AMENDED AND RESTATED NOTE PURCHASE AGREEMENT

Exhibit 10.14

EXECUTION COPY

 

AMENDED AND RESTATED

NOTE PURCHASE AGREEMENT

(Secured Variable Funding Notes, Series 2007-1)

Dated as of April 10, 2007

Amended and Restated as of July 6, 2007

Among

APPLE RIDGE FUNDING LLC

as Issuer,

CARTUS CORPORATION,

as Servicer,

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

 

 

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AMENDED AND RESTATED NOTE PURCHASE AGREEMENT

(Secured Variable Funding Notes, Series 2007-1)

Dated as of April 10, 2007

Amended and Restated as of July 6, 2007

APPLE RIDGE FUNDING LLC, a Delaware limited liability company, as Issuer, CARTUS CORPORATION, a Delaware corporation, as Servicer, 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 agree as follows:

WHEREAS, the Issuer has entered into that certain Indenture (as defined below) which provides for the issuance of Notes from time to time and the Purchasers desire to purchase a Series of Notes to be issued pursuant to the Series Supplement described below;

WHEREAS, the Issuer, Calyon and certain Conduit Purchasers party hereto have previously entered into that certain Note Purchase Agreement dated as of April 10, 2007 (the “ Original 2007-1 Note Purchase Agreement ”) relating to the Series 2007-1 Notes and, in connection with certain assignments by Calyon and such Conduit Purchasers to the other Purchasers party hereto, the Issuer, Calyon and the other parties hereto have agreed to enter into this Agreement for the purposes of amending and restating the terms of the Original 2007-1 Note Purchase 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 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 or the Series Supplement (each as defined below), as applicable. In addition, the following terms have the following respective meanings:

“ Administrative Agent ” is defined in the preamble.

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

“ Alternate 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) the sum of the Federal Funds Rate and the Eurodollar Rate Margin in effect at such time.

“ 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.

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

“ Closing Date ” means April 10, 2007.

“ 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 2007-1 Notes.

“ Commitment ” means (i) with respect to each Committed Purchaser, the commitment of such Committed Purchaser to purchase an interest in the Series 2007-1 Notes on the Closing 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 2007-1 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 July 3, 2008, or such later date to which the Commitment Termination Date may be extended in accordance with Section 2.11 of this Agreement.

“ 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%.

 

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“ 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 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.

“ Effective Restatement Date ” means July 6, 2007.

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

“ Eurodollar Determination 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 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 Determination Date, divided by the remainder of one minus the Eurodollar Reserve Percentage applicable during such Interest Period, if any. If such 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 Determination Date by prime banks in the London interbank market.

 

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“ 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 2007-1 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 2007-1 Notes for such Interest Period or (iii) a determination by such Owner that the maintenance of its investment in the Series 2007-1 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.

“ 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.

“ Facility Fee Rate ” has the meaning set forth 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.

“ Fifth Omnibus Amendment ” means that certain Fifth Omnibus Amendment of even date herewith by and among Cartus, CFC, the Transferor, Realogy, the Indenture Trustee, the Administrative Agent and the initial Conduit Purchasers and Committed Purchasers party hereto.

“ 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.

 

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“ Indenture ” means that certain Master Indenture dated as of April 25, 2000 among the Issuer, The Bank of New York (as successor to JPMorgan Chase Bank, National Association), as Indenture Trustee and The Bank of New York, as Paying Agent, Authentication Agent and Transfer Agent and Registrar, as amended, restated, supplemented or otherwise modified from time to time.

“ Lien ” has the meaning given in the 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.

“ 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.

“ Nonrenewing Group ” means any Purchaser Group, the Managing Agent for which has not consented to an extension of the Commitment Termination Date requested by the Issuer in accordance with Section 2.11 .

“ Nonrenewing Purchaser ” means any Committed Purchaser which is a member of a Nonrenewing Group.

“ Other Taxes ” is defined in Section 2.08.

“ 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 2007-1 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.

“ 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.

“ 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.

 

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“ Program Termination Date ” means April 10, 2012.

“ 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 Series Outstanding Amount funded by each Purchaser Group as its numerator and the Series Outstanding Amount as its denominator.

“ Purchase ” means the purchase of the Series 2007-1 Notes by the Purchasers from the Issuer on the Closing Date.

“ 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.

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

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

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

“ Reported EBITDA ” has the meaning given in the Transfer and Servicing Agreement.

“ Required Managing Agents ” means, at any time, Managing Agents representing Purchaser Groups which hold Series 2007-1 Notes that represent at least 66 2/3% of the Series Outstanding Amount or, if the Series Outstanding Amount is zero, Managing Agents representing Purchaser Groups with Pro Rata Shares of not less than 66 2/3%.

“ Series 2007-1 Notes ” has the meaning given in the Series Supplement.

 

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“ Series Supplement ” means the Amended and Restated Series 2007-1 Indenture Supplement of even date herewith, among the Issuer, The Bank of New York, as Indenture Trustee and The Bank of New York, as Paying Agent, Authentication Agent and Transfer Agent and Registrar, supplementing the Indenture, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“ 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 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.

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

“ Term-Out Deposit Amount ” means, as of any date of determination in respect of any Nonrenewing Group, the amount deposited by the related Nonrenewing Purchasers into their Term-Out Period Account pursuant to Section 2.11 minus the amount of any Increases funded through withdrawals from such Term-Out Period Account pursuant to Section 4.08 of the Series Supplement plus the amount of any Decreases or other payments of Monthly Principal transferred from the Series 2007-1 Principal Subaccount to such Term-Out Period Account under Section 4.03 of the Series Supplement.

“ Term-Out Period ” means, with respect to any Nonrenewing Group and any Nonrenewing Purchaser, the period commencing on the date, if any, on which such Nonrenewing Group establishes its Term-Out Period Account and makes the initial deposit therein pursuant to Section 2.11 of this Agreement and ending on the commencement of the Amortization Period.

“ Tranche ” is defined in Section 2.04.

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

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.”

 

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ARTICLE II

PURCHASE AND SALE OF SERIES 2007-1 NOTES

SECTION 2.01. Purchase and Transfer of Series 2007-1 Notes .

(a) On the terms and subject to the conditions set forth in this Agreement, the Indenture and the Series Supplement, and in reliance on the covenants, representations and agreements set forth herein and therein, on the Closing Date (i) the Issuer agreed to sell, transfer and deliver to Calyon, as Managing Agent on behalf of the Purchasers in its Purchaser Group and (ii) Atlantic Asset Securitization LLC, (“ Atlantic ”), 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 the Issuer, on the date hereof, the Series 2007-1 Note 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 any Purchaser to purchase an interest in a Series 2007-1 Note is subject to the satisfaction of the conditions precedent set forth in Section 3.01 hereof.

(b) On the Closing Date, the Issuer delivered to Calyon, as Managing Agent on behalf of the Purchasers in its Purchaser Group, a Series 2007-1 Note, dated as of the Closing 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 against delivery by such Managing Agent, on behalf of the Purchasers in the related Purchaser Group, to the Issuer of such Purchaser Group’s Pro Rata Share of the Initial Series Outstanding Amount.

(c) On the Effective Restatement Date, concurrently with the effectiveness of the Assignment and Acceptance Agreement dated as of such date, Calyon will deliver to the Indenture Trustee for cancellation the Series 2007-1 Note issued on the Closing Date, and the Indenture Trustee will authenticate and deliver to each Managing Agent (including Calyon) party hereto, on behalf of the Purchasers in its Purchaser Group, a Series 2007-1 Note, dated as of the Effective Restatement 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.

SECTION 2.02. Increases and Reductions to the Series Outstanding Amount .

(a) Subject to the terms and conditions set forth in this Agreement and in the Series Supplement, the Issuer may, in its discretion, at any time during the Revolving Period deliver to the Indenture 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 Series Outstanding Amount shall not exceed the Stated Amount at such time; (B) the Pro Rata Share of the Series Outstanding Amount funded by each Purchaser Group shall not exceed its Purchaser Group Limit and (C) the portion of the Series 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 $5,000,000 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 Series 2007-1 Required Asset Amount to be greater than the Series 2007-1 Allocated Adjusted Aggregate Receivable Balance as shown on the most recent Receivables Activity Report (or, if less, the Series 2007-1 Allocated Adjusted Aggregate Receivable 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 a Series 2007-1 Asset Amount Deficiency to occur.

(b) Subject to the terms and conditions set forth in this Agreement (including Section 3.02 hereof) and the Series Supplement, 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, provided that during a Term-Out Period, any Nonrenewing Purchaser’s share of such Increase shall be funded from its Term-Out Period Account in accordance with Section 4.08 of the Series Supplement. 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 Series 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.

 

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(c) Subject to the terms and conditions set forth in the Series Supplement, at any time during the Revolving Period, in addition to the optional redemption provisions set forth in Section 7.01 of the Series Supplement, the Issuer shall have the right to reduce the Series Outstanding Amount by at least $10,000,000 (or such other amounts as may be agreed among the Issuer and the Managing Agents) by causing Series 2007-1 Collections to be allocated to the Series 2007-1 Principal Subaccount for application towards principal payments of the Series 2007-1 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 Indenture Trustee in respect of such reduction; (ii) such reduction of the Series Outstanding Amount shall be applied to reduce the outstanding principal amount of the Series 2007-1 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.

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 Indenture Trustee and the Servicer of the Series 2007-1 Tranche Rate which will be applicable to each Tranche during such Interest Period and Managing Agent shall, no later than the Business Day preceding the next Determination 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 Series 2007-1 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 Series Supplement. 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 Series Supplement.

(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 Series Supplement and shall be due and payable on each Distribution Date pursuant to Section 4.04 of the Series Supplement.

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

 

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(iii) any portion of the Series 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 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 Alternate Base Rate applicable to any Base Rate Tranche. ²

(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 Indenture 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.

 

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(b) The Issuer may, from time to time upon at least thirty (30) days’ prior written notice to each Managing Agent, the Indenture 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 $25,000,000; (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 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 2007-1 Note or in the cost to any Owner of agreeing to make, fund, or maintain any principal outstanding under, a Series 2007-1 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 Indenture 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.

 

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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 Series Supplement 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 2007-1 Note or the existence of this Agreement, the Series Supplement, any Liquidity Provider’s 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 Indenture 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 Series Supplement, the Fee Letter and any Series 2007-1 Note to or for the benefit of a Series 2007-1 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 Series Supplement or a Series 2007-1 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 2007-1 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 ”).

 

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(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 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 Series Supplement and the payment of the Series 2007-1 Notes.

(d) On or before the date it becomes a Series 2007-1 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 Series 2007-1 Noteholder that is organized under the laws of a jurisdiction outside the United States of America shall deliver to the Indenture 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 Series 2007-1 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 2007-1 Noteholder does not comply with Section 2.08(d), amounts payable to such Series 2007-1 Noteholder under this Section 2.08 shall be limited to amounts that would have been payable under this section if such Series 2007-1 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.

 

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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 by the Issuer pursuant to Section 4.01(c) of the Series Supplement.

(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; (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 by the Issuer pursuant to Section 4.01(c) of the Series Supplement.

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 Indenture 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 and the Series Supplement, 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.

SECTION 2.11. Extension of Term . (a) The Issuer may, at any time during the period which is no more than sixty (60) days or less than forty-five (45) days immediately preceding the Commitment Termination Date (as such Termination Date may have previously been extended pursuant to this Section 2.11), request that the then applicable Commitment Termination Date (the “ Existing Termination Date ”) be extended for an additional period of 364 days. Any such request shall be in writing and delivered to each Managing Agent, and shall be

 

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subject to the following conditions: (a) at no time will any Committed Purchaser’s Commitment have a remaining term of more than 364 days (or if less, the number of days remaining between the Existing Termination Date and the Program Termination Date) and, if any such request would result in any Committed Purchaser’s Commitment having a remaining term of more than 364 days or extending beyond the Program Termination Date, such request shall be deemed to have been made for such number of days so that, after giving effect to such extension on the date requested, such remaining term will not exceed 364 days and will not extend beyond the Program Termination Date, and (b) none of the Committed Purchasers shall have any obligation to extend the Commitment Termination Date at any time. Each Managing Agent will (on behalf of the related Committed Purchasers) respond to any such request by providing a response to the Issuer, the Servicer and each other Managing Agent not later than thirty (30) days prior to the Existing Termination Date, provided , that a failure by any Managing Agent to respond on or before the thirtieth day prior to the Existing Termination Date shall be deemed to be a rejection of the requested extension.

(a) If fewer than 100% of the Managing Agents have consented to the proposed extension of the Existing Termination Date, then a Term-Out Period shall be deemed to have commenced with respect to each Nonrenewing Group and: (i) on or before the Existing Termination Date, the Issuer shall establish with the Indenture Trustee or its nominee in the name of the Indenture Trustee for the benefit of the Nonrenewing Group, a Term-Out Period Account; (ii) each Committed Purchaser which is a member of such Nonrenewing Group shall, and hereby severally agrees to, purchase from each Conduit Purchaser within such Nonrenewing Group such Committed Purchaser’s Commitment Percentage times the outstanding CP Tranches of such Conduit Purchaser for a purchase price equal to the full outstanding amount thereof plus accrued and unpaid interest thereon; (iii) each such Conduit Purchaser hereby agrees to sell such CP Tranches to such Committed Purchasers on the terms set forth in the immediately preceding clause; and (iv) each Committed Purchaser which is a member of such Nonrenewing Group shall, and each such Committed Purchaser hereby severally agrees to, fund a deposit into such Term-Out Period Account in an amount equal to such Committed Purchaser’s Commitment Percentage times the excess of (A) the Purchaser Group Limit of the Nonrenewing Group over (B) the sum of the Outstanding Tranche Amounts for each Tranche funded by the Purchasers in such Nonrenewing Group.

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 Closing Date (any or all of which (except Section 3.01(e)) 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;

 

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(b) The Series Supplement shall have become effective in accordance with its terms;

(c) All of the conditions precedent set forth in the Indenture to the issuance of the Series 2007-1 Notes shall have been satisfied and all of the terms, covenants, agreements and conditions of this Agreement, the Indenture, the Series Supplement and each other Transaction Document to be complied with and performed by Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee, as the case may be, by the date hereof shall have been complied with or otherwise waived by the Managing Agents;

(d) Each of the representations and warranties of Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee made in this Agreement, the Indenture, the Series Supplement 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);

(e) 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 (before and after giving effect to the Purchase);

(f) Immediately after giving effect to the Purchase, no Series 2007-1 Asset Amount Deficiency shall exist and be continuing;

(g) All fees required to be paid on or prior to the date hereof in accordance with the Fee Letter and the Administrative Agent Fee Letter shall have been paid in full in accordance with the terms thereof; and

(h) Each Managing Agent shall have received a written confirmation from each of the Rating Agencies that the Purchase hereunder will not result in a downgrade or withdrawal of the rating of the Commercial Paper Notes of the Conduit Purchasers in the related Purchaser Group or shall have confirmed to the Administrative Agent that no such written confirmation from the Rating Agencies is necessary to maintain such rating.

SECTION 3.02. Conditions Precedent to each Increase . The funding of any Increase under this Agreement shall be subject to the satisfaction, as of the applicable Increase Date, of each of the following conditions:

(a) Each of the representations and warranties of Cartus, CFC, the Issuer, the Transferor, the Servicer, Realogy or the Indenture Trustee made in this Agreement, the Indenture, the Series Supplement 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); and

(b) 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 (before and after giving effect to such Increase); and

 

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(c) Immediately after giving effect to such Increase, no Series 2007-1 Asset Amount Deficiency shall exist and be continuing; and

(d) Each of this Agreement, the Series Supplement, the Series 2007-1 Notes and each other Transaction Document shall remain in full force and effect; and

(e) Each Managing Agent shall have received such other approvals, documents, agreements, certificates or opinions as they may reasonably request.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

SECTION 4.01. Representations and Warranties of the Issuer . Each of the representations and warranties made by the Issuer as of the Closing Date pursuant to the Indenture and the Series Supplement is incorporated herein by reference for the benefit of the Purchasers, the Managing Agents and the Administrative Agent. In addition, the Issuer hereby represents and warrants to the Purchasers, the Managing Agents and the Administrative Agent as of the Closing Date and each date of any Increase that:

(a) The Series 2007-1 Notes have been duly and validly authorized, and when duly executed and authenticated in accordance with the terms of the Indenture and the Series Supplement, and when duly delivered to and paid for by the Purchasers in accordance with this Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of the Indenture, the Series Supplement and this Agreement.

(b) Each of the Indenture, the Series Supplement and, assuming the due authorization, execution and delivery by each of the other parties thereto, this Agreement and the Series Supplement, is in full force and effect and no default or other event or circumstance has occurred thereunder or in connection therewith that could result in the termination of any such agreement or any other interruption of the ongoing performance of the obligations by the Issuer under each such agreement.

(c) Assuming the accuracy of the representations and warranties of the Purchasers contained in Section 7.05 and their compliance with the agreements set forth therein, it is not necessary, in connection with the offer, sale