Exhibit 4.2
SUPPLEMENTAL INDENTURE NO.
5
(TOGGLE NOTES)
Supplemental Indenture No. 5
(this “ Supplemental Indenture ”), dated as of
May 12, 2008, among the new guarantor or guarantors on the
signature page hereto (each, a “ Guaranteeing
Subsidiary ”), each a subsidiary of Realogy Corporation,
a Delaware corporation (the “ Issuer ”), and The
Bank of New York, as trustee (the “ Trustee
”).
W I T N E S S E T H
WHEREAS, each of the Issuer and the
Note Guarantors (as defined in the Indenture referred to below) has
heretofore executed and delivered to the Trustee an indenture (the
“ Indenture ”), dated as of April 10, 2007,
providing for the issuance of an unlimited aggregate principal
amount of 11.00%/11.75% Senior Toggle Notes due 2014 (the “
Notes ”);
WHEREAS, Section 4.15 of the
Indenture provides that under certain circumstances the Issuer is
required to cause each Guaranteeing Subsidiary to execute and
deliver to the Trustee a supplemental indenture pursuant to which
the Guaranteeing Subsidiary shall unconditionally guarantee all of
the Issuer’s Obligations under the Notes and the Indenture on
the terms and conditions set forth herein and under the Indenture
(the “ Guarantee ”); and
WHEREAS, pursuant to
Section 9.01 of the Indenture, the Guaranteeing Subsidiaries
and the Trustee are authorized to execute and deliver this
Supplemental Indenture.
NOW THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties mutually
covenant and agree for the equal and ratable benefit of the Holders
of the Notes as follows:
(1) Capitalized Terms .
Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
(2) Agreement to Guarantee .
Each Guaranteeing Subsidiary hereby agrees as follows:
(a) Along with all Note Guarantors
named in the Indenture, to jointly and severally unconditionally
guarantee to each Holder of a Note authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture,
the Notes or the obligations of the Issuer hereunder or thereunder,
that:
(i) the principal of and interest,
premium and Additional Interest, if any, on the Notes will be
promptly paid in full when due, whether at Stated Maturity, by
acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all
other Obligations of the Issuer to the Holders or the Trustee
hereunder or thereunder whether for payment of principal of,
premium, if any, or interest on the Notes and all other monetary
obligations of the Issuer under the Indenture and the Notes will be
promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and
(ii) in case of any extension of
time of payment or renewal of any Notes or any of such other
obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal,
whether at stated
maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed or
any performance so guaranteed for whatever reason, the Note
Guarantors and the Guaranteeing Subsidiary shall be jointly and
severally obligated to pay the same immediately. This is a
guarantee of payment and not a guarantee of collection.
(b) The obligations hereunder shall
be unconditional, irrespective of the validity, regularity or
enforceability of the Notes, the Indenture or any other Note
Guarantee, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against
the Issuer, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.
(c) The following is hereby waived:
diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of either of the
Issuer, any right to require a proceeding first against the Issuer,
protest, notice and all demands whatsoever.
(d) This Note Guarantee shall not be
discharged except by complete performance of the obligations
contained in the Notes, the Indenture and this Supplemental
Indenture, and the Guaranteeing Subsidiary accepts all obligations
of a Note Guarantor under the Indenture.
(e) If any Holder or the Trustee is
required by any court or otherwise to return to the Issuer, the
Note Guarantors (including the Guaranteeing Subsidiary), or any
custodian, trustee, liquidator or other similar official acting in
relation to either the Issuer or the Note Guarantors, any amount
paid either to the Trustee or such Holder, this Note Guarantee, to
the extent theretofore discharged, shall be reinstated in full
force and effect.
(f) The Guaranteeing Subsidiary
shall not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(g) As between the Guaranteeing
Subsidiary, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 of the
Indenture for the purposes of this Note Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and
(y) in the event of any declaration of acceleration of such
obligations as provided in Article 6 of the Indenture, such
obligations (whether or not due and payable) shall forthwith become
due and payable by the Guaranteeing Subsidiary for the purpose of
this Note Guarantee.
(h) The Guaranteeing Subsidiary
shall have the right to seek contribution from any non-paying Note
Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Note Guarantee.
(i) Pursuant to Section 10.02
of the Indenture, after giving effect to all other contingent and
fixed liabilities that are relevant under any applicable Bankruptcy
Law or fraudulent conveyance laws, and after giving effect to any
collections from, rights to receive contribution from or payments
made by or on behalf of any other Note Guarantor in respect of the
obligations of such other Note Guarantor under Article 10 of the
Indenture, this new Note Guarantee shall be limited to the maximum
amount permissible such that the obligations of such Guaranteeing
Subsidiary under this Note Guarantee will not constitute a
fraudulent transfer or conveyance.
(j) This Note Guarantee shall remain
in full force and effect and continue to be effective should any
petition be filed by or against the Issuer or any Note Guarantor
for liquidation, reorganization, should the Issuer or Note
Guarantor become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or
any significant part of the Issuer’s or any Note
Guarantor’s assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Notes
are, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee on the Notes
or Note Guarantees, whether as a “voidable preference,”
“fraudulent tra
