UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
____________
Form
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
____________
Date
of
Report (Date of earliest event reported) July
19, 2006 (July 18, 2006)
Cendant
Corporation
(Exact
name of Registrant as specified in its charter)
|
Delaware
(State
or other jurisdiction
of
incorporation)
|
1-10308
(Commission
File No.)
|
06-0918165
(I.R.S.
Employer
Identification
Number)
|
|
|
9
West 57th
Street
New
York, NY
(Address
of principal
executive
office)
|
10019
(Zip
Code)
|
Registrant's
telephone number, including area code (212)
413-1800
None
|
(Former
name or former address if changed since last
report)
|
|
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under
any
of the following provisions:
[ ]
Written communications pursuant to Rule 425 under the Securities
Act (17
CFR 230.425)
[ ]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR
240.14a-12)
[ ]
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
|
|
Item
1.01
|
Entry
into a Material Definitive
Agreement.
|
On
July 18, 2006, our Travelport Inc. (“Travelport”) subsidiary entered into a
new $2,200 million 364-day credit facility, consisting of a $400 million
revolving credit facility and a $1,800 million term loan facility (the agreement
pursuant to which such facility was entered into is referred to herein as the
“Credit Agreement”).
The
new
facility includes affirmative covenants, including the maintenance of specific
financial ratios. These financial covenants consist of a minimum interest
coverage ratio of at least 3.0 times as of the measurement date and a maximum
leverage ratio not to exceed 4.5 times on the measurement date. Negative
covenants in the new credit facility include limitations on indebtedness of
material subsidiaries; liens; mergers, consolidations, liquidations,
dissolutions and sales of substantially all assets; and sale and leasebacks.
Events of default in the new credit facility include nonpayment of principal
when due; nonpayment of interest, fees or other amounts; violation of covenants;
cross payment default and cross acceleration (in each case, to indebtedness
(excluding securitization indebtedness) in excess of $50 million); and a change
of control (the definition of which will permit a spin-off of
Travelport).
It
is
Cendant’s intent to repay any outstanding borrowings under the credit facility
in conjunction with the closing of the previously announced sale of Travelport.
On
July 18, 2006, Cendant entered into a guaranty of Travelport’s obligations
under the Credit Agreement (the “Credit Agreement Guaranty”); however, upon the
repayment of amounts outstanding under the Credit Agreement as contemplated
by
the purchase agreement in connection with the proposed sale of Travelport,
such
Credit Agreement Guaranty and all obligations of Cendant thereunder shall
unconditionally terminate.
A
copy of
the Credit Agreement and the Credit Agreement Guaranty are attached hereto
as
Exhibits
10.1
and
10.2,
respectively, and are incorporated by reference herein.
Certain
of the lenders party to the Credit Agreement and the Credit Agreement Guaranty
and their respective affiliates, have performed, and may in the future perform,
various commercial banking, investment banking and other financial advisory
services for Cendant, Travelport and their subsidiaries for which they have
received, and will receive, customary fees and expenses.
|
Item
2.02
|
Results
of Operations and Financial
Condition.
|
On
July
19, 2006, we issued a press release which, among other things, disclosed that
we
expect to report our financial results of the Company’s operations for the
second quarter on August 9th,
as well
as our expectations with respect to certain of such financial results. A copy
of
the press release issued on July 19, 2006 is attached hereto as Exhibit
99.1
and that
portion of the press release relating to our expectations with respect to the
second quarter 2006 is incorporated by reference into this item.
|
Item
2.03
|
Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant.
|
The
information described above under “Item 1.01. Entry into a Material
Definitive Agreement” is incorporated herein by reference.
|
Item
7.01
|
Regulation
FD Disclosure.
|
On
July
19, 2006, we announced that “when issued” trading in the common stock of Realogy
Corporation and Wyndham Worldwide Corporation is expected to begin on the New
York Stock Exchange today. In addition, we updated our forecasts and reported
certain information with respect to our financial results of operations for
the
second quarter 2006.
A
copy of
the press release issued on July 19, 2006 is attached hereto as Exhibit
99.1
and is
incorporated by reference herein.
Information
Relating to Avis Budget Car Rental, LLC
Cendant
intends to post in the “Investor Center” section of its website at www.cendant.com
additional information related to Avis Budget Car Rental, LLC and its
subsidiaries, the companies that make up Cendant's vehicle rental business.
The
information includes historical and pro forma financial information of Avis
Budget Car Rental and its subsidiaries. The vehicle rental business will
continue to be owned by Cendant following the completion of the separation
of
Cendant into four separate companies.
|
Item
9.01
|
Financial
Statements and Exhibits.
|
| (c) |
Exhibits
|
|
10.1
|
Credit
Agreement, dated as of July 18, 2006, among Travelport Inc., as
Borrower, Galileo International Technology, LLC, as a Subsidiary
Borrower,
certain financial institutions as lenders, JPMorgan Chase Bank, N.A.,
as
Administrative Agent, and Bank of America, N.A. and Citicorp North
America, Inc., as Syndication Agents.
|
|
|
10.2
|
Guaranty,
dated as of July 18, 2006, made by Cendant Corporation in favor of
JPMorgan Chase Bank, N.A., as Administrative Agent for the banks
and other
financial institutions or entities (the “Lenders”)
from time to time parties to the Credit Agreement, dated as of July
18,
2006 among Travelport Inc., as Borrower, Galileo International Technology,
LLC, as Subsidiary Borrower, the Subsidiary Borrowers from time to
time
parties to the Credit Agreement and Bank of America, N.A. and Citicorp
North America, Inc., as Syndication Agents.
|
|
|
99.1
|
Press
Release dated July 19, 2006.
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
|
CENDANT
CORPORATION
|
|
|
By:
|
/s/
Eric J. Bock
|
|
Eric
J. Bock
Executive
Vice President, Law
and
Corporate Secretary
|
Date:
July 19, 2006
CENDANT
CORPORATION
CURRENT
REPORT ON FORM 8-K
Report
Dated July
19, 2006 (July 18, 2006)
EXHIBIT
INDEX
|
Exhibit
No.
|
Description | |
|
10.1
|
Credit
Agreement, dated as of July 18, 2006, among Travelport Inc., as
Borrower, Galileo International Technology, LLC, as a Subsidiary
Borrower,
certain financial institutions as lenders, JPMorgan Chase Bank, N.A.,
as
Administrative Agent, and Bank of America, N.A. and Citicorp North
America, Inc., as Syndication Agents.
|
|
|
10.2
|
Guaranty,
dated as of July 18, 2006, made by Cendant Corporation in favor of
JPMorgan Chase Bank, N.A., as Administrative Agent for the banks
and other
financial institutions or entities (the “Lenders”)
from time to time parties to the Credit Agreement, dated as of July
18,
2006 among Travelport Inc., as Borrower, Galileo International Technology,
LLC, as Subsidiary Borrower, the Subsidiary Borrowers from time to
time
parties to the Credit Agreement and Bank of America, N.A. and Citicorp
North America, Inc., as Syndication Agents.
|
|
|
99.1
|
Press
Release dated July 19, 2006.
|
Exhibit
10.1
$2,200,000,000
364-DAY
CREDIT AGREEMENT
Dated
as
of July 18, 2006
among
TRAVELPORT
INC.,
as
Borrower,
GALILEO
INTERNATIONAL TECHNOLOGY, LLC,
as
a
Subsidiary Borrower,
THE
LENDERS REFERRED TO HEREIN,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent,
and
BANK
OF
AMERICA, N.A.
and
CITICORP
NORTH AMERICA, INC.,
as
Syndication Agents,
J.P.
MORGAN SECURITIES INC.,
BANC
OF
AMERICA SECURITIES LLC
and
CITIGROUP
GLOBAL MARKETS INC.,
as
Joint
Lead Arrangers and Joint Bookrunners
|
1.
|
DEFINITIONS
|
1
|
||
|
2.
|
THE
LOANS
|
19
|
||
|
SECTION
2.1. Commitments
|
19
|
|||
|
SECTION
2.2. Loans
|
19
|
|||
|
SECTION
2.3.
Term Loan Borrowing Procedure
|
20
|
|||
|
SECTION
2.4.
Revolving Credit Borrowing Procedure
|
20
|
|||
|
SECTION
2.5.
Use of Proceeds
|
21
|
|||
|
SECTION
2.6.
Swingline Commitment
|
21
|
|||
|
SECTION
2.7.
Procedure for Swingline Borrowing; Refunding of Swingline
Loans
|
22
|
|||
|
SECTION
2.8.
[Reserved]
|
23
|
|||
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SECTION
2.9.
[Reserved]
|
23
|
|||
|
SECTION
2.10.
Refinancings
|
23
|
|||
|
SECTION
2.11.
Fees
|
24
|
|||
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SECTION
2.12.
Repayment of Loans; Evidence of Debt
|
24
|
|||
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SECTION
2.13.
Interest on Loans
|
25
|
|||
|
SECTION
2.14.
Interest on Overdue Amounts
|
25
|
|||
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SECTION
2.15.
Alternate Rate of Interest
|
25
|
|||
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SECTION
2.16.
Termination and Reduction of Revolving Commitments; Increase of Revolving
Commitments
|
26
|
|||
|
SECTION
2.17.
Prepayment of Loans
|
27
|
|||
|
SECTION
2.18.
Eurocurrency Reserve Costs
|
28
|
|||
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SECTION
2.19.
Reserve Requirements; Change in Circumstances
|
28
|
|||
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SECTION
2.20.
Change in Legality
|
30
|
|||
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SECTION
2.21.
Reimbursement of Lenders
|
30
|
|||
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SECTION
2.22.
Pro Rata Treatment
|
31
|
|||
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SECTION
2.23.
Right of Setoff
|
32
|
|||
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SECTION
2.24.
Manner of Payments
|
32
|
|||
|
SECTION
2.25.
Taxes
|
32
|
|||
|
SECTION
2.26.
[Reserved]
|
34
|
|||
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SECTION
2.27.
Prepayments Required Due to Currency Fluctuation
|
34
|
|||
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SECTION
2.28.
Letters of Credit
|
34
|
|||
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SECTION
2.29.
New Local Facilities
|
40
|
|||
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3.
|
REPRESENTATIONS
AND WARRANTIES OF BORROWER
|
|||
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SECTION
3.1.
Corporate Existence and Power
|
40
|
|||
|
SECTION
3.2.
Corporate Authority, No Violation and Compliance with Law
|
41
|
|||
|
SECTION
3.3.
Governmental and Other Approval and Consents
|
41
|
|||
|
SECTION
3.4.
Financial Statements of Borrower
|
41
|
|||
|
SECTION
3.5.
No
Change
|
42
|
|||
|
SECTION
3.6.
Copyrights, Patents and Other Rights
|
42
|
|||
|
SECTION
3.7.
Title to Properties
|
42
|
|||
|
SECTION
3.8.
Litigation
|
42
|
|||
|
SECTION
3.9.
Federal Reserve Regulations
|
42
|
|||
|
SECTION
3.10.
Investment Company Act
|
43
|
|
SECTION
3.11.
Enforceability
|
43
|
|||
|
SECTION
3.12.
Taxes
|
43
|
|||
|
SECTION
3.13.
Compliance with ERISA
|
43
|
|||
|
SECTION
3.14.
Disclosure
|
43
|
|||
|
SECTION
3.15.
Environmental Liabilities
|
44
|
|||
|
4.
|
CONDITIONS
OF LENDING
|
44
|
||
|
SECTION
4.1.
Conditions Precedent to Effectiveness
|
44
|
|||
|
SECTION
4.2.
Conditions Precedent to Each Extension of Credit
|
45
|
|||
|
5.
|
AFFIRMATIVE
COVENANTS
|
|||
|
SECTION
5.1.
Financial Statements, Reports, etc.
|
46
|
|||
|
SECTION
5.2.
Corporate Existence; Compliance with Statutes
|
47
|
|||
|
SECTION
5.3.
Insurance
|
47
|
|||
|
SECTION
5.4.
Taxes and Charges
|
48
|
|||
|
SECTION
5.5.
ERISA Compliance and Reports
|
48
|
|||
|
SECTION
5.6.
Maintenance of and Access to Books and Records;
Examinations
|
48
|
|||
|
SECTION
5.7.
Maintenance of Properties
|
49
|
|||
|
SECTION
5.8.
Changes in Character of Business
|
49
|
|||
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6.
|
NEGATIVE
COVENANTS
|
49
|
||
|
SECTION
6.1.
Limitation on Indebtedness
|
49
|
|||
|
SECTION
6.2.
Consolidation, Merger, Sale of Assets
|
50
|
|||
|
SECTION
6.3.
Limitations on Liens
|
50
|
|||
|
SECTION
6.4.
Sale and Leaseback
|
51
|
|||
|
SECTION
6.5.
Consolidated Leverage Ratio
|
52
|
|||
|
SECTION
6.6.
Consolidated Interest Coverage Ratio
|
52
|
|||
|
SECTION
6.7.
Accounting Practices
|
52
|
|||
|
7.
|
EVENTS
OF DEFAULT
|
52
|
||
|
8.
|
THE
ADMINISTRATIVE AGENT AND EACH ISSUING LENDER
|
54
|
||
|
SECTION
8.1.
Administration by Administrative Agent
|
54
|
|||
|
SECTION
8.2.
Advances and Payments
|
55
|
|||
|
SECTION
8.3.
Sharing of Setoffs and Cash Collateral
|
55
|
|||
|
SECTION
8.4.
Notice to the Lenders
|
56
|
|||
|
SECTION
8.5.
Liability of Administrative Agent and each Issuing Lender
|
56
|
|||
|
SECTION
8.6.
Reimbursement and Indemnification
|
57
|
|||
|
SECTION
8.7.
Rights of Administrative Agent
|
57
|
|||
|
SECTION
8.8.
Independent Investigation by Lenders
|
57
|
|||
|
SECTION
8.9.
Notice of Transfer
|
58
|
|||
|
SECTION
8.10.
Successor Administrative Agent
|
58
|
|||
|
SECTION
8.11.
Resignation of an Issuing Lender
|
||||
|
SECTION
8.12.
Agents Generally
|
58
|
|||
|
9.
|
GUARANTY
OF SUBSIDIARY BORROWER OBLIGATIONS
|
59
|
|
SECTION
9.1. Guaranty
|
59 |
|
||
|
SECTION
9.2. No Subrogation
|
59 |
|
||
|
SECTION
9.3. Amendments, etc. with respect to the Obligations; Waiver of
Rights
|
60 |
|
||
|
SECTION
9.4. Guaranty Absolute and Unconditional
|
60 |
|
||
|
SECTION
9.5. Reinstatement
|
61 |
|
||
|
10.
|
MISCELLANEOUS
|
61 |
|
|
|
SECTION
10.1. Notices
|
61 |
|
||
|
SECTION
10.2. Survival of Agreement, Representations and Warranties,
etc
|
62 |
|
||
|
SECTION
10.3. Successors and Assigns; Syndications; Loan Sales;
Participations
|
62 |
|
||
|
SECTION
10.4. Expenses
|
66 |
|
||
|
SECTION
10.5. Indemnity
|
66 |
|
||
|
SECTION
10.6. CHOICE OF LAW
|
66 |
|
||
|
SECTION
10.7. No Waiver
|
67 |
|
||
|
SECTION
10.8. Extension of Maturity
|
67 |
|
||
|
SECTION
10.9. Amendments, etc.
|
67 |
|
||
|
SECTION
10.10. Severability
|
68 |
|
||
|
SECTION
10.11. SERVICE OF PROCESS; WAIVER OF JURY TRIAL
|
68 |
|
||
|
SECTION
10.12. Headings
|
70 |
|
||
|
SECTION
10.13. Execution in Counterparts
|
70 |
|
||
|
SECTION
10.14. Entire Agreement
|
70 |
|
||
|
SECTION
10.15. Confidentiality
|
70 |
|
||
|
SECTION
10.16. USA PATRIOT Act
|
71 |
|
||
|
SECTION
10.17. Replacement of Lenders
|
71 |
|
|
SCHEDULES
|
||||
|
2.1
|
Commitments
|
|||
|
2.28
|
Existing
Letters of Credit
|
|||
|
3.7
|
Transferred
Properties
|
|||
|
EXHIBITS
|
||||
|
A
|
Form
of Cendant Guaranty
|
|||
|
B
|
Form
of Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
|
|||
|
C
|
Form
of Assignment and Acceptance
|
|||
|
D
|
Form
of Compliance Certificate
|
|||
|
E-1
|
Form
of Term Loan Borrowing Request
|
|||
|
E-2
|
Form
of Revolving Credit Borrowing Request
|
|||
|
F
|
Form
of Joinder Agreement
|
|||
|
G
|
Form
of New Lender Supplement
|
|||
|
H
|
Form
of Commitment Increase Supplement
|
364-DAY
CREDIT AGREEMENT (the “Agreement”)
dated
as of July 18, 2006, among TRAVELPORT INC., a Delaware corporation (the
“Borrower”),
GALILEO INTERNATIONAL TECHNOLOGY, LLC, a Delaware limited liability company,
as
a subsidiary borrower (“Galileo”),
the
lenders referred to herein (the “Lenders”),
BANK
OF AMERICA, N.A. and CITICORP NORTH AMERICA, INC., as syndication agents (the
“Syndication
Agents”),
and
JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative
Agent”;
together with the Syndication Agents, the “Agents”)
for
the Lenders.
The
parties hereto hereby agree as follows:
| 1. |
DEFINITIONS
|
For
the
purposes hereof unless the context otherwise requires, the following terms
shall
have the meanings indicated, all accounting terms not otherwise defined herein
shall have the respective meanings accorded to them under GAAP and all terms
defined in the New York Uniform Commercial Code and not otherwise defined herein
shall have the respective meanings accorded to them therein:
“Act”
shall
have the meaning assigned to such term in Section 10.16.
“ABR
Borrowing”
shall
mean a Borrowing comprised of ABR Loans.
“ABR
Loan”
shall
mean any Loan bearing interest at a rate determined by reference to the
Alternate Base Rate in accordance with the provisions of Section 2.
“Affiliate”
shall
mean as to any Person, any other Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person.
For
purposes of this definition, a Person shall be deemed to be “controlled by”
another if such latter Person possesses, directly or indirectly, power either
to
(i) vote 10% or more of the securities having ordinary voting power for the
election of directors of such controlled Person or (ii) direct or cause the
direction of the management and policies of such controlled Person whether
by
contract or otherwise (it being understood that, upon the consummation of the
Spin-Off, Cendant, Avis Budget Holdings, LLC, Realogy Corporation, Wyndham
Worldwide Corporation, their respective Subsidiaries and any successors to
such
entities shall not be Affiliates of the Borrower).
“Aggregate
Exposure”
shall
mean, with respect to any Lender at any time, an amount equal to (a) until
the
Term Loan Funding Date, the aggregate amount of such Lender’s Commitments at
such time and (b) thereafter, the sum of (i) the aggregate then unpaid principal
amount of such Lender’s Term Loans and (ii) the amount of such Lender’s
Revolving Commitment then in effect or, if the Revolving Commitments have been
terminated, the amount of such Lender’s Revolving Extensions of Credit then
outstanding.
“Aggregate
Exposure Percentage”
shall
mean, with respect to any Lender at any time, the ratio (expressed as a
percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate
Exposure of all Lenders at such time.
“Alternate
Base Rate”
shall
mean, for any day, a rate per annum (rounded upwards to the nearest 1/16 of
1%
if not already an integral multiple of 1/16 of 1%) equal to the greatest of
(a)
the Prime Rate in effect for such day and (b) the Federal Funds Effective Rate
in effect for such day plus½
of
1%.
For purposes hereof, “Prime
Rate”
shall
mean the rate per annum publicly announced by the Administrative Agent from
time
to time as its prime rate in effect at its principal office in New York City.
For purposes of this Agreement, any change in the Alternate
Base
Rate
due to a change in the Prime Rate shall be effective on the date such change
in
the Prime Rate is publicly announced as effective. “Federal
Funds Effective Rate”
shall
mean, for any period, a fluctuating interest rate per annum equal for each
day
during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for
any
day which is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate, for any reason, including, without limitation, the
inability or failure of the Administrative Agent to obtain sufficient bids
or
publications in accordance with the terms hereof, the Alternate Base Rate shall
be determined without regard to clause (b) until the circumstances giving rise
to such inability no longer exist. Any change in the Alternate Base Rate due
to
a change in the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Federal Funds Effective Rate.
“Applicable
Law”
shall
mean, with respect to any Person, all provisions of statutes, rules, regulations
and orders of governmental bodies or regulatory agencies applicable to such
Person, and all binding orders and decrees of all courts and arbitrators in
proceedings or actions in which the Person in question is a party or is
subject.
“Assignment
and Acceptance”
shall
mean an agreement in the form of Exhibit C hereto, executed by the assignor,
assignee and the other parties as contemplated thereby.
“Australian
Dollars”
or
“A$”
shall
mean lawful money of Australia.
“Available
Revolving Commitment”:
shall
mean, as to any Revolving Lender at any time, an amount equal to the excess,
if
any, of (a) such Lender’s Revolving Commitment then in effect over
(b) such
Lender’s Revolving Extensions of Credit then outstanding; provided,
that in
calculating any Lender’s Revolving Extensions of Credit for the purpose of
determining such Revolving Lender’s Available Revolving Commitment pursuant to
Section 2.11(a), the aggregate principal amount of Swingline Loans then
outstanding shall be deemed to be zero.
“Basis
Point”
shall
mean 1/100th of 1%.
“Board”
shall
mean the Board of Governors of the Federal Reserve System.
“Borrowing”
shall
mean a group of Loans of a single Interest Rate Type made by the Lenders on
a
single date and as to which a single Interest Period is in effect.
“Business
Day”
shall
mean any day other than a Saturday, Sunday or other day on which banks in the
State of New York are permitted to close; provided,
however,
that
when used in connection with a LIBOR Loan, the term “Business Day” shall also
exclude any day on which banks are not open for dealings in Dollar deposits
or
deposits in any Optional Currency, as applicable, on the London Interbank
market, the term “Business Day” shall also exclude any day on which banks are
not open for general business in the principal financial center of the relevant
jurisdiction.
“Calculation
Time”
shall
have the meaning assigned to such term in Section 2.27(a).
“Canadian
Dollars”
or
“C$”
shall
mean lawful money of Canada.
“Capital
Lease”
shall
mean as applied to any Person, any lease of any property (whether real, personal
or mixed) by that Person as lessee which, in accordance with GAAP, is or should
be accounted for as a capital lease on the balance sheet of that
Person.
“Capital
Stock”
shall
mean any and all shares, interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all equivalent ownership
interests in a Person (other than a corporation) and any and all warrants,
rights or options to purchase any of the foregoing.
“Cash
Collateral Account”
shall
mean a collateral account established with the Administrative Agent, in the
name
of the Administrative Agent and under its sole dominion and control, into which
the Borrower or any Subsidiary Borrower shall from time to time deposit Dollars,
or Cash equivalents, in the case of any such deposit made pursuant to Section
2.28(g), pursuant to the express provisions of this Agreement requiring such
deposit.
“Cash
Equivalents”
shall
mean any of the following, to the extent acquired for investment and not with
a
view to achieving trading profits: (i) obligations fully backed by the full
faith and credit of the United States of America maturing not in excess of
twelve months from the date of acquisition, (ii) commercial paper maturing
not
in excess of twelve months from the date of acquisition and rated at least
“P-1”
by Moody’s or “A-1” by S&P on the date of such acquisition, (iii) the
following obligations of any Lender or any domestic commercial bank having
capital and surplus in excess of $500,000,000, which has, or the holding company
of which has, a commercial paper rating meeting the requirements specified
in
clause (ii) above: (a) time deposits, certificates of deposit and acceptances
maturing not in excess of twelve months from the date of acquisition, or (b)
repurchase obligations with a term of not more than thirty days for underlying
securities of the type referred to in clause (i) above, (iv) money market funds
that invest exclusively in interest bearing, short-term money market instruments
and adhere to the minimum credit standards established by Rule 2a-7 of the
Investment Company Act of 1940 (17 C.F.R. §270.2A-7 (April 1, 2004), and (v)
municipal securities: (a) for which the pricing period in effect is not more
than twelve months long and (b) rated at least “P-1” by Moody’s or “A-1” by
S&P.
“Cendant”
shall
mean Cendant Corporation, a Delaware corporation.
“Cendant
Guaranty”
shall
mean the guaranty agreement to be executed and delivered by Cendant,
substantially in the form of Exhibit A (it being understood that Cendant’s
obligations thereunder shall terminate upon either (i) the consummation of
the
Spin-Off or (ii) payment in full of the Obligations (as defined in the Cendant
Guaranty), termination of the Commitments and termination or expiration of
the
Letters of Credit (or when such Letters of Credit shall have been Collateralized
(as defined in the Cendant Guaranty), including repayment pursuant to Section
4.24 of the Sale Agreement).
“Change
in Control”
shall
mean (a) prior to the Spin-Off, (i) the acquisition by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of
the
Securities and Exchange Commission thereunder as in effect on the Effective
Date), directly or indirectly, beneficially or of record, of ownership or
control of in excess of 50% of the voting common stock of Cendant on a fully
diluted basis at any time or (ii) if at any time, individuals who at the
Effective Date constituted the Board of Directors of Cendant (together with
any
new directors whose election by such Board of Directors or whose nomination
for
election by the
shareholders
of Cendant, as the case may be, was approved by a vote of the majority of the
directors then still in office who were either directors at the Effective Date
or whose election or a nomination for election was previously so approved)
cease
for any reason to constitute a majority of the Board of Directors of Cendant
then in office or (iii) Cendant shall cease to own, directly or through one
or
more wholly-owned Subsidiaries, all of the capital stock of the Borrower, free
and clear of any direct or indirect Liens (other than statutory Liens) and
(b)
after the Spin-Off, (i) the acquisition by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the Effective Date), directly
or indirectly, beneficially or of record, of ownership or control of in excess
of 50% of the voting common stock of the Borrower on a fully diluted basis
at
any time or (ii) if at any time, individuals who at the date of the Spin-Off
constituted the Board of Directors of the Borrower (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Borrower, as the case may be, was approved
by a vote of the majority of the directors then still in office who were either
directors at the date of the Spin-Off or whose election or a nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Borrower then in office.
Notwithstanding anything to the contrary contained in this definition, the
consummation of the Spin-Off shall not result in a Change of
Control.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended.
“Commitment”
shall
mean, with respect to any Lender, the sum of the Term Commitment and the
Revolving Commitment of such Lender.
“Commitment
Fee”
shall
have the meaning assigned to such term in Section 2.11(a).
“Commitment
Fee Rate”
shall
mean the rate per annum of (i) at any time after the termination or expiration
of Cendant’s obligation to sell all of the common stock or substantially all of
the assets of the Borrower and its Subsidiaries under the Sale Agreement (as
in
effect on the date of determination), 0.25% and (ii) at any other time,
0.15%.
“Commitment
Increase Notice”
shall
have the meaning assigned to such term in Section 2.16(d).
“Company
Disclosure Letter”
shall
mean the Company Disclosure Letter, dated as of June 30, 2006, as the same
may
be amended, modified or supplemented from time to time in a manner reasonably
satisfactory to the Administrative Agent.
“Confidential
Information”
shall
mean information concerning the Borrower, its Subsidiaries or its Affiliates
which is non-public, confidential or proprietary in nature, or any information
that is marked or designated confidential by or on behalf of the Borrower,
which
is furnished to any Lender by the Borrower or any of its Affiliates directly
or
through the Administrative Agent in connection with this Agreement or the
transactions contemplated hereby (at any time on, before or after the date
hereof), together with all analyses, compilations or other materials prepared
by
such Lender or its respective directors, officers, employees, agents, auditors,
attorneys, consultants or advisors which contain or otherwise reflect such
information.
“Consolidated
Assets”
shall
mean, at any date of determination, the total assets of the Borrower and its
Consolidated Subsidiaries determined in accordance with GAAP.
“Consolidated
EBITDA”
shall
mean, without duplication, for any period for which such amount is being
determined, the sum of the amounts for such period of (i) Consolidated Net
Income, (ii) provision for taxes based on income, (iii) depreciation expense,
(iv) Consolidated Interest Expense, (v) amortization expense, (vi) fees,
expenses and charges incurred in connection with the Spin-Off or Sale through
December 31, 2007 in an aggregate amount not to exceed $150,000,000, (vii)
capitalized interest and amortization of debt discount and debt issuance costs
and debt extinguishment costs, (viii) payments made in respect of legacy Cendant
expense reimbursement obligations in an aggregate amount not to exceed
$30,000,000 during any Rolling Period and (ix) other non-cash items reducing
Consolidated Net Income, minus
(plus)
(x) any non-recurring gains (losses) on business unit dispositions outside
the
ordinary course of business if such gains (losses) are included in Consolidated
Net Income) minus
(xi) any
cash expenditures during such period in excess of $25,000,000 to the extent
such
cash expenditures (A) did not reduce Consolidated Net Income for such period
and
(B) were applied against reserves that constituted non-cash items which reduced
Consolidated Net Income during prior periods (including reserves established
upon the consummation of the Spin-Off), all as determined on a consolidated
basis for the Borrower and its Consolidated Subsidiaries in accordance with
GAAP. Notwithstanding the foregoing, in calculating Consolidated EBITDA pro
forma effect shall be given to each (1) acquisition of a Consolidated Subsidiary
or any other entity acquired by the Borrower or any of its Consolidated
Subsidiaries in a merger, where the purchase price or merger consideration
exceeds $25,000,000 during such period and (2) disposition property by the
Borrower and its Consolidated Subsidiaries yielding gross profits in excess
of
$25,000,000 during such period as if such acquisition or disposition had been
made on the first day of such period; provided
that for
purposes of determining the Consolidated Interest Coverage Ratio and the
Consolidated Leverage Ratio, Consolidated EBITDA for the fiscal quarters ending
December 31, 2005 and March 31, 2006 shall be $125,800,000 and $115,700,000,
respectively.
“Consolidated
Financial Statements”
shall
have the meaning assigned to such term in Section 3.4(b).
“Consolidated
Interest Coverage Ratio”
shall
mean, for any period, the ratio of (a) Consolidated EBITDA for such period
to
(b) Consolidated Interest Expense for such period; provided
that for
purposes of determining the Consolidated Interest Coverage Ratio for the fiscal
quarters ending September 30, 2006, December 31, 2006 and March 31, 2007,
Consolidated Interest Expense for the relevant Rolling Period shall be deemed
to
equal Consolidated Interest Expense for such fiscal quarter and, each previous
fiscal quarter commencing after June 30, 2006, multiplied by 4, 2 and 4/3,
respectively.
“Consolidated
Interest Expense”
shall
mean for any period for which such amount is being determined, total interest
expense paid or payable in cash (including that properly attributable to Capital
Leases in accordance with GAAP but excluding in any event (x) all capitalized
interest and amortization of debt discount and debt issuance costs and (y)
debt
extinguishment costs) of the Borrower and its Consolidated Subsidiaries on
a
consolidated basis including, without limitation, all commissions, discounts
and
other fees and charges owed with respect to letters of credit and bankers’
acceptance financing and net cash costs (or minus net profits) under Interest
Rate Protection Agreements minus,
without
duplication, any interest income of the Borrower and its Consolidated
Subsidiaries on a consolidated basis during such period. Notwithstanding the
foregoing, interest expense in respect of any Securitization Indebtedness shall
not be included in Consolidated Interest Expense.
“Consolidated
Leverage Ratio”
shall
mean, as of the last day of any period, the ratio of (a) Consolidated Total
Indebtedness on such day to (b) Consolidated EBITDA for such
period.
“Consolidated
Net Income”
shall
mean, for any period for which such amount is being determined, the net income
(or loss) of the Borrower and its Consolidated Subsidiaries during such period
determined on a consolidated basis for such period taken as a single accounting
period in accordance with GAAP, provided
that
there shall be excluded (i) income (loss) of any Person (other than a
Consolidated Subsidiary of the Borrower) in which the Borrower or any of its
Consolidated Subsidiaries has any equity investment or comparable interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Borrower or its Consolidated Subsidiaries by such Person during
such
period, (ii) the income of any Consolidated Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions
by
that Consolidated Subsidiary of the income is not at the time permitted by
operation of the terms of its charter, or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Consolidated Subsidiary, (iii) any extraordinary after-tax gains and (iv) any
extraordinary or unusual pretax losses. (including indemnity obligations
incurred or liabilities assumed in connection with the Spin-Off).
“Consolidated
Net Worth”
shall
mean, as of any date of determination, all items which in conformity with GAAP
would be included under shareholders’ equity on a consolidated balance sheet of
the Borrower and its Subsidiaries at such date.
“Consolidated
Subsidiaries”
shall
mean all Subsidiaries of the Borrower that are required to be consolidated
with
the Borrower for financial reporting purposes in accordance with
GAAP.
“Consolidated
Total Indebtedness”
shall
mean (i) the total amount of Indebtedness of the Borrower and its Consolidated
Subsidiaries determined on a consolidated basis using GAAP principles of
consolidation, which is, at the dates as of which Consolidated Total
Indebtedness is to be determined, includable as liabilities on a consolidated
balance sheet of the Borrower and its Subsidiaries, plus
(ii)
without duplication of any items included in Indebtedness pursuant to the
foregoing clause (i), Indebtedness of others which the Borrower or any of its
Consolidated Subsidiaries has directly or indirectly assumed or guaranteed
(but
only to the extent so assumed or guaranteed) or otherwise provided credit
support therefor, including without limitation, Guaranty Obligations;
provided
that,
for purposes of this definition, Indebtedness shall not include (w) Guaranty
Obligations and contingent liabilities incurred or assumed in connection with
the Spin-Off (including those determined in accordance with FIN 45 and SFAS
5)
or Sale, (x) Securitization Indebtedness, (y) the aggregate undrawn amount
of
outstanding Letters of Credit or (z) obligations incurred under any derivatives
transaction entered into in the ordinary course of business pursuant to hedging
programs. In addition, for purposes of this definition, the amount of
Indebtedness at any time shall be reduced (but not to less than zero) by the
amount of Excess Cash.
“Currency”
shall
mean Dollars or any Optional Currency.
“Default”
shall
mean any event, act or condition, which with notice or lapse of time, or both,
would constitute an Event of Default.
“Defaulting
Lender”
shall
mean any Lender which fails to make any Loan or issue any Letter of Credit
required to made or issued by it in accordance with the terms and conditions
of
this Agreement.
“Disclosed
Matters”
shall
mean (i) public filings with the Securities and Exchange Commission made by
the
Borrower or any of its Subsidiaries on Form S-4, Form 8-K, Form 10-
Q,
Form
10-K or Form 10 (in each case, as filed at least three days prior to the
Effective Date or Term Loan Funding Date, as applicable) and (ii) the Company
Disclosure Letter.
“Dollar
Equivalent”
shall
mean, on any date of determination, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to an amount
denominated in any Optional Currency, the equivalent in Dollars of such amount
determined by the Administrative Agent in accordance with normal banking
industry practice using the Exchange Rate on the date of determination of such
equivalent. In making any determination of the Dollar Equivalent (for purposes
of calculating the amount of Loans to be borrowed from the respective Lenders
on
any date or for any other purpose), the Administrative Agent shall use the
relevant Exchange Rate in effect on the date on which the Borrower or any
Subsidiary Borrower delivers a Borrowing Request for Loans or on such other
date
upon which a Dollar Equivalent is required to be determined pursuant to the
provisions of this Agreement. As appropriate, amounts specified herein as
amounts in Dollars shall be or include any relevant Dollar Equivalent
amount.
“Dollars”
and
“$”
shall
mean lawful money of the United States of America.
“Domestic
Subsidiary Borrower”
shall
mean any Subsidiary Borrower organized under the laws of the United States
or
any political subdivision thereof.
“Effective
Date”
shall
mean July 18, 2006.
“EMU
Legislation”
shall
mean the legislative measures of the European Council (including without
limitation the European Council regulations) for the introduction of, changeover
to or operation of the Euro in one or more member states.
“Environmental
Law”
shall
mean all laws, rules, orders, regulations, statutes, ordinances, codes, decrees,
judgments, injunctions, notices or requirements issued, promulgated or entered
into by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or to health and safety matters,
including without limitation, the Clean Water Act also known as the Federal
Water Pollution Control Act (“FWPCA”)
33 U.S.C. § 1251 et seq.,
the
Clean Air Act (“CAA”),
42
U.S.C. §§ 7401 et seq.,
the
Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”),
7 U.S.C. §§ 136 et seq.,
the
Surface Mining Control and Reclamation Act (“SMCRA”),
30 U.S.C. §§ 1201 et seq.,
the
Comprehensive Environmental Response, Compensation and Liability Act
(“CERCLA”),
42 U.S.C. § 9601 et seq.,
the
Superfund Amendment and Reauthorization Act of 1986 (“SARA”),
Public Law 99-499, 100 Stat. 1613, the Emergency Planning and Community Right
to
Know Act (“ECPCRKA”),
42 U.S.C. § 11001 et seq.,
the
Resource Conservation and Recovery Act (“RCRA”),
42 U.S.C. § 6901 et seq.,
the
Occupational Safety and Health Act as amended (“OSHA”),
29 U.S.C. § 655 and § 657, together, in each case, with any
amendment thereto, and the regulations adopted and binding publications
promulgated thereunder and all substitutions thereof.
“Environmental
Liabilities”
shall
mean any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities),
of the Borrower or any Subsidiary directly or indirectly resulting from or
based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials,
(c)
exposure to any Hazardous Materials, (d) the release or threatened release
of
any Hazardous Materials into the environment or (e) any contract, agreement
or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
“ERISA”
shall
mean the Employee Retirement Income Security Act of 1974, as such Act may be
amended from time to time, and the regulations promulgated
thereunder.
“ERISA
Affiliate”
shall
mean any trade or business (whether or not incorporated) that, together with
the
Borrower, is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and Section 412 of
the
Code, is treated as a single employer under Section 414 of the
Code.
“ERISA
Event”
shall
mean (a) any “reportable event,” as defined in Section 4043 of ERISA
or the regulations issued thereunder with respect to a Plan (other than an
event
for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an “accumulated funding deficiency” (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by the
Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint
a
trustee to administer any Plan; (f) the incurrence by the Borrower or any of
its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
“Euro”
and
“€”
shall
mean the single currency of Participating Member States introduced in accordance
with the provisions of Article 123 of the Treaty and, in respect of all payments
to be made under this Agreement in Euro, means immediately available, freely
transferable funds in such currency.
“Event
of Default”
shall
have the meaning given such term in Section 7 hereof.
“Excess
Cash”
shall
mean all cash and Cash Equivalents of the Borrower and its Consolidated
Subsidiaries at such time determined on a consolidated basis in accordance
with
GAAP in excess of $25,000,000.
“Exchange
Rate”
shall
mean, with respect to any Optional Currency on a particular date, the rate
at
which such Optional Currency may be exchanged into Dollars, as set forth at
11:00 A.M., London time, on such date on the applicable Reuters currency page
with respect to such Optional Currency. In the event that such rate does not
appear on the applicable Reuters currency page, the Exchange Rate with respect
to such Optional Currency shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Borrower or, in the absence of such
agreement, such Exchange Rate shall instead be the spot rate of exchange of
the
Administrative Agent in the London Interbank market or other market where its
foreign currency exchange operations in respect of such Optional Currency are
then being conducted, at or about 11:00 A.M., London time, at such date for
the
purchase of Dollars with such Optional Currency, for delivery two Business
Days
later; provided,
however,
that if
at the time of any such determination, for any reason, no such spot rate is
being quoted, the Administrative Agent may use any reasonable method it deems
appropriate to determine such rate, and such determination shall be conclusive
absent manifest error.
“Excluded
Taxes”
shall
mean, with respect to any Lender, or any other recipient of payment to be made
by or on account of any obligation of the Borrower or any Subsidiary Borrower
hereunder, (a) income taxes and franchise taxes based on (or measured by) its
net income or net profits (or franchise taxes imposed in lieu of net income
taxes) imposed on such Lender or other recipient as a result of a present or
former connection between such Lender or such recipient and the jurisdiction
of
the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment hereunder, or enforced,
this
Agreement) (b) any branch profits taxes imposed by the United States of America
or any similar tax imposed by any other jurisdiction, (c) any withholding tax
that is imposed on amounts payable to such Lender in Dollars, or any other
recipient of any payment to be made by or on account of any obligation
denominated in Dollars of the Borrower or any Domestic Subsidiary Borrower
hereunder, at the time such Lender becomes a party to this Agreement (or
designates a new Lending Office), except to the extent that such Lender (or
its
assignor, if any) was entitled, immediately prior to the time of designation
of
a new Lending Office (or assignment), to receive additional amounts from the
Borrower or any Domestic Subsidiary Borrower with respect to such withholding
tax pursuant to Section 2.25(a), (d) Taxes attributable to such Lender’s failure
to comply with Section 2.25(e), and (e) any Taxes imposed as a result of such
Lender’s gross negligence or willful misconduct.
“Existing
Issuing Lender”
shall
mean any issuer of an Existing Letter of Credit.
“Existing
Letters of Credit”
shall
mean the letters of credit described on Schedule 2.28 hereto.
“Fundamental
Documents”
shall
mean this Agreement, the Cendant Guaranty, any Notes and any Compliance
Certificate which is required to be executed by the Borrower or any Subsidiary
Borrower pursuant to Section 5.1(c) and delivered to the Administrative Agent
in
connection with this Agreement.
“Funding
Office”
shall
mean the office of the Administrative Agent specified in Section 10.1 or such
other office as may be specified from time to time by the Administrative Agent
as its funding office by written notice to the Borrower and the
Lenders.
“GAAP”
shall
mean generally accepted accounting principles in the United States as in effect
from time to time, except that for purposes of Sections 6.5 and 6.6, GAAP shall
be determined on the basis of such principles in effect on the date hereof
and
consistent with those used in the preparation of the most recent audited
financial statements referred to in Section 3.4(b). In the event that any
“Accounting Change” (as defined below) shall occur and such change results in a
change in the method of calculation of financial covenants, standards or terms
in this Agreement, then the Borrower and the Administrative Agent agree to
enter
into negotiations in order to amend such provisions of this Agreement so as
to
reflect equitably such Accounting Changes with the desired result that the
criteria for evaluating the Borrower’s financial condition shall be the same
after such Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and delivered
by
the Borrower, the Administrative Agent and the Required Lenders, all financial
covenants, standards and terms in this Agreement shall continue to be calculated
or construed as if such Accounting Changes had not occurred. “Accounting
Changes” refers to changes in accounting principles required by the promulgation
of any rule, regulation, pronouncement or
“Governmental
Authority”
shall
mean any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, or any court, in each case whether
of
the United States or foreign.
“Granting
Lender”
shall
have the meaning assigned to such term in Section 10.3(k).
“Guaranty”
shall
mean the guaranty of the Subsidiary Borrower Obligations provided by the
Borrower pursuant to Section 9.
“Guaranty
Obligation”
shall
mean any obligation, contingent or otherwise, of the Person guaranteeing or
having the economic effect of guaranteeing any Indebtedness of any other Person
(the “primary
obligor”)
in any
manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or
to
advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment thereof,
(c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness;
provided,
however,
that
the amount of any Guaranty Obligation shall be limited to the extent necessary
so that such amount does not exceed the value of the assets of such Person
(as
reflected on a consolidated balance sheet of such Person prepared in accordance
with GAAP) to which any creditor or beneficiary of such Guaranty Obligation
would have recourse. Notwithstanding the foregoing definition, the term
“Guaranty Obligation” shall not include any direct or indirect obligation of a
Person as a general partner of a general partnership or a joint venturer of
a
joint venture in respect of Indebtedness of such general partnership or joint
venture, to the extent such Indebtedness is contractually non-recourse to the
assets of such Person as a general partner or joint venturer (other than assets
comprising the capital of such general partnership or joint venture). The term
“Guaranty Obligation” shall not include endorsements for collection or deposit
in the ordinary course of business.
“Hazardous
Materials”
shall
mean all explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances
or
wastes of any nature regulated pursuant to any Environmental Law.
“Indebtedness”
shall
mean (without double counting), at any time and with respect to any Person,
(i)
indebtedness of such Person for borrowed money (whether by loan or the issuance
and sale of debt securities) or for the deferred purchase price of property
or
services purchased (other than amounts constituting accounts payable arising
in
the ordinary course and payable within 180 days); (ii) indebtedness of others
of
the type described in clause (i), (iii), (iv) or (v) of this definition of
Indebtedness, which such Person has directly or indirectly assumed or guaranteed
(but only to the extent so assumed or guaranteed) or otherwise provided credit
support therefor, including without limitation, Guaranty Obligations; (iii)
indebtedness of others secured by a Lien on assets of such Person, whether
or
not such Person shall have assumed such indebtedness (but only to the extent
of
the fair market value of such assets); (iv) obligations of such Person in
respect of letters of credit, acceptance facilities, or drafts or similar
instruments issued or accepted
by
banks
and other financial institutions for the account of such Person (other than
accounts payable arising in the ordinary course and payable within 180 days);
or
(v) obligations of such Person under Capital Leases.
“Indemnified
Party”
shall
have the meaning assigned to such term in Section 10.5.
“Indemnified
Taxes”
shall
mean Taxes other than Excluded Taxes and Other Taxes.
“Interest
Payment Date”
shall
mean, with respect to any Borrowing, the last day of the Interest Period
applicable thereto and, in the case of a LIBOR Borrowing with an Interest Period
of more than three months’ duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months duration or 90
days’ duration, as the case may be, been applicable to such Borrowing, and, in
addition, the date of any refinancing or conversion of a Borrowing with, or
to,
a Borrowing of a different Interest Rate Type; provided,
that as
to any Swingline Loan, “Interest Payment Date” shall mean the day that such Loan
is required to be repaid.
“Interest
Period”
shall
mean (a) as to any LIBOR Borrowing, the period commencing on the date of such
Borrowing, and ending on the numerically corresponding day (or, if there is
no
numerically corresponding day or if the date of the LIBOR Borrowing is the
last
day of any month, on the last day) in the calendar month that is 1, 2, 3, 6
months thereafter, as the Borrower or any applicable Subsidiary Borrower may
elect and (b) as to any ABR Borrowing, the period commencing on the date of
such
Borrowing and ending on the earliest of (i) the next succeeding March 31, June
30, September 30 or December 31, (ii) the Maturity Date and (iii) the date
such
Borrowing is refinanced with a Borrowing of a different Interest Rate Type
in
accordance with Section 2.10 or is prepaid in accordance with Section 2.17;
provided,
however,
that
(i) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless,
in
the case of LIBOR Loans only, such next succeeding Business Day would fall
in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) no Interest Period may be selected which
would extend beyond the Maturity Date. Interest shall accrue from, and
including, the first day of an Interest Period to, but excluding, the last
day
of such Interest Period.
“Interest
Rate Protection Agreement”
shall
mean any interest rate swap agreement, interest rate cap agreement or other
similar financial agreement or arrangement.
“Interest
Rate Type”
when
used in respect of any Loan or Borrowing, shall refer to the Rate by reference
to which interest on such Loan or on the Loans comprising such Borrowing is
determined. For purposes hereof, “Rate” shall include LIBOR and the Alternate
Base Rate.
“issuance”
shall
mean with respect to any Letter of Credit, the issuance, amendment, renewal
or
extension of such Letter of Credit, provided
that the
reinstatement of any Letter of Credit shall not constitute an issuance of such
Letter of Credit.
“Issuing
Lender”
shall
mean in the case of Letters of Credit, JPMorgan Chase Bank or any Affiliate
thereof and such other Lenders or Affiliates thereof as may be designated in
writing by the Borrower which agree in writing to act as such in accordance
with
the terms hereof and with the consent of the Administrative Agent (such consent
not to be unreasonably withheld) (including any Existing Issuing Lender).
“JPMorgan
Chase Bank”
shall
mean JPMorgan Chase Bank, N.A.
“L/C
Exposure”
shall
mean, at any time, the amount expressed in Dollars of the aggregate face amount
of all drafts which may then or thereafter be presented by beneficiaries under
all Letters of Credit then outstanding plus (without duplication) the face
amount of all drafts which have been presented under Letters of Credit but
have
not yet been paid or have been paid but not reimbursed.
“Lender
and
“Lenders”
shall
mean the financial institutions whose names appear at the foot hereof and any
assignee of a Lender permitted pursuant to Section 10.3(b).
“Lending
Office”
shall
mean, with respect to any of the Lenders, the branch or branches (or affiliate
or affiliates) from which any such Lender’s LIBOR Loans or ABR Loans, as the
case may be, are made or maintained and for the account of which all payments
of
principal of, and interest on, such Lender’s LIBOR Loans or ABR Loans are made,
as notified to the Administrative Agent from time to time.
“Letter
of Credit”
shall
have the meaning ascribed to such term in Section 2.28.
“LIBOR”
shall
mean, with respect to any LIBOR Borrowing for any Interest Period, an interest
rate per annum (rounded upwards, if necessary, to the next Basis Point) equal
to
the rate at which Dollar deposits or deposits in any Optional Currency, as
applicable, approximately equal in principal amount to JPMorgan Chase Bank’s
portion of such LIBOR Borrowing, and for a maturity comparable to such Interest
Period, are offered to the principal London office of JPMorgan Chase Bank in
immediately available funds in the London Interbank market at approximately
11:00 A.M., London time, two Business Days prior to the commencement of such
Interest Period.
“LIBOR
Borrowing”
shall
mean a Borrowing comprised of LIBOR Loans.
“LIBOR
Loan”
shall
mean any LIBOR Revolving Credit Loan or LIBOR Term Loan.
“LIBOR
Revolving Credit Loan”
shall
mean any Revolving Credit Loan bearing interest at a rate determined by
reference to LIBOR in accordance with the provisions of Section 2.
“LIBOR
Spread”
shall
mean (i) at any time after the termination or expiration of Cendant’s obligation
to sell all of the common stock or substantially all of the assets of the
Borrower and its Subsidiaries under the Sale Agreement (as in effect on the
date
of determination), 1.500% and (ii) at any other time, 0.875%.
“LIBOR
Term Loan”
shall
mean any Term Loan bearing interest at a rate determined by reference to LIBOR
in accordance with the provisions of Section 2.
“Lien”
shall
mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset
and (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset.
“Loan”
shall
mean any loan made by any Lender pursuant to this Agreement.
“Loan
Parties”
shall
mean the Borrower, Galileo and the other Subsidiary Borrowers and
Cendant.
“Local
Facility Amendment”
shall
have the meaning assigned to such term in Section 2.29.
“Margin
Stock”
shall
be as defined in Regulation U of the Board.
“Material
Adverse Effect”
shall
mean a material adverse effect on the business, assets, operations or condition,
financial or otherwise, of the Borrower and its Subsidiaries, taken as a whole;
provided
that for
purposes of Section 3.5 and for all purposes on the Effective Date and the
Term
Loan Funding Date, “Material Adverse Effect” shall mean a material adverse
effect on the business, assets, operations or condition, financial or otherwise,
of the Travelport Businesses of Cendant, but excluding
any event, development or circumstance resulting from (i)
the
resolution of matters relating to the accounting irregularities and errors
referred to in Cendant’s report on Form 10-K for the period ending December 31,
2003, filed with the Securities and Exchange Commission and including the class
action lawsuits referred to therein and other class action lawsuits arising
as a
result of the accounting irregularities and errors disclosed therein and (ii)
the announcement of the Spin-Off and
the
consummation of the transactions contemplated thereby or the announcement of
the
Sale.
“Material
Subsidiary”
shall
mean any Subsidiary (other than a Securitization Entity) of the Borrower which,
together with its Subsidiaries (other than Securitization Entities) at the
time
of determination hold, or, solely with respect to Sections 7(f) and 7(g), any
group of Subsidiaries which, if merged into each other at the time of
determination would hold, assets constituting 15% or more of Consolidated Assets
or accounts for 15% or more of Consolidated EBITDA for the Rolling Period
immediately preceding the date of determination.
“Maturity
Date”
shall
mean July 17, 2007.
“Moody’s”
shall
mean Moody’s Investors Service, Inc.
“Multiemployer
Plan”
shall
mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Net
Cash Proceeds”
shall
mean, in connection with any incurrence of Indebtedness, the cash proceeds
received from such incurrence, net of attorneys’ fees, investment banking fees,
accountants’ fees, underwriting discounts and commissions, other professional
and consulting fees, survey costs, title insurance premiums, and related search
and recording charges, transfer taxes, deed or mortgage recording taxes, other
taxes paid or payable as a result thereof, and other customary fees and expenses
actually incurred in connection therewith or related thereto.
“New
Local Facility”
shall
have the meaning assigned to such term in Section 2.29.
“New
Local Facility Lender”
shall
have the meaning assigned to such term in Section 2.29.
“New
Zealand Dollars”
or
“NZ$”
shall
mean the lawful money of New Zealand.
“Non-Consenting
Lender”
shall
have the meaning assigned to such term in Section 10.17.
“Non-Ratable
Assignment”
shall
have the meaning assigned to such term in Section 10.3(b).
“Notes”
shall
mean any promissory notes evidencing Loans.
“Obligations”
shall
mean the obligation of the Borrower and any Subsidiary Borrower to make due
and
punctual payment of principal of, and interest on, the Loans, the Commitment
Fees, reimbursement obligations in respect of Letters of Credit and all other
monetary obligations of the Borrower or any Subsidiary Borrower to the
Administrative Agent, any Issuing Lender or any Lender under this Agreement
or
the Fundamental Documents.
“Optional
Currency”
shall
mean, at any time, Australian Dollars, Canadian Dollars, Euros, New Zealand
Dollars, Pounds and Yen, so long as such currency is freely traded and
convertible into Dollars in the London Interbank market and a Dollar Equivalent
thereof can be calculated.
“Offered
Increase Amount”
shall
have the meaning assigned to such term in Section 2.16(d).
“Other
Taxes”
shall
mean any and all present or future stamp or documentary taxes, assessments
or
charges made by any Governmental Authority by reason of the execution and
delivery of this Agreement or the issuance of any Letters of Credit or any
Fundamental Document.
“Participant”
shall
have the meaning assigned to such term in Section 10.3(g).
“Participating
Member State”
shall
mean a member of the European Communities that adopts or has adopted the Euro
as
its currency in accordance with EMU Legislation.
“PBGC”
shall
mean the Pension Benefit Guaranty Corporation or any successor
thereto.
“Permitted
Encumbrances”
shall
mean Liens permitted under Section 6.3 hereof.
“Person”
shall
mean any natural person, corporation, division of a corporation, partnership,
limited liability company, trust, joint venture, company, estate, unincorporated
organization or government or any agency or political subdivision
thereof.
“Plan”
shall
mean any employee pension benefit plan (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.
“Pounds”
or
“£”
or
“Pound
Sterling”
shall
mean the lawful money of the United Kingdom.
“Pro
Forma Balance Sheet”
shall
have the meaning assigned to such term in Section 3.4(a).
“Pro
Forma Basis”
shall
mean in connection with any transaction for which a determination on a Pro
Forma
Basis is required to be made hereunder, that such determination shall be made
(i) after giving effect to any issuance of Indebtedness, any acquisition, any
disposition or any other transaction (as applicable) and (ii) assuming that
the
issuance of Indebtedness, acquisition, disposition or other transaction and,
if
applicable, the application of
any
proceeds therefrom, occurred at the beginning of the most recent Rolling Period
ending at least thirty days prior to the date on which such issuance of
Indebtedness, acquisition, disposition or other transaction
occurred.
“Ratable
Assignment”
shall
have the meaning assigned to such term in Section 10.3(b).
“Refunded
Swingline Loan”
shall
have the meaning assigned to such term in Section 2.7(b).
“Related
Parties”
shall
mean, with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“Replaced
Term Loans”
shall
have the meaning assigned to such term is Section 10.9(b).
“Replacement
Term Loans”
shall
have the meaning assigned to such term is Section 10.9(b).
“Responsible
Officer”
shall
mean the chief executive officer, president, chief accounting officer, chief
financial officer, treasurer or assistant treasurer of the
Borrower.
“Required
Lenders”
shall
mean at any time, the holders of more than 50% of (a) until the Term Loan
Funding Date, the Commitments then in effect and (b) thereafter, the sum of
(i)
the aggregate unpaid principal amount of the Term Loans then outstanding and
(ii) the Total Revolving Commitments then in effect or, if the Total Revolving
Commitment has been terminated in its entirety, the Revolving Credit
Exposure.
“Revolving
Commitment”
shall
mean with respect to any Lender, the commitment of such Lender, if any, to
make
Revolving Credit Loans and participate in Swingline Loans and Letters of Credit
in an aggregate principal and/or face amount not to exceed the amount set forth
(i) under the heading “Revolving Commitment” opposite such Lender’s name on
Schedule 2.1 hereto and/or (ii) in any applicable Assignment and Acceptance
to
which it may be a party, as the case may be, as such Lender’s Revolving
Commitment may be permanently terminated, reduced or increased from time to
time
pursuant to Section 2.16 or Section 7. The Revolving Commitments shall
automatically and permanently terminate on the earlier of (a) the Maturity
Date
or (b) the date of termination in whole pursuant to Section 2.16 or Section
7.
“Revolving
Credit Borrowing”
shall
mean a Borrowing consisting of simultaneous Revolving Credit Loans from each
of
the Revolving Lenders.
“Revolving
Credit Borrowing Request”
shall
mean a request made pursuant to Section 2.4 in the form of
Exhibit E-2.
“Revolving
Credit Exposure”
shall
mean, at any time, the sum of (A) the aggregate outstanding principal amount
of
all Revolving Credit Loans made by all Lenders plus
(B) the
then current L/C Exposure plus
(C) the
aggregate outstanding principal amount of all Swingline Loans.
“Revolving
Credit Loans”
shall
have the meaning given such term is Section 2.1(b). Each Revolving Credit Loan
shall be a LIBOR Revolving Credit Loan or an ABR Loan.
“Revolving
Extensions of Credit”
shall
mean, as to any Revolving Lender at any time, an amount equal to the sum of
(a)
the aggregate principal amount of all Revolving Credit Loans held by such Lender
then outstanding, (b) such Lender’s Revolving Percentage of the L/C Exposure
then outstanding and (c) such Lender’s Revolving Percentage of the aggregate
principal amount of Swingline Loans then outstanding.
“Revolving
Facility”
shall
mean the Revolving Commitments and the extensions of credit
thereunder.
“Revolving
Lender”
shall
mean each Lender that has a Revolving Commitment or that holds Revolving Credit
Loans.
“Revolving
Percentage”
shall
mean, as to any Revolving Lender at any time, the percentage which such Lender’s
Revolving Commitment then constitutes of the Total Revolving Commitment or,
at
any time after the Revolving Commitments shall have expired or terminated,
the
percentage which the aggregate principal amount of such Lender’s Revolving
Extensions of Credit then outstanding constitutes of the aggregate Revolving
Extensions of Credit of all Revolving Lenders.
“Rolling
Period”
shall
mean with respect to any fiscal quarter, such fiscal quarter and the three
immediately preceding fiscal quarters considered as a single accounting
period.
“S&P”
shall
mean Standard & Poor’s.
“Sale”
shall
mean the sale of the Borrower and its Subsidiaries to TDS Investor LLC pursuant
to the Sale Agreement.
“Sale
Agreement”
shall
mean (i) the purchase agreement, dated June 30, 2006, by and between
Cendant, the Borrower and TDS Investor LLC, and the related agree-ments,
exhibits and schedules or (ii) any other alternative sale and purchase agreement
executed by Cendant for the sale of all of the common stock or substantially
all
of the assets of the Borrower and its Subsidiaries, each of the foregoing
agreements as amended, restated, or modified from time to time.
“Securitization
Entity”
shall
mean any Subsidiary or other Person engaged solely in the business of effecting
asset securitization transactions and related activities.
“Securitization
Indebtedness”
shall
mean Indebtedness incurred by a Securitization Entity that does not permit
or
provide for recourse (other than Standard Securitization Undertakings) to the
Borrower or any Subsidiary of the Borrower (other than a Securitization Entity)
or any property or asset of the Borrower or any Subsidiary of the Borrower
(other than the property or assets of, or any equity interests or other
securities issued by, a Securitization Entity).
“SPC”
shall
have the meaning assigned to such term in Section 10.3(k).
“Specified
Capital Stock”
shall
mean Capital Stock of the Borrower or any Material Subsidiary other than Capital
Stock issued to Cendant or its Affiliates.
“Specified
Indebtedness”
shall
mean Indebtedness incurred by the Borrower or any Material Subsidiary under
syndicated credit facilities (other than under this Agreement) or any senior
or
senior subordinated notes issued in the capital markets.
“Spin-Off”
shall
mean the distribution to the shareholders of Cendant of all of the common stock
of the Borrower and the transactions related thereto.
“Standard
Securitization Undertakings”
shall
mean representations, warranties (and any related repurchase obligations),
servicer obligations, guaranties, covenants and indemnities entered into by
the
Borrower or any Subsidiary of the Borrower of a type that are reasonably
customary in securitizations.
“Statutory
Reserves”
shall
mean a fraction (expressed as a decimal), the numerator of which is the number
one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board and
any
other banking authority to which the Administrative Agent or any Lender is
subject, for Eurocurrency Liabilities (as defined in Regulation D). Such reserve
percentages shall include those imposed under Regulation D. LIBOR Loans shall
be
deemed to constitute Eurocurrency Liabilities and as such shall be deemed to
be
subject to such reserve requirements without benefit of or credit for proration,
exceptions or offsets which may be available from time to time to any Lender
under Regulation D. Statutory Reserves shall be adjusted automatically on and
as
of the effective date of any change in any reserve percentage.
“Subsidiary”
shall
mean with respect to any Person, any corporation, association, joint venture,
partnership or other business entity (whether now existing or hereafter
organized) of which at least a majority of the voting stock or other ownership
interests having ordinary voting power for the election of directors (or the
equivalent) is, at the time as of which any determination is being made, owned
or controlled by such Person or one or more subsidiaries of such Person or
by
such Person and one or more subsidiaries of such Person.
“Subsidiary
Borrower”
shall
mean Galileo and any Subsidiary of the Borrower that becomes a party hereto
pursuant to Section 10.9(c)(i) until such time as such Subsidiary Borrower
is
removed as a party hereto pursuant to Section 10.9(c)(ii).
“Subsidiary
Borrower Obligations”
shall
mean the Obligations of any Subsidiary Borrower.
“Swingline
Commitment”
shall
mean the obligation of the Swingline Lender to make Swingline Loans pursuant
to
Section 2.6 in an aggregate principal amount at any one time outstanding not
to
exceed $50,000,000.
“Swingline
Lender”
shall
mean JPMorgan Chase Bank, in its capacity as the lender of Swingline
Loans.
“Swingline
Loans”
shall
have the meaning given such term in Section 2.6.
“Swingline
Participation Amount”
shall
have the meaning given such term in Section 2.7.
“Taxes”
shall
mean any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Term
Commitment”
shall
mean with respect to each Lender, the commitment of such Lender, if any, to
make
a Term Loan to the Borrower in a principal amount not to exceed the amount
set
forth under the heading “Term Commitment” opposite such Lender’s name on
Schedule
2.1 hereto. The original aggregate amount of the Term Commitments is
$1,800,000,000.
“Term
Lender”
shall
mean each Lender that has a Term Commitment or that holds a Term
Loan.
“Term
Loan”
shall
have the meaning given such term in Section 2.1(a). Each Term Loan shall be
a
LIBOR Term Loan or an ABR Loan.
“Term
Loan Borrowing”
shall
mean a Borrowing consisting of simultaneous Term Loans from each of the Term
Lenders.
“Term
Loan Borrowing Request”
shall
mean a request made pursuant to Section 2.3 in the form of
Exhibit E-1.
“Term
Loan Commitment Period”
shall
mean the period commencing on the Effective date and ending on the earlier
of
(i) the Term Loan Funding Date or (ii) September 30, 2006.
“Term
Loan Funding Date”
shall
mean the date on which the Term Loans are made.
“Term
Percentage”
shall
mean, as to any Term Lender at any time, the percentage which such Lender’s Term
Commitment then constitutes of the aggregate Term Commitments or, at any time
after the Term Loan Funding Date, the percentage which the aggregate principal
amount of such Lender’s Term Loans then outstanding constitutes of the aggregate
principal amount of the Term Loans then outstanding.
“Total
Revolving Commitment”
shall
mean, at any time, the aggregate amount of the Lenders’ Revolving Commitments as
in effect at such time. The initial Total Revolving Commitment is
$400,000,000.
“Travelport
Businesses of Cendant”
shall
mean the collective reference to the businesses of Cendant that comprise its
Travel Distribution segment as of the Effective Date.
“Treaty”
shall
mean the Treaty establishing the European Economic Community, being the Treaty
of Rome of March 25, 1957, as amended by the Single European Act 1987, the
Maastricht Treaty (which was signed at Maastricht on February 7, 1992 and came
into force on November 1, 1993), the Amsterdam Treaty (which was signed at
Amsterdam on October 2, 1997 and came into force on May 1, 1999) and the Nice
Treaty (which was signed on February 26, 2001), each as amended from time to
time and as referred to in legislative measures of the European Union for the
introduction of, changeover to or operating of the Euro in one or more member
states.
“Withdrawal
Liability”
shall
mean liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part
I of
Subtitle E of Title IV of ERISA.
“Yen”
and
“¥”
shall
mean the lawful money of Japan.
| 2. |
THE
LOANS
|
SECTION
2.1. Commitments.
(a) Subject
to the terms and conditions hereof and relying upon the representations and
warranties herein set forth, each Term Lender agrees, severally and not jointly,
to make a term loan (a “Term
Loan”)
in
Dollars to the Borrower during the Term Loan Commitment Period in an amount
not
to exceed the amount of the Term Commitment of such Lender. The Term Loans
may
from time to time be LIBOR Term Loans or ABR Loans, as determined by the
Borrower and notified to the Administrative Agent in accordance with Sections
2.3 and 2.10.
(b) Subject
to the terms and conditions hereof and relying upon the representations and
warranties herein set forth, each Revolving Lender agrees, severally and not
jointly, to make revolving credit loans (“Revolving
Credit Loans”)
in
Dollars to the Borrower or any Domestic Subsidiary Borrower, at any time and
from time to time on and after the Effective Date and until the earlier of
the
Maturity Date and the termination of the Revolving Commitment of such Lender,
in
an aggregate principal amount at any time outstanding not to exceed such
Lender’s Available Revolving Commitment subject, however, to the conditions that
(a) at no time shall (i) the Revolving Credit Exposure exceed (ii) the Total
Revolving Commitment and (b) at all times the outstanding aggregate principal
amount of all Revolving Credit Loans made by each Revolving Lender shall equal
the product of (i) the percentage that its Revolving Commitment represents
of
the Total Revolving Commitment times (ii) the outstanding aggregate principal
amount of all Revolving Credit Loans made pursuant to a notice given by the
Borrower or any Subsidiary Borrower under Section 2.4. The Revolving Commitments
of the Lenders may be terminated or reduced from time to time pursuant to
Section 2.16 or Section 7.
(c) Within
the foregoing limits, the Borrower and any Domestic Subsidiary Borrower may
borrow, pay or repay and reborrow Revolving Credit Loans hereunder, on and
after
the Effective Date and prior to the Maturity Date, upon the terms and subject
to
the conditions and limitations set forth herein (it being understood that Term
Loans may not be reborrowed).
SECTION
2.2. Loans.
(a) Each
Term
Loan and Revolving Credit Loan shall be made as part of a Borrowing consisting
of Loans made by the Lenders ratably in accordance with their Commitments;
provided,
however,
that
the failure of any Lender to make any Term Loan or Revolving Credit Loan shall
not in itself relieve any other Lender of its obligation to lend hereunder
(it
being understood, however, that no Lender shall be responsible for the failure
of any other Lender to make any Loan required to be made by such other Lender).
The Loans comprising any Borrowing shall be (i) in the case of LIBOR Loans,
in
an aggregate principal amount that is an integral multiple of $1,000,000 and
not
less than $5,000,000 and (ii) in the case of ABR Loans, in an aggregate
principal amount that is an integral multiple of $500,000 and not less than
$5,000,000 (or, in the case of clause (i) and clause (ii) above with respect
to
Revolving Credit Loans, if less, an aggregate principal amount equal to the
remaining balance of the available Total Revolving Commitment). ABR Loans shall
be denominated only in Dollars.
(b) Each
Revolving Credit Borrowing and Term Loan Borrowing shall be comprised entirely
of LIBOR Loans or ABR Loans, as the Borrower or any Subsidiary Borrower may
request pursuant to Section 2.8 or 2.4, as applicable. Each Lender may at its
option make any LIBOR Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan, provided
that any
exercise of such option shall not affect the obligation of the Borrower or
such
Subsidiary Borrower to repay such Loan in accordance with the terms of this
Agreement. Borrowings of more than one Interest Rate Type may be outstanding
at
the same time; provided,
however,
that
neither the Borrower nor any
Subsidiary
Borrower shall be entitled to request any Borrowing that, if made, would result
in an aggregate of more than nine separate Revolving Credit Loans of any Lender
being outstanding hereunder at any one time. For purposes of the calculation
required by the immediately preceding sentence, LIBOR Revolving Credit Loans
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Loans and all Loans of a single Interest
Rate Type made on a single date shall be considered a single Loan if such Loans
have a common Interest Period.
(c) Subject
to Sections 2.3 and 2.4, each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by making funds available at the Funding
Office no later than 1:00 P.M. New York City time (2:00 P.M. New York City
time,
in the case of an ABR Borrowing) in Federal or other immediately available
funds. Upon receipt of the funds to be made available by the Lenders to fund
any
Borrowing hereunder, the Administrative Agent shall disburse such funds by
depositing them into an account of the Borrower or the relevant Subsidiary
Borrower maintained with the Administrative Agent. Term Loans and Revolving
Credit Loans shall be made by the Term Lenders and Revolving Lenders,
respectively pro rata in accordance with Section 2.1 and this Section
2.2.
(d) Notwithstanding
any other provision of this Agreement, neither the Borrower nor any Subsidiary
Borrower shall be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
SECTION
2.3. Term
Loan Borrowing Procedure.
In
order
to effect a Term Loan Borrowing, the Borrower shall hand deliver or telecopy
to
the Administrative Agent a Borrowing notice in the form of Exhibit E-1 (a)
in
the case of a LIBOR Borrowing, not later than 12:00 Noon, New York City time,
three Business Days before a proposed Term Loan Borrowing, and (b) in the case
of an ABR Borrowing, not later than 12:00 Noon, New York City time, on the
day
of a proposed Term Loan Borrowing. Such notice shall be irrevocable and shall
in
each case specify (a) whether the Term Loan Borrowing then being requested
is to
be a LIBOR Borrowing or an ABR Borrowing, (b) the date of such Borrowing (which
shall be a Business Day) and the amount thereof and (c) if such Borrowing is
to
be a LIBOR Borrowing, the Interest Period with respect thereto. If no election
as to the Interest Rate Type of a Term Loan Borrowing is specified in any such
Term Loan Borrowing Request, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any LIBOR Borrowing is
specified in any such Term Loan Borrowing Request, then the Borrower shall
be
deemed to have selected an Interest Period of one month’s duration. If the
Borrower shall not have given a Term Loan Borrowing Request in accordance with
this Section 2.3 of its election to refinance a Borrowing prior to the end
of
the Interest Period in effect for such Borrowing, then the Borrower shall
(unless such Borrowing is repaid at the end of such Interest Period) be deemed
to have given notice of an election to refinance such Borrowing with a LIBOR
Borrowing of one month’s duration (or at any time after the occurrence, and
during the continuation, of a Default or an Event of Default, an ABR Borrowing).
The Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.3 and of each Lender’s portion of the requested
Borrowing.
SECTION
2.4. Revolving
Credit Borrowing Procedure.
In
order
to effect a Revolving Credit Borrowing, the Borrower or any Domestic Subsidiary
Borrower shall hand deliver or telecopy to the Administrative Agent a Borrowing
notice in the form of Exhibit E-2 (a) in the case of a LIBOR Borrowing, not
later than 12:00 Noon, New York City time, three Business Days before a proposed
Revolving Credit Borrowing, and (b) in the case of an ABR Borrowing, not later
than 12:00 Noon, New York City time, on the day of a proposed Revolving Credit
Borrowing. Such notice shall be irrevocable and shall in each case specify
(a)
whether the Revolving Credit Borrowing then being requested is to be a LIBOR
Borrowing or an ABR Borrowing, (b) the date
of
such
Revolving Credit Borrowing (which shall be a Business Day) and the amount
thereof and (c) if such Borrowing is to be a LIBOR Borrowing, the Interest
Period with respect thereto. If no election as to the Interest Rate Type of
a
Revolving Credit Borrowing is specified in any such notice, then the requested
Revolving Credit Borrowing shall be an ABR Borrowing. If no Interest Period
with
respect to any LIBOR Borrowing is specified in any such notice, then the
Borrower or the relevant Subsidiary Borrower shall be deemed to have selected
an
Interest Period of one month’s duration. If the Borrower or the relevant
Subsidiary Borrower shall not have given notice in accordance with this Section
2.4 of its election to refinance a Revolving Credit Borrowing prior to the
end
of the Interest Period in effect for such Borrowing, then the Borrower or the
relevant Subsidiary Borrower shall (unless such Borrowing is repaid at the
end
of such Interest Period) be deemed to have given notice of an election to
refinance such Borrowing with a LIBOR Borrowing of one month’s duration (or at
any time after the occurrence, and during the continuation, of a Default or
an
Event of Default, an ABR Borrowing). The Administrative Agent shall promptly
advise the Lenders of any notice given pursuant to this Section 2.4 and of
each
Lender’s portion of the requested Revolving Credit Borrowing.
SECTION
2.5. Use
of
Proceeds.
The
proceeds of the Loans shall be used (i) to fund a portion of a dividend to
Cendant to finance, in part, the repayment, redemption, pre-funding or
repurchase of existing Cendant indebtedness and to pay fees and expenses related
thereto, (ii) to pay fees and expenses related to the Sale and to the Spin-Off
and, in each case, the transactions related thereto and (ii) for working capital
and general corporate purposes of the Borrower and its Subsidiaries. No part
of
the proceeds of any Loan will be used, whether directly or indirectly, for
any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X of the Board.
SECTION
2.6. Swingline
Commitment.
(a) Subject
to the terms and conditions hereof, the Swingline Lender agrees to make a
portion of the credit otherwise available to the Borrower under the Revolving
Commitments from time to time on and after the Effective Date and until the
earlier of the Maturity Date and the termination of the Revolving Commitments
by
making swing line loans (“Swingline
Loans”)
in
Dollars to the Borrower; provided
that (i)
the aggregate principal amount of Swingline Loans outstanding at any time shall
not exceed the Swingline Commitment then in effect (notwithstanding that the
Swingline Loans outstanding at any time, when aggregated with the Swingline
Lender’s other outstanding Revolving Credit Loans, may exceed the Swingline
Commitment then in effect) and (ii) the Borrower shall not request, and the
Swingline Lender shall not make, any Swingline Loan if, after giving effect
to
the making of such Swingline Loan, the Revolving Credit Exposure would exceed
the Total Revolving Commitment. On and after the Effective Date and until the
earlier of the Maturity Date and the termination of the Revolving Commitments,
the Borrower may use the Swingline Commitment by borrowing, repaying and
reborrowing, all in accordance with the terms and conditions hereof. Swingline
Loans shall be ABR Loans only.
(b) The
Borrower shall repay to the Swingline Lender the then unpaid principal amount
of
each Swingline Loan on the earlier of the Maturity Date and the first date
after
such Swingline Loan is made that is the 15th or last day of a calendar month
and
is at least two Business Days after such Swingline Loan is made; provided
that on
each date that a Revolving Credit Loan is borrowed, the Borrower shall repay
all
Swingline Loans then outstanding.
SECTION
2.7. Procedure
for Swingline Borrowing; Refunding of Swingline Loans.
(a) Whenever
the Borrower desires that the Swingline Lender make Swingline Loans it shall
give the Swingline Lender irrevocable telephonic notice confirmed promptly
in
writing (which telephonic notice must be received by the Swingline Lender not
later than 1:00 P.M., New York City time, on the day of the proposed Borrowing),
specifying (i) the amount to be borrowed and (ii) the date of such notice which
shall be the requested borrowing date (which shall be a Business Day). Each
borrowing under the Swingline Commitment shall be in an amount equal to $500,000
or a whole multiple of $100,000 in excess thereof. Not later than 3:00 P.M.,
New
York City time, on the date of the Borrowing specified in a notice in respect
of
Swingline Loans, the Swingline Lender shall make available to the Administrative
Agent at the Funding Office an amount in immediately available funds equal
to
the amount of the Swingline Loan to be made by the Swingline Lender. The
Administrative Agent shall make the proceeds of such Swingline Loan available
to
the Borrower on such borrowing date by depositing such proceeds in the account
of the Borrower with the Administrative Agent or such other account as the
Borrower may specify to the Administrative Agent in writing on such borrowing
date in immediately available funds.
(b) The
Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs
the
Swingline Lender to act on its behalf), on one Business Day’s notice given by
the Swingline Lender no later than 12:00 Noon, New York City time, request
each
Revolving Lender to make, and each Revolving Lender hereby agrees to make,
a
Revolving Credit Loan, in an amount equal to such Revolving Lender’s Revolving
Percentage of the aggregate amount of the Swingline Loans (the “Refunded
Swingline Loans”)
outstanding on the date of such notice, to repay the Swingline Lender. Each
Revolving Lender shall make the amount of such Revolving Credit Loan available
to the Administrative Agent at the Funding Office in immediately available
funds, not later than 10:00 A.M., New York City time, one Business Day after
the
date of such notice. The proceeds of such Revolving Credit Loans shall be
immediately made available by the Administrative Agent to the Swingline Lender
for application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Borrower irrevocably authorize the Swingline Lender to
charge the Borrower’s accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent amounts received from the Revolving
Lenders are not sufficient to repay in full such Refunded Swingline
Loans.
(c) If
prior
to the time a Revolving Credit Loan would have otherwise been made pursuant
to
Section 2.7(b), one of the events described in Section 7(f) or (g) shall have
occurred and be continuing with respect to the Borrower or if for any other
reason, as determined by the Swingline Lender in its sole discretion, Revolving
Credit Loans may not be made as contemplated by Section 2.7(b), each Revolving
Lender shall, on the date such Revolving Credit Loan was to have been made
pursuant to the notice referred to in Section 2.7(b), purchase for cash an
undivided participating interest in the then outstanding Swingline Loans by
paying to the Swingline Lender an amount (the “Swingline
Participation Amount”)
equal
to (i) such Revolving Lender’s Revolving Percentage times
(ii) the
sum of the aggregate principal amount of Swingline Loans then outstanding that
were to have been repaid with such Revolving Credit Loans.
(d) Whenever,
at any time after the Swingline Lender has received from any Revolving Lender
such Lender’s Swingline Participation Amount, the Swingline Lender receives any
payment on account of the Swingline Loans, the Swingline Lender will distribute
to such Lender its Swingline Participation Amount (appropriately adjusted,
in
the case of interest payments, to reflect the period of time during which such
Lender’s participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Lender’s pro rata
portion
of such payment if such payment is not sufficient to pay the principal of and
interest on all Swingline Loans then due); provided,
however,
that in
the event that such payment received by the Swingline Lender is required to
be
returned, such Revolving Lender will return to the Swingline Lender any portion
thereof previously distributed to it by the Swingline Lender.
(e) Each
Revolving Lender’s obligation to make the Loans referred to in Section 2.7(b)
and to purchase participating interests pursuant to Section 2.7(c) shall be
absolute and unconditional and shall not be affected by any circumstance,
including (i) any setoff, counterclaim, recoupment, defense or other right
that
such Revolving Lender or the Borrower may have against the Swingline Lender,
the
Borrower or any other Person for any reason whatsoever, (ii) the occurrence
or
continuance of a Default or an Event of Default or the failure to satisfy any
of
the other conditions specified in Section 4, (iii) any adverse change in the
condition (financial or otherwise) of the Borrower, (iv) any breach of this
Agreement or any other Fundamental Document by the Borrower, any other Loan
Party or any other Revolving Lender or (v) any other circumstance, happening
or
event whatsoever, whether or not similar to any of the foregoing.
SECTION
2.8. [Reserved]
SECTION
2.9. [Reserved].
SECTION
2.10. Refinancings.
The
Borrower or any Subsidiary Borrower may refinance all or any part of any
Borrowing with a Borrowing of the same Currency and of the same Interest Rate
Type (or of the same or different Interest Rate Type, in the case of Loans
denominated in Dollars) made pursuant to a notice under Sections 2.3 or 2.4,
as
applicable, subject to the conditions and limitations set forth herein and
elsewhere in this Agreement; provided,
however,
that at
any time after the occurrence, and during the continuation, of a Default or
an
Event of Default, a Borrowing or portion thereof may only be refinanced with
an
ABR Borrowing. Any Borrowing or part thereof so refinanced shall be deemed
to be
repaid in accordance with Section 2.12 with the proceeds of a new Borrowing
hereunder and the proceeds of the new Borrowing, to the extent they do not
exceed the principal amount of the Borrowing being refinanced, shall not be
paid
by the Lenders to the Administrative Agent or by the Administrative Agent to
the
Borrower or the relevant Subsidiary Borrower pursuant to Section 2.2(c);
provided,
however,
that
(a) if the principal amount extended by a Lender in a refinancing is greater
than the principal amount extended by such Lender in the Borrowing being
refinanced, then such Lender shall pay such difference to the Administrative
Agent for distribution to the Borrower or the relevant Subsidiary Borrower
or
any Lenders described in clause (b) below, as applicable, (b) if the principal
amount extended by a Lender in the Borrowing being refinanced is greater than
the principal amount being extended by such Lender in the refinancing, the
Administrative Agent shall return the difference to such Lender out of amounts
received pursuant to clause (a) above, and (c) to the extent any Lender fails
to
pay the Administrative Agent amounts due from it pursuant to clause (a) above,
any Loan or portion thereof being refinanced with such amounts shall not be
deemed repaid in accordance with this Section 2.10 and, to the extent of such
failure, the Borrower or the relevant Subsidiary Borrower shall pay such amount
to the Administrative Agent as required by Section 2.14; and (d) to the extent
the Borrower or the relevant Subsidiary Borrower fails to pay to the
Administrative Agent any amounts due in accordance with Section 2.14 as a result
of the failure of a Lender to pay the Administrative Agent any amounts due
as
described in clause (c) above, the portion of any refinanced Loan deemed not
repaid shall be deemed to be outstanding solely to the Lender which has failed
to pay the Administrative Agent amounts due from it pursuant to clause (a)
above
to the full extent of such Lender’s portion of such Loan.
SECTION
2.11. Fees.
(a) The
Borrower agrees to pay to each Revolving Lender, through the Administrative
Agent, on the 15th day
(or,
on the next Business Day, if the 15th day is not a Business Day) of the calendar
month immediately following the end of each fiscal quarter, commencing with
the
fiscal quarter ending September 30, 2006, and on the date on which the Revolving
Commitment of such Lender shall be terminated as provided herein, a commitment
fee (a “Commitment
Fee”),
at
the Commitment Fee Rate from time to time in effect, on the average daily amount
of the Available Revolving Commitment of such Lender during the preceding
quarter (or shorter period commencing with the Effective Date, or ending with
(i) the Maturity Date or (ii) any date on which the Revolving Commitment of
such
Lender shall be terminated. All Commitment Fees shall be computed on the basis
of the actual number of days elapsed in a year of 360 days. The Commitment
Fee
due to each Revolving Lender shall commence to accrue on the Effective Date,
shall be payable in arrears and shall cease to accrue on the earlier of the
Maturity Date and the termination of the Commitment of such Lender as provided
herein.
(b) The
Borrower agrees to pay the Administrative Agent the fees in the amounts and
on
the dates as set forth in any written and executed fee agreements with the
Administrative Agent.
(c) All
fees
shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders.
Once paid, none of the fees shall be refundable under any
circumstances.
SECTION
2.12. Repayment
of Loans; Evidence of Debt.
(a) The
Term
Loans shall be payable in a single installment on the Maturity
Date.
(b) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Term Lender the then unpaid principal amount of each
Term Loan of such Lender made to the Borrower on the Maturity Date, (ii) to
the
Administrative Agent for the account of each Revolving Lender the then unpaid
principal amount of each Revolving Credit Loan of such Lender made to the
Borrower on the Maturity Date and (iii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan in accordance with Section 2.6(b),
or in
each case, on such earlier date on which the Loans become due and payable
pursuant to Section 7. The Borrower hereby further agrees to pay interest on
the
unpaid principal amount of the Loans made to the Borrower from time to time
outstanding from the Effective Date, until payment in full thereof at the rates
per annum, and on the dates, set forth in Section 2.13. Each Subsidiary Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Credit
Loan of such Lender made to such Subsidiary Borrower on the Maturity Date or
on
such earlier date on which Loans become due and payable pursuant to Section
7.
Each Subsidiary Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Loans made to such Subsidiary Borrower from time to
time
outstanding from the Effective Date, until payment in full thereof at the rates
per annum, and on the dates, set forth in Section 2.13.
(c) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing indebtedness of the Borrower and any Subsidiary Borrower
to
such Lender resulting from each Loan of such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from
time
to time under this Agreement.
(d) The
Administrative Agent shall maintain the Register pursuant to Section 10.3(e),
and a subaccount therein for each Lender, in which shall be recorded (i) the
amount of each Loan made hereunder, the Interest Rate Type thereof and each
Interest Period applicable thereto, (ii) the amount of
any
principal or interest due and payable or to become due and payable from the
Borrower and any Subsidiary Borrower to each Lender hereunder and (iii) both
the
amount of any sum received by the Administrative Agent hereunder from the
Borrower or any Subsidiary Borrower and each Lender’s share
thereof.
(e) The
entries made in the Register and the accounts of each Lender maintained pursuant
to this Section 2.12 shall, to the extent permitted by applicable law, be
prima facie
evidence
of the existence and amounts of the obligations of the Borrower and any
Subsidiary Borrower therein recorded; provided,
however,
that
the failure of any Lender or the Administrative Agent to maintain the Register
or any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower or any Subsidiary Borrower to repay (with applicable
interest) the Loans made to the Borrower or the relevant Subsidiary Borrower
by
such Lender in accordance with the terms of this Agreement.
SECTION
2.13. Interest
on Loans.
(a) Subject
to the provisions of Section 2.14, the Loans comprising each LIBOR Borrowing
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal to LIBOR for the Interest
Period in effect for such Borrowing plus the applicable LIBOR Spread from time
to time in effect. Interest on each LIBOR Borrowing shall be payable on each
applicable Interest Payment Date.
(b) Subject
to the provisions of Section 2.14, the Loans comprising each ABR Borrowing
shall
bear interest (computed on the basis of the actual number of days elapsed over
a
year of 365 or 366 days, as the case may be, when determined by reference to
the
Prime Rate and over a year of 360 days at all other times) at a rate per annum
equal to the Alternate Base Rate plus the applicable margin, if any, for ABR
Loans from time to time in effect. The applicable margin for ABR Loans shall
be
the applicable LIBOR Spread minus
100
Basis Points (but not less than 0%).
(c) Interest
on each Loan shall be payable in arrears on each Interest Payment Date
applicable to such Loan. The LIBOR or the Alternate Base Rate for each Interest
Period or day within an Interest Period shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION
2.14. Interest
on Overdue Amounts.
If
the
Borrower or any Subsidiary Borrower shall default in the payment of the
principal of, or interest on, any Loan or any other amount becoming due
hereunder, the Borrower or such Subsidiary Borrower shall, at the request of
the
Required Lenders, from time to time pay interest, to the extent permitted by
Applicable Law, on such defaulted amount up to (but not including) the date
of
actual payment (after as well as before judgment) at a rate per annum computed
on the basis of the actual number of days elapsed over a year of 365 or 366
days, as applicable, in the case of amounts bearing interest determined by
reference to the Prime Rate and a year of 360 days in all other cases, equal
to
(a) in the case of the remainder of the then current Interest Period for any
LIBOR Loan, the rate applicable to such Loan under Section 2.13 plus 2% per
annum and (b) in the case of any other Loan or amount, the rate that would
at
the time be applicable to an ABR Loan under Section 2.13 plus 2% per
annum.
SECTION
2.15. Alternate
Rate of Interest.
In
the
event, and on each occasion, that on the day two Business Days prior to the
commencement of any Interest Period for a LIBOR Loan, the Administrative Agent
shall have determined that Dollar deposits or deposits in the applicable
Optional Currency in the amount of the
requested
principal amount of such LIBOR Loan are not generally available in the London
Interbank market, or that the rate at which such Dollar deposits or deposits
in
the applicable Optional Currency are being offered will not adequately and
fairly reflect the cost to any Lender of making or maintaining its portion
of
such LIBOR Loans during such Interest Period, or that reasonable means do not
exist for ascertaining LIBOR, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopier notice of such determination
to the Borrower or the relevant Subsidiary Borrower and the Lenders. In the
event of any such determination, until the Administrative Agent shall have
determined that circumstances giving rise to such notice no longer exist, any
request by the Borrower or any Subsidiary Borrower for a LIBOR Borrowing
pursuant to Section 2.4 shall be deemed to be a request for an ABR Loan. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION
2.16. Termination
and Reduction of Revolving Commitments;
Increase of Revolving Commitments.
(a) The
Revolving Commitments of all of the Revolving Lenders shall be automatically
terminated on the Maturity Date.
(b) Subject
to Section 2.17(b), upon at least one Business Day’s prior written or telecopy
notice to the Administrative Agent (which notice shall have been received not
later than 12:00 Noon, New York City time), the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Total Revolving Commitment; provided,
however,
that
(i) each partial reduction of the Total Revolving Commitment shall be in an
integral multiple of $1,000,000 and in a minimum principal amount of $5,000,000
and (ii) the Borrower shall not be entitled to make any such termination or
reduction that would reduce the Total Revolving Commitment to an amount less
than the sum of the aggregate outstanding principal amount of the Revolving
Credit Loans plus the aggregate outstanding principal amount of the Swingline
Loans plus the then current L/C Exposure. Each notice delivered by the Borrower
pursuant to this Section 2.16(b) shall be irrevocable; provided
that a
notice of termination of the Revolving Commitments delivered by the Borrower
may
state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case, such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if
such
condition is not satisfied.
(c) Each
reduction in the Total Revolving Commitment hereunder shall be made ratably
among the Lenders in accordance with their respective Revolving Commitments.
(d) In
the
event that the Borrower wishes to increase the aggregate Revolving Commitments
at any time when no Default or Event of Default has occurred and is continuing,
it shall notify the Administrative Agent in writing of the amount (the
“Offered
Increase Amount”)
of
such proposed increase (such notice, a “Commitment
Increase Notice”),
and
the Administrative Agent shall notify each Lender of such proposed increase
and
provide such additional information regarding such proposed increase as any
Lender may reasonably request. The Borrower may, at its election, (i) offer
one
or more of the Lenders the opportunity to participate in all or a portion of
the
Offered Increase Amount pursuant to paragraph (f) below and/or (ii) with the
consent of the Administrative Agent (which consent shall not be unreasonably
withheld), offer one or more additional banks, financial institutions or other
entities the opportunity to participate in all or a portion of the Offered
Increase Amount pursuant to paragraph (e) below. Each Commitment Increase Notice
shall specify which Lenders and/or banks, financial institutions or other
entities the Borrower desires to participate in such Commitment increase. The
Borrower or, if requested by the Borrower, the Administrative Agent, will notify
such Lenders and/or banks, financial institutions or other entities of such
offer.
(e) Any
additional bank, financial institution or other entity which the Borrower
selects to offer participation in the increased Revolving Commitments and which
elects to become a party to this Agreement and provide a Revolving Commitment
in
an amount so offered and accepted by it pursuant to Section 2.16(d)(ii) shall
execute a New Lender Supplement with the Borrower and the Administrative Agent,
substantially in the form of Exhibit G, whereupon such bank, financial
institution or other entity (herein called a “New
Lender”)
shall
become a Lender for all purposes and to the same extent as if originally a
party
hereto and shall be bound by and entitled to the benefits of this Agreement,
and
Schedule 2.1 shall be deemed to be amended to add the name and Revolving
Commitment of such New Lender, provided
that the
Revolving Commitment of any such new Lender shall be in an amount not less
than
$5,000,000.
(f) Any
Revolving Lender which accepts an offer to it by the Borrower to increase its
Revolving Commitment pursuant to Section 2.16(d)(i) shall, in each case, execute
a Commitment Increase Supplement with the Borrower and the Administrative Agent,
substantially in the form of Exhibit H, whereupon such Lender shall be bound
by
and entitled to the benefits of this Agreement with respect to the full amount
of its Revolving Commitment as so increased, and Schedule 2.1 shall be deemed
to
be amended to so increase the Revolving Commitment of such Lender.
(g) Notwithstanding
anything to the contrary in this Section 2.16, (i) in no event shall any
transaction effected pursuant to this Section 2.16 cause the Total Revolving
Commitment to exceed $500,000,000 and (ii) no Lender shall have any obligation
to increase its Revolving Commitment unless it agrees to do so in its sole
discretion.
SECTION
2.17. Prepayment
of Loans.
(a) Prior
to
the Maturity Date, the Borrower and any Subsidiary Borrower shall have the
right
at any time to prepay any Borrowing, in whole or in part, subject to the
requirements of Section 2.21 but otherwise without premium or penalty, upon
prior written or telecopy notice to the Administrative Agent before 12:00 Noon,
New York City time, at least one Business Day in the case of an ABR Loan and
at
least three Business Days in the case of a LIBOR Loan; provided,
however,
that
each such partial prepayment shall be in an integral multiple of $1,000,000
and
in a minimum aggregate principal amount of $5,000,000.
(b) On
any
date when the sum of the Revolving Credit Exposure (after giving effect to
any
Borrowings effected on such date) exceeds the Total Revolving Commitment, the
Borrower shall make a mandatory prepayment of the Revolving Credit Loans (or
cause any Subsidiary Borrower to make such a prepayment) in such amount as
may
be necessary so that the Revolving Credit Exposure after giving effect to such
prepayment does not exceed the Total Revolving Commitment then in effect. Any
prepayments required by this paragraph shall be applied to outstanding ABR
Loans
up to the full amount thereof before they are applied to outstanding LIBOR
Revolving Credit Loans.
(c) If
any
Specified Capital Stock shall be issued (other than (i) pursuant to the Spin-Off
or (ii) to Cendant) or any Specified Indebtedness shall be incurred, an amount
equal to the lesser of (i) 100% of the Net Cash Proceeds thereof or (ii) the
aggregate amount of Term Loans outstanding plus
the
Total Revolving Commitment shall be applied within five Business Days toward
the
prepayment of the Term Loans and the reduction of the Revolving Commitments.
Amounts to be applied in connection with prepayments and Revolving Commitment
reductions made pursuant to this Section 2.17(c) shall be applied, first,
to the
prepayment of the Term Loans in accordance with Section 2.22 and, second,
to
reduce permanently the Revolving Commitments. Any such reduction of the
Revolving Commitments shall be accompanied by prepayment of the Revolving Loans
and/or Swingline Loans to the extent, if any, that the Revolving Credit Exposure
exceeds the Total Revolving Commitment as so reduced, provided
that
if
the aggregate principal amount of Revolving Credit Loans and Swingline Loans
then outstanding is less than the amount of such excess (because L/C Exposure
constitutes a portion thereof), the Borrower shall, to the extent of the balance
of such excess, replace outstanding Letters of Credit and/or deposit an amount
in cash in a cash collateral account established with the Administrative Agent
for the benefit of the Lenders on terms and conditions satisfactory to the
Administrative Agent. The application of any prepayment pursuant to this Section
2.17(c) shall be applied, first,
to
prepay outstanding ABR Borrowings and, second,
to
prepay outstanding LIBOR Borrowings.
(d) Each
notice of prepayment pursuant to Section 2.17(a) shall specify the specific
Borrowing(s), the prepayment date and the aggregate principal amount of each
Borrowing to be prepaid, shall be irrevocable and shall commit the Borrower
or
the relevant Subsidiary Borrower to prepay such Borrowing(s) by the amount
stated therein; provided
that a
notice of prepayment of a Borrowing delivered by the Borrower may state that
such notice is conditioned upon the effectiveness of other credit facilities,
in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. All prepayments under this Section 2.17 shall be
accompanied by accrued interest on the principal amount being prepaid, to the
date of prepayment.
SECTION
2.18. Eurocurrency
Reserve Costs.
The
Borrower and any Subsidiary Borrower shall pay to the Administrative Agent
for
the account of each Lender, so long as such Lender shall be required under
regulations of the Board to maintain reserves with respect to liabilities or
assets consisting of, or including, Eurocurrency Liabilities (as defined in
Regulation D of the Board), additional interest on the unpaid principal amount
of each LIBOR Loan made to the Borrower or such Subsidiary Borrower by such
Lender, from the date of such Loan until such Loan is paid in full, at an
interest rate per annum equal at all times during the Interest Period for such
Loan to the remainder obtained by subtracting (i) LIBOR for such Interest Period
from (ii) the rate obtained by multiplying LIBOR as referred to in clause (i)
above by the Statutory Reserves of such Lender for such Interest Period. Such
additional interest shall be determined by such Lender and notified to the
Borrower or the relevant Subsidiary Borrower (with a copy to the Administrative
Agent) not later than five Business Days before the next Interest Payment Date
for such Loan, and such additional interest so notified to the Borrower or
the
relevant Subsidiary Borrower by any Lender shall be payable to the
Administrative Agent for the account of such Lender on each Interest Payment
Date for such Loan.
SECTION
2.19. Reserve
Requirements; Change in Circumstances.
(a) Except
with respect to Indemnified Taxes and Other Taxes, which shall be governed
solely and exclusively by Section 2.25, if after the Effective Date any change
in Applicable Law or regulation or in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) (i) shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender, or (ii) shall impose on any Lender or the London
Interbank market any other condition affecting this Agreement or any LIBOR
Loan
made by such Lender, and the result of any of the foregoing shall be to increase
the cost (other than the amount of Taxes, if any) to such Lender of making
or
maintaining any LIBOR Loan or to reduce the amount (other than a reduction
resulting from an increase in Taxes, if any) of any sum received or receivable
by such Lender hereunder (whether of principal, interest or otherwise) in
respect thereof by an amount deemed in good faith by such Lender to be material,
then the Borrower or the relevant Subsidiary Borrower shall pay such additional
amount or amounts as will compensate such Lender for such increase or reduction
to such Lender.
(b) Except
with respect to Indemnified Taxes and Other Taxes, which shall be governed
solely and exclusively by Section 2.25, if, after the Effective Date, any Lender
shall have determined in good faith that the adoption after the Effective Date
of any applicable law, rule, regulation or guideline regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or any Lending Office of such Lender) with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency, has or would have
the
effect of reducing the rate of return on such Lender’s capital or on the capital
of the Lender’s holding company, if any, as a consequence of its obligations
hereunder to a level below that which such Lender (or its holding company)
could
have achieved but for such applicability, adoption, change or compliance (taking
into consideration such Lender’s policies or the policies of its holding
company, as the case may be, with respect to capital adequacy) by an amount
deemed by such Lender to be material, then, from time to time, the Borrower
shall pay to the Administrative Agent for the account of such Lender such
additional amount or amounts as will compensate such Lender for such reduction
upon demand by such Lender.
(c) A
certificate of a Lender setting forth in reasonable detail (i) such amount
or
amounts as shall be necessary to compensate such Lender as specified in
paragraph (a) or (b) above, as the case may be, and (ii) the calculation of
such
amount or amounts referred to in the preceding clause (i), shall be delivered
to
the Borrower or the relevant Subsidiary Borrower and shall be conclusive absent
manifest error. The Borrower or the relevant Subsidiary Borrower shall pay
the
Administrative Agent for the account of such Lender the amount shown as due
on
any such certificate within 10 Business Days after its receipt of the
same.
(d) Failure
on the part of any Lender to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
with respect to any Interest Period shall not constitute a waiver of such
Lender’s rights to demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on capital with respect
to
such Interest Period or any other Interest Period. The protection of this
Section 2.19 shall be available to each Lender regardless of any possible
contention of invalidity or inapplicability of the law, regulation or condition
which shall have been imposed.
(e) Each
Lender agrees that, as promptly as practicable after it becomes aware of the
occurrence of an event or the existence of a condition that (i) would cause
it
to incur any increased cost under this Section 2.19, Section 2.20, Section
2.25
or Section 2.28 or (ii) would require the Borrower or any Subsidiary Borrower
to
pay an increased amount under this Section 2.19, Section 2.20, Section 2.25
or
Section 2.28, it will notify the Borrower and such Subsidiary Borrower of such
event or condition and, to the extent not inconsistent with such Lender’s
internal policies, will use its reasonable efforts to make, fund or maintain
the
affected Loans of such Lender, or, if applicable, to participate in Letters
of
Credit, through another Lending Office of such Lender if as a result thereof
the
additional monies which would otherwise be required to be paid or the reduction
of amounts receivable by such Lender thereunder in respect of such Loans or
Letters of Credit would be materially reduced, or any inability to perform
would
cease to exist, or the increased costs which would otherwise be required to
be
paid in respect of such Loans or Letters of Credit pursuant to this Section
2.19, Section 2.20, Section 2.25 or Section 2.28 would be materially reduced
or
the Taxes payable under Section 2.25, or other amounts otherwise payable under
this Section 2.19, Section 2.20 or Section 2.28 would be materially reduced,
and
if, as determined by such Lender, in its sole discretion, the making, funding
or
maintaining of such Loans or Letters of Credit through such other Lending Office
would not otherwise materially adversely affect such Loans or Letters of Credit
of such Lender.
(f) In
the
event any Lender shall have delivered to the Borrower or any Subsidiary Borrower
a notice that LIBOR Loans are no longer available from such Lender pursuant
to
Section 2.20, or if the Borrower or such Subsidiary Borrower is required to
pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.18 or Section 2.25, the Borrower
may
(but subject in any such case to the payments required by Section 2.20), upon
at
least five Business Days’ prior written or telecopier notice to such Lender and
the Administrative Agent, identify to the Administrative Agent a lending
institution reasonably acceptable to the Administrative Agent which will
purchase the Commitment, the amount of outstanding Loans and any participations
in Letters of Credit from the Lender providing such notice and such Lender
shall
thereupon assign its Commitment, any Loans owing to such Lender and any
participations in Letters of Credit to such replacement lending institution
pursuant to Section 10.3. Such notice shall specify an effective date for such
assignment and at the time thereof, the Borrower and any relevant Subsidiary
Borrower shall pay all accrued interest, accrued Commitment Fees and all other
amounts (including without limitation all amounts payable under this Section)
owing hereunder to such Lender as at such effective date for such
assignment.
SECTION
2.20. Change
in Legality.
(a) Notwithstanding
anything to the contrary herein contained, if, after the Effective Date, any
change in any law or regulation or in the interpretation thereof by any
Governmental Authority charged with the administration or interpretation thereof
shall make it unlawful for any Lender to make or maintain any LIBOR Loan or
to
give effect to its obligations as contemplated hereby, then, by written notice
to the Borrower and to the Administrative Agent, such Lender may:
(i) declare
that LIBOR Loans will not thereafter be made by such Lender hereunder, whereupon
the Borrower and any Subsidiary Borrower shall be prohibited from requesting
LIBOR Revolving Credit Loans from such Lender hereunder unless such declaration
is subsequently withdrawn; and
(ii) require
that all outstanding LIBOR Loans made by it be converted to ABR Loans, in which
event (A) all such LIBOR Loans shall be automatically converted to ABR Loans
as
of the effective date of such notice as provided in Section 2.20(b) and (B)
all
payments and prepayments of principal which would otherwise have been applied
to
repay the converted LIBOR Loans shall instead be applied to repay the ABR Loans
resulting from the conversion of such LIBOR Loans; provided
that the
principal amount of any such LIBOR Loan denominated in any Optional Currency
shall be converted to the Dollar Equivalent thereof concurrently with its
conversion to an ABR Loan.
(b) For
purposes of this Section 2.20, a notice to the Borrower by any Lender pursuant
to Section 2.20(a) shall be effective on the date of receipt thereof by the
Borrower.
SECTION
2.21. Reimbursement
of Lenders.
(a) The
Borrower or the relevant Subsidiary Borrower shall reimburse each Lender on
demand for any loss incurred or to be incurred by it in the reemployment of
the
funds released (i) by any prepayment (for any reason) of any LIBOR Loan if
such
Loan is repaid other than on the last day of the applicable Interest Period
for
such Loan or (ii) in the event that after the Borrower or the relevant
Subsidiary Borrower delivers a notice of borrowing under Section 2.4 in respect
of LIBOR Revolving Credit Loans, the applicable Loan is not made on the first
day of the Interest Period specified by the Borrower or the relevant Subsidiary
Borrower for any reason other than (I) a suspension or limitation under Section
2.20 of the right of the Borrower or the relevant Subsidiary Borrower to select
a LIBOR Loan or (II) a breach by a Lender of its obligations hereunder. In
the
case of such failure to borrow, such
loss
shall be the amount as reasonably determined by such Lender as the excess,
if
any of (A) the amount of interest which would have accrued to such Lender on
the
amount not borrowed, at a rate of interest equal to the interest rate applicable
to such Loan pursuant to Section 2.13, for the period from the date of such
failure to borrow, to the last day of the Interest Period for such Loan which
would have commenced on the date of such failure to borrow, over (B) the amount
realized by such Lender in reemploying the funds not advanced during the period
referred to above. In the case of a payment other than on the last day of the
Interest Period for a Loan, such loss shall be the amount as reasonably
determined by the Administrative Agent as the excess, if any, of (A) the amount
of interest which would have accrued on the amount so paid at a rate of interest
equal to the interest rate applicable to such Loan pursuant to Section 2.13,
for
the period from the date of such payment to the last day of the then current
daily Interest Period for such Loan, over (B) the amount equal to the product
of
(x) the amount of the Loan so paid times
(y) the
current daily yield on U.S. Treasury Securities (at such date of determination)
with maturities approximately equal to the remaining Interest Period for such
Loan times
(z) the
number of days remaining in the Interest Period for such Loan. Each Lender
shall
deliver to the Borrower or the relevant Subsidiary Borrower from time to time
one or more certificates setting forth the amount of such loss (and in
reasonable detail the manner of computation thereof) as determined by such
Lender, which certificates shall be conclusive absent manifest error. The
Borrower or the relevant Subsidiary Borrower shall pay to the Administrative
Agent for the account of each Lender the amount shown as due on any certificate
within thirty days after its receipt of the same.
(b) In
the
event the Borrower or the relevant Subsidiary Borrower fails to prepay any
Loan
on the date specified in any prepayment notice delivered pursuant to Section
2.17(a), the Borrower or the relevant Subsidiary Borrower on demand by any
Lender shall pay to the Administrative Agent for the account of such Lender
any
amounts required to compensate such Lender for any loss incurred by such Lender
as a result of such failure to prepay, including, without limitation, any loss,
cost or expenses incurred by reason of the acquisition of deposits or other
funds by such Lender to fulfill deposit obligations incurred in anticipation
of
such prepayment. Each Lender shall deliver to the Borrower or the relevant
Subsidiary Borrower and the Administrative Agent from time to time one or more
certificates setting forth the amount of such loss (and in reasonable detail
the
manner of computation thereof) as determined by such Lender, which certificates
shall be conclusive absent manifest error.
SECTION
2.22. Pro
Rata Treatment.
(a) Except
as
permitted under Sections 2.18, 2.19(c), 2.20 and 2.21,
(i)
each
Term Loan Borrowing, each payment or prepayment of principal of any Term Loan
Borrowing, each payment of interest on the Term Loans and each reduction of
the
Term Commitment shall be allocated pro rata among the Term Lenders in accordance
with their respective Term Percentages;
(ii) each
Revolving Credit Borrowing, each payment or prepayment of principal of any
Revolving Credit Borrowing, each payment of interest on the Revolving Credit
Loans, each payment of Commitment Fees, each reduction of the Total Revolving
Commitment and each refinancing of any Borrowing with, or conversion of any
Borrowing to, a Revolving Credit Borrowing, or continuation of any Borrowing
as
a Revolving Credit Borrowing, shall be allocated pro rata among the Revolving
Lenders in accordance with their respective Revolving Percentages.
(b) Each
Lender agrees that in computing such Lender’s portion of any Borrowing to be
made hereunder, the Administrative Agent may, in its discretion, round each
Lender’s percentage of such Borrowing computed in accordance with Section 2.1,
to the next higher or lower whole dollar amount.
SECTION
2.23. Right
of Setoff.
If
any
Event of Default shall have occurred and be continuing and any Lender shall
have
directed the Administrative Agent to declare the Loans immediately due and
payable pursuant to Section 7, each Lender and each of such Lender’s Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by Applicable Law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held by such
Lender or Affiliate and any other indebtedness at any time owing by such Lender
or Affiliate to, or for the credit or the account of, (i) the Borrower, against
any of and all the obligations of the Borrower now or hereafter existing under
this Agreement and the Loans to the Borrower held by such Lender, or (ii) any
Subsidiary Borrower, against any of and all the obligations of such Subsidiary
Borrower now or hereafter existing under this Agreement and the Loans to such
Subsidiary Borrower held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement or such Loans and
although such Obligations may be unmatured. Each Lender or Lender’s Affiliate
agrees promptly to notify the Borrower or such Subsidiary Borrower, as
applicable, after any such setoff and application made by such Lender or
Affiliate, but the failure to give such notice shall not affect the validity
of
such setoff and application. The rights of each Lender and its Affiliates under
this Section 2.23 are in addition to other rights and remedies (including other
rights of setoff) which such Lender and Affiliates may have.
SECTION
2.24. Manner
of Payments.
All
payments by the Borrower and any Subsidiary Borrower hereunder shall be made
in
Dollars, except that prepayments or repayments in respect of Loans, including
any interest thereon, shall be made in the Currency in which such Loan is
denominated, in Federal or other immediately available funds without deduction,
setoff or counterclaim at the Funding Office no later than 1:00 P.M., New York
City time, on the date on which such payment shall be due. Interest in respect
of any Loan hereunder shall accrue from and including the date of such Loan
to,
but excluding, the date on which such Loan is paid or refinanced with a Loan
of
a different Interest Rate Type.
SECTION
2.25. Taxes.
(a) Any
and
all payments by or on account of any obligation of the Borrower or any
Subsidiary Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided
that if
the Borrower or any Subsidiary Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.25) the Administrative Agent or Lender, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower or the relevant Subsidiary Borrower shall make such deductions
and
(iii) the Borrower or the relevant Subsidiary Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with Applicable
Law.
(b) In
addition, the Borrower or any relevant Subsidiary Borrower shall pay any Other
Taxes to the relevant Governmental Authority in accordance with Applicable
Law.
(c) If
the
United States Internal Revenue Service or other Governmental Authority of the
United States of America or other jurisdiction asserts a claim against the
Administrative Agent or a Lender that the full amount of Indemnified Taxes
or
Other Taxes has not been paid, the Borrower and each Subsidiary Borrower shall
indemnify the Administrative Agent and each Lender within 10 days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent or such Lender, as the case may be, on or
with
respect to any payment by or on
account
of any obligation of the Borrower or such Subsidiary Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 2.25) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority (other that those
resulting from the Administrative Agent or Lender’s gross negligence or willful
misconduct). A certificate (along with a copy of the applicable documents from
the United States Internal Revenue Service or other Governmental Authority
of
the United States of America or other jurisdiction that asserts such claim)
as
to the amount of such payment or liability and setting forth in reasonable
detail the calculation and basis for such payment or liability delivered to
the
Borrower or the relevant Subsidiary Borrower by a Lender or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As
soon
as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower or any Subsidiary Borrower to a Governmental Authority, the Borrower
or
such Subsidiary Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) Any
Lender that is entitled to an exemption from or reduction of withholding Tax
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time such Lender becomes
a
party to this Agreement and at any other time or times reasonably requested
by
the Borrower, such properly completed and executed documentation prescribed
by
Applicable Law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate. Each Lender and
Administrative Agent that is a United States Person, as defined in Section
7701(a)(30) of the Code (other than Persons that are corporations or otherwise
exempt from United States backup withholding Tax), shall deliver at the time(s)
and in the manner(s) prescribed by Applicable Law, to the Borrower and the
Administrative Agent (as applicable), a properly completed and duly executed
United States Internal Revenue Form W-9, or any successor form, certifying
that
such Person is exempt from United States backup withholding Tax on payments
made
hereunder.
(f) If
the
Administrative Agent or a Lender determines, in its sole good-faith discretion,
that it has received a refund of any Taxes or Other Taxes as to which it has
been indemnified by the Borrower or any Subsidiary Borrower or with respect
to
which the Borrower or any Subsidiary Borrower has paid additional amounts
pursuant to this Section 2.25, it shall pay over such refund to the Borrower
or
such Subsidiary Borrower (but only to the extent of indemnity payments made,
or
additional amounts paid, by the Borrower or such Subsidiary Borrower under
this
Section 2.25 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent or such
Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided
that the
Borrower or such Subsidiary Borrower, upon the request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to the Borrower
or
such Subsidiary Borrower (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to
repay
such refund to such Governmental Authority. This Section 2.25 shall not be
construed to require the Administrative Agent or any Lender to make available
its Tax returns (or any other information relating to its Taxes which it deems
confidential) to the Borrower, any Subsidiary Borrower or any other
Person.
(g) Each
Lender agrees (i) that as between it and the Borrower, any Subsidiary Borrower
or the Administrative Agent, it shall be the Person to deduct and withhold
Taxes, and to the extent required by law it shall deduct and withhold Taxes,
on
amounts that such Lender may remit to any other
Person(s)
by reason of any undisclosed transfer or assignment of an interest in this
Agreement to such other Person(s) pursuant to paragraph (g) of Section 10.3
and
(ii) to indemnify the Borrower, any Subsidiary Borrower and the Administrative
Agent and any officers, directors, agents, or employees of the Borrower, any
Subsidiary Borrower or the Administrative Agent against, and to hold them
harmless from, any Tax, interest, additions to Tax, penalties, reasonable
counsel and accountants’ fees, disbursements or payments arising from the
assertion by any appropriate Governmental Authority of any claim against them
relating to a failure to withhold Taxes as required by Applicable Law with
respect to amounts described in clause (i) of this paragraph (g).
(h) Each
assignee of a Lender’s interest in this Agreement in conformity with Section
10.3 shall be bound by this Section 2.25, so that such assignee will have all
of
the obligations and provide all of the forms and statements and all indemnities,
representations and warranties required to be given under this Section
2.25.
SECTION
2.26. [Reserved].
SECTION
2.27. Prepayments
Required Due to Currency Fluctuation.
(a)
Not
later than 1:00 P.M., New York City time, on the last Business Day of each
fiscal quarter or at such other time as is reasonably determined by the
Administrative Agent (the “Calculation
Time”),
the
Administrative Agent shall determine the Dollar Equivalent of the Revolving
Credit Exposure as of such date.
(b)
If at
the Calculation Time, the Dollar Equivalent of the Revolving Credit Exposure
exceeds the Total Revolving Commitment by 5% or more, then within five Business
Days after notice thereof to the Borrower from the Administrative Agent, the
Borrower shall prepay Revolving Credit Loans or Swingline Loans (or cause any
Subsidiary Borrower to make such prepayment) in an aggregate principal amount
at
least equal to such excess. Nothing set forth in this Section 2.27(b) shall
be
construed to require the Administrative Agent to calculate compliance under
this
Section 2.27(b) other than at the times set forth in Section 2.27(a).
SECTION
2.28. Letters
of Credit.
(a) (i)
Prior to
the Effective Date, the Existing Issuing Lender(s) have issued the Existing
Letters of Credit which, from and after the Effective Date, shall constitute
Letters of Credit hereunder. Upon the terms and subject to the conditions
hereof, each Issuing Lender agrees to issue standby letters of credit (the
letters of credit issued on and after the Effective Date pursuant to this
Section 2.28, together with the Existing Letters of Credit, collectively, the
“Letters
of Credit”)
payable in Dollars from time to time after the Effective Date and prior to
the
earlier of the Maturity Date and the termination of the Revolving Commitments,
upon the request of the Borrower or any Subsidiary Borrower, provided
that (A)
neither the Borrower nor any Subsidiary Borrower shall request that any Letter
of Credit be issued or reinstated if, after giving effect thereto, the Revolving
Exposure would exceed the Total Revolving Commitment, (B) in no event shall
any
Issuing Lender issue (x) any Letter of Credit having an expiration date later
than five Business Days before the Maturity Date or (y) any Letter of Credit
having an expiration date more than one year after its date of issuance,
provided
that any
Letter of Credit with a one-year tenor may provide for the renewal (automatic
or
otherwise) thereof for additional one-year periods (which shall in no event
extend beyond the date referred to in clause (x) above), (C) neither the
Borrower nor any Subsidiary Borrower shall request that an Issuing Lender issue
or reinstate any Letter of Credit if, after giving effect to such issuance
or
reinstatement, the L/C Exposure would exceed $250,000,000 and (D) an Issuing
Lender shall be prohibited from issuing Letters of Credit hereunder upon the
occurrence and during the continuance of an Event of Default (provided
that
such Issuing Lender shall have received notice of such Event of Default
pursuant
to Section 8.4 hereof and provided further
that
such notice shall be received at least 24 hours prior to the date on which
any
Letter of Credit is to be issued). The Administrative Agent will, upon request
of any Issuing Lender, confirm the total amount of L/C Exposure and the
aggregate outstanding Loans held by such Issuing Lender.
(ii) Immediately
upon the issuance of each Letter of Credit, each Revolving Lender shall be
deemed to, and hereby agrees to, have irrevocably purchased from the applicable
Issuing Lender, a participation in such Letter of Credit. In consideration
and
in furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account
of
such Issuing Lender, such Lender’s Revolving Percentage of the Total Revolving
Commitment, multiplied by the amount paid by such Issuing Lender in respect
of a
Letter of Credit, issued by such Issuing Lender and not reimbursed by the
Borrower or the relevant Subsidiary Borrower on the date due as provided in
this
Section 2.28, or of any reimbursement payment required to be refunded to the
Borrower or the relevant Subsidiary Borrower for any reason. Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(iii) Neither
the Administrative Agent, the Lenders, any Issuing Lender, nor any of their
Related Parties, shall have any liability or responsibility by reason of or
in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder, or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of any Issuing
Lender; provided
that the
foregoing shall not be construed to excuse any Issuing Lender from liability
to
the Borrower or the relevant Subsidiary Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Borrower and any Subsidiary Borrower to the extent
permitted by applicable law) suffered by the Borrower or the relevant Subsidiary
Borrower that are caused by such Issuing Lender’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof.
(iv) Each
Letter of Credit may, at the option of the applicable Issuing Lender, provide
that such Issuing Lender may (but shall not be required to) pay all or any
part
of the maximum amount which may at any time be available for drawing thereunder
to the beneficiary thereof upon the occurrence of an Event of Default and the
acceleration of the maturity of the Loans, provided
that, if
payment is not then due to the beneficiary, such Issuing Lender shall deposit
the funds in question in an account with such Issuing Lender to secure payment
to the beneficiary and any funds so deposited shall be paid to the beneficiary
of the Letter of Credit if conditions to such payment are satisfied or returned
to the Administrative Agent for distribution to the Lenders (or, if all
Obligations shall have been paid in full in cash, to the Borrower or the
relevant Subsidiary Borrower) if no payment to the beneficiary has been made
and
the final date available for drawings under the Letter of Credit has passed.
Each payment or deposit of funds by an Issuing Lender as provided in this
paragraph shall be treated for all purposes of this Agreement as a drawing
duly
honored by such Issuing Lender under the related Letter of Credit.
(b) Whenever
the Borrower or any Subsidiary Borrower desires the issuance of a Letter of
Credit, it shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the applicable
Issuing Lender) to the Administrative Agent and the applicable Issuing Lender
a
written notice no later than 1:00 P.M. (New York time) at least five Business
Days prior to the proposed date of issuance; provided,
however,
the
Borrower or the relevant Subsidiary Borrower and the Administrative Agent and
such Issuing Lender may agree to a shorter time period. That notice shall
specify (i) the Issuing Lender for such Letter of Credit, (ii) the proposed
date
of issuance (which shall be a Business Day under the laws of the jurisdiction
of
the applicable Issuing Lender), (iii) the face amount of the Letter of Credit,
(iv) the expiration date of the Letter of Credit and (v) the name and address
of
the beneficiary and (vi) such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. Such notice shall be
accompanied by a brief description of the underlying transaction and upon the
request of the applicable Issuing Lender, the Borrower or the relevant
Subsidiary Borrower shall provide additional details regarding the underlying
transaction. If requested by an Issuing Lender, the Borrower or the relevant
Subsidiary Borrower also shall submit a letter of credit application on the
Issuing Lender’s standard form in connection with any request for a Letter of
Credit, which form shall be furnished in accordance with Section 10.1. In the
event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any form of letter of credit application or
other agreement submitted by the Borrower or the relevant Subsidiary Borrower
to, or entered into by the Borrower or the relevant Subsidiary Borrower with,
any Issuing Lender relating to any Letter of Credit, the terms and conditions
of
this Agreement shall control. Concurrently with the giving of written notice
of
a request for the issuance of a Letter of Credit, the Borrower or the relevant
Subsidiary Borrower shall specify a precise description of the documents and
the
verbatim text of any certificate to be presented by the beneficiary of such
Letter of Credit which, if presented by such beneficiary prior to the expiration
date of the Letter of Credit, would require the applicable Issuing Lender to
make payment under the Letter of Credit; provided
that the
applicable Issuing Lender, in its reasonable discretion, may require customary
changes in any such documents and certificates. Upon issuance of any Letter
of
Credit, the applicable Issuing Lender shall notify the Administrative Agent
of
the issuance of such Letter of Credit. Promptly after receipt of such notice,
the Administrative Agent shall notify each Lender of the issuance and the amount
of each such Lender’s respective participation therein.
(c) The
payment of drafts under any Letter of Credit shall be made in accordance with
the terms of such Letter of Credit and, in that connection, any Issuing Lender
shall be entitled to honor any drafts and accept any documents presented to
it
by the beneficiary of such Letter of Credit in accordance with the terms of
such
Letter of Credit and believed by such Issuing Lender in good faith to be
genuine. No Issuing Lender shall have any duty to inquire as to the accuracy
or
authenticity of any draft or other drawing documents which may be presented
to
it, but shall be responsible only to determine in accordance with customary
commercial practices that the documents which are required to be presented
before payment or acceptance of a draft under any Letter of Credit have been
delivered and that they comply on their face with the requirements of that
Letter of Credit.
(d) If
any
Issuing Lender shall be requested to make payment on any draft presented under
a
Letter of Credit, such Issuing Lender shall give notice of such request for
payment to the Administrative Agent and the Administrative Agent shall give
notice to each Revolving Lender no later than 3:00 P.M. New York City time
of
its respective participation therein on behalf of such Issuing Lender. Each
Revolving Lender hereby authorizes and requests such Issuing Lender to advance
for its account pursuant to the terms hereof its share of such payment based
upon its participation in the Letter of Credit and agrees to reimburse such
Issuing Lender in immediately available funds for the amount so advanced on
its
behalf no later than 4:00 P.M. New York City time on the date such Issuing
Lender makes such request. If such reimbursement is not made by any Revolving
Lender in immediately available funds on the same day on which such Issuing
Lender shall have made payment on any such
draft
presented under a Letter of Credit, such Lender shall pay interest thereon
to
such Issuing Lender at a rate per annum equal to the Issuing Lender’s cost of
obtaining overnight funds in the New York Federal Funds Market.
(e) In
the
case of any draft presented under a Letter of Credit (provided
that the
conditions specified in Section 4.2 are then satisfied, and notwithstanding
the
limitations as to the aggregate principal amount of ABR Loans set forth in
Section 2.2(a), as to the time of funding of a Borrowing set forth in Section
2.2(c) and as to the time of notice of a proposed Borrowing set forth in Section
2.4), payment by the applicable Issuing Lender of such draft shall constitute
an
ABR Loan hereunder, and interest shall accrue from the date the applicable
Issuing Lender makes such payment, which ABR Loan, upon and to the extent that
a
Revolving Lender shall have made reimbursement to the applicable Issuing Lender
pursuant to Section 2.28(d), shall constitute such Lender’s ABR Loan hereunder.
If any draft is presented under a Letter of Credit and (i) the conditions
specified in Section 4.2 are not satisfied or (ii) if the Revolving Commitments
have been terminated, then the Borrower or the relevant Subsidiary Borrower
will, upon demand by the Administrative Agent or the applicable Issuing Lender,
on the same Business Day of such draft (or on the next Business Day if notice
of
such draft is received after 10:00 A.M. New York City time), pay to the
applicable Issuing Lender, in immediately available funds, the full amount
of
such draft.
(f) (i)The
Borrower and each Subsidiary Borrower agree to pay the following amount to
each
Issuing Lender with respect to Letters of Credit issued by it
hereunder:
(A) with
respect to drawings made under any Letter of Credit issued for the account
of
the Borrower or such Subsidiary Borrower, interest, payable on demand, on the
amount paid by such Issuing Lender in respect of each such drawing from the
date
of the drawing to, but excluding, the date such amount is reimbursed by the
Borrower or such Subsidiary Borrower at a rate which is at all times equal
to 2%
per annum (without duplication of any amounts payable under Section 2.14) in
excess of the Alternate Base Rate plus the applicable margin therefor calculated
pursuant to Section 2.13(b); provided
that no
such default interest shall be payable if such reimbursement is made (a) from
the proceeds of Revolving Credit Loans or (b) otherwise in compliance with
Section 2.28(e);
(B) with
respect to the issuance, amendment or transfer of each Letter of Credit issued
for the account of the Borrower or such Subsidiary Borrower and each drawing
made thereunder, documentation and processing charges in accordance with such
Issuing Lender’s standard schedule for such charges in effect at the time of
such issuance, amendment, transfer or drawing, as the case may be;
and
(C) a
fronting fee computed at the rate agreed to by the Borrower and the applicable
Issuing Lender (but, in any event, not greater than 0.125% per annum), on the
daily average face amount of each outstanding Letter of Credit issued by such
Issuing Lender for the account of the Borrower or such Subsidiary Borrower,
such
fee to be due and payable in arrears on and through the last day of each fiscal
quarter of the Borrower, on the Maturity Date and on the expiration of the
last
outstanding Letter of Credit.
(ii) The
Borrower and each Subsidiary Borrower agree to pay to the Administrative Agent
for distribution to each Revolving Lender in respect of all outstanding Letters
of Credit issued for the account of the Borrower or such Subsidiary Borrower,
such Lender’s pro rata share of a commission on the maximum amount available
from time to time to
be
drawn
under such outstanding Letters of Credit calculated at a rate per annum equal
to
the LIBOR Spread applicable to Revolving Credit Loans from time to time in
effect hereunder. Such commission shall be payable in arrears on and through
the
last day of each fiscal quarter of the Borrower and on the later of the Maturity
Date and the expiration of the last outstanding Letter of Credit.
(iii) Promptly
upon receipt by any Issuing Lender or the Administrative Agent (as applicable)
of any amount described in clause (i)(A) or (ii) of this Section 2.28(f), or
any
amount described in Section 2.28(e) previously reimbursed to the applicable
Issuing Lender by the Revolving Lenders, such Issuing Lender shall distribute
such amount to the Administrative Agent and the Administrative Agent shall
distribute to each Revolving Lender (other than to any Revolving Lender which
has failed to reimburse the Issuing Lender for the applicable drawing) its
pro
rata share of such amount. Amounts payable under clauses (i)(B) and (i)(C)
of
this Section 2.28(f) shall be paid directly to the Issuing Lender and shall
be
for its exclusive use.
(iv) The
obligation of the Borrower and each Subsidiary Borrower to reimburse payments
made with respect to any Letter of Credit as provided in this Section 2.28
shall
be absolute, unconditional and irrevocable, and shall be performed strictly
in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of any event or circumstance whatsoever that might
constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower’s or such Subsidiary Borrower’s Obligations, as the case
may be, hereunder.
(g) If
at any
time when an Event of Default shall have occurred and be continuing, any Letters
of Credit shall remain outstanding, then either the applicable Issuing
Lender(s), the Administrative Agent or the Required Lenders may, at its or
their
option, require the Borrower or the relevant Subsidiary Borrower to deposit
Cash
Equivalents in a Cash Collateral Account in an amount equal to the full amount
of the L/C Exposure or to furnish other security acceptable to the
Administrative Agent and the applicable Issuing Lender(s), provided
that the
obligation to deposit such cash collateral shall become effective within one
Business Day after the Borrower and/or such Subsidiary Borrower receives notice
from the applicable Issuing Lender, the Administrative Agent or the Required
Lenders, and provided,
further
that
such deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect
to
the Borrower described in clause (f) or (g) of Section 7. Such deposit
shall be held by the Administrative Agent as collateral for the Obligations.
The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made in Cash
Equivalents and at the option and sole discretion of the Administrative Agent
and at the Borrower’s and/or the relevant Subsidiary Borrower’s risk and
expense, such deposits shall not bear interest. Interest or profits, if any,
on
such investments shall accumulate in such account. Any amounts so delivered
pursuant to the preceding sentence shall be applied to reimburse the applicable
Issuing Lender(s) for the amount of any drawings honored under Letters of Credit
issued by it. If the Borrower or any Subsidiary Borrower is required to deposit
Cash Equivalents (or other security) pursuant to the provisions of this Section
2.28(g) as a result of the occurrence of an Event or Default, such amount (to
the extent not applied as set forth in the preceding provisions of this
paragraph) shall be returned by the Administrative Agent to the Borrower or
such
Subsidiary Borrower within three Business Days after such Event of Default
has
been cured or waived.
(h) If
at any
time, the sum of the Revolving Credit Exposure exceeds the aggregate Revolving
Commitments, then the Administrative Agent or the Required Lenders may, at
its
or their option, require the Borrower and/or any Subsidiary Borrower to deposit
Cash Equivalents in a Cash Collateral Account in an amount sufficient to
eliminate such
excess
or
to furnish other security for such excess acceptable to the Administrative
Agent. Any amounts so delivered pursuant to the preceding sentence shall be
applied to reimburse the applicable Issuing Lender(s) for the amount of any
drawings honored under Letters of Credit issued for the account of the Borrower
or such Subsidiary Borrower and held as cash collateral for the Obligations.
If
the Borrower or any Subsidiary Borrower is required to deposit Cash Equivalents
(or other security) pursuant to the provisions of this Section 2.28(h), such
amount (to the extent not applied as set forth in the preceding sentence) shall
be returned by the Administrative Agent to the Borrower or such Subsidiary
Borrower within three Business Days after such excess is reduced to
$0.
(i) Upon
the
request of the Administrative Agent, each Issuing Lender shall furnish to the
Administrative Agent copies of any Letter of Credit issued by such Issuing
Lender and such related documentation as may be reasonably requested by the
Administrative Agent.
(j) Notwithstanding
the termination of the Commitments and the payment of the Loans, the obligations
of the Borrower, any Subsidiary Borrower and the Lenders under this Section
2.28
shall remain in full force and effect until the Administrative Agent, each
Issuing Lender and the Lenders shall have been irrevocably released from their
obligations with regard to any and all Letters of Credit.
SECTION
2.29. New
Local Facilities.
(a)
The
Borrower may at any time or from time to time after the Effective Date, by
notice to the Administrative Agent and the Revolving Lenders, request the
Revolving Lenders to designate a portion of their respective Revolving
Commitments to make Revolving Extensions of Credit denominated in Dollars and
any Optional Currency in a jurisdiction outside of the United States pursuant
to
a newly established sub-facility under the Revolving Facility (each, a
“New
Local Facility”);
provided
that
(i) both at the time of any such request and upon the effectiveness of any
Local Facility Amendment referred to below, no Default or Event of Default
shall
have occurred and be continuing and (ii) the Borrower and its Subsidiaries
shall be in compliance with the covenants set forth in Sections 6.5 and 6.6
as of the last day of the most recently ended fiscal quarter; provided further
that (i)
the L/C Exposure outstanding as of the date of the establishment of a New Local
Facility shall be deemed to be outstanding under such New Local Facility on
a
pro rata basis in accordance with the aggregate Revolving Commitments (it being
understood that thereafter, new L/C Exposure shall not reduce the availability
under such New Local Facility, except to the extent Letters of Credit are issued
thereunder) and (ii) no Lender shall be required to make Revolving Extensions
of
Credit in excess of its Revolving Commitment. Each New Local Facility shall
be
in a minimum Dollar Equivalent amount of $10,000,000. Each notice from the
Borrower pursuant to this Section 2.29 shall set forth the requested amount
and
proposed terms of the relevant New Local Facility. Revolving Lenders wishing
to
designate a portion of their Revolving Commitments to a New Local Facility
(each, a “New
Local Facility Lender”)
shall
have such portion of their Revolving Commitment designated to such New Local
Facility on a pro rata basis in accordance with the aggregate Revolving
Commitments of the other New Local Facility Lenders. The designation of
Revolving Commitments to any New Local Facility shall be made pursuant to an
amendment (each, a “Local
Facility Amendment”)
to
this Agreement and, as appropriate, the other Fundamental Documents, executed
by
the Loan Parties, the Administrative Agent and each New Local Facility Lender.
Any Local Facility Amendment may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Fundamental Documents
as
may be necessary or appropriate, in the reasonable opinion of the Administrative
Agent and the Borrower, to effect the provisions of this Section, a copy of
which shall be made available to each Lender. The effectiveness of any Local
Facility Amendment shall be subject to the satisfaction on the date thereof
of
each of the conditions set forth in Section 4.2 and such other conditions
as the parties thereto shall agree. No Revolving Lender shall be obligated
to
transfer any portion of its Revolving Commitments to a New Local Facility unless
it so agrees.
(b) This
Section 2.29 shall supersede any provision in Section 10.9 to
the contrary as it relates to any Local Facility Amendment.
| 3. |
REPRESENTATIONS
AND WARRANTIES OF BORROWER
|
In
order
to induce the Lenders to enter into this Agreement and to make the Loans and
issue and participate in the Letters of Credit provided for herein, the Borrower
makes the following representations and warranties to the Administrative Agent
and the Lenders, all of which shall survive the execution and delivery of this
Agreement and the making of the Loans and issuance of the Letters of
Credit:
SECTION
3.1. Corporate
Existence and Power.
(a) Since
the
Effective Date, the Borrower has been duly organized and is validly existing
in
good standing under the laws of its jurisdiction of organization and is in
good
standing or has applied for authority to operate as a foreign corporation or
other organization in all jurisdictions where the nature of its properties
or
business so requires it and where a failure to be in good standing as a foreign
corporation or other organization would reasonably be expected to have Material
Adverse Effect. The Borrower has the corporate power to execute, deliver and
perform its obligations under this Agreement
and
the
other Fundamental Documents and other documents contemplated hereby and to
borrow hereunder.
(b) Since
the
Effective Date, the Subsidiaries of the Borrower have been duly organized and
are validly existing in good standing under the laws of their respective
jurisdictions of organization and are in good standing or have applied for
authority to operate as a foreign corporation or other organization in all
jurisdictions where the nature of their properties or business so requires
it
and where a failure to be in good standing as a foreign corporation or other
organization would reasonably be expected to have Material Adverse Effect.
SECTION
3.2. Corporate
Authority, No Violation and Compliance with Law.
The
execution, delivery and performance of this Agreement and the other Fundamental
Documents and the borrowings hereunder (a) have been duly authorized by all
necessary corporate action on the part of the Borrower, (b) will not violate
any
provision of any Applicable Law (including any laws related to franchising)
applicable to the Borrower or any of its Subsidiaries or any of their respective
properties or assets, (c) will not violate any provision of the certificate
of
incorporation or by-laws or other organizational documents of the Borrower
or
any of its Subsidiaries, (d) will not violate or be in conflict with, result
in
a breach of, or constitute (with due notice or lapse of time or both) a default
under, any material indenture, bond, note, instrument or any other material
agreement to which the Borrower or any of its Subsidiaries is a party or by
which the Borrower or any of its Subsidiaries or any of their respective
properties or assets are bound and (e) will not result in the creation or
imposition of any Lien upon any property or assets of the Borrower or any of
its
Subsidiaries other than pursuant to this Agreement or any other Fundamental
Document.
SECTION
3.3. Governmental
and Other Approval and Consents.
No
action, consent or approval of, or registration or filing with, or any other
action by, any governmental agency, bureau, commission or court is required
in
connection with the execution, delivery and performance by the Borrower of
this
Agreement or the other Fundamental Documents, except such as have been obtained
or made and are in full force and effect.
SECTION
3.4. Financial
Statements of Borrower.
(a) The
unaudited pro forma
balance
sheet of the Borrower and its Consolidated Subsidiaries as of March 31, 2006
(including the notes thereto) (the “Pro
Forma Balance Sheet”),
copies of which have heretofore been furnished to each Lender, has been prepared
giving effect (as if such events had occurred on such date) to (i) the
consummation of the Spin-Off, (ii) the Loans to be made on the Term Loan Funding
Date and the use of proceeds thereof, and (iii) the payment of fees and expenses
in connection with the foregoing. The Pro Forma Balance Sheet has been prepared
based on the best information available to the Borrower as of the date of
delivery thereof, and presents fairly on a pro forma
basis
the estimated financial position of the Borrower and its Consolidated
Subsidiaries as of March 31, 2006, assuming that the events specified in the
preceding sentence had actually occurred at such date. It is understood that
the
Pro Forma Balance Sheet is not necessarily indicative of the financial condition
that would have resulted had the transactions described above occurred on the
indicated date.
(b) The
(i)
audited balance sheets of the Travelport Businesses of Cendant as at December
31, 2005 and December 31, 2004, and the related consolidated statements of
income and of cash flows for the fiscal years ended on such dates and (ii)
unaudited balance sheet of the Travelport Businesses of Cendant as of March
31,
2006, and the related consolidated statements of income and of cash flows for
the three-month period ended on such date (the “Consolidated
Financial Statements”),
fairly
present the financial condition of the Travelport Businesses of Cendant as
at
the dates indicated and the results of operations and cash flows for the periods
indicated in conformity with GAAP, subject to normal year end adjustments in
the
case of the March 31, 2006 financial statements.
SECTION
3.5. No
Change.
Except
for Disclosed Matters, since the date of the most recent audited financial
statements referred to in Section 3.4, there has been no development or event
that has had or would reasonably be expected to have a Material Adverse
Effect.
SECTION
3.6. Copyrights,
Patents and Other Rights.
Since
the
Effective Date, each of the Borrower and its Subsidiaries (a) owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, except where the failure to
do
so would not reasonably be expected to have a Material Adverse Effect and (b)
to
their knowledge, the use thereof by the Borrower and its Subsidiaries does
not
infringe upon the rights of any other Person, except, in each case, as would
not
reasonably be expected to have a Material Adverse Effect for any such
infringements that, individually or in the aggregate, would not reasonably
be
expected to have Material Adverse Effect.
SECTION
3.7. Title
to Properties.
Except
as
described on Schedule 3.7 and subject to Section 3.6, since the Effective Date,
each of the Borrower or its Subsidiaries has good title or valid leasehold
interests to each of the properties and assets reflected on the most recent
balance sheet referred to in Section 3.4 (other than properties or assets owned
by a Person that is consolidated with the Borrower or any of its Subsidiaries
under GAAP but is not a Subsidiary of the Borrower ), except for defects in
title or interests that could not reasonably be expected to have Material
Adverse Effect, and all such properties and assets are free and clear of Liens,
except Permitted Encumbrances.
SECTION
3.8. Litigation.
Except
for Disclosed Matters, there are no lawsuits or other proceedings pending
(including, but not limited to, matters relating to Environmental Law and
Environmental Liability), or, to the knowledge of the Borrower, threatened,
against or affecting the Borrower or any of its Subsidiaries or any of their
respective properties, by or before any Governmental Authority or arbitrator,
which would reasonably be expected to have Material Adverse Effect. Neither
the
Borrower nor any of its Subsidiaries is in default with respect to any order,
writ, injunction, decree, rule or regulation of any Governmental Authority,
which default would reasonably be expected to have Material Adverse
Effect.
SECTION
3.9. Federal
Reserve Regulations.
Neither
the Borrower nor any of its Subsidiaries is engaged principally, or as one
of
its important activities, in the business of extending credit for the purpose
of
purchasing or carrying any Margin Stock. No part of the proceeds of the Loans
will be used, whether immediately, incidentally or ultimately, for any purpose
violative of or inconsistent with any of the provisions of Regulation U or
X of
the Board.
SECTION
3.10. Investment
Company Act.
The
Borrower is not, and will not during the term of this Agreement be, an
“investment company” subject to regulation under the Investment Company Act of
1940, as amended.
SECTION
3.11. Enforceability.
This
Agreement and the other Fundamental Documents when executed by all parties
hereto and thereto will constitute legal, valid and binding obligations (as
applicable) of the Borrower and the other Loan Parties party to such Fundamental
Documents (enforceable in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at
law).
SECTION
3.12. Taxes.
The
Borrower and each of its Subsidiaries has filed or caused to be filed all
federal, state and local Tax returns which are required to be filed, and has
paid or has caused to be paid all Taxes required to have been paid by it, except
(a) Taxes that are being contested in good faith by appropriate proceedings
and
for which the Borrower or such Subsidiary, as applicable, has set aside on
its
books adequate reserves in conformity with GAAP or (b) to the extent that the
failure to do so would not reasonably be expected to have a Material Adverse
Effect.
SECTION
3.13. Compliance
with ERISA.
No
ERISA
Event has occurred or is reasonably expected to occur that, individually or
in
the aggregate, would reasonably be expected to have a Material Adverse Effect.
Each of the Borrower and its Subsidiaries is in compliance in all material
respects with the provisions of ERISA and the Code applicable to Plans, and
the
regulations and published interpretations thereunder, if any, which are
applicable to it. Neither the Borrower nor any of its Subsidiaries has, with
respect to any Plan established or maintained by it, engaged in a prohibited
transaction which would subject it to a material tax or penalty on prohibited
transactions imposed by ERISA or Section 4975 of the Code. Neither the Borrower
nor any of its Subsidiaries has engaged in a transaction which would result
in
the incurrence of a material liability under Section 4069 of ERISA. The present
value of all accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards
No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed the fair market value of the assets of such Plan by a
material amount, and the present value of all accumulated benefit obligations
of
all underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of all such underfunded Plans by a material
amount.
SECTION
3.14. Disclosure.
As
of the
Effective Date, this Agreement did not contain any untrue statement of a
material fact or omit to state a material fact, under the circumstances under
which it was made, necessary in order to make the statements contained herein
not misleading. At the Effective Date, there is no fact known to the Borrower
which has not been disclosed to the Lenders and which, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
The
Borrower has delivered to the Administrative Agent certain projections relating
to the Borrower and its Consolidated Subsidiaries. Such projections are based
on
good faith estimates and assumptions believed to be
reasonable
at the time made, provided,
however,
that
the Borrower makes no representation or warranty that such assumptions will
prove in the future to be accurate or that the Borrower and its Subsidiaries
will achieve the financial results reflected in such projections.
SECTION
3.15. Environmental
Liabilities.
Except
for the Disclosed Matters and except with respect to any matters, that,
individually or in the aggregate, would not reasonably be expected to have
a
Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i)
has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental
Law,
(ii) has received notice of any claim with respect to any Environmental
Liability or (iii) knows of any circumstances that are reasonably likely to
become the basis for any claim of Environmental Liability against the Borrower
or any of its Subsidiaries.
| 4. |
CONDITIONS
OF LENDING
|
SECTION
4.1. Conditions
Precedent to Effectiveness.
The
effectiveness of this Agreement is subject to the following conditions
precedent:
(a) Loan
Documents.
The
Administrative Agent shall have received this Agreement and each of the other
Fundamental Documents, each executed and delivered by a duly authorized officer
of each of the Loan Parties party thereto.
(b) Financial
Statements.
The
Lenders shall have received the (a) the Pro Forma Balance Sheet, (b) the
Consolidated Financial Statements and (c) unaudited consolidated financial
statements of the Travelport Businesses of Cendant as of March 31, 2006, which
may be delivered to the Lenders by delivery of the Borrower’s Form 10 containing
such financial statements, to the extent such Form 10 is filed and publicly
available prior to the Effective Date.
(c) Payment
of Fees.
The
Lenders and the Administrative Agent shall have received all fees required
to be
paid, and all expenses for which invoices have been presented (including the
reasonable fees and expenses of legal counsel), on or before the Effective
Date.
(d) Corporate
Documents for the Loan Parties.
The
Administrative Agent shall have received a certificate of an authorized officer
of each Loan Party dated the Effective Date and certifying (A) that attached
thereto is a true and complete copy of the certificate of incorporation and
by-laws of such Loan Party as in effect on the date of such certification;
(B)
that attached thereto is a true and complete copy of resolutions adopted by
the
Board of Directors of such Loan Party authorizing the borrowings hereunder,
in
the case of the Borrower, and the execution, delivery and performance in
accordance with their respective terms of the Loan Documents to which such
Loan
Party is party to and any other documents required or contemplated hereunder;
and (C) as to the incumbency and specimen signature of each officer of such
Loan
Party executing the Loan Documents to which such Loan Party is a party to or
any
other document delivered by it in connection herewith (such certificate to
contain a certification by another officer of such Loan Party as to the
incumbency and signature of the officer signing the certificate referred to
in
this paragraph (d)).
(e) Opinions
of Counsel.
The
Administrative Agent shall have received the executed written opinion, dated
the
date of the Effective Date and addressed to the Administrative Agent and the
Lenders, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the
Borrower, substantially in the form of Exhibit B.
(f) Officer’s
Certificate.
The
Administrative Agent shall have received a certificate of the Borrower’s chief
executive officer or chief financial officer certifying, as of the Effective
Date, compliance with the conditions set forth in paragraphs (b) and (c) of
Section 4.2.
(g) Projections.
The
Lenders shall have received projections through 2007.
(h) Approvals.
All
material governmental and third party approvals necessary in connection with
the
continuing operations of the Borrower and the financing contemplated hereby
shall have been obtained and be in full force and effect.
SECTION
4.2. Conditions
Precedent to Each Extension of Credit.
The
obligation of the Lenders to make each Loan and of any Issuing Lender to issue
a
Letter of Credit, including the initial extensions of credit hereunder, is
subject to the following conditions precedent:
(a) Notice.
The
Administrative Agent shall have received a notice with respect to such Borrowing
or Letter of Credit as required by this Agreement.
(b) Representations
and Warranties.
The
representations and warranties set forth in Section 3 hereof (other than those
set forth in Sections 3.5 and 3.8 which shall be deemed made only on the
Effective Date) and in the other Fundamental Documents shall be true and correct
in all material respects on and as of the date of each Borrowing or issuance
of
a Letter of Credit hereunder (except to the extent that such representations
and
warranties expressly relate to an earlier date) with the same effect as if
made
on and as of such date; provided,
however,
that
this condition shall not apply to a Revolving Credit Borrowing which is solely
refinancing outstanding Revolving Credit Loans and which, after giving effect
thereto, has not increased the aggregate amount of outstanding Revolving Credit
Loans.
(c) No
Event of Default.
No
Event of Default or Default shall have occurred and be continuing; provided,
however,
that
this condition shall not apply to a Revolving Credit Borrowing which is solely
refinancing outstanding Revolving Credit Loans and which, after giving effect
thereto, has not increased the aggregate amount of outstanding Revolving Credit
Loans.
(d) Extensions
of Credit to a Subsidiary Borrower.
The
representations and warranties contained in Section 3.1, 3.2 and 3.3 as to
any
Subsidiary Borrower to which a Revolving Extension of Credit is to be made
shall
be true and correct in all material respects on and as of the date of such
Borrowing or issuance of a Letter of Credit hereunder; provided,
however,
that
this condition shall not apply to a Revolving Credit Borrowing which is solely
refinancing outstanding Revolving Credit Loans and which, after giving effect
thereto, has not increased the aggregate amount of outstanding Revolving Credit
Loans.
Each
Borrowing and each issuance of a Letter of Credit shall be deemed to be a
representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (b) and (c) of this Section.
| 5. |
AFFIRMATIVE
COVENANTS
|
From
the
date of the initial Loan and for so long as the Commitments shall be in effect
or any amount shall remain outstanding or unpaid under this Agreement or there
shall be any outstanding L/C Exposure, the Borrower agrees that, unless the
Required Lenders shall otherwise consent in writing, it will, and will cause
each of its Subsidiaries to:
SECTION
5.1. Financial
Statements, Reports, etc.
The
Borrower will furnish to the Administrative Agent and to each
Lender:
(a) As
soon
as is practicable, but in any event within 100 days after the end of each fiscal
year of the Borrower, a copy of the audited consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as at the end of, and the related
consolidated statements of income, shareholders’ equity and cash flows for such
year, and the corresponding figures as at the end of, and for, the preceding
fiscal year, accompanied by an opinion of Deloitte & Touche LLP or such
other independent certified public accountants of recognized standing as shall
be retained by the Borrower and satisfactory to the Administrative Agent, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards relating to reporting and which report and opinion shall
(A)
be unqualified as to going concern and scope of audit and shall state that
such
financial statements fairly present the financial condition of the Borrower
and
its Consolidated Subsidiaries, as at the dates indicated and the results of
the
operations and cash flows for the periods indicated and (B) contain no material
exceptions or qualifications except for qualifications relating to accounting
changes (with which such independent public accountants concur) in response
to
FASB releases or other authoritative pronouncements;
(b) As
soon
as is practicable, but in any event within 55 days after the end of each of
the
first three fiscal quarters of each fiscal year, the unaudited consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries, as at the
end
of, and the related unaudited statements of income (or changes in financial
position) for such quarter and for the period from the beginning of the then
current fiscal year to the end of such fiscal quarter and the corresponding
figures as at the end of, and for, the corresponding period in the preceding
fiscal year, together with a certificate signed by the chief financial officer
or a vice president responsible for financial administration of the Borrower
to
the effect that such financial statements, while not examined by independent
public accountants, reflect, in his opinion and in the opinion of the Borrower,
all adjustments necessary to present fairly the financial position of the
Borrower and its Consolidated Subsidiaries, as the case may be, as at the end
of
the fiscal quarter and the results of their operations for the quarter then
ended in conformity with GAAP consistently applied, subject only to year-end
and
audit adjustments and to the absence of footnote disclosure;
(c) Together
with the delivery of the statements referred to in paragraphs (a) and (b) of
this Section 5.1, a certificate of the Responsible Officer, substantially in
the
form of Exhibit D hereto (i) stating whether or not the signer has knowledge
of
any Default or Event of Default and, if so, specifying each such Default or
Event of Default of which the signer has knowledge, the nature thereof and
any
action which the Borrower has taken, is taking, or proposes to take with respect
to each such condition or event and (ii) demonstrating in reasonable detail
compliance with the provisions of Sections 6.5 and 6.6 hereof;
(d) With
reasonable promptness, copies of such financial statements and reports that
the
Borrower may make to, or file with, the SEC and such other information,
certificates and data (including, without limitation, copies of Letters of
Credit) with respect to the Borrower and its Subsidiaries as from time to time
may be reasonably requested by the Administrative Agent or any of the
Lenders;
(e) Promptly
upon any Responsible Officer obtaining actual knowledge of the occurrence of
any
Default or Event of Default, a certificate of the Responsible Officer specifying
the nature and period of existence of such Default or Event of Default and
what
action the Borrower has taken, is taking and proposes to take with respect
thereto;
(f) Promptly
upon any Responsible Officer of the Borrower or any of its Subsidiaries
obtaining actual knowledge of (i) the institution of any action, suit,
proceeding, investigation or arbitration by any Governmental Authority or other
Person against or affecting the Borrower or any of its Subsidiaries or any
of
their assets, or (ii) any material development in any such action, suit,
proceeding, investigation or arbitration (whether or not previously disclosed
to
the Lenders), which, in each case might reasonably be expected to have a
Material Adverse Effect, the Borrower shall promptly give notice thereof to
the
Lenders and provide such other information as may be reasonably available to
it
(without waiver of any applicable evidentiary privilege) to enable the Lenders
to evaluate such matters; and
(g) Together
with each set of financial statements required by paragraph (a) above, a
certificate of the independent certified public accountants rendering the report
and opinion thereon (which certificate may be limited to the extent required
by
accounting rules or otherwise) (i) stating whether, in connection with their
audit, any Default or Event of Default has come to their attention, and if
such
a Default or Event of Default has come to their attention, specifying the nature
and period of existence thereof, and (ii) stating that based on their audit
nothing has come to their attention which causes them to believe that the
matters specified in paragraph (c)(ii) above for the applicable fiscal year
are
not stated in accordance with the terms of this Agreement.
(h) Information
required to be delivered pursuant to paragraphs (a), (b) and (d) shall be deemed
to have been delivered on the date on which the Borrower provides notice to
the
Administrative Agent that such information has been posted on the Borrower’s
website on the internet at the website address listed on the signature pages
of
such notice, at www.sec.gov or at another website identified in such notice
and
accessible by the Lenders without charge; provided that the Borrower shall
deliver paper copies of the reports and financial statements referred to in
paragraphs (a), (b) and (d) of this Section 5.1 to the Administrative Agent
or
any Lender who requests the Borrower to deliver such paper copies until written
notice to cease delivering paper copies is given by the Administrative Agent
or
such Lender.
SECTION
5.2. Corporate
Existence; Compliance with Statutes.
Do
or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its corporate existence, material rights, licenses, permits and
franchises and comply, except where failure to comply, either individually
or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, with all provisions of Applicable Law, and all applicable restrictions
imposed by, any Governmental Authority, including without limitation, the
Federal Trade Commission’s “Disclosure Requirements and Prohibitions Concerning
Franchising and Business Opportunity Ventures” as amended from time to time (16
C.F.R. §§ 436.1 et seq.)
and
all state laws and regulations of similar import; provided,
however,
that
mergers, dissolutions and liquidations permitted under Section 6.2 shall be
permitted.
SECTION
5.3. Insurance.
Maintain
with financially sound and reputable insurers insurance in such amounts and
against such risks as are customarily insured against by companies in similar
businesses; provided, however,
that
(a) workmen’s compensation insurance or similar coverage may be effected with
respect to its operations in any particular state or other jurisdiction through
an insurance fund operated by such state or jurisdiction and (b) such insurance
may contain self-insurance retention and deductible levels consistent with
normal industry practices.
SECTION
5.4. Taxes
and Charges.
Duly
pay
and discharge, or cause to be paid and discharged, before the same shall become
delinquent, all federal, state or local Taxes, assessments, levies and other
governmental charges, imposed upon the Borrower or any of its Subsidiaries
or
their respective properties, sales and activities, or any part thereof, or
upon
the income or profits therefrom, as well as all claims for labor, materials,
or
supplies which if unpaid could reasonably be expected to result in a Material
Adverse Effect; provided,
however,
that
any such Tax, assessment, charge, levy or claim need not be paid if the validity
or amount thereof shall currently be contested in good faith by appropriate
proceedings and if the Borrower shall have set aside on its books reserves
(the
presentation of which is segregated to the extent required by GAAP) adequate
with respect thereto if reserves shall be deemed necessary by the Borrower
in
accordance with GAAP; and provided,
further,
that
the Borrower will pay all such Taxes, assessments, levies or other governmental
charges forthwith upon the commencement of proceedings to foreclose any material
Lien which may have attached as security therefor (unless the same is fully
bonded or otherwise effectively stayed).
SECTION
5.5. ERISA
Compliance and Reports.
Furnish
to the Administrative Agent (a) as soon as possible, and in any event within
30
days after any executive officer (as defined in Regulation C under the
Securities Act of 1933) of the Borrower knows that any ERISA Event with respect
to any Plan has occurred, a statement of the chief financial officer of the
Borrower, setting forth details as to such ERISA Event and the action which
it
proposes to take with respect thereto, together with a copy of the notice,
if
any, required to be filed by the Borrower or any of its Subsidiaries of such
ERISA Event with the PBGC, (b) promptly upon the reasonable request of the
Administrative Agent, copies of each annual and other report with respect to
each Plan and (c) promptly after receipt thereof, a copy of any notice the
Borrower or any of its Subsidiaries may receive from the PBGC relating to the
PBGC’s intention to terminate any Plan or to appoint a trustee to administer any
Plan; provided
that the
Borrower shall not be required to notify the Administrative Agent of the
occurrence of any of the events set forth in the preceding clauses (a) and
(c)
unless such event, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect on the Borrower and its
Subsidiaries taken as a whole.
SECTION
5.6. Maintenance
of and Access to Books and Records; Examinations.
Maintain
or cause to be maintained at all times true and complete books and records
of
its financial operations (in accordance with GAAP) and provide the
Administrative Agent and its representatives reasonable access to all such
books
and records and to any of their properties or assets during regular business
hours and upon advance notice (provided
that
reasonable access to such books and records and to any of the Borrower’s
properties or assets shall be made available to the Lenders if an Event of
Default has occurred and is continuing), in order that the Administrative Agent
may make such audits and examinations and make abstracts from such books,
accounts and records (in each case subject to the Borrower or its Subsidiaries’
obligations under applicable confidentiality provisions) and may discuss the
affairs, finances and accounts with, and be advised as to the same by, officers
and, so long as a representative of the Borrower is present, independent
accountants, all as the Administrative Agent may deem appropriate for the
purpose of verifying the various reports delivered pursuant to this Agreement
or
for otherwise ascertaining compliance with this Agreement. Notwithstanding
Section 10.4, unless any such visit or inspection is conducted after the
occurrence and during the continuance of a Default or an Event of Default,
the
Borrower shall not be required to pay any costs or expenses incurred by the
Administrative Agent, any Lender or any other Person in connection with such
visit or inspection.
SECTION
5.7. Maintenance
of Properties.
Keep
its
properties which are material to its business in good repair, working order
and
condition consistent with industry practice, ordinary wear and tear excepted,
except where the failure to do so would not reasonably be expected to have
a
Material Adverse Effect.
SECTION
5.8. Changes
in Character of Business.
Cause
the
Borrower and its Subsidiaries taken as a whole to be primarily engaged in the
franchising and services businesses.
| 6. |
NEGATIVE
COVENANTS
|
From
the
date of the initial Loan and for so long as the Commitments shall be in effect
or any amount shall remain outstanding or unpaid under this Agreement or there
shall be any outstanding L/C Exposure, unless the Required Lenders shall
otherwise consent in writing, the Borrower agrees that it will not, nor will
it
permit any of its Subsidiaries to, directly or indirectly:
SECTION
6.1. Limitation
on Indebtedness.
Incur,
assume or suffer to exist any Indebtedness of any Material Subsidiary
except:
(a) Indebtedness
in existence on the Effective Date, or required to be incurred pursuant to
a
contractual obligation in existence on the Effective Date, but not any
extensions or renewals thereof, unless effected on substantially the same terms
or on terms not materially more adverse to the Lenders;
(b) purchase
money Indebtedness (including Capital Leases) provided
that
such Indebtedness is secured by Liens permitted by Section 6.3(c);
(c) Guaranty
Obligations;
(d) Indebtedness
owing by any Material Subsidiary to the Borrower or any other Subsidiary;
(e) Indebtedness
of any Material Subsidiary issued and outstanding prior to the date on which
such Person became a Subsidiary of the Borrower (other than Indebtedness issued
in connection with, or in anticipation of, such Person becoming a Subsidiary
of
the Borrower); provided
that
immediately prior and on a Pro Forma Basis after giving effect to, such Person
becoming a Subsidiary of the Borrower, no Default or Event of Default shall
occur or then be continuing and the aggregate principal amount of such
Indebtedness, when added to the aggregate outstanding principal amount of
Indebtedness permitted by paragraphs (f) and (g) below, shall not exceed the
greater of 15% of Consolidated Net Worth and $200,000,000;
(f) any
renewal, extension or modification of Indebtedness under paragraph (e) above
so
long (i) as such renewal, extension or modification is effected on substantially
the same terms or on terms which, in the aggregate, are not materially more
adverse to the Lenders and (ii) the principal amount of such Indebtedness is
not
increased;
(g) other
Indebtedness of any Material Subsidiary in an aggregate principal amount which,
when added to the aggregate outstanding principal amount of Indebtedness
permitted by paragraphs (e) and (f) above, does not exceed the greater of 15%
of
Consolidated Net Worth and $200,000,000;
(h) Securitization
Indebtedness;
(i) derivatives
transactions entered into in the ordinary course of business pursuant to hedging
programs; and
(j) Indebtedness
of any Loan Party pursuant to any Fundamental Document.
If
the
Material Subsidiary’s action or event meets the criteria of more than one of the
types of Indebtedness described in the clauses above, the Borrower in its sole
discretion may classify such action or event in one or more clauses (including
in part under one such clause and in part under another such
clause).
SECTION
6.2. Consolidation,
Merger, Sale of Assets
.
(a) Neither
the Borrower nor any of its Material Subsidiaries (in one transaction or series
of transactions) will wind up, liquidate or dissolve its affairs, or enter
into
any transaction of merger or consolidation, except any merger, consolidation,
dissolution or liquidation (i) in which the Borrower is the surviving entity
or
if the Borrower is not a party to such transaction then a Subsidiary is the
surviving entity or the successor to the Borrower has unconditionally assumed
in
writing all of the payment and performance obligations of the Borrower under
this Agreement and the other Fundamental Documents, (ii) in which the surviving
entity becomes a Subsidiary of the Borrower immediately upon the effectiveness
of such merger, consolidation, dissolution or liquidation, (iii) involving
a
Subsidiary in connection with a transaction permitted by Section 6.2(b), or
(iv)
occurring prior to the Sale as a result of tax restructuring transactions
related to the Sale; provided,
however,
that
immediately prior to and on a Pro Forma Basis after giving effect to any such
transaction described in any of the preceding clauses (i), (ii), (iii) and
(iv)
no Default or Event of Default has occurred and is continuing.
(b) The
Borrower and its Subsidiaries (either individually or collectively and whether
in one transaction or series of related transactions) will not sell or otherwise
dispose of all or substantially all of the assets of the Borrower and its
Subsidiaries, taken as a whole (it being understood that nothing in this Section
6.2(b) shall be deemed to prohibit the Spin-Off or tax restructuring
transactions related to the Sale).
SECTION
6.3. Limitations
on Liens.
Suffer
any Lien on the property of the Borrower or any of the Material Subsidiaries,
except:
(a) Liens
for
taxes, assessments, governmental charges and other similar obligations not
yet
due or which are being contested in good faith by appropriate
proceedings;
(b) Liens
incidental to the conduct of its business or the ownership of its assets which
were not incurred in connection with the borrowing of money, and which do not
in
the aggregate materially detract from the value of its assets or materially
impair the use thereof in the operation of its business;
(c) purchase
money Liens granted to the vendor or Person financing the acquisition of
property, plant or equipment if (i) limited to the specific assets acquired
and,
in the case of tangible assets, other property which is an improvement to or
is
acquired for specific use in connection with such acquired property or which
is
real property being improved by such acquired property; (ii) the debt secured
by
the Lien is the unpaid balance of the acquisition cost of the specific assets
on
which the Lien is granted; and (iii) such transaction does not otherwise violate
this Agreement;
(d) Liens
upon real and/or personal property, which property was acquired after the
Effective Date (by purchase, construction or otherwise) by the Borrower or
any
of its Material Subsidiaries, each of which Liens existed on such property
before the time of its acquisition and was not created in anticipation thereof;
provided,
however,
that no
such Lien shall extend to or cover any property of the Borrower or such Material
Subsidiary other than the respective property so acquired and improvements
thereon;
(e) to
the
extent not covered by clause (b) above, Liens securing judgments which do not
constitute an Event of Default;
(f) Liens
created under any Fundamental Document;
(g) Liens
existing on the Effective Date and any extensions or renewals
thereof;
(h) Liens
securing (or covering property constituting the source of payment for) any
Indebtedness permitted pursuant to clauses (d) or (h) of Section 6.1;
(i) to
the
extent not covered by clause (h) above, Liens on equity interests or other
securities issued by a Securitization Entity, securing (or covering property
constituting the source of payment for) Securitization Indebtedness;
and
(j) other
Liens securing obligations having an aggregate principal amount not to exceed
the greater of 15% of Consolidated Net Worth and $200,000,000.
If
the
Borrower’s or the Material Subsidiary’s action or event meets the criteria of
more than one of the types of Liens described in the clauses above, the Borrower
in its sole discretion may classify such action or event in one or more clauses
(including in part under one such clause and in part under another such
clause).
SECTION
6.4. Sale
and Leaseback.
Enter
into any arrangement with any Person or Persons, whereby in contemporaneous
transactions the Borrower or any of its Subsidiaries sells essentially all
of
its right, title and interest in a material asset and the Borrower or any of
its
Subsidiaries acquires or leases back the right to use such property except
that
the Borrower and its Subsidiaries may enter into sale-leaseback transactions
relating to assets not in excess of $150,000,000 in the aggregate on a
cumulative basis, and any arrangements existing on the Effective Date and any
renewals, extensions or modifications thereof, or replacements or substitutions
therefor, so long as such renewals, extensions or modifications are effected
on
substantially the same terms or on terms which, in the aggregate, are not more
adverse to the Lenders in any material respect.
SECTION
6.5. Consolidated
Leverage Ratio.
Permit
the Consolidated Leverage Ratio for any Rolling Period ending after June 30,
2006 to be greater than 4.5 to 1.0.
SECTION
6.6. Consolidated
Interest Coverage Ratio.
Permit
the Consolidated Interest Coverage Ratio for any Rolling Period ending after
June 30, 2006 to be less than 3.0 to 1.0.
SECTION
6.7. Accounting
Practices.
Establish
a fiscal year ending on any date other than December 31, or modify or
change accounting treatments or reporting practices except as otherwise required
or permitted by GAAP or the SEC.
| 7. |
EVENTS
OF DEFAULT
|
In
the
case of the happening and during the continuance of any of the following events
(herein called “Events
of Default”):
(a) any
representation or warranty made by the Borrower or any Subsidiary Borrower
in
this Agreement or any other Fundamental Document or in connection with this
Agreement or with the Borrowings hereunder, or any statement or representation
made in any report, financial statement, certificate or other document furnished
by or on behalf of the Borrower or any of its Subsidiaries to the Administrative
Agent or any Lender under or in connection with this Agreement, shall prove
to
have been false or misleading in any material respect when made or
delivered;
(b) default
shall be made in the payment of any principal of or interest on any Loan, any
reimbursement obligation with respect to Letters of Credit or of any fees or
other amounts payable by the Borrower or any Subsidiary Borrower hereunder,
when
and as the same shall become due and payable, whether at the due date thereof
or
at a date fixed for prepayment thereof or by acceleration thereof or otherwise,
and in the case of payments of interest, such default shall continue unremedied
for five days, and in the case of payments other than of any principal amount
of
or interest on any Loan or any reimbursement obligation with respect to Letters
of Credit, such default shall continue unremedied for five days after written
notice of non-payment has been received by the Borrower or such Subsidiary
Borrower from the Administrative Agent;
(c) default
shall be made in the due observance or performance of any covenant, condition
or
agreement contained in Section 5.1(e) (with respect to notice of Default or
Events of Default), 5.8 or Section 6 of this Agreement;
(d) default
shall be made by the Borrower in the due observance or performance of any other
covenant, condition or agreement to be observed or performed pursuant to the
terms of this Agreement, or any other Fundamental Document and such default
shall continue unremedied for thirty days after the Borrower obtains knowledge
of such occurrence;
(e) (i)
default in payment shall be made with respect to any Indebtedness of the
Borrower or any of its Subsidiaries (other than Securitization Indebtedness)
where the amount or amounts of such Indebtedness exceeds $50,000,000 in the
aggregate; or (ii) default in payment or performance shall be made with respect
to any Indebtedness of the Borrower or any of its Subsidiaries (other than
Securitization
Indebtedness) where the amount or amounts of such Indebtedness exceeds
$50,000,000 in the aggregate, if the effect of such default is to result in
the
acceleration of the maturity of such Indebtedness; or (iii) any other
circumstance shall arise (other than the mere passage of time) by reason of
which the Borrower or any Subsidiary of the Borrower is required to redeem
or
repurchase, or offer to holders the opportunity to have redeemed or repurchased,
any such Indebtedness (other than Securitization Indebtedness) where the amount
or amounts of such Indebtedness exceeds $50,000,000 in the aggregate;
provided
that
clause (iii) shall not apply to secured Indebtedness that becomes due as a
result of a voluntary sale of the property or assets securing such Indebtedness
or Indebtedness that is redeemed or repurchased at the option of the Borrower
or
any of its Subsidiaries; and provided,
that
clauses (ii) and (iii) shall not apply to any Indebtedness of any Subsidiary
issued and outstanding prior to the date such Subsidiary became a Subsidiary
of
the Borrower (other than Indebtedness issued in connection with, or in
anticipation of, such Subsidiary becoming a Subsidiary of the Borrower) if
such
default or circumstance arises solely as a result of a “change of control”
provision applicable to such Indebtedness which becomes operative as a result
of
the acquisition of such Subsidiary by the Borrower or any of its Subsidiaries;
and provided,
further,
that in
the case of any derivative transaction described in Section 6.1(i), each
reference in this clause (e) to the amount of $50,000,000 shall mean the amount
payable by the Borrower or any of its Subsidiaries in connection with a default
or “other circumstance” described in clause (i), (ii) or (iii) and not to the
notional amount of such derivative transaction;
(f) the
Borrower or any of its Material Subsidiaries shall generally not pay its debts
as they become due or shall admit in writing its inability to pay its debts,
or
shall make a general assignment for the benefit of creditors; or the Borrower
or
any of its Material Subsidiaries shall commence any case, proceeding or other
action seeking to have an order for relief entered on its behalf as debtor
or to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or its debts under
any
law relating to bankruptcy, insolvency, reorganization or relief of debtors
or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property or shall file an
answer or other pleading in any such case, proceeding or other action admitting
the material allegations of any petition, complaint or similar pleading filed
against it or consenting to the relief sought therein; or the Borrower or any
Material Subsidiary thereof shall take any action to authorize any of the
foregoing;
(g) any
involuntary case, proceeding or other action against the Borrower or any of
its
Material Subsidiaries shall be commenced seeking to have an order for relief
entered against it as debtor or to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, liquidation, dissolution or
composition of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property, and such case, proceeding or other action
(i)
results in the entry of any order for relief against it or (ii) shall remain
undismissed for a period of sixty days;
(h) the
occurrence of a Change in Control;
(i) final
judgment(s) for the payment of money in excess of $50,000,000 (to the extent
not
paid or covered by insurance) shall be rendered against the Borrower or any
of
its Subsidiaries which within thirty days from the entry of such judgment shall
not have been discharged or stayed pending appeal or which shall not have been
discharged within thirty days from the entry of a final order of affirmance
on
appeal;
(j) an
ERISA
Event shall have occurred that, when taken together with all other ERISA Events
(with respect to which the Borrower has a liability which has not yet been
satisfied) that have occurred, would result in a Material Adverse Effect;
or
(k) the
Cendant Guaranty shall cease, for any reason other than by its terms, to be
in
full force and effect;
then,
in
every such event and at any time thereafter during the continuance of such
event, the Administrative Agent may or shall, if directed by the Required
Lenders, take either or both of the following actions, at the same or different
times: terminate forthwith the Commitments and/or declare the principal of
and
the interest on the Loans and all other amounts payable hereunder or thereunder
to be forthwith due and payable, whereupon the same shall become and be
forthwith due and payable, without presentment, demand, protest, notice of
acceleration, notice of intent to accelerate or other notice of any kind, all
of
which are hereby expressly waived, anything in this Agreement to the contrary
notwithstanding. If an Event of Default specified in paragraphs (f) or (g)
above
shall have occurred, the principal of and interest on the Loans and all other
amounts payable hereunder or thereunder shall thereupon and concurrently become
due and payable without presentment, demand, protest, notice of acceleration,
notice of intent to accelerate or other notice of any kind, all of which are
hereby expressly waived, anything in this Agreement to the contrary
notwithstanding and the Commitments of the Lenders shall thereupon forthwith
terminate.
| 8. |
THE
ADMINISTRATIVE AGENT AND EACH ISSUING
LENDER
|
SECTION
8.1. Administration
by Administrative Agent.
The
general administration of the Fundamental Documents and any other documents
contemplated by this Agreement shall be by the Administrative Agent or its
designees. Each of the Lenders hereby irrevocably authorizes the Administrative
Agent, at its discretion, to take or refrain from taking such actions as agent
on its behalf and to exercise or refrain from exercising such powers under
the
Fundamental Documents and any other documents contemplated by this Agreement
as
are delegated by the terms hereof or thereof, as appropriates, together with
all
powers reasonably incidental thereto. The Administrative Agent shall have no
duties or responsibilities except as set forth in the Fundamental Documents.
Without limiting the generality of the foregoing, (a) the Administrative
Agent shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default or Event of Default has occurred and is continuing,
(b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent
is
required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.9), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose,
and
shall not be liable for the failure to disclose, any information relating to
the
Borrower or any of its Subsidiaries or Affiliates that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates
in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 10.9) or in the absence of its own
gross negligence or willful misconduct. The Administrative Agent shall be deemed
not to have knowledge of any Default unless and until written notice thereof
is
given to the Administrative Agent by the Borrower, any Subsidiary Borrower
or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the
contents of any certificate, report or other document delivered hereunder or
in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Section 4 or elsewhere herein.
Any Lender which is not the Administrative Agent (regardless of whether such
Lender bears the title of any other Agent or any similar title, as indicated
on
the signature
pages
hereto) for the credit facility hereunder shall not have any duties or
responsibilities except as a Lender hereunder.
SECTION
8.2. Advances
and Payments.
(a) On
the
date of each Loan, the Administrative Agent shall be authorized (but not
obligated) to advance, for the account of each of the Lenders, the amount of
the
Loan to be made by it in accordance with this Agreement. Each of the Lenders
hereby authorizes and requests the Administrative Agent to advance for its
account, pursuant to the terms hereof, the amount of the Loan to be made by
it,
unless with respect to any Lender, such Lender has theretofore specifically
notified the Administrative Agent that such Lender does not intend to fund
that
particular Loan. Each of the Lenders agrees forthwith to reimburse the
Administrative Agent in immediately available funds for the amount so advanced
on its behalf by the Administrative Agent pursuant to the immediately preceding
sentence. If any such reimbursement is not made in immediately available funds
on the same day on which the Administrative Agent shall have made any such
amount available on behalf of any Lender in accordance with this Section 8.2,
such Lender shall pay interest to the Administrative Agent at a rate per annum
equal to the Administrative Agent’s cost of obtaining overnight funds in the New
York Federal Funds Market. Notwithstanding the preceding sentence, if such
reimbursement is not made by the second Business Day following the day on which
the Administrative Agent shall have made any such amount available on behalf
of
any Lender or such Lender has indicated that it does not intend to reimburse
the
Administrative Agent, the Borrower or the relevant Subsidiary Borrower shall
immediately pay such unreimbursed advance amount (plus any accrued, but unpaid
interest at the rate applicable to ABR Loans) to the Administrative
Agent.
(b) Any
amounts received by the Administrative Agent in connection with this Agreement
the application of which is not otherwise provided for shall be applied, in
accordance with each of the Lenders’ pro rata interest therein, first, to pay
accrued but unpaid Commitment Fees, second, to pay accrued but unpaid interest
on the Loans, third, the principal balance outstanding on the Loans and fourth,
to pay other amounts payable to the Administrative Agent and/or the Lenders.
All
amounts to be paid to any of the Lenders by the Administrative Agent shall
be
credited to the Lenders, promptly after collection by the Administrative Agent,
in immediately available funds either by wire transfer or deposit in such
Lender’s correspondent account with the Administrative Agent, or as such Lender
and the Administrative Agent shall from time to time agree.
SECTION
8.3. Sharing
of Setoffs and Cash Collateral.
Each
of
the Lenders agrees that if it shall, through the operation of Sections 2.23,
2.28(g) or 2.28(h) hereof or the exercise of a right of bank’s lien, setoff or
counterclaim against the Borrower or any Subsidiary Borrower, including, but
not
limited to, a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim and received by such Lender under any applicable bankruptcy, insolvency
or
other similar law, or otherwise, obtain payment in respect of its Term Loans,
Revolving Credit Loans, L/C Exposure or Swingline Participation Amounts as
a
result of which the unpaid portion of its Term Loans, Revolving Credit Loans,
L/C Exposure or Swingline Participation Amounts, as applicable, is
proportionately less than the unpaid portion of any of the other Lenders (a)
it
shall promptly purchase at par (and shall be deemed to have thereupon purchased)
from such other Lenders a participation in the Term Loans, Revolving Credit
Loans, L/C Exposure or Swingline Participation Amounts, as applicable, of such
other Lenders, so that the aggregate unpaid principal amount of each of the
Lenders’ Term Loans, Revolving Credit Loans, L/C Exposure and Swingline
Participation Amounts and its participation in Term Loans, Revolving Credit
Loans, L/C Exposure and Swingline Participation Amounts of the other Lenders
shall be in the same proportion to the aggregate unpaid principal amount of
all
Term Loans, Revolving Credit Loans, L/C
Exposure
and Swingline Participation Amounts then outstanding as the principal amount
of
its Term Loans, Revolving Credit Loans, L/C Exposure and Swingline Participation
Amounts prior to the obtaining of such payment was to the principal amount
of
all Term Loans, Revolving Credit Loans, L/C Exposure and Swingline Participation
Amounts outstanding prior to the obtaining of such payment and (b) such other
adjustments shall be made from time to time as shall be equitable to ensure
that
the Lenders share such payment pro rata.
SECTION
8.4. Notice
to the Lenders.
Upon
receipt by the Administrative Agent from the Borrower or any Subsidiary Borrower
of any communication calling for an action on the part of the Lenders, or upon
notice to the Administrative Agent of any Event of Default, the Administrative
Agent will in turn immediately inform the other Lenders (including any Issuing
Lender) in writing (which shall include telegraphic communications) of the
nature of such communication or of the Event of Default, as the case may
be.
SECTION
8.5. Liability
of Administrative Agent and each Issuing Lender.
(a) The
Administrative Agent or any Issuing Lender, when acting on behalf of the Lenders
may execute any of its duties under this Agreement by or through its officers,
agents, or employees and neither the Administrative Agent, the Issuing Lenders
nor their respective directors, officers, agents, or employees shall be liable
to the Lenders or any of them for any action taken or omitted to be taken in
good faith, or be responsible to the Lenders or to any of them for the
consequences of any oversight or error of judgment, or for any loss, unless
the
same shall happen through its gross negligence or willful misconduct. The
Administrative Agent, the Issuing Lenders and their respective directors,
officers, agents, and employees shall in no event be liable to the Lenders
or to
any of them for any action taken or omitted to be taken by it pursuant to
instructions received by it from the Required Lenders or in reliance upon the
advice of counsel selected by it. Without limiting the foregoing, neither the
Administrative Agent, the Issuing Lenders nor any of their respective directors,
officers, employees, or agents shall be responsible to any of the Lenders for
the due execution, validity, genuineness, effectiveness, sufficiency, or
enforceability of, or for any statement, warranty, or representation in, or
for
the perfection of any security interest contemplated by, this Agreement or
any
related agreement, document or order, or for the designation or failure to
designate this transaction as a “Highly Leveraged Transaction” for regulatory
purposes, or shall be required to ascertain or to make any inquiry concerning
the performance or observance by the Borrower or any Subsidiary Borrower of
any
of the terms, conditions, covenants, or agreements of this Agreement or any
related agreement or document.
(b) Neither
the Administrative Agent, the Issuing Lenders, nor any of their respective
directors, officers, employees, or agents shall have any responsibility to
the
Borrower or any Subsidiary Borrower on account of the failure or delay in
performance or breach by any of the Lenders or the Borrower or any Subsidiary
Borrower of any of their respective obligations under this Agreement or any
related agreement or document or in connection herewith or
therewith.
(c) The
Administrative Agent, and the Issuing Lenders, in such capacities hereunder,
shall be entitled to rely on any communication, instrument, or document
reasonably believed by it to be genuine or correct and to have been signed
or
sent by a Person or Persons believed by it to be the proper Person or Persons,
and it shall be entitled to rely on advice of legal counsel, independent public
accountants, and other professional advisers and experts selected by
it.
SECTION
8.6. Reimbursement
and Indemnification.
Each
of
the Lenders severally and not jointly agrees (to the extent not reimbursed
or
otherwise paid by the Borrower or any Subsidiary Borrower (pursuant to Section
10.5 hereof)) (i) to reimburse the Administrative Agent, in the amount of its
Aggregate Exposure Percentage, for any expenses and fees incurred for the
benefit of the Lenders under the Fundamental Documents, including, without
limitation, counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, and any other expense incurred
in
connection with the administration or enforcement thereof; (ii) to indemnify
and
hold harmless the Administrative Agent and any of its directors, officers,
employees, or agents, on demand, in the amount of its Aggregate Exposure
Percentage, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against it or any of them in any way relating to or arising out of
the
Fundamental Documents or any action taken or omitted by it or any of them under
the Fundamental Documents to the extent not reimbursed by the Borrower or one
of
its Subsidiaries (including any Subsidiary Borrower) (except such as shall
result from the gross negligence or willful misconduct of the Person seeking
indemnification); and (iii) to indemnify and hold harmless the Issuing Lenders
and any of their respective directors, officers, employees, or agents or demand
in the amount of its proportionate share from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs expenses or disbursements of any kind or nature whatever which may be
imposed or incurred by or asserted against it relating to or arising out of
the
issuance of any Letters of Credit not reimbursed by the Borrower or one of
its
Subsidiaries (including any Subsidiary Borrower) (except such as shall result
from the gross negligence or willful misconduct of the Person seeking
indemnification).
SECTION
8.7. Rights
of Administrative Agent.
It
is
understood and agreed that JPMorgan Chase Bank shall have the same rights and
powers hereunder (including the right to give such instructions) as the other
Lenders and may exercise such rights and powers, as well as its rights and
powers under other agreements and instruments to which it is or may be party,
and engage in other transactions with the Borrower or any Subsidiary (including
any Subsidiary Borrower) or other Affiliate thereof as though it were not the
Administrative Agent on behalf of the Lenders under this Agreement.
The
Administrative Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the
Administrative Agent; provided
that no
such delegation shall limit or reduce in any way the Administrative Agent’s
duties and obligations to the Borrower or any Subsidiary Borrower under this
Agreement. The Administrative Agent and any such sub-agent, and any Affiliate
of
the Administrative Agent or any such sub-agent, may perform any and all its
duties and exercise its rights and powers through their respective directors,
officers, employees, agents and advisors. The exculpatory provisions of Section
8.5 shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
SECTION
8.8. Independent
Investigation by Lenders.
Each
of
the Lenders acknowledges that it has decided to enter into this Agreement and
to
make the Loans and issue and participate in the Letters of Credit hereunder,
and
will continue to make such decisions, based on its own analysis of the
transactions contemplated hereby, based on such documents and other information
as it has deemed appropriate and on the creditworthiness of the
Borrower
and agrees that neither the Administrative Agent nor any Issuing Lender shall
bear responsibility therefor.
SECTION
8.9. Notice
of Transfer.
The
Administrative Agent and the Issuing Lenders may deem and treat any Lender
which
is a party to this Agreement as the owners of such Lender’s respective portions
of the Loans and Letter of Credit reimbursement rights for all purposes, unless
and until a written notice of the assignment or transfer thereof executed by
any
such Lender shall have been received by the Administrative Agent and become
effective pursuant to Section 10.3.
SECTION
8.10. Successor
Administrative Agent.
The
Administrative Agent may resign at any time by giving written notice thereof
to
the Lenders and the Borrower. Upon any such resignation, the Borrower (with
the
consent of the Required Lenders, which shall not be unreasonably withheld or
delayed) shall have the right to appoint a successor Administrative Agent.
If no
successor Administrative Agent shall have been so appointed by the Borrower
and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent’s giving of notice of resignation, the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which with the consent of the Borrower, which will not
be
unreasonably withheld, shall be a commercial bank organized or licensed under
the laws of the United States of America or of any State thereof and having
a
combined capital and surplus of at least $500,000,000. Upon the acceptance
of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Section 8 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.
SECTION
8.11. Resignation
of an Issuing Lender.
Any
Issuing Lender may resign at any time by giving written notice thereof to the
Lenders and the Borrower. Upon any such resignation, such Issuing Lender shall
be discharged from any duties and obligations under this Agreement in its
capacity as an Issuing Lender with regard to Letters of Credit not yet issued.
After any retiring Issuing Lender’s resignation hereunder as an Issuing Lender,
the provisions of this Agreement shall continue to inure to its benefit as
to
any outstanding Letters of Credit or otherwise with regard to outstanding L/C
Exposure and any actions taken or omitted to be taken by it while it was an
Issuing Lender under this Agreement.
SECTION
8.12. Agents
Generally.
Except
as
expressly set forth herein, no Agent shall have any duties or responsibilities
hereunder in its capacity as such; and shall incur no liability, under this
Agreement and the other Fundamental Documents.
| 9. |
GUARANTY
OF SUBSIDIARY BORROWER OBLIGATIONS
|
SECTION
9.1. Guaranty.
(a) The
Borrower hereby unconditionally and irrevocably guaranties to the Administrative
Agent, for the ratable benefit of the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by any Subsidiary Borrower when due (whether at the stated maturity,
by acceleration or otherwise) of the Subsidiary Borrower
Obligations.
(b) The
Borrower further agrees to pay any and all expenses (including, without
limitation, all fees and disbursements of counsel) which may be paid or incurred
by the Administrative Agent, any Issuing Lender or any Lender in enforcing,
or
obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Subsidiary Borrower Obligations and/or enforcing
any rights with respect to, or collecting against, any Subsidiary Borrower
under
this Guaranty; provided,
however,
that
the Borrower shall not be liable for the fees and expenses of more than one
separate firm for the Lenders or any Issuing Lender (unless there shall exist
an
actual conflict of interest among such Persons, and in such case, not more
than
two separate firms) in connection with any one such action or any separate,
but
substantially similar or related actions in the same jurisdiction, nor shall
the
Borrower be liable for any settlement or proceeding effected without the
Borrower’s written consent. This Guaranty shall remain in full force and effect
until the Subsidiary Borrower Obligations are paid in full and the Commitments
are terminated.
(c) No
payment or payments made by any Subsidiary Borrower or any other Person or
received or collected by the Administrative Agent or any Lender from any
Subsidiary Borrower or any other Person by virtue of any action or proceeding
or
any set-off or appropriation or application, at any time or from time to time,
in reduction of or in payment of the Subsidiary Borrower Obligations shall
be
deemed to modify, reduce, release or otherwise affect the liability of the
Borrower hereunder which shall, notwithstanding any such payment or payments
(other than payments made by the Borrower in respect of the Subsidiary Borrower
Obligations or payments received or collected from the Borrower in respect
of
the Subsidiary Borrower Obligations), remain liable for the Subsidiary Borrower
Obligations until the Subsidiary Borrower Obligations are paid in full and
the
Commitments are terminated.
(d) The
Borrower agrees that whenever, at any time, or from time to time, it shall
make
any payment to the Administrative Agent or any Lender on account of its
liability hereunder, it will notify the Administrative Agent and such Lender
in
writing that such payment is made under this Guaranty for such
purpose.
SECTION
9.2. No
Subrogation. Notwithstanding
any payment or payments made by the Borrower hereunder, or any set-off or
application of funds of the Borrower by the Administrative Agent or any Lender,
the Borrower shall not be entitled to be subrogated to any of the rights of
the
Administrative Agent or any Lender against any Subsidiary Borrower or against
any collateral security or Guaranty or right of offset held by the
Administrative Agent or any Lender for the payment of the Subsidiary Borrower
Obligations, nor shall the Borrower seek or be entitled to seek any contribution
or reimbursement from any Subsidiary Borrower in respect of payments made by
the
Borrower hereunder, until all amounts owing to the Administrative Agent and
the
Lenders by any Subsidiary Borrower on account of the Subsidiary Borrower
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to the Borrower on account of such subrogation rights at any
time
when all of the Subsidiary Borrower Obligations shall not have been paid in
full, such amount shall be held by the Borrower in trust for the Administrative
Agent and the Lenders, segregated from other funds of the Borrower, and shall,
forthwith upon receipt by the Borrower, be turned over to the Administrative
Agent
in
the
exact form received by the Borrower (duly indorsed by the Borrower to the
Administrative Agent, if required), to be applied against the Subsidiary
Borrower Obligations, whether matured or unmatured, in such order as the
Administrative Agent may determine.
SECTION
9.3. Amendments,
etc. with respect to the Obligations; Waiver of Rights. The
Borrower shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Borrower, and without notice to or further
assent by the Borrower, any demand for payment of any of the Subsidiary Borrower
Obligations made by the Administrative Agent or any Lender may be rescinded
by
the Administrative Agent or such Lender, and any of the Subsidiary Borrower
Obligations continued, and the Subsidiary Borrower Obligations, or the liability
of any other party upon or for any part thereof, or any collateral security
or
guaranty therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or
any
Lender, and this Agreement and any other documents executed and delivered in
connection herewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Administrative Agent (or the requisite Lenders, as
the
case may be) may deem advisable from time to time, and any collateral security,
guaranty or right of offset at any time held by the Administrative Agent or
any
Lender for the payment of the Subsidiary Borrower Obligations may be sold,
exchanged, waived, surrendered or released. Neither the Administrative Agent
nor
any Lender shall have any obligation to protect, secure, perfect or insure
any
Lien at any time held by it as security for the Subsidiary Borrower Obligations
or for the Guaranty under this Section 9 or any property subject thereto. When
making any demand hereunder against the Borrower, the Administrative Agent
or
any Lender may, but shall be under no obligation to, make a similar demand
on
any Subsidiary Borrower, and any failure by the Administrative Agent or any
Lender to make any such demand or to collect any payments from any Subsidiary
Borrower or any release of any Subsidiary Borrower shall not relieve the
Borrower of its obligations or liabilities hereunder, and shall not impair
or
affect the rights and remedies, express or implied, or as a matter of law,
of
the Administrative Agent or any Lender against the Borrower. For the purposes
hereof “demand” shall include the commencement and continuance of any legal
proceedings.
SECTION
9.4. Guaranty
Absolute and Unconditional. The
Borrower waives any and all notice of the creation, renewal, extension or
accrual of any of the Subsidiary Borrower Obligations and notice of or proof
of
reliance by the Administrative Agent or any Lender upon this Guaranty or
acceptance of the Guaranty under this Section 9; the Subsidiary Borrower
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the Guaranty under this Section 9; and all dealings between any Subsidiary
Borrower and the Borrower, on the one hand, and the Administrative Agent and
the
Lenders, on the other, shall likewise be conclusively presumed to have been
had
or consummated in reliance upon the Guaranty under this Section 9. The Borrower
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon any Subsidiary Borrower or the Borrower with respect
to
the Subsidiary Borrower Obligations. The Guaranty under this Section 9 shall
be
construed as a continuing, absolute and unconditional guaranty of payment
without regard to (a) the validity or enforceability of this Agreement, any
of the Subsidiary Borrower Obligations or any other collateral security therefor
or guaranty or right of offset with respect thereto at any time or from time
to
time held by the Administrative Agent or any Lender, (b) any defense,
set-off or counterclaim (other than a defense of payment or performance) which
may at any time be available to or be asserted by any Subsidiary Borrower
against the Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of such
Subsidiary Borrower or the Borrower) which constitutes, or might be construed
to
constitute, an equitable or legal discharge of Subsidiary Borrower for its
Subsidiary Borrower Obligations, or of the Borrower under the guaranty under
this Section 9, in bankruptcy or in any other instance. When pursuing its rights
and remedies hereunder against the Borrower, the Administrative Agent and any
Lender may, but shall be under no obligation to, pursue such
rights
and remedies as it may have against any Subsidiary Borrower or any other Person
or against any collateral security or guaranty for the Subsidiary Borrower
Obligations or any right of offset with respect thereto, and any failure by
the
Administrative Agent or any Lender to pursue such other rights or remedies
or to
collect any payments from any Subsidiary Borrower or any such other Person
or to
realize upon any such collateral security or guaranty or to exercise any such
right of offset, or any release of Subsidiary Borrower or any such other Person
or of any such collateral security, guaranty or right of offset, shall not
relieve the Borrower of any liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter
of
law, of the Administrative Agent or any Lender against such Subsidiary Borrower.
The Guaranty under this Section 9 shall remain in full force and effect and
be
binding in accordance with and to the extent of its terms upon the Borrower
and
its successors and assigns thereof, and shall inure to the benefit of the
Administrative Agent and the Lenders, and their respective successors,
indorsees, transferees and assigns, until all the Subsidiary Borrower
Obligations and the obligations of the Borrower under the Guaranty under this
Section 9 shall have been satisfied by payment in full and the Commitments
shall
be terminated, notwithstanding that from time to time during the term of this
Agreement any Subsidiary Borrower may be free from any Subsidiary Borrower
Obligations.
SECTION
9.5. Reinstatement. The
Guaranty under this Section 9 shall continue to be effective, or be reinstated,
as the case may be, if at any time payment, or any part thereof, of any of
the
Subsidiary Borrower Obligations is rescinded or must otherwise be restored
or
returned by the Administrative Agent or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Subsidiary
Borrower or upon or as a result of the appointment of a receiver, intervenor
or
conservator of, or trustee or similar officer for, any Subsidiary Borrower
or
any substantial part of its property, or otherwise, all as though such payments
had not been made.
| 10. |
MISCELLANEOUS
|
SECTION
10.1. Notices.
(a) Notices
and other communications provided for herein shall be in writing and shall
be
delivered or mailed (or in the case of telegraphic communication, if by
telegram, delivered to the telegraph company and, if by telex, telecopy, graphic
scanning or other telegraphic communications equipment of the sending party
hereto, delivered by such equipment) addressed as follows:
(i) if
to the
Administrative Agent, to it at JPMorgan Chase Bank, N.A., 1111 Fannin, 10th
floor, Houston, Texas 77002, Attention of Jen Yi Lin (Telephone No.
713-750-3550; Facsimile No. 713-750-2932), with a copy to Randolph Cates
(Facsimile No. 212-270-3279);
(ii) if
to the
Borrower, to it at 7 Sylvan Way, Parsippany, NJ 07054, Attention of Corporate
Secretary (Facsimile No. 973-496-1127) and Treasurer (Facsimile No.
973-496-6160), with a copy to Skadden, Arps, Slate, Meagher & Flom LLP, Four
Times Square, New York, NY 10036, Attention of James M. Douglas (Facsimile
No.
917-777-2868);
(iii) if
to a
Subsidiary Borrower, to it c/o the Borrower at 7 Sylvan Way, Parsippany, NJ
07054, Attention of Corporate Secretary (Facsimile No. 973-496-1127) and
Treasurer (Facsimile No. 973-496-6160), with a copy to Skadden, Arps, Slate,
Meagher & Flom LLP, Four Times Square, New York, NY 10036, Attention of
James M. Douglas (Facsimile No. 917-777-2868);
(iv) if
to a
Lender, to it at its address notified to the Administrative Agent (or set forth
in its Assignment and Acceptance or other agreement pursuant to which it became
a Lender hereunder); and
(v) if
to
JPMorgan Chase Bank, N.A., in its capacity as Issuing Lender, to it at JPMorgan
Chase Bank, N.A. 1111 Fannin, 10th floor, Houston, Texas 77002, Attention of
Jen
Yi Lin (Telephone No. 713-750-3550; Facsimile No. 713-750-2932), or if to any
other Issuing Lender, at the address for notices as such Issuing Lender provides
in accordance with this Section 10.1;
or
such
other address as such party may from time to time designate by giving written
notice to the other parties hereunder.
(b) Any
party
hereto may change its address or telecopy number and other communications
hereunder for notices and other communications hereunder by notice to the other
parties hereto. All notices and other communications given to any party hereto
in accordance with the provisions of this Agreement shall be deemed to have
been
given on the date of receipt.
(c) Notices
and other communication to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the
Administrative Agent; provided
that the
foregoing shall not apply to notices pursuant to Section 2 unless otherwise
agreed by the Administrative Agent and the applicable Lender. The Administrative
Agent, the Borrower and any Subsidiary Borrower may, in its discretion, agree
to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided
that
approval of such procedures may be limited to particular notices or
communications.
SECTION
10.2. Survival
of Agreement, Representations and Warranties, etc.
All
warranties, representations and covenants made by the Borrower or any Subsidiary
Borrower herein or in any certificate or other instrument delivered by it or
on
its behalf in connection with this Agreement shall be considered to have been
relied upon by the Administrative Agent and the Lenders and shall survive the
making of the Loans herein contemplated regardless of any investigation made
by
the Administrative Agent or the Lenders or on their behalf and shall continue
in
full force and effect so long as any amount due or to become due hereunder
is
outstanding and unpaid and so long as the Commitments have not been terminated.
All statements in any such certificate or other instrument shall constitute
representations and warranties by the Borrower or such Subsidiary Borrower
hereunder.
SECTION
10.3. Successors
and Assigns; Syndications; Loan Sales;
Participations.
(a) Whenever
in this Agreement any of the parties hereto is referred to, such reference
shall
be deemed to include the successors and assigns of such party (provided,
however,
that
neither Borrower nor any Subsidiary Borrower may assign its rights hereunder
without the prior written consent of all the Lenders), and all covenants,
promises and agreements by, or on behalf of, the Borrower or any Subsidiary
Borrower which are contained in this Agreement shall inure to the benefit of
the
successors and assigns of the Lenders.
(b) Each
of
the Lenders may (but only with the prior written consent of the Administrative
Agent, the relevant Issuing Lenders and the Borrower, which consents shall
not
be unreasonably withheld or delayed, provided
that the
consent of the Borrower shall not be required if an Event of Default has
occurred and is continuing, provided further
that the
consent of the Issuing Lenders shall not be required for an assignment of all
or
any portion of a Term Loan or Term Commitment) assign
to
one or
more banks or other entities either (i) all or a portion of its interests,
rights and obligations under this Agreement (including, without limitation,
all
or a portion of its Commitment and the same portion of the Revolving Credit
Loans and Term Loans at the time owing to it and its L/C Exposure) (a
“Ratable
Assignment”)
or
(ii) (A) all or a portion of its rights and obligations under and in respect
of
its Revolving Commitment under this Agreement and the same portion of the
Revolving Credit Loans at the time owing to it and its L/C Exposure or (B)
all
or a portion of its rights and obligations under and in respect of its Term
Commitments or Term Loans (each a “Non-Ratable
Assignment”);
provided,
however,
that
(1) each Non-Ratable Assignment shall be of a constant, and not a varying,
percentage of all of the assigning Lender’s rights and obligations in respect of
the Loans, L/C Exposure and the Commitment, as applicable, which are the subject
of such assignment, (2) each Ratable Assignment shall be of a constant, and
not
a varying, percentage of the assigning Lender’s rights and obligations under
this Agreement, (3) the amount of the Commitment of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Lender) shall be in a
minimum principal amount of $1,000,000 (or, if less, the remaining portion
of
the assigning Lender’s rights and obligations under this Agreement) unless
otherwise agreed by the Borrower and the Administrative Agent, (4) the parties
to each such assignment shall execute and deliver to the Administrative Agent,
for its acceptance and recording in the Register (as defined below), an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500 and (5) no Lender shall assign or sell participations of all or a portion
of its interest in a Loan to any Person who is (A) listed on the Specially
Designated Nationals and Blocked Persons List (the “SDN List”) maintained by the
U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”) and/or on
any other similar list maintained by the OFAC pursuant to any authorizing
statute, Executive Order or regulation (collectively, “OFAC Laws and
Regulations”); or (B) included within the term “designated national” as defined
in the Cuban Assets Control Regulations, 31 C.F.R. Part 515. Upon such
execution, delivery, acceptance and recording, and from and after the effective
date specified in each Assignment and Acceptance, which effective date shall
be
not earlier than five Business Days (or such shorter period approved by the
Administrative Agent) after the date of acceptance and recording by the
Administrative Agent, (x) the assignee thereunder shall be a party hereto and,
to the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the assigning Lender thereunder shall,
to the extent provided in such Assignment and Acceptance, be released from
its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of the assigning Lender’s
rights and obligations under this Agreement, such assigning Lender shall cease
to be a party hereto).
(c) Notwithstanding
the other provisions of this Section 10.3, each Lender may at any time make
a
Ratable Assignment or a Non-Ratable Assignment of its interests, rights and
obligations under this Agreement to (i) any Affiliate of such Lender or (ii)
any
other Lender hereunder without the consent of the Borrower provided
that it
meets the registration requirements in Section 10.3(b)(4).
(d) By
executing and delivering an Assignment and Acceptance, the assigning Lender
thereunder and the assignee thereunder confirm to and agree with each other
and
the other parties hereto as follows: (i) other than the representation and
warranty that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, the assigning Lender
makes
no representation or warranty and assumes no responsibility with respect to
any
statements, warranties or representations made in, or in connection with, this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Fundamental Documents or any other instrument or
document furnished pursuant hereto or thereto; (ii) such Lender assignor makes
no representation or warranty and assumes no responsibility with respect to
the
financial condition of the Borrower or the performance or observance by the
Borrower or any Subsidiary Borrower of any of its obligations under the
Fundamental Documents; (iii) such assignee confirms that it has received a
copy
of this Agreement, together with copies of the most recent financial statements
delivered pursuant to Sections 5.1(a) and
5.1(b)
(or
if none of such financial statements shall have then been delivered, then copies
of the financial statements referred to in Section 3.4 hereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the assigning Lender,
the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee appoints and authorizes the Administrative Agent to take such action
as
agent on its behalf and to exercise such powers under the Fundamental Documents
as are delegated to the Administrative Agent by the terms thereof, together
with
such powers as are reasonably incidental thereto; and (vi) such assignee agrees
that it will be bound by the provisions of this Agreement and will perform
in
accordance with its terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(e) The
Administrative Agent, on behalf of the Borrower, shall maintain at its address
at which notices are to be given to it pursuant to Section 10.1, a copy of
each
Assignment and Acceptance delivered to it and a register for the recordation
of
the names and addresses of the Lenders and the Commitments of, and the principal
and interest amounts of the Loans owing to, each Lender from time to time (the
“Register”).
The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, any Subsidiary Borrower, the Administrative Agent, the Issuing
Lenders and the Lenders shall treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Fundamental Documents,
notwithstanding any notice to the contrary. Any assignment shall be effective
only upon appropriate entries with respect thereto being made in the Register.
The Register shall be available for inspection by the Borrower or any Lender
at
any reasonable time and from time to time upon reasonable prior
notice.
(f) Upon
its
receipt of an Assignment and Acceptance executed by an assigning Lender and
an
assignee and the processing and recordation fee, the Administrative Agent
(subject to the right, if any, of the Borrower to require its consent thereto)
shall, if such Assignment and Acceptance has been completed and is substantially
in the form of Exhibit C hereto, (i) accept such Assignment and Acceptance,
(ii)
record the information contained therein in the Register and (iii) give prompt
written notice thereof to the Borrower.
(g) Each
of
the Lenders may, without the consent of the Borrower, the Administrative Agent
or any Issuing Lender, sell participations to one or more banks or other
entities (a “Participant”)
in all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment and the Loans owing
to
it); provided,
however,
that
(i) any such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Participant shall not be granted any voting rights under this
Agreement, except with respect to matters requiring the consent of each of
the
Lenders hereunder, (iii) any such Lender shall remain solely responsible to
the
other parties hereto for the performance of such obligations, (iv) the
participating banks or other entities shall be entitled to the cost protection
provisions of Sections 2.18, 2.19, 2.21, 2.25 and 2.28 hereof (and subject
to
the limitations thereof) but a Participant shall not be entitled to receive
pursuant to such provisions an amount larger than its share of the amount to
which the Lender granting such participation would have been entitled to
receive; provided
that a
Participant shall not be entitled to the benefits of Section 2.25 unless
the Borrower is notified of the participation sold to such Participant and
such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.25(e) as though it were a Lender, and (v) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such
Lender in connection with such Lender’s rights and obligations under this
Agreement.
(h) The
Lenders may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 10.3, disclose to the
assignee or Participant or proposed assignee or Participant, any information,
including confidential information, relating to the Borrower furnished to the
Administrative Agent by or on behalf of the Borrower; provided
that
prior to any such disclosure, each such assignee or Participant or proposed
assignee or Participant agrees in writing to be bound by the confidentiality
provisions of Section 10.15.
(i) Each
Lender hereby represents that it is a commercial lender or financial institution
which makes loans in the ordinary course of its business and that it will make
the Loans hereunder for its own account in the ordinary course of such business;
provided,
however,
that,
subject to preceding clauses (a) through (h), the disposition of the
Indebtedness held by that Lender shall at all times be within its exclusive
control.
(j) Any
Lender may at any time and from time to time pledge, or otherwise grant a
security interest in, all or a portion of its rights under this Agreement,
including any such pledge or grant to any Federal Reserve Bank, and, with
respect to any Lender which is a fund, to the fund’s trustee in support of its
obligations to such trustee, and this Section shall not apply to any such pledge
or grant; provided
that no
such pledge or grant shall release a Lender from any of its obligations
hereunder or substitute any such assignee for such Lender as a party hereto.
The
Borrower and any relevant Subsidiary Borrower shall, upon receipt of a written
request from any Lender, issue a Note to facilitate such
transactions.
(k) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting
Lender”)
may
grant to a special purpose funding vehicle (an “SPC”),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower
or
any Subsidiary Borrower all or any part of any Revolving Credit Loan that such
Granting Lender would otherwise be obligated to make to the Borrower or such
Subsidiary Borrower pursuant to Section 2.1 or 2.10, provided
that (i)
nothing herein shall constitute a commitment to make any Revolving Credit Loan
by any SPC and (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Revolving Credit Loan or fund any
other
obligation required to be funded by it hereunder, the Granting Lender shall
be
obligated to make such Revolving Credit Loan or fund such obligation pursuant
to
the terms hereof. The making of a Revolving Credit Loan by an SPC hereunder
shall satisfy the obligation of the Granting Lenders to make Revolving Credit
Loans to the same extent, and as if, such Loan were made by the Granting Lender.
Each party hereto hereby agrees that no SPC shall be liable for any payment
under this Agreement for which a Lender would otherwise be liable, for so long
as, and to the extent, the related Granting Lender makes such payment. In
furtherance of the foregoing, each party hereto hereby agrees that, prior to
the
date that is one year and one day after the payment in full of all outstanding
senior indebtedness of any SPC, it will not institute against or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings under
the laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 10.3 any SPC may (i) with
notice to, but without the prior written consent of, the Borrower or the
Administrative Agent and without paying any processing fee therefor, assign
all
or a portion of its interests in any Revolving Credit Loan to its Granting
Lender or to any financial institutions providing liquidity and/or credit
facilities to or for the account of such SPC to fund the Revolving Credit Loans
made by SPC or to support the securities (if any) issued by such SPC to fund
such Revolving Credit Loans and (ii) disclose on a confidential basis any
non-public information relating to its Revolving Credit Loans to any rating
agency, commercial paper dealer or provider of a surety, guarantee or credit
or
liquidity enhancement to such SPC.
SECTION
10.4. Expenses.
Whether
or not the transactions hereby contemplated shall be consummated, the Borrower
agrees to pay all reasonable and documented out-of-pocket expenses incurred
by
the Administrative Agent in connection with the syndication, preparation,
execution, delivery and administration of this Agreement, the making of the
Loans and issuance and administration of the Letters of Credit, the reasonable
and documented fees and disbursements of Simpson Thacher & Bartlett LLP,
counsel to the Administrative Agent, as well as all reasonable and documented
out-of-pocket expenses incurred by the Lenders in connection with any
restructuring or workout of this Agreement or the Letters of Credit or in
connection with the enforcement or protection of the rights of the Lenders
in
connection with this Agreement or the Letters of Credit or any other Fundamental
Document, and with respect to any action which may be instituted by any Person
against any Lender or any Issuing Lender in respect of the foregoing, or as
a
result of any transaction, action or nonaction arising from the foregoing,
including but not limited to the reasonable and documented fees and
disbursements of any counsel for the Lenders or any Issuing Lender, provided,
however,
that
the Borrower shall not be liable for the fees and expenses of more than one
separate firm for the Lenders or any Issuing Lender (unless there shall exist
an
actual conflict of interest among such Persons, and in such case, not more
than
two separate firms) in connection with any one such action or any separate
but
substantially similar or related actions in the same jurisdiction, nor shall
the
Borrower be liable for any settlement or any proceeding effected without the
Borrower’s written consent. Such payments shall be made on the Effective Date
and thereafter on demand. The obligations of the Borrower under this Section
shall survive the termination of this Agreement and/or the payment of the Loans
and/or expiration of the Letters of Credit.
SECTION
10.5. Indemnity.
Further,
by the execution hereof, the Borrower and each Subsidiary Borrower agrees to
indemnify and hold harmless the Administrative Agent and the Lenders and the
Issuing Lenders and their respective Related Parties (each, an “Indemnified
Party”)
from
and against any and all expenses (including reasonable and documented fees
and
disbursements of counsel), losses, claims, damages and liabilities arising
out
of any claim, litigation, investigation or proceeding (regardless of whether
any
such Indemnified Party is a party thereto) in any way relating to the
transactions contemplated hereby, but excluding therefrom all expenses, losses,
claims, damages, and liabilities arising out of or resulting from the gross
negligence or willful misconduct of the Indemnified Party seeking
indemnification or any of its Related Parties, provided,
however,
neither
the Borrower nor any Subsidiary Borrower shall be liable for the fees and
expenses of more than one separate firm for all such Indemnified Parties (unless
there shall exist an actual conflict of interest among such Indemnified Parties,
and in such case, not more than two separate firms) in connection with any
one
such action or any separate but substantially similar or related actions in
the
same jurisdiction, nor shall the Borrower or any Subsidiary Borrower be liable
for any settlement of any proceeding effected without the Borrower’s or such
Subsidiary Borrower’s written consent, and provided further,
however,
that
this Section 10.5 shall not be construed to expand the scope of the
reimbursement obligations of the Borrower and any Subsidiary Borrower specified
in Section 10.4. The obligations of the Borrower and any Subsidiary Borrower
under this Section 10.5 shall survive the termination of this Agreement and/or
payment of the Loans and/or the expiration of the Letters of Credit.
SECTION
10.6. CHOICE
OF LAW.
THIS
AGREEMENT AND THE NOTES HAVE BEEN EXECUTED AND DELIVERED IN THE STATE OF NEW
YORK AND SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED
BY,
THE LAWS OF SUCH STATE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY
WITHIN SUCH STATE AND, IN THE
CASE
OF
PROVISIONS RELATING TO INTEREST RATES, ANY APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA.
SECTION
10.7. No
Waiver.
No
failure on the part of the Administrative Agent, any Lender or any Issuing
Lender to exercise, and no delay in exercising, any right, power or remedy
hereunder or with regards to the Letters of Credit shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power
or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. All remedies hereunder are cumulative and are
not
exclusive of any other remedies provided by law.
SECTION
10.8. Extension
of Maturity.
Except
as
otherwise specifically provided in Section 1 or 8 hereof, should any payment
of
principal, interest or any other amount due hereunder become due and payable
on
a day other than a Business Day, the maturity thereof shall be extended to
the
next succeeding Business Day and, in the case of principal, interest shall
be
payable thereon at the rate herein specified during such extension.
SECTION
10.9. Amendments,
etc.
(a) Except
as
expressly set forth in this Agreement, no modification, amendment or waiver
of
any provision of this Agreement, and no consent to any departure by the Borrower
herefrom or therefrom, shall in any event be effective unless the same shall
be
in writing and signed or consented to in writing by the Required Lenders, and
then such waiver or consent shall be effective only in the specific instance
and
for the purpose for which given; provided,
however,
that no
such modification or amendment shall without the written consent of each Lender
affected thereby (i) increase or extend the expiration date of the Revolving
Commitment of a Lender or postpone or waive any scheduled reduction in the
Revolving Commitments, (ii) provide for funding of Revolving Credit Loans,
Swingline Loans or Term Loans at any location outside of the United States,
(iii) alter the stated maturity or principal amount of any installment of any
Loan (or any reimbursement obligation with respect to a Letter of Credit) or
decrease the rate of interest payable thereon or extend the scheduled date
of
any payment thereof, or the rate at which the Commitment Fees or letter of
credit fees accrue, (iv) waive a default under Section 7(b) hereof with respect
to a scheduled principal installment of any Loan, (v) release the Borrower
from
its obligations under the Guaranty (except in accordance with its terms) or
(vi)
release Cendant from its obligations under the Cendant Guaranty (except in
accordance with its terms); and provided,
further
that no
such modification or amendment shall without the written consent of all of
the
Lenders (x) amend or modify any provision of this Agreement which provides
for
the unanimous consent or approval of the Lenders or (y) amend this Section
10.9
or the definition of Required Lenders; and provided,
further
that no
such modification or amendment shall (A) decrease the Revolving Commitment
of
any Lender without the written consent of such Lender or (B) change the
provisions of Section 2.22, Section 2.23 or 8.3 in a manner that would alter
the
pro rata sharing of payments required thereby, without the consent of each
affected Lender. No such amendment or modification may adversely affect the
rights and obligations of the Administrative Agent or any Issuing Lender
hereunder without its prior written consent. No notice to or demand on the
Borrower shall entitle the Borrower to any other or further notice or demand
in
the same, similar or other circumstances. Each holder of a Note shall be bound
by any amendment, modification, waiver or consent authorized as provided herein,
whether or not a Note shall have been marked to indicate such amendment,
modification, waiver or consent and any consent by any holder of a Note shall
bind any Person subsequently acquiring a Note, whether or not a Note is so
marked.
(b) In
addition, notwithstanding the foregoing, this Agreement may be amended with
the
written consent of the Administrative Agent, the Borrower and each of the
Lenders providing the relevant Replacement Term Loans (as defined below) to
permit the refinancing, replacement or modification of all outstanding Term
Loans (“Replaced
Term Loans”)
with a
replacement term loan tranche hereunder (“Replacement
Term Loans”),
provided
that (i)
the aggregate principal amount of such Replacement Term Loans shall not exceed
the aggregate principal amount of such Replaced Term Loans, (ii) the applicable
margin for such Replacement Term Loans shall not be higher than the applicable
margin for such Replaced Term Loans and (iii) the weighted average life to
maturity of such Replacement Term Loans shall not be shorter than the weighted
average life to maturity of such Replaced Term Loans at the time of such
refinancing.
(c) This
Agreement may be amended without consent of the Lenders, so long as no Default
or Event of Default shall have occurred and be continuing, as
follows:
(i) This
Agreement will be amended to designate any Subsidiary of the Borrower as a
Subsidiary Borrower upon (v) ten Business Days’ prior notice to the Lenders
(such notice to contain the name, primary business address and taxpayer
identification number of such Subsidiary), (w) the execution and delivery by
the
Borrower, such Subsidiary and the Administrative Agent of a Joinder Agreement,
substantially in the form of Exhibit F (a “Joinder
Agreement”),
providing for such Subsidiary to become a Subsidiary Borrower, (x) the agreement
and acknowledgment by the Borrower and each other Subsidiary Borrower that
the
Guaranty contained in Section 9 covers the Obligations of such Subsidiary,
(y)
if the Cendant Guaranty remains effective, the agreement and acknowledgment
by
Cendant that the Cendant Guaranty covers the Obligations of such Subsidiary
and
(z) the delivery to the Administrative Agent of (1) corporate or other
applicable resolutions, other corporate or other applicable documents,
certificates and legal opinions in respect of such Subsidiary substantially
equivalent to comparable documents delivered on the Effective Date and (2)
such
other documents with respect thereto as the Administrative Agent shall
reasonably request.
(ii) This
Agreement will be amended to remove any Subsidiary as a Subsidiary Borrower
upon
execution and delivery by the Borrower to the Administrative Agent of a written
notification to such effect and repayment in full of all Loans made to such
Subsidiary Borrower, cash collateralization of all reimbursement obligations
in
respect of any Letters of Credit issued for the account of such Subsidiary
Borrower and repayment in full of all other amounts owing by such Subsidiary
Borrower under this Agreement (it being agreed that any such repayment shall
be
in accordance with the other terms of this Agreement); provided,
however,
that no
such amendment shall affect or limit the Borrower’s obligations under the
Guaranty.
SECTION
10.10. Severability.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
SECTION
10.11. SERVICE
OF PROCESS; WAIVER OF JURY TRIAL.
(a) THE
ADMINISTRATIVE AGENT, EACH LENDER AND ISSUING LENDER, THE BORROWER AND EACH
SUBSIDIARY BORROWER HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE STATE
COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY AND TO THE
JURISDICTION OF THE UNITED STATES DISTRICT
COURT
FOR
THE SOUTHERN DISTRICT OF NEW YORK, FOR THE PURPOSES OF ANY SUIT, ACTION OR
OTHER
PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF BROUGHT BY THE ADMINISTRATIVE AGENT, A LENDER OR AN ISSUING LENDER.
THE
BORROWER AND EACH SUBSIDIARY BORROWER TO THE EXTENT PERMITTED BY APPLICABLE
LAW
(A) HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE,
OR
OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURTS, ANY
CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED
COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION,
THAT
THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE
VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT
OR
THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT, AND (B)
HEREBY WAIVES THE RIGHT TO ASSERT IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY
OFFSETS OR COUNTERCLAIMS EXCEPT COUNTERCLAIMS THAT ARE COMPULSORY OR OTHERWISE
ARISE FROM THE SAME SUBJECT MATTER. EACH LENDER, EACH ISSUING LENDER, THE
BORROWER AND EACH SUBSIDIARY BORROWER HEREBY CONSENTS TO SERVICE OF PROCESS
BY
MAIL AT ITS ADDRESS TO WHICH NOTICES ARE TO BE GIVEN PURSUANT TO SECTION 10.1
HEREOF. THE BORROWER AND EACH SUBSIDIARY BORROWER AGREES THAT ITS SUBMISSION
TO
JURISDICTION AND CONSENT TO SERVICE OF PROCESS BY MAIL IS MADE FOR THE EXPRESS
BENEFIT OF THE ADMINISTRATIVE AGENT, THE LENDERS AND EACH ISSUING LENDER. FINAL
JUDGMENT AGAINST THE BORROWER OR SUCH SUBSIDIARY BORROWER IN ANY SUCH ACTION,
SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER
JURISDICTION (A) BY SUIT, ACTION OR PROCEEDING ON THE JUDGMENT, A CERTIFIED
OR
TRUE COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND THE AMOUNT
OF
INDEBTEDNESS OR LIABILITY OF THE SUBMITTING PARTY THEREIN DESCRIBED OR (B)
IN
ANY OTHER MANNER PROVIDED BY, OR PURSUANT TO, THE LAWS OF SUCH OTHER
JURISDICTION, PROVIDED, HOWEVER, THAT THE ADMINISTRATIVE AGENT, A LENDER OR
AN
ISSUING LENDER MAY AT ITS OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL
PROCEEDINGS AGAINST THE BORROWER OR SUCH SUBSIDIARY BORROWER OR ANY OF ITS
ASSETS IN ANY STATE OR FEDERAL COURT OF THE UNITED STATES OR OF ANY COUNTRY
OR
PLACE WHERE THE BORROWER, SUCH SUBSIDIARY BORROWER OR SUCH ASSETS MAY BE
FOUND.
(b) TO
THE
EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY
HERETO HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS
PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM
IN
RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING OUT
OF
OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE.
EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT THE PROVISIONS
OF
THIS SECTION 10.11(b) CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE OTHER
PARTIES HAVE RELIED, ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT.
THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
10.11(b) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF SUCH OTHER PARTY
TO THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.
SECTION
10.12. Headings.
Section
headings used herein are for convenience only and are not to affect the
construction of or be taken into consideration in interpreting this
Agreement.
SECTION
10.13. Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one
and
the same instrument.
SECTION
10.14. Entire
Agreement.
This
Agreement represents the entire agreement of the parties with regard to the
subject matter hereof and the terms of any letters and other documentation
entered into among the Borrower, the Administrative Agent, the Syndication
Agents or any Lender (other than the provisions of the letter agreements dated
April 10, 2006, among the Borrower, JPMorgan Chase Bank, N.A., J.P. Morgan
Securities Inc. and Calyon New York Branch, relating to fees and expenses and
syndication issues) prior to the execution of this Agreement which relate to
Loans to be made or the Letters of Credit to be issued hereunder shall be
replaced by the terms of this Agreement.
SECTION
10.15. Confidentiality.
Each
of
the Administrative Agent, the Issuing Lenders and the Lenders agrees that it
will not use, either directly or indirectly, any of the Confidential Information
except in connection with this Agreement and the transactions contemplated
hereby. Neither the Administrative Agent, the Issuing Lender or any Lender
shall
disclose to any Person the Confidential Information, except
(a) to
its
Affiliates, and to its and its Affiliates’ respective directors, officers,
employees and agents, including accountants, legal counsel and other
professional advisors who need to know the Confidential Information for purposes
related to this Agreement or any other Fundamental Document or any transactions
contemplated thereby or reasonably incidental to the administration of this
Agreement or the other Fundamental Documents (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Confidential Information and agree to keep such Confidential
Information confidential in accordance with the provisions of this Section
10.15),
(b) to
the
extent requested by any regulatory authority having jurisdiction over it or
its
Affiliates,
(c) to
the
extent required by Applicable Law, regulations or by any subpoena or similar
legal process, provided
that the
Administrative Agent, such Issuing Lender or such Lender, as the case may be,
shall request confidential treatment of such Confidential Information to the
extent permitted by Applicable Law and the Administrative Agent, such Issuing
Lender or such Lender, as the case may be, shall, to the extent permitted by
Applicable Law, promptly inform the Borrower with respect thereto so that the
Borrower may seek appropriate protective relief to the extent permitted by
Applicable Law, provided further
that in
the event that such protective remedy or other remedy is not obtained, the
Administrative Agent, such Issuing Lender or such Lender, as the case may be,
shall furnish only that portion of the Confidential Information that is legally
required and shall disclose the Confidential Information in a manner reasonably
designed to preserve its confidential nature,
(d) to
any
other Lender party to this Agreement,
(e) in
connection with the exercise of any remedies hereunder or any suit, action
or
proceeding relating to this Agreement or the enforcement of rights
hereunder,
(f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement
or
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its
obligations,
(g) with
the
prior written consent of the Borrower or
(h) to
the
extent such Information (i) becomes publicly available other than as a result
of
a breach of this Section 10.15 or (ii) becomes available to the Administrative
Agent, any Issuing Lender or any Lender on a nonconfidential basis from a source
other than the Borrower, its Affiliates or Representatives, which source, to
the
reasonable knowledge of the Administrative Agent, the Issuing Lender or any
Lender, as may be appropriate, is not prohibited from disclosing such
Confidential Information to the Administrative Agent, Issuing Bank or such
Lender by a contractual, legal or fiduciary obligation, to the Borrower, the
Administrative Agent or any Lender.
(i) Neither
the Administrative Agent nor any Lender shall make any public announcement,
advertisement, statement or communication regarding the Borrower, its Affiliates
or this Agreement or the transactions contemplated hereby without the prior
written consent of the Borrower. The obligations of the Administrative Agent
and
each Lender under this Section 10.15 shall survive the termination or expiration
of this Agreement.
SECTION
10.16. USA
PATRIOT Act.
Each
Lender hereby notifies the Borrower and each Subsidiary Borrower party hereto
that pursuant to the requirements of the USA Patriot Act (Title III of Pub.
L.
107-56 (signed into law October 26, 2001)) (the “Act”),
it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower or such
Subsidiary Borrower and other information that will allow such Lender to
identify the Borrower or such Subsidiary Borrower in accordance with the Act.
The Borrower and each Subsidiary Borrower party hereto shall promptly provide
such information upon request by any Lender. In connection therewith, each
Lender hereby agrees that the confidentiality provisions set forth in Section
10.15 shall apply to any non-public information provided to it by the Borrower
and its Subsidiaries pursuant to this Section 10.16.
SECTION
10.17. Replacement
of Lenders.
If
any
Lender refuses to consent to an amendment, modification or waiver of this
Agreement that is approved by the Required Lenders pursuant to Section 10.9
(a
“Non-Consenting
Lender”),
if
any Lender is a Defaulting Lender, or under any other circumstances set forth
herein expressly providing that the Borrower shall have the right to replace
a
Lender as a party to this Agreement, the Borrower may, upon notice to such
Lender and the Administrative Agent and subject to Section 2.21, replace such
Lender by causing such Lender to assign its Commitment (with the assignment
fee
to be paid by the Borrower in such instance) pursuant to Section 10.3 to one
or
more banks or other entities procured by the Borrower upon receipt of all
amounts due and owing to it.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and the year first above written.
|
TRAVELPORT
INC.,
as
Borrower
|
||||
|
By:
|
/s/
Kevin P. Monaco
|
|||
|
Name: Kevin
P. Monaco
Title:
Vice
President and Assistant Treasurer
|
|
GALILEO
INTERNATIONAL TECHNOLOGY, LLC,
as
a Subsidiary Borrower
|
||||
|
By:
|
/s/
Kevin P. Monaco
|
|||
|
Name:
Kevin P. Monaco
Title:
Vice
President and Assistant Treasurer, Travelport Inc., by Power of
Attorney
|
|
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent and Lender
|
||||
|
By:
|
/s/
Randolph Cates
|
|||
|
Name: Randolph
Cates
Title:
Vice President
|
|
BANK
OF AMERICA, N.A.,
as
a Syndication Agent and Lender
|
||||
|
By:
|
/s/
John Pocalyko
|
|||
|
Name:
John Pocalyko
Title:
Senior Vice President
|
|
CITICORP
NORTH AMERICA, INC., as a Syndication Agent and Lender
|
||||
|
By:
|
/s/
Hugo Arias
|
|||
|
Name:
Hugo Arias
Title:
Vice-President
|
|
CALYON
NEW YORK BRANCH,
as
a Lender
|
||||
|
By:
|
/s/
James Gibson
|
|||
|
Name:
James Gibson
Title:
Managing
Director
|
||||
|
By:
|
/s/
Yuri Muzichenko
|
|||
|
Name:
Yuri Muzichenko
Title:
Director
|
|
SCOTIABANC
INC.,
as
a Lender
|
||||
|
By:
|
/s/
N. Bell
|
|||
|
Name:
N. Bell
Title:
Sr.
Manager
|
|
THE
BANK OF NOVA SCOTIA,
as
a Lender
|
||||
|
By:
|
/s/
Todd Meller
|
|||
|
Name:
Todd Meller
Title:
Managing
Director
|
Exhibit
10.2
GUARANTY
made
by
CENDANT
CORPORATION
in
favor
of
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
Dated
as
of July 18, 2006
TABLE
OF
CONTENTS
|
Section
1.
|
DEFINED
TERMS
|
1
|
|||
|
1.1
|
Definitions
|
1
|
|||
|
1.2
|
Other
Definitional Provisions
|
2
|
|||
|
Section
2.
|
GUARANTY
|
2
|
|||
|
2.1
|
Guaranty
|
2
|
|||
|
2.2
|
No
Subrogation
|
3
|
|||
|
2.3
|
Amendments,
etc. with respect to the Obligations; Waiver of Rights
|
3
|
|||
|
2.4
|
Guaranty
Absolute and Unconditional
|
3
|
|||
|
2.5
|
Reinstatement
|
4
|
|||
|
2.6
|
Payments
|
4
|
|||
|
Section
3.
|
REPRESENTATIONS
AND WARRANTIES
|
4
|
|||
|
3.1
|
Corporate
Existence and Power
|
4
|
|||
|
3.2
|
Corporate
Authority, No Violation and Compliance with Law
|
5
|
|||
|
3.3
|
Enforceability
|
5
|
|||
|
Section
4.
|
THE
ADMINISTRATIVE AGENT
|
5
|
|||
|
Section
5.
|
MISCELLANEOUS
|
5
|
|||
|
5.1
|
Amendments
in Writing
|
5
|
|||
|
5.2
|
Notices
|
5
|
|||
|
5.3
|
No
Waiver by Course of Conduct; Cumulative Remedies
|
6
|
|||
|
5.4
|
Enforcement
Expenses; Indemnification
|
6
|
|||
|
5.5
|
Successors
and Assigns
|
6
|
|||
|
5.6
|
Set-Off
|
6
|
|||
|
5.7
|
Severability
|
7
|
|||
|
5.8
|
Section
Headings
|
7
|
|||
|
5.9
|
Integration
|
7
|
|||
|
5.10
|
GOVERNING
LAW
|
7
|
|||
|
5.11
|
Submission
To Jurisdiction; Waivers
|
7
|
|||
|
5.12
|
Acknowledgements
|
7
|
|||
|
5.13
|
Releases
|
8
|
|||
|
5.14
|
WAIVER
OF JURY TRIAL
|
8
|
|
SCHEDULE
|
||||
|
Schedule
1
|
Notice
Addresses
|
GUARANTY
GUARANTY
(this “Guaranty”),
dated
as of July 18, 2006, made by CENDANT CORPORATION, a Delaware corporation (the
“Guarantor”),
in
favor of JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such capacity,
the “Administrative
Agent”)
for
the banks and other financial institutions or entities (the “Lenders”)
from
time to time parties to the Credit Agreement, dated as of July 18, 2006 (as
amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”),
among
TRAVELPORT INC. (the “Borrower”),
GALILEO INTERNATIONAL TECHNOLOGY, LLC, as a Subsidiary Borrower, BANK OF
AMERICA, N.A. and CITICORP NORTH AMERICA, INC., as Syndication Agents, the
Lenders and the Administrative Agent.
W I T N E
;S S E T H:
WHEREAS,
pursuant to the Credit Agreement, the Lenders have severally agreed to make
extensions of credit to the Borrower and the Subsidiary Borrowers upon the
terms
and subject to the conditions set forth therein;
WHEREAS,
the Borrower and each Subsidiary Borrower is a member of an affiliated group
of
companies that includes the Guarantor;
WHEREAS,
the Borrower, each Subsidiary Borrower and the Guarantor will derive substantial
direct and indirect benefit from the making of the extensions of credit under
the Credit Agreement; and
WHEREAS,
it is a condition precedent to the obligation of the Lenders to make their
respective extensions of credit to the Borrower and any Subsidiary Borrower
under the Credit Agreement that the Guarantor shall have executed and delivered
this Guaranty to the Administrative Agent for the ratable benefit of the
Lenders;
NOW,
THEREFORE, in consideration of the premises and to induce the Administrative
Agent and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective extensions of credit to the Borrower and each
Subsidiary Borrower thereunder, the Guarantor hereby agrees with the
Administrative Agent, for the ratable benefit of the Lenders, as
follows:
SECTION
1. DEFINED
TERMS
1.1 Definitions.
(a)
Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(b) The
following terms shall have the following meanings:
“Collateralized”:
secured by cash collateral arrangements and/or backstop letters of credit
entered into on terms and in amounts reasonably satisfactory to the
Administrative Agent and the relevant Issuing Lender.
“Obligations”:
the
collective reference to the unpaid principal of and interest on the Loans,
the
reimbursement obligations in respect of Letters of Credit and Competitive
Letters of Credit, the Guaranty (as defined in the Credit Agreement) and all
other obligations and liabilities of the Borrower and any Subsidiary Borrower
(including, without limitation, interest accruing at the then applicable rate
provided
in the Credit Agreement after the maturity of the Loans and interest accruing
at
the then applicable rate provided in the Credit Agreement after the filing
of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower or any Subsidiary
Borrower, whether or not a claim for post-filing or post-petition interest
is
allowed in such proceeding) to the Administrative Agent or any Lender, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, the other Fundamental Documents (other than this
Guaranty), any Letter of Credit, Competitive Letter of Credit or any other
document made, delivered or given in connection with any of the foregoing,
in
each case whether on account of principal, interest, reimbursement obligations,
swap coupon or termination payments, fees or indemnities or reasonable
out-of-pocket costs or expenses (including, without limitation, all reasonable
out-of-pocket fees and disbursements of counsel to the Administrative Agent
or
to the Lenders that are required to be paid by the Borrower pursuant to the
terms of any of the foregoing agreements).
“Termination
Event”:
either
(i) the consummation of the Spin-Off or (ii) payment in full of the Obligations,
termination of the Commitments and termination or expiration of the Letters
of
Credit (or such Letters of Credit shall have been Collateralized), including
repayment pursuant to Section 4.24 of the Sale Agreement.
1.2 Other
Definitional Provisions.
(a)
The
words “hereof,” “herein”, “hereto” and “hereunder” and words of similar import
when used in this Guaranty shall refer to this Guaranty as a whole and not
to
any particular provision of this Guaranty, and Section and Schedule references
are to this Guaranty unless otherwise specified.
(b) The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
SECTION
2. GUARANTY
2.1 Guaranty.
(a)
The
Guarantor hereby unconditionally and irrevocably (except as otherwise provided
in Section 5.13) guaranties to the Administrative Agent, for the ratable benefit
of the Lenders and their respective successors, indorsees, transferees and
assigns, the prompt and complete payment and performance by the Borrower and
any
Subsidiary Borrower when due (whether at the stated maturity, by acceleration
or
otherwise) of the Obligations.
(b) The
Guarantor further agrees to pay any and all reasonable documented expenses
(including, without limitation, the reasonable fees and disbursements of
counsel) which may be paid or incurred by the Administrative Agent, any Issuing
Lender or any Lender in enforcing, or obtaining advice of counsel in respect
of,
any rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, the Borrower or
any
Subsidiary Borrower under this Guaranty; provided,
however,
that
the Guarantor shall not be liable for the fees and expenses of more than one
separate firm for the Lenders or any Issuing Lender (unless there shall exist
an
actual conflict of interest among such Persons, and in such case, not more
than
two separate firms) in connection with any one such action or any separate,
but
substantially similar or related actions in the same jurisdiction, nor shall
the
Guarantor be liable for any settlement or proceeding effected without the
Guarantor’s written consent. This Guaranty shall remain in full force and effect
until the occurrence of a Termination Event.
(c) No
payment or payments made by the Borrower, any Subsidiary Borrower or any other
Person or received or collected by the Administrative Agent or any Lender from
the Borrower, any Subsidiary Borrower or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application, at any
time
or from time to time, in reduction of or in payment of the
Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability
of
the Guarantor hereunder which shall, notwithstanding any such payment or
payments (other than payments made by the Guarantor in respect of the
Obligations or payments received or collected from the Guarantor in respect
of
the Obligations), remain liable for the Obligations until the occurrence of
a
Termination Event.
(d) The
Guarantor agrees that whenever, at any time, or from time to time, it shall
make
any payment to the Administrative Agent or any Lender on account of its
liability hereunder, it will notify the Administrative Agent and such Lender
in
writing that such payment is made under this Guaranty for such
purpose.
2.2 No
Subrogation.
Notwithstanding any payment or payments made by the Guarantor hereunder, or
any
set-off or application of funds of the Guarantor by the Administrative Agent
or
any Lender, the Guarantor shall not be entitled to be subrogated to any of
the
rights of the Administrative Agent or any Lender against the Borrower or any
Subsidiary Borrower or against any collateral security or Guaranty or right
of
offset held by the Administrative Agent or any Lender for the payment of the
Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any Subsidiary Borrower
in
respect of payments made by the Guarantor hereunder, until the occurrence of
a
Termination Event. If any amount shall be paid to the Guarantor on account
of
such subrogation rights at any time before the occurrence of a Termination
Event, such amount shall be held by the Guarantor in trust for the
Administrative Agent and the Lenders, segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over
to
the Administrative Agent in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order
as
the Administrative Agent may determine.
2.3 Amendments,
etc. with respect to the Obligations; Waiver of Rights.
The
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantor, and without notice to or further
assent by the Guarantor, any demand for payment of any of the Obligations made
by the Administrative Agent or any Lender may be rescinded by the Administrative
Agent or such Lender, and any of the Obligations continued, and the Obligations,
or the liability of any other party upon or for any part thereof, or any
collateral security or guaranty therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released
by
the Administrative Agent or any Lender, and any collateral security, guaranty
or
right of offset at any time held by the Administrative Agent or any Lender
for
the payment of the Obligations may be sold, exchanged, waived, surrendered
or
released. Neither the Administrative Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held
by it
as security for the Obligations or for this Guaranty or any property subject
thereto. When making any demand hereunder against the Guarantor, the
Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on the Borrower or any Subsidiary Borrower, and any
failure by the Administrative Agent or any Lender to make any such demand or
to
collect any payments from the Borrower or such Subsidiary Borrower or any
release of the Borrower or any Subsidiary Borrower shall not relieve the
Guarantor of its obligations or liabilities hereunder, and shall not impair
or
affect the rights and remedies, express or implied, or as a matter of law,
of
the Administrative Agent or any Lender against the Guarantor. For the purposes
hereof “demand” shall include the commencement and continuance of any legal
proceedings.
2.4 Guaranty
Absolute and Unconditional.
The
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon this Guaranty or acceptance of this
Guaranty; the Obligations, and any of them, shall conclusively be deemed to
have
been created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon this Guaranty; and all dealings between the Borrower or
any
Subsidiary Borrower and the Guarantor, on the one hand, and the Administrative
Agent and the Lenders, on the other, shall likewise be conclusively presumed
to
have been had or consummated in reliance upon this Guaranty. The Guarantor
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon the Borrower, any Subsidiary Borrower or the Guarantor
with respect to the Obligations. This Guaranty shall be construed as a
continuing, absolute and unconditional guaranty of payment without regard to
(a) the validity or enforceability of the Credit Agreement, any of the
Obligations or any other collateral security therefor or guaranty or right
of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at
any
time be available to or be asserted by the Borrower or any Subsidiary Borrower
against the Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrower,
such Subsidiary Borrower or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower or
such
Subsidiary Borrower for its Obligations, or of the Guarantor under this
Guaranty, in bankruptcy or in any other instance. When pursuing its rights
and
remedies hereunder against the Guarantor, the Administrative Agent and any
Lender may, but shall be under no obligation to, pursue such rights and remedies
as it may have against the Borrower, any Subsidiary Borrower or any other Person
or against any collateral security or guaranty for the Obligations or any right
of offset with respect thereto, and any failure by the Administrative Agent
or
any Lender to pursue such other rights or remedies or to collect any payments
from the Borrower, any Subsidiary Borrower or any such other Person or to
realize upon any such collateral security or guaranty or to exercise any such
right of offset, or any release of the Borrower, such Subsidiary Borrower or
any
such other Person or of any such collateral security, guaranty or right of
offset, shall not relieve the Guarantor of any liability hereunder, and shall
not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent or any Lender against
the Borrower or such Subsidiary Borrower. This Guaranty shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon the Guarantor and its successors and assigns thereof, and shall
inure
to the benefit of the Administrative Agent and the Lenders, and their respective
successors, indorsees, transferees and assigns, until the occurrence of a
Termination Event, notwithstanding that from time to time during the term of
the
Credit Agreement the Borrower and Subsidiary Borrowers may be free from any
Obligations.
2.5 Reinstatement.
This
Guaranty shall continue to be effective, or be reinstated, as the case may
be,
if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Subsidiary Borrower or upon or as a result
of the appointment of a receiver, intervenor or conservator of, or trustee
or
similar officer for, the Borrower or any Subsidiary Borrower or any substantial
part of the Borrower’s or such Subsidiary Borrower’s property, or otherwise, all
as though such payments had not been made.
2.6 Payments.
The
Guarantor hereby guaranties that payments hereunder will be paid to the
Administrative Agent without set-off or counterclaim in Dollars at the Funding
Office.
SECTION
3. REPRESENTATIONS
AND WARRANTIES
The
Guarantor hereby represents and warrants to the Administrative
Agent
and each Lender that:
3.1 Corporate
Existence and Power.
The
Guarantor has been duly organized and is validly existing in good standing
under
the laws of its jurisdictions of organization and is in good standing or has
applied for authority to operate as a foreign corporation or other organization
in all jurisdictions where the nature of its properties or business so requires
it and where a failure to be in good standing as a foreign
corporation
would reasonably be expected to have a material adverse effect on the business,
assets, operations or condition, financial or otherwise, of the Guarantor.
The
Guarantor has the corporate power to execute, deliver and perform its
obligations under this Guaranty.
3.2 Corporate
Authority, No Violation and Compliance with Law.
The
execution, delivery and performance of this Guaranty (a) have been duly
authorized by all necessary corporate action on the part of the Guarantor,
(b)
will not violate any provision of any Applicable Law (including any laws related
to franchising) applicable to the Guarantor or any of its respective properties
or assets, (c) will not violate any provision of the certificate of
incorporation or by-laws of the Guarantor and (d) will not violate or be in
conflict with, result in a breach of, or constitute (with due notice or lapse
of
time or both) a default under, any material indenture, bond, note, instrument
or
any other material agreement to which the Guarantor is a party or by which
the
Guarantor or any of its respective properties or assets are bound.
3.3 Enforceability.
This
Guaranty constitutes a legal, valid and binding obligation of the Guarantor
(enforceable in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law). The
Guarantor agrees that the representations and warranties contained in this
Section 3.3 shall be deemed to have been made by the Guarantor on the date
of
each borrowing by the Borrower or any Subsidiary Borrower under the Credit
Agreement on and as of such date of borrowing as though made hereunder on and
as
of such date.
SECTION
4. THE
ADMINISTRATIVE AGENT
The
Guarantor acknowledges that the rights and responsibilities of the
Administrative Agent under this Guaranty with respect to any action taken by
the
Administrative Agent or the exercise or non-exercise by the Administrative
Agent
of any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Guaranty shall, as between the
Administrative Agent and the Lenders, be governed by the Credit Agreement and
by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Administrative Agent and the Guarantor, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders with full and valid authority so to act or refrain from acting,
and
the Guarantor shall not be under any obligation, or entitlement, to make any
inquiry respecting such authority.
SECTION
5. MISCELLANEOUS
5.1 Amendments
in Writing.
None of
the terms or provisions of this Guaranty may be waived, amended, supplemented
or
otherwise modified except by a written instrument executed by the Guarantor
and
the Administrative Agent; provided
that any
provision (other than Section 5.13) of this Guaranty may be waived by the
Administrative Agent and the Lenders in a letter or agreement executed by the
Administrative Agent and the Guarantor or by facsimile or other electronic
transmission from the Administrative Agent.
5.2 Notices.
All
notices, requests and demands to or upon the Administrative Agent or the
Guarantor hereunder shall be effected in the manner provided for in Section
10.1
of the Credit Agreement; provided that any such notice, request or demand to
or
upon the Guarantor shall be addressed to the Guarantor at its notice address
set
forth on Schedule 1.
5.3 No
Waiver by Course of Conduct; Cumulative Remedies.
Neither
the Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 5.1), delay, indulgence, omission or otherwise
be
deemed to have waived any right or remedy hereunder or to have acquiesced in
any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude
any
other or further exercise thereof or the exercise of any other right, power
or
privilege. A waiver by the Administrative Agent or any Lender of any right
or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of
any
other rights or remedies provided by law.
5.4 Enforcement
Expenses; Indemnification.
(a)
The
Guarantor agrees to pay or reimburse each Lender and the Administrative Agent
for all its reasonable documented out-of-pocket costs and expenses incurred
in
collecting against the Guarantor under this Guaranty, as applicable, or
otherwise enforcing or preserving any rights under this Guaranty, including,
without limitation, the reasonable fees and disbursements of counsel (including
the allocated fees and expenses of in-house counsel) to each Lender and of
counsel to the Administrative Agent; provided,
however,
that
the Guarantor shall not be liable for the fees and expenses of more than one
separate firm for the Lenders (unless there shall exist an actual conflict
of
interest among such Persons, and in such case, not more than two separate firms)
in connection with any one such action or any separate, but substantially
similar or related actions in the same jurisdiction, nor shall the Guarantor
be
liable for any settlement or proceeding effected without the Guarantor’s written
consent.
(b) The
Guarantor agrees to pay, and to save the Administrative Agent and the Lenders
harmless from, any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Guaranty to the extent the Borrower
would
be required to do so pursuant to Section 10.5 of the Credit
Agreement.
5.5 Successors
and Assigns.
This
Guaranty shall be binding upon the successors and assigns of the Guarantor
and
shall inure to the benefit of the Administrative Agent and the Lenders and
their
successors and assigns; provided that the Guarantor may not assign, transfer
or
delegate any of its rights or obligations under this Guaranty without the prior
written consent of the Administrative Agent.
5.6 Set-Off.
The
Guarantor hereby irrevocably authorizes the Administrative Agent and each Lender
at any time and from time to time while an Event of Default shall have occurred
and be continuing, without notice to the Guarantor, any such notice being
expressly waived by the Guarantor, to set-off and appropriate and apply any
and
all deposits (general or special, time or demand, provisional or final), in
any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Administrative Agent or such Lender
to or for the credit or the account of the Guarantor, or any part thereof in
such amounts as the Administrative Agent or such Lender may elect, against
and
on account of the obligations and liabilities of the Guarantor to the
Administrative Agent or such Lender hereunder and claims of every nature and
description of the Administrative Agent or such Lender against the Guarantor,
in
any currency, whether arising hereunder, under the Credit Agreement, any other
Fundamental Document or otherwise, as the Administrative Agent or such Lender
may elect, whether or not the Administrative Agent or any Lender has made any
demand for payment and although such obligations, liabilities and claims may
be
contingent or unmatured. The Administrative Agent and each Lender shall notify
the Guarantor promptly of any such set-off and the application made by the
Administrative Agent or such Lender of the proceeds thereof, provided that
the
failure to give such notice shall not affect the
validity
of such set-off and application. The rights of the Administrative Agent and
each
Lender under this Section 5.6 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the
Administrative Agent or such Lender may have.
5.7 Severability.
Any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
5.8 Section
Headings.
The
Section headings used in this Guaranty are for convenience of reference only
and
are not to affect the construction hereof or be taken into consideration in
the
interpretation hereof.
5.9 Integration.
This
Guaranty represents the agreement of the Guarantor, the Administrative Agent
and
the Lenders with respect to the subject matter hereof and there are no promises,
undertakings, representations or warranties by the Guarantor, Administrative
Agent or any Lender relative to subject matter hereof and thereof not expressly
set forth or referred to herein.
5.10 GOVERNING
LAW.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS GUARANTY
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW
OF THE STATE OF NEW YORK.
5.11 Submission
To Jurisdiction; Waivers.
The
Guarantor hereby irrevocably and unconditionally:
(a) submits
for itself and its property in any legal action or proceeding relating to this
Guaranty, or for recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Guarantor at its address referred
to in Section 5.2 or at such other address of which the Administrative Agent
shall have been notified pursuant thereto;
(d) agrees
that nothing herein shall affect the right to effect service of process in
any
other manner permitted by law or shall limit the right to sue in any other
jurisdiction; and
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim
or
recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
5.12 Acknowledgements.
The
Guarantor hereby acknowledges that:
(a) it
has
been advised by counsel in the negotiation, execution and delivery of this
Guaranty;
(b) neither
the Administrative Agent nor any Lender has any fiduciary relationship with
or
duty to the Guarantor arising out of or in connection with this Guaranty, and
the relationship between the Guarantor, on the one hand, and the Administrative
Agent and Lenders, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no
joint
venture is created hereby or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Guarantor and the
Lenders.
5.13 Releases.
Notwithstanding any provision contained in this Guaranty to the contrary, (i)
upon the occurrence of a Termination Event, this Guaranty and all obligations
of
the Guarantor hereunder shall unconditionally terminate, all without delivery
of
any instrument or performance of any act by any party and (ii) this Section
5.13
shall not be waived, amended, modified, supplemented or nullified without the
prior written consent of the Guarantor.
5.14 WAIVER
OF JURY TRIAL.
THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN
ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTY AND FOR ANY COUNTERCLAIM
THEREIN.
IN
WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be duly
executed and delivered as of the date first above written.
|
CENDANT
CORPORATION
|
||||
|
By:
|
/s/
David B. Wyshner
|
|||
|
Name:
David B. Wyshner
Title:
Executive Vice President and Treasurer
|
SIGNATURE
PAGE TO GUARANTY
Schedule
1
NOTICE
ADDRESSES OF GUARANTORS
Cendant
Corporation
1
Campus
Drive
Parsippany,
New Jersey 07054
Attention:
David B. Wyshner
Telecopy:
(973) 496-5080
Telephone:
(973) 496-7938
Exhibit
99.1
Cendant
Spin-off Companies Begin “When Issued” Trading
Four
Separate Securities to Be Traded
Companies
Update Forecasts
NEW
YORK, July 19, 2006
-
Cendant Corporation (NYSE:CD)
announced today that “when issued” trading in the common stock of the two
companies it is spinning off, Realogy Corporation (NYSE: H) and Wyndham
Worldwide Corporation (NYSE:WYN), is expected to begin on the New York Stock
Exchange today. In addition, shares of Cendant Corporation will begin trading
two ways - either with or without the dividend of the shares of Realogy and
Wyndham Worldwide.
Because
Cendant common stock will continue to trade "regular-way" (inclusive of the
Realogy and Wyndham Worldwide distributions) on the New York Stock Exchange
through the distribution date, any holder of Cendant common stock who sells
Cendant shares in the “regular way” market prior to the close of business on
July 31, 2006 will also be selling the related entitlement to receive shares
of
Realogy or Wyndham Worldwide common stock in respect of such shares.
Investors are encouraged to consult with their financial advisors regarding
the
specific implications of selling Cendant common stock before the distribution
date.
As
previously announced, shares of Realogy and Wyndham Worldwide will be issued
at
the close of business on July 31 to shareholders of record of Cendant on July
21. "Regular way" trading in the common stock of Realogy, Wyndham Worldwide
and
Cendant is expected to commence on August 1st.
In
connection with the commencement of “when issued” trading, Realogy Corporation
and Wyndham Worldwide Corporation each stated that their forecasts remain within
the range of the most recently announced 2006 full year revenue and EBITDA
outlook (before restructuring and separation-related expenses). Avis Budget
Group reiterated its previously announced expectation that, due to replacing
secured debt with newly issued non-vehicle related debt, results subsequent
to
that transaction will reflect lower vehicle-related interest expense above
the
EBITDA line and higher non-vehicle related interest expense below the EBITDA
line, which will positively impact year-over-year EBITDA comparisons. However,
the benefit of reduced vehicle-related interest expense on Avis Budget’s EBITDA
may be offset by anticipated fleet cost increases and lower growth of domestic
enplanements and pricing.
Cendant
expects to report the financial results of its operations for the second
quarter, including the operations of Realogy and Wyndham Worldwide, on August
9.
The Company presently expects that revenue and EBITDA from core operations
(before restructuring and separation-related expenses) for Realogy, Hospitality
Services (including Timeshare Resorts), Travel Distribution Services and Avis
Budget Group will be consistent with the forecasts previously issued on May
30
(excluding the one-time
item
noted below). As a result of the recently announced agreement to sell
Travelport, Cendant’s Travel Distribution Services segment will be categorized
as a discontinued operation for the second quarter.
The
Company also noted that, as a result of additional clarification related to
potential local tax liabilities for Wyndham Worldwide’s European vacation rental
operations in certain foreign jurisdictions and in consultation with its
advisors, the Company expects to record an accrual of up to approximately $30
million pre-tax for estimated back taxes and interest in its second quarter
results. The Company believes that this accrual is the best estimate of the
potential liability and that there should be no material impact on any periods
following the second quarter.
The
Company has not forecast earnings per share for the second quarter or the full
year due to the substantial transformation of the Company resulting from the
expected separation of Realogy and Wyndham from the Company as of July 31,
2006
and the expected closing of the sale of Travelport in late August.
Forward-Looking
Statements
Certain
statements in this press release constitute "forward-looking statements" within
the meaning of the Private Securities Litigation Reform Act of 1995. Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors which may cause the actual results, performance or achievements
of
the Company to be materially different from any future results, performance
or
achievements expressed or implied by such forward-looking statements. 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. Any statements that refer
to
expectations or other characterizations of future events, circumstances or
results are forward-looking statements. The Company cannot provide any
assurances that the spin-offs of Realogy Corporation or Wyndham Worldwide
Corporation or any of the proposed transactions related thereto (including
the
proposed sale of the travel distribution services division, Travelport) will
be
completed, nor can it give assurances as to the terms on which such transactions
will be consummated. The sale of Travelport is subject to certain conditions
precedent as described in the Purchase Agreement relating to the sale. In
addition, the other separation transactions, including the spin-off
distributions, are subject to the satisfaction or waiver of certain other
conditions described in the information statements included in the Form 10s,
as
amended.
Various
risks that could cause future results to differ from those expressed by the
forward-looking statements included in this press release include, but are
not
limited to: risks inherent in the spin-offs of Realogy Corporation and Wyndham
Worldwide Corporation or the contemplated separation and related transactions
(including the agreement to sell Travelport), including risks related to
borrowings and costs related to the proposed transactions; increased demands
on
Cendant's management teams as a
result
of the proposed transactions; changes in business, political and economic
conditions in the U.S. and in other countries in which Cendant and its companies
currently do business; changes in governmental regulations and policies and
actions of regulatory bodies; changes in operating performance; and access
to
capital markets and changes in credit ratings, including those that may result
from the proposed transactions. Other unknown or unpredictable factors also
could have material adverse effects on Cendant's and its companies' performance
or achievements. In light of these risks, uncertainties, assumptions and
factors, the forward-looking events discussed in this press release may not
occur. You are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of the date stated, or if no date is stated,
as
of the date of this press release. Important assumptions and other important
factors that could cause actual results to differ materially from those in
the
forward looking statements are specified in Cendant's Form 10-K for the year
ended December 31, 2005, Cendant’s Form 10-Q for the three months ended March
31, 2006, Realogy Corporation’s Registration Statement on Form 10 and Wyndham
Worldwide Corporation’s Registration Statement on Form 10, including under
headings such as "Forward-Looking Statements", "Risk Factors" and "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
Except for the Company's ongoing obligations to disclose material information
under the federal securities laws, the Company undertakes 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.
About
Cendant Corporation
Cendant
is primarily a provider of travel and residential real estate services. With
approximately 85,000 employees, New York City-based Cendant provides these
services to businesses and consumers in over 100 countries. More information
about Cendant, its companies, brands and current SEC filings may be obtained
by
visiting Cendant’s Web site at www.cendant.com.
Following the completion of the spin-offs of Realogy Corporation and Wyndham
Worldwide Corporation, Cendant will be comprised of its Travelport and Avis
Budget Group businesses. As previously stated, Cendant will use the net proceeds
from the sale of Travelport (after taxes, fees and expenses and retirement
of
Travelport’s borrowings) to reduce the indebtedness allocated to Realogy and
Wyndham Worldwide.
About
Realogy Corporation
Realogy
Corporation is the world's largest residential real estate brokerage
franchisor, the largest U.S. residential real estate brokerage firm, a leading
global provider of outsourced employee relocation services, and a provider
of
title and settlement services. Realogy's brands include Century 21,
Coldwell Banker, Coldwell Banker Commercial, ERA, Sotheby's International
Realty, NRT Incorporated, Cartus and Title Resource Group. Realogy is
headquartered in Parsippany, NJ and has more than 15,000 employees.
About
Wyndham Worldwide Corporation
Wyndham
Worldwide is one of the world’s largest hospitality companies offering
individual consumers and business-to-business customers a broad suite of
hospitality products and services including lodging; vacation exchange and
rental services; and vacation ownership interests in resorts. Wyndham Worldwide
is headquartered in Parsippany, NJ, and is supported by approximately 28,800
employees around the world.
Media
Contacts:
Elliot
Bloom, Cendant Corporation
(212)
413-1832
Mark
Panus, Realogy Corporation
(973)
407-7215
Investor
Contacts:
Sam
Levenson, Cendant Corporation
(212)
413-1834
Henry
A.
Diamond, Realogy Corporation
(212)
413-1920
Margo
C.
Happer, Wyndham Worldwide Corporation
(973)
496-2705