|
EXHIBIT 10.1
$550,000,000
TERM LOAN AGREEMENT
Dated as of January 31, 2005
among
CENDANT CORPORATION,
as Borrower
THE LENDERS REFERRED TO HEREIN,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
and
CITICORP NORTH AMERICA, INC.
as Syndication Agent
J.P. MORGAN SECURITIES INC. and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
| |
|
Page
|
|
1.
|
DEFINITIONS
|
1
|
|
2.
|
THE LOANS
|
13
|
| |
SECTION 2.1. Commitments
|
13
|
| |
SECTION 2.2. Loans
|
14
|
| |
SECTION 2.3. Use of Proceeds
|
14
|
| |
SECTION 2.4. Reserved
|
15
|
| |
SECTION 2.5. Reserved
|
15
|
| |
SECTION 2.6. Borrowing Procedure
|
15
|
| |
SECTION 2.7. Refinancings
|
15
|
| |
SECTION 2.8. Reserved
|
15
|
| |
SECTION 2.9. Repayment of Loans; Evidence of
Debt
|
15
|
| |
SECTION 2.10. Interest on Loans
|
16
|
| |
SECTION 2.11. Interest on Overdue
Amounts
|
16
|
| |
SECTION 2.12. Alternate Rate of
Interest
|
17
|
| |
SECTION 2.13. Reserved
|
17
|
| |
SECTION 2.14. Prepayment of Loans
|
17
|
| |
SECTION 2.15. Eurocurrency Reserve
Costs
|
17
|
| |
SECTION 2.16. Reserve Requirements; Change in
Circumstances
|
18
|
| |
SECTION 2.17. Change in Legality
|
19
|
| |
SECTION 2.18. Reimbursement of
Lenders
|
20
|
| |
SECTION 2.19. Pro Rata Treatment
|
20
|
| |
SECTION 2.20. Right of Setoff
|
21
|
| |
SECTION 2.21. Manner of Payments
|
21
|
| |
SECTION 2.22. Taxes
|
21
|
| |
SECTION 2.23. Certain Pricing
Adjustments
|
23
|
| |
SECTION 2.24. Reserved
|
24
|
| |
SECTION 2.25. Reserved
|
24
|
|
3.
|
REPRESENTATIONS AND WARRANTIES OF
BORROWER
|
24
|
| |
SECTION 3.1. Corporate Existence and
Power
|
24
|
| |
SECTION 3.2. Corporate Authority, No Violation and
Compliance with Law
|
24
|
| |
SECTION 3.3. Governmental and Other Approval and
Consents
|
24
|
| |
SECTION 3.4. Financial Statements of
Borrower
|
24
|
| |
SECTION 3.5. No Material Adverse
Change
|
25
|
| |
SECTION 3.6. Copyrights, Patents and Other
Rights
|
25
|
| |
SECTION 3.7. Title to Properties
|
25
|
| |
SECTION 3.8. Litigation
|
25
|
| |
SECTION 3.9. Federal Reserve
Regulations
|
25
|
| |
SECTION 3.10. Investment Company Act
|
26
|
| |
SECTION 3.11. Enforceability
|
26
|
| |
SECTION 3.12. Taxes
|
26
|
| |
SECTION 3.13. Compliance with ERISA
|
26
|
| |
SECTION 3.14. Disclosure
|
26
|
| |
SECTION 3.15. Environmental
Liabilities
|
27
|
|
4.
|
CONDITIONS OF LENDING
|
27
|
| |
SECTION 4.1. Conditions Precedent to
Closing
|
27
|
|
5.
|
AFFIRMATIVE COVENANTS
|
28
|
| |
SECTION 5.1. Financial Statements, Reports,
etc
|
28
|
| |
SECTION 5.2. Corporate Existence; Compliance with
Statutes
|
30
|
| |
SECTION 5.3. Insurance
|
30
|
| |
SECTION 5.4. Taxes and Charges
|
30
|
| |
SECTION 5.5. ERISA Compliance and
Reports
|
30
|
| |
SECTION 5.6. Maintenance of and Access to Books and
Records; Examinations
|
31
|
| |
SECTION 5.7. Maintenance of
Properties
|
31
|
| |
SECTION 5.8. Changes in Character of
Business
|
31
|
|
6.
|
NEGATIVE COVENANTS
|
31
|
| |
SECTION 6.1. Limitation on
Indebtedness
|
31
|
| |
SECTION 6.2. Consolidation, Merger, Sale of
Assets
|
33
|
| |
SECTION 6.3. Limitations on Liens
|
33
|
| |
SECTION 6.4. Sale and Leaseback
|
34
|
| |
SECTION 6.5. Debt to Capitalization
Ratio
|
35
|
| |
SECTION 6.6. Interest Coverage Ratio
|
35
|
| |
SECTION 6.7. Accounting Practices
|
35
|
|
7.
|
EVENTS OF DEFAULT
|
35
|
|
8.
|
THE ADMINISTRATIVE AGENT AND EACH ISSUING
LENDER
|
37
|
| |
SECTION 8.1. Administration by Administrative
Agent
|
37
|
| |
SECTION 8.2. Advances and Payments
|
37
|
| |
SECTION 8.3. Sharing of Setoffs and Cash
Collateral
|
38
|
| |
SECTION 8.4. Notice to the Lenders
|
38
|
| |
SECTION 8.5. Liability of Administrative
Agent
|
39
|
| |
SECTION 8.6. Reimbursement and
Indemnification
|
39
|
| |
SECTION 8.7. Rights of Administrative
Agent
|
40
|
| |
SECTION 8.8. Independent Investigation by
Lenders
|
40
|
| |
SECTION 8.9. Notice of Transfer
|
40
|
| |
SECTION 8.10. Successor Administrative
Agent
|
40
|
| |
SECTION 8.11. Reserved
|
41
|
| |
SECTION 8.12. Agents Generally
|
41
|
|
9.
|
Reserved
|
41
|
|
10.
|
MISCELLANEOUS
|
41
|
| |
SECTION 10.1. Notices
|
41
|
| |
SECTION 10.2. Survival of Agreement, Representations and
Warranties, etc.
|
42
|
| |
SECTION 10.3. Successors and Assigns; Syndications; Loan
Sales; Participations
|
42
|
| |
SECTION 10.4. Expenses
|
44
|
| |
SECTION 10.5. Indemnity
|
45
|
| |
SECTION 10.6. CHOICE OF LAW
|
45
|
| |
SECTION 10.7. No Waiver
|
45
|
| |
SECTION 10.8. Extension of Maturity
|
46
|
| |
SECTION 10.9. Amendments, etc.
|
46
|
| |
SECTION 10.10. Severability
|
46
|
| |
SECTION 10.11. SERVICE OF PROCESS; WAIVER OF JURY
TRIAL
|
46
|
| |
SECTION 10.12. Headings
|
47
|
| |
SECTION 10.13. Execution in
Counterparts
|
47
|
| |
SECTION 10.14. Entire Agreement
|
47
|
| |
SECTION 10.15. Confidentiality
|
48
|
| |
SECTION 10.16. USA PATRIOT Act
|
49
|
| |
SECTION 10.17. Replacement of Lenders
|
49
|
|
SCHEDULES
|
|
|
|
1.1
|
|
Commitments
|
| |
|
|
|
EXHIBITS
|
|
|
| |
A
|
Form of Note
|
| |
B-1
|
Form of Opinion of Skadden, Arps, Slate, Meagher & Flom
LLP
|
| |
B-2
|
Form of Cendant In-House Opinion
|
| |
C
|
Form of Assignment and Acceptance
|
| |
D
|
Form of Officer’s Certificate
|
| |
E
|
Form of Borrowing Request
|
TERM LOAN AGREEMENT (the “
Agreement
”) dated as of January 31, 2005, among CENDANT CORPORATION, a
Delaware corporation (the “
Borrower
”), the lenders referred to herein (the “
Lenders
”), CITICORP NORTH AMERICA, INC., as syndication agent (the
“
Syndication Agent
”), and JPMORGAN CHASE BANK, N.A., as administrative agent
(the “
Administrative Agent
”; together with the Syndication Agent, the “
Agents
”) for the Lenders.
INTRODUCTORY STATEMENT
The Borrower has requested that the Lenders establish a term loan
facility in an aggregate principal amount of up to $550,000,000
pursuant to which term loans may be made to the Borrower in a
single drawing on the Closing Date (as hereinafter
defined).
Subject to the terms and conditions set forth herein, the
Administrative Agent is willing to act as agent for the Lenders,
and each Lender is willing to make term loans to the
Borrower.
Accordingly, the parties hereto hereby agree as
follows:
.
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.
“
AESOP Financing Program
” shall mean the transactions contemplated by that certain
Second Amended and Restated Base Indenture, dated as of June 3,
2004, between Cendant Rental Car Funding (AESOP) LLC (formally
known as AESOP Funding II L.L.C.), as issuer and The Bank of New
York, as trustee, as it may be from time to time further amended,
supplemented or modified, and the instruments and agreements
referenced therein and otherwise executed in connection therewith,
and any successor program.
“
AESOP Indebtedness
” shall mean any Indebtedness incurred pursuant to the AESOP
Financing Program.
“
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.
“
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
plus
½ 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.
“
Asset Financing Transaction
” shall mean a transaction or series of transactions pursuant
to which the Borrower or any other Person (i) issues Indebtedness
secured by, payable from or representing beneficial interests in
Eligible Assets for which neither the Borrower nor any of its
Material Subsidiaries (other than any Securitization Entity) is
liable in any way other than pursuant to Standard Securitization
Undertakings (unless such liability of the Borrower or such
Material Subsidiary is otherwise permitted to be incurred hereunder
by the Borrower or such Material Subsidiary) or (ii) transfers or
grants a security interest in Eligible Assets to any Person that
finances the acquisition of such Eligible Assets through the
issuance of securities or the incurrence of Indebtedness or issues
obligations secured by such Eligible Assets.
“
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.
“
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 the Closing Date or which are refinanced
pursuant to Section 2.7 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.
“
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 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
“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.
“
Change in Control
” shall mean (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 Closing 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 Closing Date
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
Closing 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 the Borrower then in
office.
“
Closing Date
” shall mean the date on which the conditions precedent to
the effectiveness of this Agreement as set forth in Section 4.1
have been satisfied or waived.
“
Code
” shall mean the Internal Revenue Code of 1986, as
amended.
“
Commitment
” shall mean, with respect to each Lender, the obligation of
such Lender to make a Loan to the Borrower in a principal amount
not to exceed the amount set forth opposite such Lender’s
name on Schedule 1.1. The original amount of the Commitments is
$550,000,000.
“
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 (excluding any such
expense attributable to depreciation of Related Eligible Assets),
(iv) Consolidated Interest Expense, (v) amortization expense, (vi)
other non-cash items reducing Consolidated Net Income (and
increasing EBITDA),
minus
(plus) (vii) 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
(viii) any cash expenditures during such period to the extent such
cash expenditures (x) did not reduce Consolidated Net Income for
such period and (y) were applied against reserves that constituted
non-cash items which reduced Consolidated Net Income during prior
periods, 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 acquisition of a Subsidiary
or any entity acquired in a merger, where the purchase price
exceeds $150,000,000 in any relevant period for which the covenant
set forth in Section 6.6 is being calculated as if such acquisition
had been made on the first day of such period.
“
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 (other than interest income earned on any Related Eligible
Assets). Notwithstanding the foregoing, interest expense on any
Securitization Indebtedness, AESOP Indebtedness or Other Excluded
Indebtedness shall not be included in Consolidated Interest
Expense.
“
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.
“
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 Net Worth
shall include the Borrower’s equity interest in PHH until
such time as PHH is no longer a Subsidiary of the
Borrower.
“
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 (x) Securitization Indebtedness, AESOP Indebtedness or
Other Excluded Indebtedness or (y) 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.
“
Debt to Capitalization Ratio
” shall mean at any time the ratio of (x) Consolidated Total
Indebtedness to (y) the sum of (i) Consolidated Total Indebtedness
plus (ii) Consolidated Net Worth.
“
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 a Loan on the
Closing Date in accordance with the terms and conditions of this
Agreement.
“
Disclosed Matters
” shall mean 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 or Form 10-K, as filed on or prior to the
Closing Date.
“
Dollars
” and “
$
” shall mean lawful money of the United States of
America.
“
Eligible Assets
” shall mean any of the following and any proceeds thereof:
(x) assets (and interests in assets) that are of the type described
as “assets under management and mortgage programs” in
the consolidated financial statements of the Borrower and its
Consolidated Subsidiaries, dated December 31, 2003, which shall
include, without limitation, vehicles, vehicle leases, fleet
maintenance contracts, fleet management contracts, other service
contracts, mortgage loans, real estate owned as a result of
ownership of mortgage loans, timeshare loans, timeshare properties,
vacation rental assets, relocation advances and relocation
properties, receivables generated by any of the foregoing, and
mortgage and other asset servicing rights, and (y) equity interests
or other securities issued by any Subsidiary or other Person
issuing securities or incurring Indebtedness secured by, payable
from or representing beneficial interests in, or
holding
title or ownership interests in, assets of the type described in
clause (x) above or interests in such assets.
“
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 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.
“
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.
“
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 hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income or net profits by the United States
of America, or by the jurisdiction under the laws of which such
recipient is organized, in which its principal office is located or
in which it is otherwise doing business or in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any
other jurisdiction in which the Borrower is located, (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 of the 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 with respect to such
withholding tax pursuant to Section 2.22(a), (d) Taxes attributable
to such Lender’s failure to comply with Section 2.22(e), and
(e) any Taxes imposed as a result of such Lender’s gross
negligence or willful misconduct.
“
Fitch
” shall mean Fitch Investors Service, Inc. and any successor
thereto.
“
Fundamental Documents
” shall mean this Agreement, any Notes and any Compliance
Certificate which is required to be executed by the Borrower
pursuant to Section 5.1(c) and delivered to the Administrative
Agent in connection with this Agreement.
“
GAAP
” shall mean generally accepted accounting principles in the
United States as in effect from time to time.
“
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 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 account payables 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 account
payables 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 Coverage Ratio
” shall mean, for each period for which it is to be
determined, the ratio of (i) Consolidated EBITDA to (ii)
Consolidated Interest Expense.
“
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 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.
“
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 or 6 months thereafter, as the 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 2.7 or is prepaid in accordance with Section 2.14;
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.
“
JPMorgan Chase Bank
” shall mean JPMorgan Chase Bank, N.A.
“
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 Lender, the branch (or
affiliate) from which such Lender’s Loans are made and for
the account of which all payments of principal of, and interest on,
such Lender’s Loans are made, as notified to the
Administrative Agent from time to time.
“
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 approximately equal in principal amount to a
Borrowing, 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 Loan bearing interest at a rate determined
by reference to LIBOR in accordance with the provisions of Section
2.
“
LIBOR Spread
” shall mean, at any date or any period of determination, the
LIBOR Spread that would be in effect on such date or during such
period pursuant to the chart set forth in Section 2.23 based on the
rating of the Borrower’s senior non-credit enhanced unsecured
long-term debt.
“
Lien
” means, 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 have the meaning assigned to such term in Section
2.1.
“
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 (it is understood
that, for purposes of this definition, resolution of matters
relating to the accounting irregularities and errors referred to in
the Borrower’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 do not
constitute a Material Adverse Effect).
“
Material Subsidiary
” shall mean any Subsidiary of the Borrower which, together
with its Subsidiaries 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 10% or more of Consolidated Assets or
accounts for 10% or more of Consolidated EBITDA for the Rolling
Period immediately preceding the date of
determination.
“
Maturity Date
” shall mean September 30, 2005.
“
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
” (a) in connection with any asset sale, the proceeds thereof
in the form of cash and (including any such cash proceeds received
by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or
otherwise, but only as and when received), net of attorneys’
fees, accountants’ fees, investment banking fees and other
customary fees and expenses actually incurred in connection
therewith and net of Taxes paid or reasonably estimated by the
Borrower to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements) and net of any cash reserve for adjustment in respect
of the sale price of such asset established in accordance with
GAAP, including without limitation, for pension and post-employment
benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with
such transaction and (b) in connection with any issuance or sale of
Capital Stock, the cash proceeds received from such issuance or
incurrence, net of attorneys’ fees, investment banking fees,
accountants’ fees, underwriting discounts and commissions and
other customary fees and expenses actually incurred in connection
therewith and net of Taxes paid or reasonably estimated by the
Borrower to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements) and net of any cash reserve for adjustment in respect
of the sale price of such asset established in accordance with
GAAP, including without limitation, for pension and post-employment
benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with
such transaction .
“
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).
“
Note
” shall have the meaning assigned to such term in Section
2.9(f) .
“
Obligations
” shall mean the obligation of the Borrower to make due and
punctual payment of principal of, and interest on, the Loans, and
all other monetary obligations of the Borrower to the
Administrative Agent or any Lender under this Agreement, the Notes
or the Fundamental Documents.
“
Other Excluded Indebtedness
” shall mean (a) Indebtedness of the type described in
Section 6.1(q) up to an aggregate principal amount not to exceed
$350,000,000 and (b) Indebtedness secured by, payable from or
representing beneficial interests in Eligible Assets except to the
extent that such Indebtedness provides for recourse (other than
Standard Securitization Undertakings) to the Borrower or any
Subsidiary (other than a Securitization Entity).
“
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 Notes or any Fundamental Document.
“
Participant
” shall have the meaning assigned to such term in Section
10.3(g).
“
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.
“
PHH
” shall mean PHH Corporation, a Maryland
corporation.
“
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.
“
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 Seciton
10.3(b).
“
Related Eligible Assets
” shall mean Eligible Assets that secure or are the source of
payment for AESOP Indebtedness, Securitization Indebtedness or
Other Excluded Indebtedness.
“
Related Parties
” means, 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.
“
Responsible Officer
” means 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, Lenders 100% of the aggregate
principal amount of the Loans at the time outstanding.
“
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.
“
Securitization Entity
” shall mean (i) any Subsidiary or other Person engaged
solely in the business of effecting asset securitization
transactions and related activities, or (ii) any Subsidiary or
other Person whose primary purpose is to hold title or ownership
interests in Eligible Assets.
“
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).
“
Standard Securitization Undertakings
” means 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;
provided
that for purposes of
Sections 6.1, 6.3, 6.4, 6.5 and 6.6 hereof, PHH and its
Subsidiaries shall be deemed not to be Subsidiaries of the Borrower
except that until such time as PHH is no longer a Subsidiary of the
Borrower (a) Consolidated Net Worth shall be calculated in
accordance with the definition thereof and (b) in calculating
Consolidated EBITDA for any fiscal quarter the amount of any cash
dividends or any other cash distributions actually paid by PHH or
any Subsidiary of PHH to the Borrower and its Subsidiaries
(excluding the Subsidiaries of PHH) (i) during such period and (ii)
up to the time of the delivery of the certificate pursuant to
Section 5.1(c) hereof related to such period shall be included in
such calculation. Any such cash dividends and distributions
received from PHH and its Subsidiaries in one period and included
in calculating Consolidated EBITDA for any prior period shall not
be included in calculating Consolidated EBITDA for any fiscal
quarter ending on or after the first anniversary of the date such
dividends and distributions are received.
“
Taxes
” shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
“
Timeshare Indebtedness
” shall mean any Indebtedness that is secured by, payable
from or represents beneficial interests in Timeshare Loans or
Timeshare Property.
“
Timeshare Loan
” shall mean any loans made to finance the acquisition of a
timeshare (including vacation credits or points), including a
timeshare that has not yet been completed, any installment contract
for the purchase of a timeshare, or any other arrangement in the
nature of a financing of the purchase of a timeshare, and all
security therefor and proceeds thereof.
“
Timeshare Property
” shall mean any property used or intended to be used for
development, in whole or in part, of a timeshare regime, including
but not limited to real property, improvements thereon, any
condominium, any portion of such a development, any unit or units
subjected to a timeshare regime, any fixed week intervals, any
undivided interests, any notional “points” afforded to
owners of timeshares, any common areas, and any other form of
ownership of, or entitlement to occupy real estate that forms a
part of, or is subject to, a timeshare regime under applicable
state law.
“
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
” means 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.
SECTION 2.1.
Commitments.
Subject to the terms and conditions hereof, each Lender severally
agrees to make a term loan (a “
Loan
”) to the Borrower on the Closing Date in an amount not to
exceed the amount of the
Commitment of such Lender. The Loans may from time to time be LIBOR
Loans or ABR Loans, as determined by the Borrower and notified to
the Administrative Agent in accordance with Sections 2.6
and 2.7.
SECTION 2.2.
Loans.
i.
Each Loan shall be made as part of a Borrowing consisting of Loans
made by the Lenders ratably in accordance with their Commitment;
provided, however, that the failure of any Lender to make any 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 $5,000,000 and not
less than $10,000,000 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.
ii.
Each Borrowing shall be comprised entirely of LIBOR Loans or ABR
Loans, as the Borrower may request pursuant to Section 2.6 or 2.7,
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 to repay such Loan in
accordance with the terms of this Agreement and the applicable
Note. Borrowings of more than one Interest Rate Type may be
outstanding at the same time; provided, however, that the Borrower
shall not be entitled to request any Borrowing that, if made, would
result in an aggregate of more than nine separate Borrowings being
outstanding hereunder at any one time. For purposes of the
calculation required by the immediately preceding sentence, LIBOR
Loans having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Borrowing,
and all Borrowings of a single Interest Rate Type made on a single
date shall be considered a single Borrowing if such Borrowings have
a common Interest Period.
iii.
Subject to Section 2.7, each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by making funds
available at the offices of the Administrative Agent’s Agent
Bank Services Department, JPMorgan Chase Bank, N.A., 111 Fannin,
10
th
floor, Houston, Texas 77002, Attention of Vaughan Nguyen (Telephone
No. 713-750-3550; Facsimile No. 713-750-2932), for credit to
Cendant Corporation Clearing Account, Account No. 144812905
(Reference: Cendant Corporation Credit Agreement dated as of
January [31], 2005) 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 maintained with the
Administrative Agent. Loans shall be made by all the Lenders pro
rata in accordance with Section 2.1 and this Section
2.2.
iv.
Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity
Date.
SECTION 2.3.
Use of Proceeds
The proceeds of the Loans shall be used for working capital and
general corporate purposes of the Borrower and its Subsidiaries,
including, without limitation, for acquisitions. 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 2.4.
Reserved
SECTION 2.5.
Reserved
SECTION 2.6.
Borrowing Procedure
In order to effect a Borrowing, the Borrower shall hand deliver or
telecopy to the Administrative Agent a Borrowing Request in the
form of Exhibit E (a) in the case of a LIBOR Borrowing, not later
than 12:00 (noon), New York City time, three Business Days before a
proposed 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 Borrowing. Such Borrowing Request shall be irrevocable and
shall in each case specify (a) whether the 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 Borrowing is specified in any
such 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 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
Borrowing Request in accordance with this Section 2.6 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 an ABR Borrowing. The Administrative Agent
shall promptly advise the Lenders of any notice given pursuant to
this Section 2.6 and of each Lender’s portion of the
requested Borrowing.
SECTION 2.7.
Refinancings
The Borrower may refinance all or any part of any Borrowing with a
Borrowing of the same or a different Interest Rate Type pursuant to
a Borrowing Request under Section 2.6, 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 2.9 with the proceeds of a new
Borrowing hereunder and the proceeds of the new Borrowing, which
will repay the Borrowing being refinanced, shall not be paid by the
Lenders to the Administrative Agent or by the Administrative Agent
to the Borrower, and each Borrowing after the Closing Date will
merely reflect a new or continued interest rate
option.
SECTION 2.8.
Reserved
SECTION 2.9.
Repayment of Loans; Evidence of Debt
(a)
The Loans shall be repayable in a single installment on the
Maturity Date.
(b)
The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the entire
principal amount of the Loan of such Lender on the Maturity Date
(or such earlier date on which the Loans become due and payable
pursuant to Section 2.14(b) or Section 7). The Borrower hereby
further agrees to pay interest on the unpaid principal amount of
the Term Loans from time to time outstanding from the date hereof
until payment in full thereof at the rates per annum, and on the
dates, set forth in Section 2.10.
(c)
Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from the Loan made by such Lender, 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 the Loan made by it 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 to each
Lender hereunder and (iii) both the amount of any sum received by
the Administrative Agent hereunder from the 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 2.9 shall, to the extent
permitted by applicable law, be
prima
facie
evidence of the existence and amounts of the obligations of the
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 to
repay (with applicable interest) the Loan made to the Borrower by
such Lender in accordance with the terms of this
Agreement.
(f)
The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, it will execute and deliver to such Lender a
promissory note of the Borrower evidencing the Loan of such Lender,
substantially in the form of Exhibit A with appropriate insertions
as to date and principal amount (a “
Note
”).
SECTION 2.10.
Interest on Loans
(a)
Subject to the provisions of Section 2.11, 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 2.11, 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 pursuant to Section
2.23.
(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 2.11.
Interest on Overdue Amounts
If the Borrower shall default in the payment of the principal of,
or interest on, any Loan or any other amount becoming due
hereunder, the Borrower shall on demand 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 2.10 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 2.10 plus 2% per annum.
SECTION 2.12.
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 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 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 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 for a LIBOR Borrowing pursuant
to Section 2.6 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 2.13.
Reserved
SECTION 2.14.
Prepayment of Loans
(a)
Prior to the Maturity Date, the Borrower shall have the right at
any time to prepay Loans, in whole or in part, subject to the
requirements of Section 2.18, 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 $5,000,000 and in a minimum aggregate principal amount
of $10,000,000.
(b)
On any date when the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from the sale or disposition of all or
substantially all of the Capital Stock or assets of (i) Wright
Express Corporation or (ii) the material entities comprising the
Cendant Marketing Services Division, 100% of the Net Cash Proceeds
thereof shall be applied within three Business Days of such date
toward the prepayment of the Loans in accordance with Section
2.14(c).
(c)
Each notice of prepayment pursuant to Section 2.14(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 to prepay such
Borrowing(s) by the amount stated therein. All prepayments under
this Section 2.14 shall be accompanied by accrued interest on the
principal amount being prepaid, to the date of prepayment. Any
amounts prepaid pursuant to this Section 2.14 may not be
reborrowed.
SECTION 2.15.
Eurocurrency Reserve Costs
The 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 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 (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 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 2.10.
Reserve Requirements; Change in Circumstances
(a)
Except with respect to Indemnified Taxes and Other Taxes, which
shall be governed solely and exclusively by Section 2.22, if after
the Closing 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 shall pay such additional amount or amounts as will
compensate such Lender for such increase or reduction to such
Lender.
(b)
If, after the Closing Date, any Lender shall have determined in
good faith that the adoption after the Closing 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 and
shall be conclusive absent manifest error. The 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 2.16 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 2.16, Section 2.17, Section 2.22 or Section 2.25(g) or
(ii) would require the Borrower to pay an increased amount under
this Section 2.16, Section 2.17, Section 2.22 or Section 2.25(g),
it will notify the 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 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 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 pursuant to this Section 2.16,
Section 2.17, Section 2.22 or Section 2.25(g) would be materially
reduced or the Taxes or other amounts otherwise payable under this
Section 2.16, Section 2.17, Section 2.22 or Section 2.25(g) would
be materially reduced, and if, as determined by such Lender, in its
sole discretion, the making, funding or maintaining of such Loans
through such other Lending Office would not otherwise materially
adversely affect such Loans or such Lender.
(f)
In the event any Lender shall have delivered to the Borrower a
notice that LIBOR Loans are no longer available from such Lender
pursuant to Section 2.17, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 2.15 or Section 2.21,
the Borrower may (but subject in any such case to the payments
required by Section 2.17), 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 from the Lender providing such notice the
outstanding principal amount of the Loan made by such Lender and
such Lender shall thereupon assign such Loan 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 shall pay all accrued interest
|
