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Consent and Amendment

Mortgage Agreement

Consent and Amendment | Document Parties: Avis Budget Group, Inc | Cendant Mortgage Corporation | Cendant Real Estate Services Venture Partner, Inc | ERA Franchise Systems, Inc | Jade Merger Sub, Inc | PEARL MORTGAGE ACQUISITION 2 LLC | PHH Home Loans, LLC | PHH Mortgage Corporation | Realogy Corporation | Realogy Real Estate Services Group, LLC | Realogy Real Estate Services Venture Partner, Inc | SOTHEBY'S INTERNATIONAL AFFILIATES, INC | Sotheby's International Realty Affiliates, Inc | TM Acquisition Corp | TM Corp You are currently viewing:
This Mortgage Agreement involves

Avis Budget Group, Inc | Cendant Mortgage Corporation | Cendant Real Estate Services Venture Partner, Inc | ERA Franchise Systems, Inc | Jade Merger Sub, Inc | PEARL MORTGAGE ACQUISITION 2 LLC | PHH Home Loans, LLC | PHH Mortgage Corporation | Realogy Corporation | Realogy Real Estate Services Group, LLC | Realogy Real Estate Services Venture Partner, Inc | SOTHEBY'S INTERNATIONAL AFFILIATES, INC | Sotheby's International Realty Affiliates, Inc | TM Acquisition Corp | TM Corp

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Title: Consent and Amendment
Governing Law: New York     Date: 11/9/2007
Industry: Consumer Financial Services     Law Firm: Skadden Arps     Sector: Financial

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Exhibit 10.82
Consent and Amendment
      THIS CONSENT AND AMENDMENT (this “ Amendment ”) is dated as of March 14, 2007, and is between Realogy Real Estate Services Group, LLC, a Delaware limited liability company (formerly Cendant Real Estate Services Group, LLC) (“ Realogy Real Estate ”), Realogy Real Estate Services Venture Partner, Inc., a Delaware corporation (formerly Cendant Real Estate Services Venture Partner, Inc.) (the “ Realogy Member ”), PHH Corporation, a Maryland corporation (“ PHH ”), PHH Mortgage Corporation, a New Jersey Corporation (formerly Cendant Mortgage Corporation) (“ PMC ”), PHH Broker Partner Corporation, a Maryland corporation (the “ PHH Member ”), TM Acquisition Corp., a Delaware corporation (“ TM Corp. ”), Coldwell Banker Real Estate Corporation, a California corporation (“ Coldwell Banker ”), Sotheby’s International Realty Affiliates, Inc., a Delaware corporation (“ Sotheby’s ”), ERA Franchise Systems, Inc., a Delaware corporation (“ ERA ”), Century 21 Real Estate LLC, a Delaware limited liability company (“ Century 21 ”) and PHH Home Loans, LLC, a Delaware limited liability company (the “ Company ”).
     WHEREAS, Realogy Real Estate, the Realogy Member, PHH, PMC, the PHH Member and the Company have previously entered into the Strategic Relationship Agreement dated January 31, 2005 (the “ Strategic Relationship Agreement ”);
     WHEREAS, the PHH Member and the Realogy Member have previously entered into the Amended and Restated Limited Liability Company Operating Agreement dated January 31, 2005, as amended (the “ Operating Agreement ”);
     WHEREAS, PMC and the Company have previously entered into the Management Services Agreement dated March 31, 2006 (the “ Management Services Agreement ”, and together with the Operating Agreement and the Strategic Relationship Agreement, the “ Joint Venture Documents ”);
     WHEREAS, TM Corp., Coldwell Banker, ERA and the Company have previously entered into the Trademark License Agreement dated January 31, 2005 (the “ Company License Agreement ”);
     WHEREAS, TM Corp., Coldwell Banker, ERA and PMC have previously entered into the Trademark License Agreement dated January 31, 2005 (the “ PMC License Agreement ”, and together with the Company License Agreement, the “ License Agreements ”);
     WHEREAS, Coldwell Banker, Century 21, ERA, Sotheby’s and PMC have previously entered into a Marketing Agreement dated January 31, 2005 (the “ Marketing Agreement ”, and together with the Joint Venture Documents and the License Agreements, the “ Relevant Documents ”);
     WHEREAS, on July 31, 2006, Avis Budget Group, Inc. (formerly Cendant Corporation) completed the spin-off (the “ Realogy Spin-Off ”) of its real estate services division into Realogy Corporation, a Delaware corporation (“ Realogy ”), following which Realogy Real Estate and the Realogy Member became direct or indirect wholly owned subsidiaries of Realogy;
     WHEREAS, PHH intends to enter into an Agreement and Plan of Merger (the “ Merger Agreement ”) with General Electric Capital Corporation, a Delaware corporation (“ GECC ”) and Jade Merger Sub, Inc., a Maryland corporation and a wholly owned subsidiary of GECC (“ Merger Sub ”), pursuant to which GECC will become the sole shareholder of PHH pursuant to a merger of Merger Sub with and into PHH (together with the transactions related thereto, the “ Merger ”), with PHH as the surviving corporation (the “ Surviving Corporation ”);

 

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     WHEREAS, GECC, Merger Sub and Pearl Mortgage Acquisition 2 L.L.C., a Delaware limited liability company (“ Acquisitionco ”) intend to enter into a Sale and Purchase Agreement (the “ Mortgage Business Purchase Agreement ”), pursuant to which GECC intends, immediately following the Merger, to cause the Surviving Corporation to sell to Acquisitionco, among other things, all of the outstanding shares of capital stock of PMC, following which PMC and the PHH Member will be wholly owned subsidiaries of Acquisitionco (together with the transactions related thereto, the “ Mortgage Business Sale ”);
     WHEREAS, pursuant to the Mortgage Business Purchase Agreement and the documents related thereto, the Surviving Corporation will assign all of its rights and obligations under the Strategic Relationship Agreement to Acquisitionco, as a result of which Acquisitionco will assume and agree to be bound by and to perform all of the obligations and liabilities of the Surviving Corporation under the Strategic Relationship Agreement (the “ Assignment ”);
     WHEREAS, at the time of the Closing of the Mortgage Business Sale, Acquisitionco will be a wholly owned subsidiary of PHH Holding Corp., a Delaware corporation;
     WHEREAS, Realogy anticipates that the consummation of the Mortgage Business Sale could benefit the Company;
     WHEREAS, each of the Relevant Documents may be amended by written agreement executed by all the respective parties thereto;
     WHEREAS, pursuant to Section 13.15 of the Strategic Relationship Agreement, PHH is permitted to assign all of its rights and obligations thereunder after obtaining the written consent of the other parties thereto; and
     WHEREAS, the parties hereto desire to (i) consent to the Merger, the Mortgage Business Sale and the Assignment, (ii) amend the Relevant Documents as provided herein and (iii) agree to take certain other actions and to make certain other agreements with respect thereto.
     NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereby agree as follows:
     1.  Consent . Realogy and the Realogy Member hereby consent to the Assignment. As consideration for such Consent, Acquisitionco agrees to pay to Realogy a fee of $3.0 million upon the consummation of the Mortgage Business Sale, which amount shall be payable by the transfer of immediately available funds to such account as is designated by Realogy in writing at least two business days prior to the anticipated closing date of the Mortgage Business Sale.
     2.  Acknowledgement . The parties hereby acknowledge and agree that, notwithstanding anything to the contrary contained in the Operating Agreement, neither the consummation of the Merger nor the consummation of the Mortgage Business Sale shall constitute a Cendant Termination Event (as defined in the Operating Agreement) or a Transfer (as defined in the Operating Agreement) for purposes of any of the Relevant Documents, as applicable. The parties hereby further acknowledge and agree that notwithstanding anything to the contrary contained in the Strategic Relationship Agreement, Section 10.1(b) shall not apply to the Merger, and neither GECC nor any Person that is an Affiliate of GECC immediately prior to the effective time of the Merger shall be bound by the covenant contained in Section 10.1(a) from and after completion of the Merger.

 

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     3.  Amendments to the Relevant Documents . Effective as of immediately prior to the closing of the Mortgage Business Sale:
     (i) Each of the Relevant Documents, as applicable, is hereby amended by replacing “PHH Corporation” and the defined term “PHH” with “PHH Mortgage Holding Corp.” and “Holdco”, respectively, wherever each such term appears , except as otherwise specified herein.
     (ii) Each of the Relevant Documents, as applicable, is hereby amended by replacing “Cendant” with “Realogy” wherever it appears, except as otherwise specified herein.
     (iii) Each of the Relevant Documents, as applicable, is hereby amended by inserting the following sentence after the definition of “Affiliate” contained therein: “Notwithstanding the foregoing, no Person that, directly or indirectly, controls or is under common control with Holdco (other than the Subsidiaries of Holdco, each of which shall constitute an Affiliate of Holdco for purposes of this Agreement) shall be considered an Affiliate of Holdco or any of its Subsidiaries for purposes of this Agreement.”
     (iv) Section 1.1 of both the Operating Agreement and the Strategic Relationship Agreement is hereby amended by (a) deleting the definition of “Cendant” contained therein and inserting the following definition: “ Realogy “means Realogy Corporation, a Delaware corporation; and (b) deleting the definition of “Cendant Mobility Office” contained therein and inserting the following definition: “ Cartus Office “means any office comprising part of Realogy’s corporate relocation business, including, without limitation, any office of Cartus Corporation or any of its Subsidiaries, whether owned as of the date hereof or acquired or opened hereafter by Cartus Corporation or one of its Subsidiaries.
     (v) Section 1.1 of the Operating Agreement is hereby further amended by adding the following text to the end of the definition of “Transfer”: “provided that Transfer shall not mean a pledge by a Member of its Interest to one or more financial institutions as collateral security for the indebtedness or other obligations of such Member or an Affiliate thereof, provided further that any foreclosure on or other sale or transfer of any Interest in connection with any such pledge shall constitute a Transfer.”
     (vi) Section 8.1(e) of the Operating Agreement is hereby amended and restated in its entirety as follows: “(e) The occurrence of a PHH Change of Control involving any entity on the Cendant List attached hereto as Schedule 8.1(e) .”
     (vii) Schedule 8.1(e) of the Operating Agreement is hereby amended and restated in its entirety as set forth on Schedule 3(vii) hereto.
     (viii) Section 10.1(a) of the Operating Agreement is hereby amended by adding the following sentence to the end of such section: “For the avoidance of doubt, nothing provided for in this Section 10.1(a) is intended to prevent or otherwise prohibit the ability of any Member to pledge its Interest to one or more financial institutions as collateral security for the indebtedness or other obligations of such Member or an Affiliate thereof, provided that any foreclosure on or other sale or transfer of any Interest in connection with any such pledge shall constitute a Transfer.”
     (ix) 

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