AMENDED AND RESTATED NOTE PURCHASE AGREEMENT

Exhibit 10.15

AMENDED AND RESTATED NOTE PURCHASE AGREEMENT

(Secured Variable Funding Notes, Series 2002-1)

Dated as of April 10, 2007

Among

KENOSIA FUNDING, LLC

as Issuer,

CARTUS CORPORATION,

as Originator and as Servicer,

CARTUS RELOCATION CORPORATION,

as an Originator

THE COMMERCIAL PAPER CONDUITS FROM TIME TO TIME PARTY HERETO,

as the Conduit Purchasers,

THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO,

as Committed Purchasers,

THE PERSONS FROM TIME TO TIME PARTY HERETO,

as Managing Agents,

and

CALYON NEW YORK BRANCH,

as Administrative Agent and Lead Arranger

 

 

i

SCHEDULES AND EXHIBITS

 

 

ii

AMENDED AND RESTATED NOTE PURCHASE AGREEMENT

(Secured Variable Funding Notes, Series 2002-1)

Dated as of April 10, 2007

KENOSIA FUNDING, LLC, a Delaware limited liability company, as Issuer, CARTUS CORPORATION, a Delaware corporation (“Cartus”), as Originator and as Servicer, CARTUS RELOCATION CORPORATION, as an Originator (“CRC” and together with Cartus, in its capacity as an Originator, “Originators”), THE COMMERCIAL PAPER CONDUITS FROM TIME TO TIME PARTY HERETO, as Conduit Purchasers, THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO, as Committed Purchasers, THE PERSONS FROM TIME TO TIME PARTY HERETO, as Managing Agents and CALYON NEW YORK BRANCH, (“Calyon”), in its capacity as administrative agent for the Purchasers (in such capacity, the “ Administrative Agent ”) and as Lead Arranger (in such capacity, the “ Lead Arranger ”) agree as follows:

WHEREAS, the Issuer has entered into that certain Indenture (as defined below) pursuant to which the Issuer issued that certain Series 2002-1 Note (the “ Existing Series 2002-1 Note ”) in favor of Gotham Funding Corporation (“ Gotham ”); and

WHEREAS, the Issuer, Cartus and CRC previously entered into that certain Note Purchase Agreement dated as of March 7, 2002 (as amended, the “ Original Note Purchase Agreement ”) with Gotham, as the Purchaser, and The Bank of Tokyo-Mitsubishi UFJ, Ltd. (“BTM”), as Administrative Agent, pursuant to which Gotham purchased the Existing Series 2002-1 Note and agreed to fund certain “Increases” thereunder from time to time; and

WHEREAS, pursuant to that certain Assignment and Acceptance Agreement (the “ BTM Assignment ”) of even date herewith, (i) BTM and Gotham, collectively, have assigned to Calyon and to Atlantic Asset Securitization LLC, (“ Atlantic ”), all of their right, title and interest in and to the Original Note Purchase Agreement and the Existing Series 2002-1 Note and (ii) Calyon and Atlantic have agreed to assume all of the duties and obligations of BTM and Gotham under the Original Note Purchase Agreement; and

WHEREAS, Atlantic may wish to enter into an Assignment and Acceptance Agreement (as defined below) in the future in order to syndicate to other Conduit Purchasers its interests in the Series 2002-1 Notes; and

WHEREAS, in connection with the foregoing, the parties hereto have agreed to amend and restate the Original Note Purchase Agreement pursuant to the terms and conditions of this Agreement;

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Original Note Purchase Agreement is hereby amended and restated in its entirety as set forth below and the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01. Certain Defined Terms . Unless otherwise defined herein, capitalized terms used in this Agreement have the meanings set forth in the Indenture (as defined below). In addition, the following terms have the following respective meanings:

“ Administrative Agent ” is defined in the preamble.

“ Agreement ” means this Amended and Restated Note Purchase Agreement, as the same may from time to time be amended, restated, supplemented or otherwise modified.

“ Assignment and Acceptance Agreement ” means an Assignment and Acceptance Agreement in substantially the form of Exhibit A hereto pursuant to which any Purchaser assigns all or a portion of its rights and obligations under this Agreement and the other Transaction Documents.

“ Atlantic ” is defined in the preamble.

“ Available Amounts ” is defined in Section 2.10.

“ Available Funds ” is defined in Section 7.11(b).

“ Base Rate ” means, with respect to any Interest Period, the daily average of a fluctuating interest rate per annum as shall be in effect from time to time during such Interest Period, which rate shall at all times be equal to the higher of: (i) the rate of interest announced publicly in New York City by the Administrative Agent from time to time as the Administrative Agent’s base rate for borrowings in United States dollars; and (ii) one half of one percent per annum above the Federal Funds Rate.

“ Base Rate Tranche ” means a Tranche for which interest is calculated by reference to the Base Rate.

“ BTM ” is defined in the preamble.

“ BTM Assignment ” is defined in the preamble.

“ Calyon ” is defined in the preamble.

“ Cartus ” is defined in the preamble.

“ Cartus Person ” means each of the Originators and the Servicer.

“ Commercial Paper Notes ” means, with respect to any Conduit Purchaser, the commercial paper notes issued by such Conduit Purchaser allocated in whole or in part by its related Managing Agent to fund the investment of such Conduit Purchaser in the Series 2002-1 Notes.

 

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“ Commitment ” means (i) with respect to each Committed Purchaser, the commitment of such Committed Purchaser to purchase an interest in the Series 2002-1 Notes on the Effective Date and to fund Increases on any Increase Date in accordance herewith in an amount not to exceed the dollar amount set forth opposite such Committed Purchaser’s name under the heading “Commitment” on Schedule II attached hereto, as such amount may be increased or reduced pursuant to Section 2.05 of this Agreement, minus the dollar amount of any Commitment or portion thereof assigned by such Committed Purchaser in accordance with this Agreement, plus the dollar amount of any increase to such Committed Purchaser’s commitment consented to by such Committed Purchaser prior to the time of determination and (ii) with respect to any assignee of a Committed Purchaser pursuant to an Assignment and Acceptance Agreement, the commitment of such assignee to purchase an interest in the Series 2002-1 Notes and to fund Increases on any Increase Date in accordance herewith in an amount not to exceed such assignee’s commitment, minus the dollar amount of such commitment or portion thereof assigned by such assignee pursuant to an Assignment and Acceptance prior to the time of determination.

“ Commitment Termination Date ” means April 10, 2012.

“ Committed Percentage ” means, for each Committed Purchaser within any Purchaser Group, with respect to any date of determination, (i) a fraction (expressed as a percentage) having as its numerator the Commitment of such Committed Purchaser as of such date and as its denominator the sum of the Commitments of all Committed Purchasers within the related Purchaser Group as of such date or (ii) such other percentage as is agreed to by such Committed Purchaser and its Managing Agent so long as the sum of the Committed Percentages for all Committed Purchasers within the same Purchaser Group remains at 100%.

“ Committed Purchaser ” means, with respect to any Purchaser Group, each of the financial institutions specified as such on Schedule II to this Agreement or in the applicable Assignment and Acceptance Agreement pursuant to which such Person becomes a party hereto and their respective successors and permitted assigns, and “Committed Purchasers” shall mean, collectively, all of the foregoing.

“ Conduit Purchaser ” means, with respect any Purchaser Group, each Person specified as such on Schedule II to this Agreement or in the Assignment and Acceptance Agreement pursuant to which such Person became a party hereto and their respective successors and permitted assigns (including any related Permitted Conduit Assignee), and “Conduit Purchasers” shall mean, collectively, all of the foregoing.

“ CP Disruption ” means the inability of any Conduit Purchaser, at any time, whether as a result of a prohibition or any other event or circumstance whatsoever, to raise funds through the issuance of its Commercial Paper Notes in the United States commercial paper market.

“ CP Rate ” means, with respect to any Conduit Purchaser for any Interest Period and the related CP Tranche, a rate per annum equal to the sum of (i) the rate (or if more than one rate, the weighted average of the rates) determined by converting to an interest-bearing equivalent rate per annum, the discount rate (or rates) at which Commercial Paper Notes issued

 

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to fund or maintain such CP Tranche, as the case may be, may be sold by any placement agent or commercial paper dealer selected by its related Managing Agent (as agreed between each such agent or dealer and such Managing Agent), plus (ii) the commissions and charges charged by such placement agent or commercial paper dealer with respect to such Commercial Paper Notes, expressed as a percentage of such face amount and converted to an interest-bearing equivalent rate per annum.

“ CP Tranche ” means a Tranche for which interest is calculated by reference to the CP Rate.

“ CRC ” is defined in the preamble.

“ Decrease ” shall mean any reduction in the Outstanding Amount pursuant to Section 2.02(c).

“ Decrease Date ” shall mean the date on which any reduction to the Outstanding Amount pursuant to Section 2.02(c) is distributed to the Noteholders under Section 9.04 of the Indenture.

“ Effective Date ” means April 10, 2007.

“ Environmental Laws ” is defined in the Purchase Agreement.

“ Eurodollar Reporting Date ” means, for any Interest Period, the second Business Day prior to the commencement of such Interest Period.

“ Eurodollar Rate ” means, for any Tranche for any Interest Period, a rate per annum equal to the sum of (i) the London Interbank Offered Rate for deposits in United States dollars in an amount comparable to such Tranche and for a period equal to such Interest Period which appears on Reuters Screen LIBOR01 Page (or any successor page) as of 11:00 a.m., London time, on the related Eurodollar Reporting Date, divided by the remainder of one minus the Eurodollar Reserve Percentage applicable during such Interest Period, if any, plus (ii) the Eurodollar Rate Margin. If such London Interbank Offered Rate does not appear on Reuters Screen LIBOR01 Page (or any successor page), the rate for such day will be determined on the basis of the rates at which deposits in United States dollars in an amount comparable to such Tranche and for a period equal to such Interest Period are offered to the Administrative Agent at approximately 11:00 a.m., London time, on such Eurodollar Reporting Date by prime banks in the London interbank market.

“ Eurodollar Rate Disruption Event ” means, for any Owner, for any Interest Period, any of the following: (i) a determination by such Owner that it would be contrary to law or the directive of any central bank or other governmental authority to obtain United States dollars in the London interbank market to fund or maintain its investment in the Series 2002-1 Notes for such Interest Period, (ii) the inability of such Owner, by reason of circumstances affecting the London interbank market generally, to obtain United States dollars in such market to fund its investment in the Series 2002-1 Notes for such Interest Period or (iii) a determination by such Owner that the maintenance of its investment in the Series 2002-1 Notes for such Interest Period at the Eurodollar Rate will not adequately and fairly reflect the cost to such Owner of funding such investment at such rate.

 

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“ Eurodollar Rate Margin ” is defined in the Fee Letter.

“ Eurodollar Reserve Percentage ” means, as of any day, the percentage (expressed as a decimal) in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor), for determining the maximum reserve requirements applicable to “Eurocurrency Liabilities” pursuant to Regulation D or any other applicable regulation of the Board of Governors of the Federal Reserve System (or any successor) which prescribes reserve requirements applicable to “Eurocurrency Liabilities” as currently defined in Regulation D.

“ Eurodollar Tranche ” means a Tranche for which interest is calculated by reference to the Eurodollar Rate.

“ Existing Series 2002-1 Note ” is defined in the preamble.

“ Facility Fee ” is defined in the Fee Letter.

“ Federal Bankruptcy Code ” means the federal bankruptcy code of the United States of America codified in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.

“ Federal Funds Rate ” means, for any day, a fluctuating interest rate per annum equal 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 for such day (or, if such day is not a Business Day, for the next preceding 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 such day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

“ Fee Collections ” is defined in the Fee Receivables Purchase Agreement.

“ Fee Letter ” means the Fee Letter of even date herewith between Calyon and the Issuer.

“ Fifth Omnibus Amendment ” means that certain Fifth Omnibus Amendment and Agreement, dated as of even date herewith, among Cartus, CRC, the Issuer, the Trustee, Calyon, Atlantic, and Realogy.

“ Gotham ” is defined in the preamble.

“ Governmental Authority ” means any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

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“ Increase ” shall mean any funding by the Purchasers pursuant to Section 2.02(a) which increases the Outstanding Amount.

“ Increase Date ” shall mean the date on which any Increase is funded.

“ Increase Request ” means a request for an Increase in substantially the form attached hereto as Exhibit B.

“ Indemnified Party ” is defined in Section 5.02.

“ Indemnity Amounts ” means all indemnities and analogous payment due from the Issuer under Section 2.08, Section 5.02, and/or Section 7.08 of this Agreement.

“ Indenture ” means that certain Indenture dated as of March 7, 2002 among the Issuer, and The Bank of New York, as Trustee, paying agent, authentication agent, transfer agent, and registrar, as amended through the Fifth Omnibus Amendment, and as hereafter amended, restated, supplemented or otherwise modified from time to time.

“ Lead Arranger ” is defined in the preamble.

“ Lien ” has the meaning given in the Fee Receivables Purchase Agreement.

“ Liquidity Provider ” means the Person or Persons which provide liquidity support to a Conduit Purchaser pursuant to a Liquidity Provider Agreement.

“ Liquidity Provider Agreement ” means an agreement between a Conduit Purchaser and a Liquidity Provider evidencing the obligation of such Liquidity Provider to provide liquidity support to such Conduit Purchaser in connection with the issuance by such Conduit Purchaser of Commercial Paper Notes.

“ Lockbox Agreement ” is defined in the Servicing Agreement.

“ Losses ” is defined in Section 5.02.

“ Managing Agent ” means with respect to any Purchaser Group, the Person identified as such on Schedule II to this Agreement or in the Assignment and Acceptance Agreement pursuant to which the members of such Purchaser Group became parties hereto.

“ Monthly Originator Report ” has the meaning given in the Servicing Agreement.

“ Notes ” means the Series 2002-1 Notes.

“ Original Note Purchase Agreement ” is defined in the preamble.

“ Originator ” is defined in the preamble.

“ Other Taxes ” is defined in Section 2.08.

 

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“ Owner ” means (a) each Conduit Purchaser, (b) each Committed Purchaser, (c) each Liquidity Provider, Program Support Provider or other Person that has purchased, or has entered into a commitment to purchase, the Series 2002-1 Notes or an interest therein from a Conduit Purchaser pursuant to a Liquidity Provider Agreement, Program Support Agreement or otherwise, and (d) any insurance company, bank or other funding entity providing liquidity, credit enhancement or back-up purchase support or facilities to any Conduit Purchaser.

“ Performance Guarantor ” means Realogy.

“ Performance Guaranty ” means that certain Amended and Restated Guaranty from Realogy dated as of even date herewith.

“ Permitted Conduit Assignee ” means, with respect to any Purchaser Group, any commercial paper conduit administered by the Managing Agent for such Purchaser Group or any of its Affiliates.

“ Permitted Lien ” has the meaning given in the Purchase Agreement.

“ Pool Collections ” is defined in the Receivables Purchase Agreement.

“ Process Agent ” is defined in Section 7.06.

“ Program Fee ” is defined in the Fee Letter.

“ Program Support Agreement ” means an agreement between a Conduit Purchaser and a Program Support Provider evidencing the obligation of such Program Support Provider to provide liquidity or credit enhancement or asset purchase facilities for or in respect of any assets or liabilities of such Conduit Purchaser in connection with the issuance by such Conduit Purchaser of Commercial Paper Notes.

“ Program Support Provider ” means the Person or Persons who will provide program support to a Conduit Purchaser pursuant to a Program Support Agreement.

“ Pro Rata Share ” means, for a Purchaser Group at any time of determination, a fraction (expressed as a percentage) having the Purchaser Group Limit for such Purchaser Group as its numerator and the Stated Amount as its denominator; provided , however, that if any Purchaser fails to fund any amount as required hereunder, “Pro Rata Share” shall mean, for purposes of making all distributions hereunder, a fraction (expressed as a percentage) having the portion of the Outstanding Amount funded by each Purchaser Group as its numerator and the Outstanding Amount as its denominator.

“ Purchase ” means the purchase of the Series 2002-1 Notes from Gotham by the Purchasers on the Effective Date.

“ Purchase Agreement ” means that certain “CMGFSC Purchase Agreement” dated March 7, 2002, between Cartus Corporation and Cartus Relocation Corporation, as amended through the Fifth Omnibus Amendment, and as hereafter amended, restated, supplemented, or otherwise modified from time to time.

 

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“ Purchaser ” means, a Conduit Purchaser or Committed Purchaser as the context requires and “Purchasers” means collectively, the Conduit Purchasers and the Committed Purchasers.

“ Purchaser Group ” means each group of Purchasers consisting of one or more Conduit Purchasers and any Permitted Conduit Assignees of such Conduit Purchasers, the related Committed Purchasers, the related Liquidity Provider(s) and Program Support Provider(s), if any, the related Managing Agent and their respective permitted assigns.

“ Purchaser Group Limit ” means (i) with respect to each Purchaser Group existing on the date hereof, the amount set forth opposite the name of such Purchaser Group on Schedule II attached hereto, as such amount may be increased or decreased pursuant to Section 2.05 hereof, or reduced pursuant to Section 7.04(c) hereof and (ii) with respect to any other Purchaser Group, the amount indicated in the Assignment and Acceptance Agreement pursuant to which the members of such Purchaser Group become parties to this Agreement, as such amount may be increased or decreased pursuant to Section 2.05 hereof, or reduced pursuant to Section 7.04(c) hereof.

“ Rate Type ” means the Eurodollar Rate, the Base Rate or the CP Rate.

“ Rating Agencies ” means, collectively, Fitch, Moody’s and Standard & Poor’s, and their respective successors in interest.

“ Realogy ” means Realogy Corporation, a Delaware corporation, and its successors.

“ Receivable ” is defined in the Purchase Agreement.

“ Reporting Date ” is defined in the Servicing Agreement.

“ Required Managing Agents ” means, at any time, Managing Agents representing Purchaser Groups which hold Series 2002-1 Notes that represent at least 66  ² / 3 % of the Outstanding Amount or, if the Outstanding Amount is zero, Managing Agents representing Purchaser Groups with Pro Rata Shares of not less than 66  ² / 3 %.

“ Revolving Period ” shall mean the period beginning on the Effective Date and ending upon the commencement of the Amortization Period.

“ Series 2002-1 Notes ” means the Notes executed hereunder in substitution for the Existing Series 2002-1 Note.

“ Servicer ” is defined in the preamble.

“ Servicer Default ” is defined in the Servicing Agreement.

“ Solvent ” means, with respect to any Person and as of any particular date, (i) the present fair market value (or present fair saleable value) of the assets of such Person is not less than the total amount required to pay the probable liabilities of such Person on its total existing

 

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debts and liabilities (including contingent liabilities) as they become absolute and matured, (ii) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business, (iii) such Person is not incurring debts or liabilities beyond its ability to pay such debts and liabilities as they mature and (iv) such Person is not engaged in any business or transaction, and is not about to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged.

“ Stated Amount Increase Notice ” is defined in Section 2.05(b).

“ Taxes ” is defined in Section 2.08(a).

“ Tranche ” is defined in Section 2.04.

“ Transferred Employee ” is defined in the Purchase Agreement.

“ UCC ” means the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction.

“ Weekly Activity Report ” has the meaning given in Section 3.07(d) of the Servicing Agreement.

“ Yield Protection Amount ” means any amounts owing by the Issuer under Section 2.06 or 2.07 of this Agreement.

SECTION 1.02. Other Terms . All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; and Section, Schedule and Exhibit references contained in this Agreement are references to Sections, Schedules and Exhibits in or to this Agreement unless otherwise specified; and the term “including” means “including without limitation.”

SECTION 1.03. Computation of Time Periods . Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.”

ARTICLE II

PURCHASE AND SALE OF SERIES 2002-1 NOTES

SECTION 2.01. Purchase and Transfer of Series 2002-1 Notes .

(a) On the terms and subject to the conditions set forth in this Agreement and the BTM Assignment, and in reliance on the covenants, representations and agreements set forth herein and therein, on the Effective Date (i) Atlantic Asset Securitization LLC, (“ Atlantic ”),

 

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acting through Calyon as Managing Agent, may, in its discretion, and Calyon New York Branch, acting through Calyon as Managing Agent, shall, if Atlantic determines not to so purchase, purchase from BTM, on the date hereof, the Existing Series 2002-1 Notes issued to its related Managing Agent having an aggregate maximum face amount equal to the applicable Purchaser Group Limit. Without limiting any other provision of this Agreement, the obligation of Calyon or Atlantic to acquire an interest in the Existing Series 2002-1 Note is subject to the satisfaction of the conditions precedent set forth in Section 3.01 hereof.

(b) On the Effective Date, the Issuer will cause the Trustee to, upon surrender to the Trustee of the Existing Series 2002-1 Note, deliver to Calyon, as Managing Agent on behalf of the Purchasers in its Purchaser Group, a replacement Series 2002-1 Note, dated as of the Effective Date, registered in the name of such Managing Agent, having a face amount equal to the Purchaser Group Limit of its Purchaser Group, and duly authenticated by the Authentication Agent in accordance with the provisions of the Indenture upon delivery to the Trustee of the Existing Series 2002-1 Notes. Such Series 2002-1 Note shall be delivered in exchange for, and in payment for, and not in payment of, the Existing Series 2002-1 Note and is not intended to constitute a novation thereof. The Series 2002-1 Notes shall mature and be payable in full on the Final Stated Maturity Date unless the maturity thereof is accelerated pursuant to Section 5.02 of the Indenture.

(c) The Series 2002-1 Notes shall be issued in registered form, shall evidence the outstanding indebtedness owed from time to time by the Issuer thereunder and shall be payable at the times and in the amounts required under the Indenture. Each Managing Agent, on behalf of the Purchasers in the related Purchaser Group, shall be and is hereby authorized to record on the grid attached to its Series 2002-1 Note held by it on behalf of the Purchasers in the related Purchaser Group (or at its option, in its internal books and records) the date and amount of the initial funding of its Pro Rata Share of the Outstanding Amount and the date and amount of each Increase, the amount of each repayment of the principal amount represented by such Series 2002-1 Note, the portions of its Series 2002-1 Note that are from time to time allocated to the CP Tranche, any Base Rate Tranche and any Eurodollar Tranche, and any reductions to the Stated Amount; provided , that failure to make any recordation on the grid or records or any error in recordation shall not adversely affect any Purchaser’s rights with respect to its right to receive principal and interest under a Series 2002-1 Note.

SECTION 2.02. Increases and Reductions to the Outstanding Amount .

(a) Subject to the terms and conditions set forth in this Agreement and in the Indenture, the Issuer may, in its discretion, at any time during the Revolving Period deliver to the Trustee, each Managing Agent and the Administrative Agent, an Increase Request not less than two Business Days prior to the applicable Increase Date, provided , that:

(i) after giving effect to such Increase, (A) the Outstanding Amount shall not exceed the Stated Amount at such time; (B) the Pro Rata Share of the Outstanding Amount funded by each Purchaser Group shall not exceed its Purchaser Group Limit and (C) the portion of the Outstanding Amount funded by any Committed Purchaser shall not exceed its Commitment;

 

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(ii) the Increase Request shall specify: (A) the proposed date of the requested Increase, (B) the amount of the requested Increase (which shall be in a minimum amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof or, such other amounts as may be agreed among the Issuer and the Managing Agents), (C) the bank account to which the funds from such Increase should be sent and (D) the requested Rate Type(s); and

(iii) if such Increase would cause the Required Asset Amount to be greater than the Net Receivables Balance as shown on the most recent Monthly Originator Report (or, if less, the Net Receivables Balance shown on the most recent Weekly Activity Report, if applicable), each Managing Agent must have received an interim servicing report, in a form to be mutually agreed upon by the Issuer and the Managing Agents, based on the most recently available interim reporting, which demonstrates that such Increase will not cause an Asset Amount Deficiency to occur.

(b) Subject to the terms and conditions set forth in this Agreement (including Section 3.02 hereof) and the Indenture, on each Increase Date the Conduit Purchasers in each Purchaser Group, acting through the related Managing Agent, may (but are not committed to) at the request of the Issuer pursuant to an Increase Request, fund such Purchaser Group’s Pro Rata Share of the requested Increase in amounts to be allocated among such Conduit Purchasers by the related Managing Agent. If any Conduit Purchaser chooses at any time not to fund its portion of such Purchaser Group’s Pro Rata Share of a requested Increase when requested by the Issuer, on the applicable Increase Date, the related Committed Purchasers, acting through the related Managing Agent, shall, subject to the conditions set forth in Section 3.02 hereof, fund their respective Committed Percentages of the related Purchaser Group’s Pro Rata Share of the amount of such Increase. Each funding of a Purchaser Group’s Pro Rata Share of an Increase shall be paid by the related Purchasers to an account designated by the related Managing Agent. Each Managing Agent shall deliver its Purchaser Group’s Pro Rata Share of the amount of each Increase to the Issuer in U.S. Dollars in immediately available funds by 1:00 p.m. (New York City time) on the related Increase Date to an account designated by the Issuer prior to the Increase Date. Each Increase funded by the Purchasers hereunder shall represent an increase in the Outstanding Amount. Each Managing Agent shall provide prompt notice to the Issuer and each other Managing Agent if any Conduit Purchaser in its Purchaser Group elects not to fund its share of any Increase.

(c) Subject to the terms and conditions set forth in the Indenture, at any time during the Revolving Period, in addition to the optional redemption provisions set forth in Section 12.02 of the Indenture, the Issuer shall have the right to reduce the Outstanding Amount by at least $1,000,000 (or such other amounts as may be agreed among the Issuer and the Managing Agents) by causing Pool Collections and/or Fee Collections to be allocated to the Principal Subaccount for application towards principal payments of the Series 2002-1 Notes; provided , that (i) the Issuer shall give at least two (2) Business Days prior written notice to the Managing Agents, the Administrative Agent and the Trustee in respect of such reduction; (ii) such reduction of the Outstanding Amount shall be applied to reduce the outstanding principal amount of the Series 2002-1 Note held by each Purchaser Group ratably in accordance with its Pro Rata Share and (iii) unless the date of such reduction is a Distribution Date, the Issuer shall pay to the Managing Agents (for the account of the Purchasers in the related Purchaser Group), the amount of any funding losses incurred by the Purchasers in connection with such reduction in accordance with Section 2.09 of this Agreement.

 

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SECTION 2.03. Calculation and Payment of Interest and Fees .

(a) Each Managing Agent shall, on or prior to the first day of each Interest Period, notify the Trustee and the Servicer of the Tranche Rate which will be applicable to each Tranche during such Interest Period and such Managing Agent shall, no later than the Business Day preceding the next Reporting Date, notify such parties of the total interest to be paid for each such Tranche and the total Monthly Program Fees to be paid to its Purchaser Group on the relevant Distribution Date.

(b) Interest on each Tranche during each Interest Period shall accrue at the applicable Tranche Rate for such Interest Period and all accrued and unpaid interest on each Tranche shall be payable on each Distribution Date in accordance with the terms of the Indenture. Interest with respect to any Tranche due but not paid on any Distribution Date will be due on the next succeeding Distribution Date together with Additional Interest as calculated in accordance with the terms of the Indenture.

(c) The Issuer shall pay to each Managing Agent, for the account of the Purchasers in the related Purchaser Group, the Facility Fee and Program Fee pursuant to the Fee Letter. The Facility Fee and the Program Fee will constitute “Monthly Program Fees” as defined in the Indenture and shall be due and payable on each Distribution Date pursuant to Section 9.04 of the Indenture.

SECTION 2.04. Tranches .

(a) Each funding made by the Purchasers in the same Purchaser Group on any Increase Date having one Rate Type shall be referred to herein as a “Tranche”. The Issuer shall select the Rate Type(s) to apply to each Tranche for the related Interest Period in the related Increase Request; provided , however , that

(i) the selection of such Rate Type(s) shall be subject to the approval of each Managing Agent in its sole and absolute discretion;

(ii) if any Managing Agent notifies the Issuer and the Servicer that a CP Disruption has occurred, the Eurodollar Rate shall automatically apply to any CP Tranche from and after such notice until such Managing Agent notifies the Issuer and the Servicer that such CP Disruption has ceased (it being agreed that each Managing Agent shall give the Issuer and the Servicer prompt notice that any such CP Disruption has ceased); and

(iii) any portion of the Outstanding Amount that is not allocated to a CP Tranche shall be a Eurodollar Tranche unless: (A) on or prior to the first day of the next related Interest Period, such Managing Agent has given the Issuer and the Servicer notice that a Eurodollar Rate Disruption Event has occurred and such Managing Agent shall not have subsequently notified the Servicer and the Issuer that such Eurodollar Rate Disruption Event no longer exists (it being agreed that each Managing Agent shall give

 

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the Issuer and the Servicer prompt notice that any such Eurodollar Rate Disruption Event no longer exists); (B) such Managing Agent did not receive notice that such Tranche was to be a Eurodollar Tranche by 11:00 A.M. (New York City time) on the second Business Day preceding the first day of such Interest Period; or (C) the Outstanding Tranche Amount of such Tranche is less than $1,000,000, in any of which events such Tranche shall be a Base Rate Tranche.

The Administrative Agent shall promptly, upon the request of any party, notify each Managing Agent, the Issuer and the Servicer of the Eurodollar Rate applicable to any Eurodollar Tranche or the Base Rate applicable to any Base Rate Tranche.

(b) The Managing Agents may at any time after the occurrence and during the continuance of any Amortization Event, or at any time after the Amortization Period has commenced either (i) divide any Tranche into two or more Tranches having an aggregate Outstanding Tranche Amount equal to the Outstanding Tranche Amount of such divided Tranche, or (ii) combine any two or more Tranches into a single Tranche having an Outstanding Tranche Amount equal to the aggregate of the Outstanding Tranche Amounts of such Tranches; provided , however , that no Tranche owned by any Conduit Purchaser may be combined with a Tranche owned by any other Purchaser and no Tranche held by the Committed Purchasers in any Purchaser Group may be combined with any Tranche held by the Committed Purchasers in any other Purchaser Group; and provided further that if any such Tranche is requested to become a Eurodollar Tranche, such notice must be received at least two Business Days’ prior to the last day of the Tranche Period for such Tranche.

SECTION 2.05. Reductions and Increases to Stated Amount .

(a) The Issuer may at any time, upon at least two (2) Business Days’ prior written notice to each Managing Agent, the Trustee and the Administrative Agent, such notice to be in the form of Exhibit C hereto, terminate in whole or reduce in part the Stated Amount; provided , however , that each partial reduction shall (i) be in an amount equal to $5,000,000 or an integral multiple thereof, (ii) reduce each Purchaser Group Limit hereunder ratably in accordance with the respective Purchaser Group’s Pro Rata Share of such reduction to the Stated Amount and (iii) reduce each Committed Purchaser’s Commitment ratably within their respective Purchaser Group in accordance with each Committed Purchaser’s Committed Percentage.

(b) The Issuer may, from time to time upon at least thirty (30) days’ prior written notice to each Managing Agent, the Trustee and the Administrative Agent, request an increase to the Stated Amount. Each such notice shall be substantially in the form of Exhibit D hereto (each a “ Stated Amount Increase Notice ”) and shall specify (i) the proposed date such increase shall become effective, (ii) the proposed amount of such increase, which amount shall be at least $5,000,000; (iii) the identity of the Purchaser Group(s) (and members thereof) whose Purchaser Group Limit(s) will be increased in connection therewith; (iv) the identity of all Committed Purchasers in such Purchaser Group and the amount of their respective Commitments after giving effect to such increase in the Stated Amount; and (v) a recalculation of the Pro Rata Shares which will become effective upon such increase in the Stated Amount. No such increase shall become effective unless and until (x) either (i) the Commitments of the Committed Purchasers in such Purchaser Group have been increased by the amount of such increase in the Stated Amount, as evidenced by the Managing Agent for such Purchaser Group and each of the

 

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Purchasers in such Purchaser Group executing such Stated Amount Increase Notice or (ii) one or more additional Purchaser Groups have become parties to this Agreement by executing a joinder agreement in form and substance reasonably acceptable to the Required Managing Agents and the Issuer. Notwithstanding anything to the contrary set forth herein, nothing contained in this Agreement shall constitute a commitment on the part of any Purchaser hereunder to agree to any such increase, or to assume or increase any obligation to the Issuer at any time.

SECTION 2.06. Increased Costs . If, after the date hereof due to either the introduction of or any change in, or in the interpretation of, (i) any law or regulation by the Governmental Authority that promulgated or administers compliance with such law or regulation (other than laws or regulations with respect to income taxes, branch profits or franchise taxes based on income or gross receipts) or (ii) any guideline or request from any central bank or other Governmental Authority or similar agency, including, without limitation, the Financial Accounting Standards Board (“FASB”) or any comparable entity (whether or not having the force of law), any reserve or deposit or similar requirement shall be imposed, modified or deemed applicable, any basis of taxation shall be changed (other than as a result of a change in laws and regulations with respect to income tax, branch profits or franchise taxes) or any other condition shall be imposed, and there shall be any increase in the cost to any Owner of making, funding, or maintaining the principal outstanding under, a Series 2002-1 Note or in the cost to any Owner of agreeing to make, fund, or maintain any principal outstanding under, a Series 2002-1 Note, then the Issuer shall from time to time, upon demand by any such Owner, by the submission of the certificate described below, pay to such Owner, additional amounts sufficient to compensate such Owner for such increased cost; provided , however , that before making any such demand, such Owner has agreed to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to take such steps (including the designation of a different applicable lending office) as would avoid the need for, or reduce the amount of, such additional cost and would not, in the judgment of such Owner, be otherwise disadvantageous to such Owner. A certificate setting forth in reasonable detail the reasons for and the amount of such increased cost submitted to the Issuer and the Trustee by the relevant Owner, or the related Managing Agent on behalf of such Owner, shall be conclusive and binding for all purposes, absent manifest error.

SECTION 2.07. Increased Capital . If any Owner determines that compliance with any law or regulation or any guideline or request or any written interpretation from any central bank or other Governmental Authority or similar agency, including, without limitation, FASB or any comparable entity (whether or not having the force of law) which is introduced, implemented or received by such Owner after the date hereof, affects or would affect capital adequacy or the amount of capital required or expected to be maintained by such Owner or any corporation controlling such Owner and that the amount of such capital is increased as a result of the existence of this Agreement, the Indenture or the obligations of a Liquidity Provider under a Liquidity Provider Agreement or the obligations of a Program Support Provider under a Program Support Agreement, or has or would have the effect of reducing such Owner’s rate of return on capital then, upon demand by any such Owner, by the submission of the certificate described below, the Issuer shall pay to such Owner, from time to time, as specified by such Owner, additional amounts sufficient to compensate such Owner in light of such circumstances, to the extent that such Owner reasonably determines such increase in capital to be allocable to a Series 2002-1 Note or the existence of this Agreement, the Indenture, any Liquidity Provider’s

 

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obligations under a Liquidity Provider Agreement or any Program Support Provider’s obligations under a Program Support Agreement. In determining such amounts, such Owner may use any reasonable averaging and attribution methods, consistent with the averaging and attribution methods generally used by such Owner in connection with commitments of that type. A certificate as to such amounts submitted to the Issuer and the Trustee by the relevant Owner, or by the related Managing Agent on behalf of such Owner, setting forth the basis therefor and calculation thereof in reasonable detail, shall be conclusive and binding for all purposes, absent manifest error.

SECTION 2.08. Taxes .

(a) All payments made by the Issuer under this Agreement, the Indenture, the Fee Letter and any Series 2002-1 Note to or for the benefit of a Series Noteholder, the Administrative Agent or any Owner shall be made, to the extent allowed by law, free and clear of, and without deduction or withholding for or on account of, any present or future taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority having taxing authority (excluding income taxes, branch profits or franchise taxes based on income or gross receipts) imposed on such Person as a result of any present or former connection between the jurisdiction of the government or taxing authority imposing such tax or any political subdivision or taxing authority thereof or therein and such Person (other than any connection arising solely from such Person having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement, the Indenture or a Series 2002-1 Note or any other related document to which such Person is a party) (all such non-excluded taxes, levies, imposts, duties, charges, fees, deductions and withholdings being hereinafter called “ Taxes ”). If any Taxes are required to be withheld from any amounts payable to or under the Series 2002-1 Note, (i) the sum payable by the Issuer shall be increased as may be necessary so that, after making all required deductions (including deductions applicable to additional sums payable under this Section 2.08), the relevant Person receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Issuer shall make such deductions, and (iii) the Issuer shall pay the full amount deducted to the relevant taxing authority or other authority in accordance with applicable law.

(b) In addition, the Issuer agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges, or similar levies that arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to any Liquidity Provider Agreement (hereinafter “ Other Taxes ”).

(c) Subject to the provisions set forth in this Section 2.08, the Issuer will indemnify each Purchaser, the Administrative Agent and each Owner for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.08) paid by such Purchaser, the Administrative Agent and each Owner and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, provided , that such Purchaser, the Administrative Agent or such Owner, in making a demand for indemnity, shall provide the Issuer with a certificate from the relevant taxing authority or from a responsible officer of such Person stating or otherwise evidencing that such Person has made payment of such Taxes or Other Taxes and will provide a copy of or extract from documentation, if available, furnished by such

 

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taxing authority evidencing assertion or payment of such Taxes or Other Taxes. Whenever any Taxes are payable by the Issuer, within 30 days thereafter the Issuer shall send to the applicable Purchaser, the Administrative Agent and any applicable Owner a certified copy of an original official receipt received by the Issuer showing payment thereof. If the Issuer fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to the applicable Purchaser, the Administrative Agent and any applicable Owner the required receipts or other required documentary evidence, the Issuer shall indemnify such Person for any incremental Taxes, interest or penalties that such Person is legally required to pay as a result of any such failure. The agreements in this subsection shall survive the termination of this Agreement, the Indenture and the payment of the Series 2002-1 Notes.

(d) On or before the date it becomes a Noteholder (and, so long as it may properly do so, periodically thereafter, as may be required by applicable law, to keep forms up to date), any Noteholder that is organized under the laws of a jurisdiction outside the United States of America shall deliver to the Servicer, the Trustee and the Paying Agent any certificates, documents or other evidence that shall be required by the Internal Revenue Code or Treasury Regulations issued pursuant thereto to establish its exemption from existing United States federal withholding requirements, including (i) two original copies of Internal Revenue Service Form W-8 BEN or Form W-8-ECI or successor applicable form, properly completed and duly executed by such Noteholder certifying that it is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes.

(e) If any such Series Noteholder does not comply with Section 2.08(d), amounts payable to such Series Noteholder under this Section 2.08 shall be limited to amounts that would have been payable under this section if such Series Noteholder had so complied.

(f) All Taxes and Other Taxes owing under this Section 2.08 shall be payable in accordance with Section 7.11.

SECTION 2.09. Funding Losses .

(a) If, for any reason, a principal payment with respect to any CP Tranche or any Eurodollar Tranche shall occur on any date which is not the last day of the applicable Interest Period, the Issuer shall compensate each Purchaser, upon demand, for all funding losses by paying to such Purchaser an amount equal to the sum of (i) the amount of interest which would have accrued on the relevant Tranche but for such prepayment through the last day of the relevant Interest Period less the interest earned by such Purchaser by investing such funds in investments permissible (in the case of the Conduit Purchaser) for the commercial paper program of the Conduit Purchaser and (ii) all reasonable out-of-pocket expenses which such Purchaser may sustain or incur as a consequence of such prepayment. Such amounts shall be payable as Breakage Amounts by the Issuer pursuant to Section 9.04 of the Indenture.

(b) In addition to the foregoing, the Issuer shall compensate each Owner, upon its written demand, for all losses, expenses and liabilities on account of any liquidation or reemployment of deposits or other funds acquired by such party to make, fund or maintain a Tranche, (i) if by reason of the acts or omissions of the Issuer, the funding of any CP Tranche or Eurodollar Tranche does not occur on a date specified therefor in the relevant funding request;

 

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(ii) if for any reason any payment, prepayment or conversion of principal of any CP Tranche or Eurodollar Tranche occurs on a date which is not the last day of the Interest Period for such Tranche or (iii) as a consequence of any required conversion of any CP Tranche or Eurodollar Tranche to a Tranche for which interest is calculated at another Rate Type prior to the last day of the Interest Period for the relevant Tranche. A certificate setting forth in reasonable detail the reasons for and the amount of such demand submitted to the Issuer by such Owner, shall be conclusive and binding for all purposes, absent manifest error. Such amounts shall be payable as Breakage Amounts by the Issuer pursuant to Section 9.04 of the Indenture.

SECTION 2.10. Nonrecourse Obligations . Notwithstanding any provision in any other Section of this Agreement to the contrary, the obligation of the Issuer to pay any amounts payable to a Purchaser or any other Owner pursuant to Sections 2.06, 2.07, 2.08, 2.09, 5.02 and 7.08 of this Agreement shall be without recourse to the Issuer (or its assignee, if applicable), the Servicer (or any Person acting on behalf of any of them), the Trustee or any other Owner or any affiliate, officer or director of any of them, and the obligation of the Issuer to pay any amounts hereunder shall be limited solely to the application of Pool Collections and other amounts (collectively, the “ Available Amounts ”) required to be distributed to the Managing Agents, on behalf of the related Purchasers, in the Indenture, to the extent that such amounts are available for distribution. In the event that amounts payable to a Purchaser or any other Owner pursuant to this Agreement exceed the Available Amounts, the excess of the amounts due hereunder (and subject to this Section 2.10) over the Available Amounts paid shall not constitute a “claim” under Section 101(5) of the Federal Bankruptcy Code against the applicable party until such time as such party has Available Amounts.

ARTICLE III

CONDITIONS PRECEDENT

SECTION 3.01. Conditions Precedent to Purchase . The Purchase is subject to the satisfaction of each of the following conditions on or prior to the Effective Date (any or all of which (except Section 3.01(c)) may be waived by the Managing Agents in their sole and absolute discretion:

(a) The Managing Agents shall have received on or before the date hereof each of the items listed on Schedule I hereto, each (unless otherwise indicated) dated the date hereof, in form and substance reasonably satisfactory to the Managing Agents;

(b) Each of the representations and warranties of Cartus, CRC, the Issuer, the Servicer, Realogy or the Trustee made in this Agreement, the Indenture, and each other Transaction Document shall be true and correct in all material respects as of the date hereof as though made as of such time (except to the extent that they expressly relate to an earlier or later time);

(c) No Amortization Event, Servicer Default or Event of Default or event that with the giving of notice or lapse of time or both would constitute such an Amortization Event, Servicer Default or Event of Default shall have occurred and be continuing (befo