorized officers as of the date above first written.
| AVIS BUDGET RENTAL CAR FUNDING (AESOP) | ||
| By: | /s/ Rochelle Tarlowe | |
| Name: | Rochelle Tarlowe | |
| Title: | Vice President and Treasurer | |
| THE BANK OF NEW YORK MELLON TRUST | ||
| By: | /s/ Sally R. Tokich | |
| Name: | Sally R. Tokich | |
| Title: | Assistant Vice President | |
| NEW YORK 6994991 (2K) First Amendment to Series 2007-2 Supplement (November 2008 Amendment)(CONFORMED) |
Exhibit 10.41 (f)
CONFORMED COPY
AMENDMENT NO. 4
TO SERIES 2006-1 SUPPLEMENT
This AMENDMENT NO. 4 TO SERIES 2006-1 SUPPLEMENT, dated as of December 23, 2008 (this “Amendment”) is between Centre Point Funding, LLC (f/k/a Budget Truck Funding, LLC) (“BTF”), Budget Truck Rental, LLC (“BTR”), as Administrator, Deutsche Bank Securities, Inc., (“DBSI”), Riverside Funding LLC (“Riverside Funding”), Deutsche Bank AG, New York Branch (“DBAG”), Sheffield Receivables Corporation (“Sheffield”), Barclays Bank PLC (“Barclays”) and The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York Trust Company, N.A.), in its capacity as Trustee.
RECITALS:
WHEREAS, BTF and the Trustee entered into that certain Base Indenture, dated as of May 11, 2006, as amended by that certain Amendment No. 1 to the Base Indenture, dated as of May 16, 2007, and as further amended by that certain Amendment No. 2 to the Base Indenture, dated as of February 15, 2008 (as the same may be further amended, modified, supplemented or amended and restated in accordance with its terms, the “Base Indenture”);
WHEREAS, the parties hereto entered into that certain Series 2006-1 Supplement to the Base Indenture, dated as of May 11, 2006, as amended by that certain Amendment No. 1 to Series 2006-1 Supplement, dated as of May 16, 2007, as further amended by that certain Amendment No. 2 to Series 2006-1 Supplement, dated as of February 15, 2008, and as further amended by that certain Amendment No. 3 to Series 2006-1 Supplement, dated as of May 8, 2008 (the “Series Supplement”);
WHEREAS, BTF, Riverside Funding, DBSI, DBAG, Sheffield and Barclays are entering into an amended and restated fee letter (the “Amended Fee Letter”) as of the date hereof to revise the definitions of “Applicable Margin” and “Program Fee Rate” therein;
WHEREAS, the parties hereto wish to amend the Series Supplement as provided herein to, among other things, make the Amended Fee Letter the “Fee Letter” referenced in and applicable to the Series Supplement and thereby incorporate the revised Applicable Margin and Program Fee Rate into the Series Supplement and BTF’s obligations thereunder;
WHEREAS, pursuant to Section 10.11 of the Series Supplement, the Series Supplement may be modified or amended in accordance the requirements of Section 12.1 of the Base Indenture, and pursuant thereto the Requisite Investors or each affected Noteholder, as required, have consented in writing to the amendments effected by this Amendment; and
WHEREAS, this Amendment has been duly authorized by all necessary limited liability company action on the part of BTF;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.1. Terms Defined in Series Supplement or Base Indenture. Capitalized terms used in this Amendment not herein defined shall have the meaning contained in the Series Supplement and, if not defined therein, in the Definitions List attached to the Base Indenture as Annex 1 or as otherwise set forth in the Base Indenture.
ARTICLE II.
Amendments
Section 2.1. Amendments to Article I – Definitions.
(a) The definition of “Fee Letter” set forth in Article I of the Series Supplement is hereby amended and restated in its entirety to read as follows:
“Fee Letter” means the letter dated as of December 23, 2008, from BTF addressed to Riverside Funding LLC, DBSI, Deutsche Bank AG, New York, Sheffield and Barclays, as the same may be amended, restated or otherwise modified from time to time, amending and restating the Second Amended Fee Letter, and setting forth certain fees payable from time to time to the Purchaser Groups.
(b) Article I of the Series Supplement is hereby amended by adding the following definition in proper alphabetical sequence:
“Second Amended Fee Letter” means the letter dated as of May 8, 2008, from BTF addressed to Riverside Funding LLC, DBSI, Deutsche Bank AG, New York, Sheffield and Barclays, amending and restating the Original Fee Letter, and setting forth certain fees payable from time to time to the Purchaser Groups.
(c) Article I of the Series Supplement is hereby amended by adding the following definitions in proper alphabetical sequence:
“Amendment No. 4” is defined in Section 10.20.
“Rating Affirmation” is defined in Section 10.20.
The amendments set forth in Section 2.1(a) and (b) above are collectively the “Fee Letter Amendment”.
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Section 2.1. Amendments to Article X – General.
Article X of the Series Supplement is hereby amended by adding the following provisions as Section 10.20 thereof:
Section 10.20 Further Assurances
Each of BTF and BTR hereby covenants and agrees that, on or after the date of Amendment No. 4 to Series 2006-1 Supplement, dated as of December 23, 2008, by and among the BTF, BTR, Deutsche Bank Securities, Inc., Riverside Funding LLC, Deutsche Bank AG, New York Branch, Sheffield Receivables Corporation, Barclays Bank PLC and the Trustee (“Amendment No. 4”), it will use commercially reasonable efforts to promptly obtain written confirmation from Moody’s that its A2 rating of the Series 2006-1 Notes shall not be reduced or withdrawn as a result of the amendments contemplated by the Fee Letter Amendment (as defined in Amendment No. 4) (the “Rating Affirmation”) (a copy of such Rating Affirmation to be delivered to the Trustee) including, without limitation, entering into a further amendment to the Series Supplement to increase the Series 2006-1 Required Liquid Enhancement Percentage to the extent necessary to achieve such Rating Affirmation.
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ARTICLE III.
MISCELLANEOUS
Section 3.1. Condition to Effectiveness of Fee Letter Amendment. The Fee Letter Amendment shall become effective as of the date hereof only upon receipt by the Administrative Agent of written confirmation (the “Rating Affirmation”) from Moody’s that its A2 rating of the Series 2006-1 Notes shall not be reduced or withdrawn as a result of the amendments contemplated by the Fee Letter Amendment; provided that, for the avoidance of doubt, if the Rating Affirmation is not received on the date hereof, the excess of any and all interest and fees that would accrue from and including the date hereof under the Series Supplement taking into account the Fee Letter Amendment over the interest and fees accruing from and including the date hereof under the Series Supplement absent the Fee Letter Amendment, shall in fact accrue from the date hereof through and including the date of receipt of the Rating Affirmation but shall become due and payable (i) only if the Rating Affirmation is received and (ii) on the first Payment Date immediately following the third Business Day after such date of receipt of the Rating Affirmation.
Section 3.2. Effect of Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of any of the parties hereto under the Series Supplement, nor alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Series Supplement, all of which are hereby ratified and affirmed in all respects by each of the parties hereto and shall continue in full force and effect. This Amendment shall apply and be effective only with respect to the provisions of the Series Supplement specifically referred to herein, and any references in the Base Indenture to the provisions of the Series Supplement specifically referred to herein shall be to such provisions as amended by this Amendment.
Section 3.3. Further Assurances. If the Rating Affirmation is not received on the date hereof, BTF and BTR shall use commercially reasonable efforts on and after the date hereof to promptly obtain the Rating Affirmation after the date hereof, including, without limitation, entering into a further amendment to the Series Supplement to increase the Series 2006-1 Required Liquid Enhancement Percentage to the extent necessary to achieve the Rating Affirmation.
Section 3.4 Waiver of Notice. Each of the parties hereto waives any prior notice and any notice period that may be required by any other agreement or document in connection with the execution of this Amendment.
Section 3.5. Binding Effect. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
Section 3.6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PROVISIONS THEREOF REGARDING CONFLICTS OF
4
LAWS), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 3.7. Counterparts. This Amendment may be executed in any number of counterparts and by different parties herein in separate counterparts, each of which when executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
| CENTRE POINT FUNDING, LLC, as Issuer | ||
| By: | /s/ David B. Wyshner | |
| Name: David B. Wyshner | ||
| Title: Executive Vice President, Chief Financial Officer and Treasurer | ||
| DEUTSCHE BANK SECURITIES, INC., as Administrative Agent | ||
| By: | /s/ Eric Shea | |
| Name: Eric Shea | ||
| Title: Managing Director | ||
| By: | /s/ Sergey Moiseyenko | |
| Name: Sergey Moiseyenko | ||
| Title: Vice President | ||
C-1
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., not in its individual capacity | ||
| By: | /s/ Sally R. Tokich | |
| Name: Sally R. Tokich | ||
| Title: Assistant Vice President | ||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., not in its individual capacity but as Series 2006-1 Agent | ||
| By: | /s/ Sally R. Tokich | |
| Name: Sally R. Tokich | ||
| Title: Assistant Vice President | ||
C-2
| BUDGET TRUCK RENTAL, LLC, as Administrator | ||
| By: | /s/ Roger Watkins | |
| Name: Roger Watkins | ||
| Title: VP Truck | ||
C-3
| RIVERSIDE FUNDING LLC, as a CP Conduit Purchaser | ||
| By: | /s/ Jill A. Russo | |
| Name: Jill A. Russo | ||
| Title: Vice President | ||
| DEUTSCHE BANK AG, NEW YORK BRANCH, as an APA Bank | ||
| By: | /s/ Eric Shea | |
| Name: Eric Shea | ||
| Title: Managing Director | ||
| By: | /s/ Sergey Moiseyenko | |
| Name: Sergey Moiseyenko | ||
| Title: Vice President | ||
| DEUTSCHE BANK SECURITIES, INC., as a Funding Agent | ||
| By: | /s/ Eric Shea | |
| Name: Eric Shea | ||
| Title: Managing Director | ||
| By: | /s/ Sergey Moiseyenko | |
| Name: Sergey Moiseyenko | ||
| Title: Vice President | ||
C-4
| SHEFFIELD RECEIVABLES CORPORATION, as a CP Conduit Purchaser | ||
| By: | /s/ Hong Zhao | |
| Name: Hong Zhao | ||
| Title: Vice President | ||
| BARCLAYS BANK PLC, as an APA Bank | ||
| By: | /s/ Kristin Terranova | |
| Name: Kristin Terranova | ||
| Title: Vice President | ||
| BARCLAYS BANK PLC, as a Funding Agent | ||
| By: | /s/ Kristin Terranova | |
| Name: Kristin Terranova | ||
| Title: Vice President | ||
C-5
| ACKNOWLEDGED AND AGREED TO BY: | ||
| AVIS BUDGET CAR RENTAL, LLC, as Guarantor | ||
| By: | /s/ Rochelle Tarlowe | |
| Name: Rochelle Tarlowe | ||
| Title: Vice President and Treasurer | ||
C-6
Exhibit 10.49(j)
AMENDING AGREEMENT NO. 9
MEMORANDUM OF AGREEMENT made as of the 22nd day of December, 2008,
B E T W E E N:
AVISCAR INC.,
a corporation incorporated under the laws of Canada,
(hereinafter referred to as “Avis General Partner”),
- and -
BUDGETCAR INC.,
a corporation existing under the laws of Canada,
(hereinafter referred to as “Budget General Partner”),
- and -
BNY TRUST COMPANY OF CANADA,
a trust company incorporated under the laws of Canada and registered to carry on the business of a trust company in each of the provinces of Canada, in its capacity as trustee of STARS TRUST, a trust established under the laws of the Province of Ontario,
(hereinafter referred to as “STARS Limited Partner”),
- and -
MONTREAL TRUST COMPANY OF CANADA,
a trust company incorporated under the laws of Canada and registered to carry on the business of a trust company in each of the provinces in Canada, in its capacity as trustee of BAY STREET FUNDING TRUST, a trust established under the laws of the Province of Ontario,
(hereinafter called the “Bay Street Limited Partner”).
WHEREAS the Avis General Partner, the Budget General Partner, the STARS Limited Partner and the Bay Street Limited Partner have entered into a fourth amended and restated limited partnership agreement made as of the 20th day of April, 2005, as amended by amending agreements between the parties dated October 11, 2005, July 7, 2006, December 11, 2006, November 21, 2007, February 12, 2008, March 5, 2008, April 30, 2008 and June 16, 2008 (collectively, the “Limited Partnership Agreement”);
AND WHEREAS the Avis General Partner, the Budget General Partner, the STARS Limited Partner and the Bay Street Limited Partner wish to amend the Limited Partnership Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the premises and covenants and agreements of the parties herein contained and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the parties), the parties hereby covenant and agree as follows:
| 1. | Interpretation |
| (a) | All words and expressions defined in the Limited Partnership Agreement and not otherwise defined in this Agreement have the respective meanings specified in the Limited Partnership Agreement. |
| (b) | Section headings are for convenience only. |
| 2. | Amendments to the Limited Partnership Agreement |
| 2.1 | Section 1.1 of the Limited Partnership Agreement is hereby amended by adding the following definitions in the applicable alphabetical order: |
““Hyundai” means Hyundai Auto Canada and its successors and its Affiliates;”;
““Kia” means Kia Canada Inc. and its successors and its Affiliates;”; and
““Mazda” means Mazda Canada Inc. and its successors and its Affiliates;”.
| 2.2 | Section 1.1 of the Limited Partnership Agreement is hereby amended by deleting the definitions of “Alternate Rate”, “Available Call Amount”, “Manufacturer”, “Moody’s Aggregate Partnership Non-program Vehicle Amount”, “Moody’s Aggregate Partnership Program Vehicle Amount”, “Partnership Non-program Vehicle Percentage”, “Program Fee Rate” and “Utilization Fee” and replacing them with the following definitions, respectively: |
““Alternate Rate” means, for the Bay Street Limited Partner and any Remittance Period during which any Portion of the Bay Street Limited Partner’s Funded Amount is being funded under its Liquidity Agreement, an interest rate per annum specified as the Alternate Rate in the letter agreement dated April 20, 2005 between the Avis General Partner and the Bay Street Securitization Agent as such letter agreement may be amended, restated, supplemented or replaced from time to time;”;
““Available Call Amount” means, (x) in respect of the STARS Limited Partner, the amount by which (a) the sum of $215,000,000 and the aggregate Principal Amount of Bonds issued by the STARS Limited Partner outstanding at such time exceeds (b) the balance of the STARS Limited Partner’s Capital Account at such time; and (y) in respect of the Bay Street Limited Partner, the amount by which (a) the sum of $125,000,000 and the aggregate Principal Amount of Bonds issued by the Bay Street Limited Partner outstanding at such time exceeds (b) the balance of the Bay Street Limited Partner’s Capital Account at such time; provided that on and after the occurrence of a Funding Termination Event for any
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Limited Partner, the Available Call Amount for such Limited Partner shall be deemed to be zero;”;
““Manufacturer” means any of Chrysler, Ford, General Motors, Nissan, Toyota, Hyundai, Kia, Mazda and any additional manufacturer of Vehicles;”;
““Moody’s Aggregate Partnership Non-program Vehicle Amount” means, on any date, (x) subject to (y) below, 66.9% of the sum of the Current Book Values of the Partnership Non-program Vehicles manufactured by each Manufacturer on such date (other than a Partnership Non-program Vehicle in respect of which a Partnership Vehicle Receivable is outstanding) after deducting from the sum of such Current Book Values the aggregate amounts owing to such Manufacturers by the Partnership in respect of such Partnership Non-program Vehicles on such date; and (y) in respect of any Partnership Non-program Vehicles which have become Partnership Non-program Vehicles (after previously being Partnership Program Vehicles) as a result of the related Manufacturer becoming a Non-Performing Manufacturer, 62.5% of the sum of the Current Book Values of such Partnership Non-program Vehicles manufactured by each Manufacturer on such date (other than a Partnership Non-program Vehicle in respect of which a Partnership Vehicle Receivable is outstanding) after deducting from the sum of such Current Book Values the aggregate amounts owing to such Manufacturers by the Partnership in respect of such Partnership Non-program Vehicles on such date;”;
““Moody’s Aggregate Partnership Program Vehicle Amount” means, on any date, 62.5% of the sum of the Current Book Values of the Partnership Program Vehicles and the Program Negotiation Vehicles manufactured by each Eligible Manufacturer that is either rated less than Baa3 by Moody’s on such date or is a Non-Performing Manufacturer (other than, in either case, any Program Negotiation Vehicles or Partnership Program Vehicles in respect of which a Partnership Vehicle Receivable is outstanding) after deducting from the sum of such Current Book Values the aggregate amounts owing to such Manufacturers by the Partnership in respect of such Partnership Program Vehicles and Program Negotiation Vehicles on such date;”;
““Partnership Non-program Vehicle Percentage” means in respect of Partnership Non-program Vehicles manufactured by a particular Manufacturer at any time:
| (a) | 82.50%, subject to (c) below, where (i) at such time, the highest of the Partnership Non-program Vehicle Loss Percentages as determined on the six most recently completed Settlement Dates is less than or equal to 1.0%, and (ii) no Manufacturer Event of Bankruptcy has occurred and is continuing in respect of such Manufacturer; |
| (b) | 76.50%, subject to (c) below, where (i) at such time, the highest of the Partnership Non-program Vehicle Loss Percentages as determined on the six most recently completed Settlement Dates is greater than 1.0%, or (ii) a Manufacturer Event of Bankruptcy has occurred and is continuing in respect of such Manufacturer; and |
3
| (c) | if such Manufacturer is Hyundai and greater than 15% of the Partnership Vehicles are manufactured by Hyundai at such time, 72.50% solely in respect of those Partnership Vehicles manufactured by Hyundai which are in excess of such 15% threshold at such time;”; |
““Program Fee Rate” means, (a) in respect of any Notes issued by the STARS Limited Partner, the rate specified as such in the letter agreement dated April 20, 2005 as such letter agreement may be amended, restated, supplemented or replaced from time to time between the Avis General Partner and the STARS Securitization Agent and, (b) in respect of the Bay Street Limited Partner and any Portion of the Bay Street Limited Partner’s Funded Amount, the rate specified as the Program Fee Rate for the Bay Street Limited Partner in the letter agreement dated April 20, 2005 as such letter agreement may be amended, restated, supplemented or replaced from time to time between the Avis General Partner and the Bay Street Securitization Agent;”; and
““Utilization Fee” means, in respect of the STARS Limited Partner, the fee specified as such in the letter agreement dated April 20, 2005 as such letter agreement may be amended, restated, supplemented or replaced from time to time between the Avis General Partner and the STARS Securitization Agent, and in respect of the Bay Street Limited Partner, the fee specified as such in the letter agreement dated April 20, 2005 as such letter agreement may be amended, restated, supplemented or replaced from time to time between the Avis General Partner and the Bay Street Securitization Agent;”.
| 2.3 | Section 1.1 of the Limited Partnership Agreement is hereby further amended by adding the following definition in the applicable alphabetical order: |
““Partnership Non-program Vehicle Loss Percentage” means a fraction, expressed as a percentage, calculated on each Settlement Date, equal to:
| (a) | the amount, if any, by which (i) the aggregate of the Current Book Values (as determined at the time of disposition) of all Partnership Non-program Vehicles disposed of during the three most recently completed Settlement Periods prior to such Settlement Date (or such greater number of Settlement Periods as may be necessary such that the aggregate Proceeds of Disposition of Partnership Non-program Vehicles disposed of during such time period is not less than $6,000,000), exceeds (ii) the aggregate Proceeds of Disposition of such Partnership Non-program Vehicles; |
divided by
| (b) | the amount determined in clause (a)(i) above;” |
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| 2.4 | Section 3.3(b) of the Limited Partnership Agreement is hereby deleted in its entirety and replaced with the following: |
| “(b) | The balance of the STARS Limited Partner’s Capital Account shall not at any time exceed an amount equal to the sum of $215,000,000 plus the aggregate Principal Amount of Bonds issued and outstanding by the STARS Limited Partner at the time of determination. The balance of the Bay Street Limited Partner’s Capital Account shall not at any time exceed an amount equal to the sum of $125,000,000 plus the aggregate Principal Amount of Bonds issued and outstanding by the Bay Street Limited Partner at the time of determination.” |
| 2.5 | Section 5.2(i) of the Limited Partnership Agreement is hereby deleted in its entirety and replaced with the following: |
| “(i) | The General Partners shall ensure that at all times (i) at least 50% of the Partnership Vehicles are Partnership Program Vehicles, (ii) no more than 20% of the Partnership Vehicles are manufactured by Hyundai, no more than 5% of the Partnership Vehicles are manufactured by Kia and no more than 5% of the Partnership Vehicles are manufactured by Mazda, (iii) no more than 5% of the Partnership Vehicles in the aggregate, and no more than 2% of such vehicles on an individual Manufacturer basis, are manufactured by Manufacturers (or, in the case of the 2% threshold, any one Manufacturer) other than Chrysler, Ford, GM or another Eligible Manufacturer, Hyundai, Kia, Mazda, Nissan or Toyota, (iv) no more than 1% of the Partnership Vehicles are service vehicles, (v) no more than 1% of the Partnership Program Vehicles have been purchased from either a Nissan or Toyota Approved Dealer which has entered into a Repurchase Agreement pursuant to which such Vehicles may be repurchased, (vi) no more than 10% of the Partnership Vehicles are Used Vehicles, (vii) no Partnership Vehicle that is a Used Vehicle has mileage of more than 90,000 kilometres, and (viii) the average Original Book Value of each of the Partnership Vehicles is not more than $40,000; for the purposes of this subsection 5.2(i), any reference to a particular percentage of Partnership Program Vehicles or Partnership Vehicles is a reference to a percentage of the aggregate of (i) the Current Book Value of such Vehicles and (ii) the amount of receivables from Eligible Manufacturers and Nissan and Toyota Approved Dealers then outstanding in respect of the repurchase of Partnership Program Vehicles or Partnership Vehicles, as the case may be, pursuant to Repurchase Agreements with such Eligible Manufacturers and Nissan and Toyota Approved Dealers.” |
| 3. | Other Documents |
Any reference to the Limited Partnership Agreement made in any documents delivered pursuant thereto or in connection therewith shall be deemed to refer to the Limited Partnership Agreement as amended or supplemented from time to time.
| 4. | Miscellaneous |
| (a) | With the exception of the foregoing amendments, the Limited Partnership Agreement shall continue in full force and effect, unamended. |
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| (b) | This Agreement shall enure to the benefit of and be binding upon the parties, their successors and any permitted assigns. |
| (c) | This Agreement may be executed in one or more counterparts each of which shall be deemed an original and all of which when taken together, shall constitute one and the same instrument. |
| (d) | None of the rights or obligations hereunder shall be assignable or transferable by any party without the prior written consent of the other party. |
| (e) | This Agreement shall be governed and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. |
| (f) | Notwithstanding any other term included in the Limited Partnership Agreement, the General Partners acknowledge and confirm that they will not make any further Capital Calls from the Limited Partners, and the Limited Partners shall not be required to fund any Capital Calls, until such time as Moody’s has completed its review of the Limited Partnership Agreement (as amended by this Agreement) and has confirmed its rating of the Notes in writing. |
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IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be executed by their authorizes signatories thereunto duly authorized, as of the date first above written.
| AVISCAR INC. | ||
| By: | /s/ David Calabria | |
| Name: David Calabria Title: Assistant Treasurer | ||
| By: | ||
| Name: Title: | ||
| BUDGETCAR INC. | ||
| By: | /s/ Tim Smith | |
| Name: Tim Smith Title: Assistant Treasurer | ||
| By: | ||
| Name: Title: | ||
| BNY TRUST COMPANY OF CANADA, as trustee of STARS TRUST (with liability limited to the assets of STARS Trust) by its Securitization Agent, BMO NESBITT BURNS INC. | ||
| By: | /s/ Christopher Romano | |
| Name: Christopher Romano Title: Managing Director | ||
| By: | /s/ Bill Crimp | |
| Name: Bill Crimp Title: Managing Director | ||
| MONTREAL TRUST COMPANY OF CANADA, as trustee of BAY STREET FUNDING TRUST (with liability limited to the assets of Bay Street Funding Trust) by its administrator, SCOTIA CAPITAL INC. | ||
| By: | /s/ Douglas Noe | |
| Name: Douglas Noe Title: Director, Structured Finance | ||
The undersigned hereby acknowledges notice of and consents to the foregoing amendments to the Limited Partnership Agreement.
DATED this 22nd day of December, 2008.
| AVIS BUDGET CAR RENTAL, LLC | ||
| By: | /s/ David Calabria | |
| Name: David Calabria Title: Assistant Treasurer | ||
Exhibit 12
Avis Budget Group, Inc.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in millions)
| Year Ended December 31, | |||||||||||||||||||
| 2008 | 2007 | 2006 | 2005 | 2004 | |||||||||||||||
| Earnings available to cover fixed charges: |
|||||||||||||||||||
| Income (loss) from continuing operations before |
$ | (1,343 | ) | $ | (992 | ) | $ | (677 | ) | $ | (62 | ) | $ | 7 | |||||
| Plus: Fixed charges |
464 | 556 | 693 | 569 | 607 | ||||||||||||||
| Earnings available to cover fixed charges |
$ | (879 | ) | $ | (436 | ) | $ | 16 | $ | 507 | $ | 614 | |||||||
| Fixed charges: |
|||||||||||||||||||
| Interest, including amortization of deferred |
$ | 402 | $ | 497 | $ | 632 | $ | 512 | $ | 553 | |||||||||
| Interest portion of rental payment |
62 | 59 | 61 | 57 | 54 | ||||||||||||||
| Total fixed charges |
$ | 464 | $ | 556 | $ | 693 | 569 | $ | 607 | ||||||||||
| Ratio of earnings to fixed charges (b) |
- | - | - | - | 1.01x | ||||||||||||||
| (a) | Consists of interest expense on all indebtedness (including amortization of deferred financing costs) and the portion of operating lease rental expense that is representative of the interest factor. Interest expense on all indebtedness is detailed as follows: |
| Year Ended December 31, | |||||||||||||||
| 2008 | 2007 | 2006 | 2005 | 2004 | |||||||||||
| Related to the debt under vehicle programs |
$ | 266 | $ | 356 | $ | 361 | $ | 313 | $ | 263 | |||||
| All other |
136 | 141 | 271 | 199 | 290 | ||||||||||
| $ | 402 | $ | 497 | $ | 632 | $ | 512 | $ | 553 | ||||||
| Does not include interest expense from discontinued operations of $87 million, $163 million and $371 million for the years ended December 31, 2006, 2005 and 2004, respectively. |
| (b) | Earnings were not sufficient to cover fixed charges in 2008, 2007, 2006 and 2005. |
* * *
Exhibit 21
| Subsidiary | Jurisdiction of Incorporation | |
| AB Car Rental Services Inc. |
Delaware | |
| AB Funding Pty Ltd. |
Australia | |
| ABG Car Services Holdings LLC |
Delaware | |
| Advance Ross Corporation |
Delaware | |
| Advance Ross Intermediate Corporation |
Delaware | |
| Advance Ross Sub Company |
Delaware | |
| AESOP Leasing Corp. |
Delaware | |
| AESOP Leasing LP |
Delaware | |
| ARAC Management Services Inc. |
Delaware | |
| ARACS LLC |
Delaware | |
| Arbitra S.A. |
Argentina | |
| Auto Accident Consultants Pty. Limited |
Australia | |
| Avis Asia and Pacific Limited |
Delaware | |
| Avis Budget Car Rental LLC |
Delaware | |
| Avis Budget Car Rental Canada ULC |
Nova Scotia | |
| Avis Budget Contact Centers Inc. |
Canada | |
| Avis Budget de Puerto Rico, Inc. |
Puerto Rico | |
| Avis Budget Finance Inc. |
Delaware | |
| Avis Budget Group Limited |
New Zealand | |
| Avis Budget Group Pty Limited |
Australia | |
| Avis Budget Holdings LLC |
Delaware | |
| Avis Budget Rental Car Funding (AESOP) LLC |
Delaware | |
| Avis Car Rental Group LLC |
Delaware | |
| Avis Caribbean, Limited |
Delaware | |
| Avis Enterprises Inc. |
Delaware | |
| Avis Group Holdings LLC |
Delaware | |
| Avis International Ltd. |
Delaware | |
| Avis Leasing Corporation |
Delaware | |
| Avis Lube Inc. |
Delaware | |
| Avis Management Pty. Limited |
Australia | |
| Avis Management Services, Ltd. |
Delaware | |
| Avis Operations LLC |
Delaware | |
| Avis Rent A Car de Puerto Rico Inc. |
Puerto Rico | |
| Avis Rent A Car Limited |
New Zealand | |
| Avis Rent A Car Sdn. Bhd. |
Malaysia | |
| Avis Rent A Car Sdn. Bhd. |
Singapore | |
| Avis Rent A Car System LLC |
Delaware | |
| Avis Service Inc. |
Delaware | |
| Avis Services Canada Inc. |
Canada | |
| Aviscar Inc. |
Canada | |
| Baker Car and Truck Rental Inc. |
Arkansas | |
| BGI Leasing Inc. |
Delaware | |
| Budget Funding Corporation |
Delaware | |
| Budget Lease Management (Car Sales) Limited |
New Zealand | |
| Budget Locacao de Veiculos Ltda. |
Brazil | |
| Budget Rent A Car Australia Pty. Ltd. |
Australia | |
| Budget Rent A Car Limited |
New Zealand | |
| Budget Rent a Car Operations Pty. Ltd. |
Australia | |
| Budget Rent A Car System Inc. |
Delaware | |
| Subsidiary | Jurisdiction of Incorporation | |
| Budget Truck Rental LLC |
Delaware | |
| Budgetcar Inc. |
Canada | |
| Budget Rent A Car De Puerto Rico, Inc. |
Puerto Rico | |
| Camfox Pty. Ltd. |
Australia | |
| CCRG Servicos De Automoveis Ltda |
Brazil | |
| CD Intellectual Property Holdings, LLC |
Delaware | |
| Cendant Finance Holding Company LLC |
Delaware | |
| Centre Point Funding, LLC |
Delaware | |
| Chaconne Pty. Limited |
Australia | |
| Constellation Reinsurance Company Limited |
Barbados | |
| Global Excess & Reinsurance Ltd. |
Bermuda | |
| HFS Truck Funding Corporation |
Delaware | |
| Mansions Auto Garage Ltd |
Canada | |
| Motorent Inc. |
Tennessee | |
| Pathfinder Insurance Company |
Colorado | |
| PF Claims Management Ltd. |
Delaware | |
| PR Holdco, Inc. |
Delaware | |
| PV Holding Corp. |
Delaware | |
| Quartz Fleet Management Inc. |
Delaware | |
| Rent-A-Car Company, Incorporated |
Virginia | |
| Runabout, LLC |
Delaware | |
| Servicios Avis S.A. |
Mexico | |
| Show Group Enterprises Pty Limited |
Australia | |
| Team Fleet Financing Corporation |
Delaware | |
| Virgin Islands Enterprises Inc. |
Virgin Islands | |
| W.T.H. Fleet Leasing Pty. Limited |
Australia | |
| W.T.H. PTY. Limited |
Australia | |
| We Try Harder Pty. Limited |
Australia | |
| Wizard Co. Inc. |
Delaware | |
| Wizard Services Inc. |
Delaware | |
| WTH Canada Inc. |
Canada | |
| WTH Funding Limited Partnership |
Canada | |
| Yourway Rent A Car Limited |
New Zealand | |
| Yourway Rent A Car Pty Limited |
Australia | |
Exhibit 23
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Registration Statement Nos. 333-11035, 333-17323, 333-17411, 333-20391, 333-23063, 333-26927, 333-35707, 333-45155, 333-45227, 333-49405, 333-78447, 333-51586, 333-59246, 333-65578, 333-65456, 333-65858, 333-83334, 333-84626, 333-86674, 333-87464, 333-35709, and 333-86469 on Form S-3 and Registration Statement Nos. 33-74066, 33-91658, 333-00475, 333-03237, 33-58896, 33-91656, 333-03241, 33-26875, 33-75682, 33-93322, 33-93372, 33-80834, 333-09633, 333-09637, 333-30649, 333-42503, 333-34517-2, 333-42549, 333-45183, 333-47537, 333-69505, 333-75303, 333-78475, 333-51544, 333-38638, 333-64738, 333-71250, 333-58670, 333-89686, 333-98933, 333-102059, 333-22003, 333-114744, 333-120557, 333-12495 and 333-144143 on Form S-8 of our reports dated February 26, 2009 relating to the financial statements and financial statement schedule of Avis Budget Group, Inc. (formerly Cendant Corporation) (which expresses an unqualified opinion and includes an explanatory paragraph relating to the Company’s adoption of Financial Accounting Standards Board Interpretation No. 48, Accounting for Uncertainty in Income Taxes - an interpretation of FASB Statement No. 109, on January 1, 2007) and internal control over financial reporting appearing in this Annual Report on Form 10-K of Avis Budget Group, Inc. for the year ended December 31, 2008.
/s/ DELOITTE & TOUCHE LLP
New York, New York
February 26, 2009
Exhibit 31.1
CERTIFICATIONS
I, Ronald L. Nelson, certify that:
| 1. | I have reviewed this annual report on Form 10-K of Avis Budget Group, Inc.; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
| b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: February 26, 2009
/s/ Ronald L. Nelson
Chief Executive Officer
Exhibit 31.2
I, David B. Wyshner, certify that:
| 1. | I have reviewed this annual report on Form 10-K of Avis Budget Group, Inc.; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
| b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: February 26, 2009
/s/ David B. Wyshner
Executive Vice President and
Chief Financial Officer
Exhibit 32
CERTIFICATION OF CEO AND CFO PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Avis Budget Group, Inc. (the “Company”) on Form 10-K for the period ended December 31, 2008, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Ronald L. Nelson, as Chief Executive Officer of the Company, and David B. Wyshner, as Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge:
| (1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
| (2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
This certification accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by the Sarbanes-Oxley Act of 2002, be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended.
/s/ RONALD L. NELSON
Ronald L. Nelson
Chief Executive Officer
February 26, 2009
/s/ DAVID B. WYSHNER
David B. Wyshner
Executive Vice President and Chief
Financial Officer
February 26, 2009