TAX SHARING AGREEMENT

Exhibit 10.1

TAX SHARING AGREEMENT

THIS TAX SHARING AGREEMENT (this “ Agreement ”) is made and entered into as of the 28th day of July, 2006, by and among Cendant Corporation, a Delaware corporation (“ Cendant ”), Realogy Corporation, a Delaware corporation (“ Realogy ”), Wyndham Worldwide Corporation, a Delaware corporation (“ Wyndham ”) and Travelport Inc., a Delaware corporation (“ Travelport ”). Each of Cendant, Realogy, Wyndham and Travelport is sometimes referred to herein as a “ Party ” and collectively, as the “ Parties ”.

W I T N E S S E T H:

WHEREAS, Cendant, acting through its direct and indirect Subsidiaries, currently conducts a number of businesses, including (i) the Real Estate Business, (ii) the Travel Business, (iii) the Hospitality Business and (iv) the Vehicle Rental Business;

WHEREAS, the Board of Directors of Cendant has determined that it is appropriate, desirable and in the best interests of Cendant and its stockholders to separate Cendant into four separate, publicly traded companies, one for each of (i) the Real Estate Business, which shall be owned and conducted, directly or indirectly, by Realogy, (ii) the Hospitality Business, which shall be owned and conducted, directly or indirectly, by Wyndham, (iii) the Travel Business, which shall be owned and conducted, directly or indirectly, by Travelport and (iv) the Vehicle Rental Business, which shall be owned and conducted, directly or indirectly, by Cendant;

WHEREAS, in order to effect such separation, the Board of Directors of Cendant has determined that it is appropriate, desirable and in the best interests of Cendant and its stockholders (i) for Cendant and certain of its subsidiaries to enter into a series of transactions whereby, among other things, (A) Cendant and/or Cendant Finance Holding Company, LLC, will contribute to Realogy certain assets relating to the Real Estate Business (and Realogy will assume certain liabilities), and (B) Cendant and/or Cendant Finance Holding Company, LLC, will contribute to Wyndham certain assets relating to the Hospitality Business (and Wyndham will assume certain liabilities) and (ii) for Cendant to distribute to the holders of Cendant Common Stock on a pro rata basis (in each case without consideration being paid by such stockholders) (A) all of the outstanding shares of common stock, par value $0.01 per share, of Realogy (the “ Realogy Common Stock ”), (B) all of the outstanding shares of common stock, par value $0.01 per share, of Wyndham (the “ Wyndham Common Stock ”) and (C) all of the outstanding shares of common stock, par value $0.01 per share, of Travelport (the “ Travelport Common Stock ”) (such transactions as they may be amended or modified from time to time, collectively, the “ Plan of Separation ”);

WHEREAS, Cendant announced that as part of the Plan of Separation, as an alternative to Cendant’s plan to distribute Travelport Common Stock to holders of Cendant Common Stock, Cendant is also exploring the possible sale of Travelport to a third-party (whether by sale of stock, assets (direct or indirect) or merger, a “ Travelport Sale ”);

WHEREAS, it is the intention of the Parties that each of the contributions of assets to, and the assumption of liabilities by, Realogy and Wyndham together with the corresponding

distribution of all of the Realogy Common Stock and the Wyndham Common Stock, respectively, shall qualify as a reorganization within the meaning of Sections 368(a)(1)(D) and 355 of the Internal Revenue Code of 1986, as amended (the “ Code ”);

WHEREAS, it is the intention of the Parties that the distribution of Travelport Common Stock (if effected) shall qualify as a distribution within the meaning of Section 355(c) of the Code to Cendant;

WHEREAS, it is the intention of the Parties that each of the distribution of Realogy Common Stock, Wyndham Common Stock and Travelport Common Stock, respectively, to the stockholders of Cendant will qualify as a tax-free distribution within the meaning of Section 355(a) of the Code to such stockholders;

WHEREAS, in connection with the Plan of Separation, Realogy, Wyndham and Travelport shall, subject to the terms and provisions of the Separation and Distribution Agreement (as defined herein), enter into separate credit facilities for both revolving and term loan borrowings, all or a portion of the proceeds which shall be distributed to Cendant;

WHEREAS, with respect to the debt proceeds distributed by Realogy and Wyndham, respectively, to Cendant, such proceeds shall be placed by Cendant in a separate account and used by Cendant solely to repay its existing indebtedness;

WHEREAS, with respect to the debt proceeds distributed by Travelport to Cendant, such proceeds shall be placed by Cendant into a separate bank account and used by Cendant solely to reduce and/or repay its existing indebtedness and certain other liabilities of Cendant;

WHEREAS, it is the intention of the Parties that the distribution of cash proceeds from such borrowings by Realogy and Wyndham, respectively, to Cendant shall qualify as a tax-free distribution of cash pursuant to Section 361 of the Code;

WHEREAS, it is the intention of the Parties that the distribution of cash proceeds from such borrowings by Travelport shall be treated, in part, as a distribution of cash pursuant to Section 301 of the Code and applicable Treasury Regulations; and

WHEREAS, in connection with the Plan of Separation, each of the Parties desire to set forth their agreement on the rights and obligations with respect to handling and allocating Taxes and related matters.

 

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NOW, THEREFORE, in consideration of the foregoing and the terms, conditions, covenants and provisions of this Agreement, each of the parties mutually covenant and agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.1 General . As used in this Agreement, the following terms shall have the following meanings:

(1) “ AAA ” has the meaning set forth in Section 12.2 .

(2) “ Accounting Dispute ” has the meaning set forth in Section 12.2 .

(3) “ Affiliate ” means a Person that directly, or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, a specified Person. A Person shall be deemed to control another Person if such first Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise. For purposes hereof, none of the Parties or their respective Subsidiaries (determined, in the case of Cendant, immediately after the Final Separation Date, in the case of Realogy, immediately after the Realogy Distribution, in the case of Wyndham, immediately after the Wyndham Distribution and in the case Travelport, immediately after the Final Separation Date) shall be considered an “Affiliate” of any of the other Parties or their respective Subsidiaries (determined on the same basis).

(4) “ Agreement ” has the meaning set forth in the preamble hereto.

(5) “ Ancillary Agreement ” has the meaning set forth in the Separation and Distribution Agreement.

(6) “ Applicable Realogy DCLs ” has the meaning set forth in Section 10.2(m)(iv) .

(7) “ Applicable Tax Benefit Party ” means the Party or its Affiliate that would have, but for a Final Determination with respect to a Pre-2007 Shared Entity Audit that results in an increase in the items of taxable income or gain of (or the disallowance of items of deduction, loss or credit with respect to) a Shared Entity, been Apportioned net operating loss carryovers and/or Credit Carryovers as of its first Post-Distribution Tax Period.

(8) “ Applicable Travelport DCLs ” has the meaning set forth in Section 10.2(m)(v) .

(9) “ Applicable Wyndham DCLs ” has the meaning set forth in Section 10.2(m)(iv) .

(10) “ Apportioned ” has the meaning set forth in Section 3.5 .

(11) “ Assets ” has the meaning set forth in the Separation and Distribution Agreement.

(12) “ Audit ” means any audit, assessment of Taxes, other examination by any Taxing Authority, proceeding, or appeal of such a proceeding relating to Taxes, whether administrative or judicial, including proceedings relating to competent authority determinations.

 

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(13) “ Business Day ” means any day other than a Saturday, Sunday or a day on which banks are required to be closed in New York, New York.

(14) “ Business Entity ” means any corporation, partnership, limited liability company or other entity.

(15) “ CCRG Audit Sharing Percentage ” means a ratio:

 

(i)

the numerator of which is the sum of:

 

(I)

the aggregate amount of income and gain directly attributable to or resulting from any of the Distributions failing to qualify as a reorganization within the meaning of Sections 368(a)(1)(D) and 355 of the Code or as a distribution within the meaning of Section 355 of the Code, as the case may be, or the application of Sections 355(d) or (e) of the Code to any of the Distributions, to the extent such income or gain results from or is directly attributable to the Fault of Cendant or any of its Affiliates;

 

(II)

in the event of a Pre-2007 Shared Entity Audit that results in a Pre-2007 Correlative Adjustment that is directly related or attributable to the business or operations any of the CCRG Entities, the aggregate amount of disallowed deduction, loss and credit (and income and gain) resulting from such Pre-2007 Correlative Adjustment; and

 

(III)

the aggregate amount of income and gain (and all disallowed deduction, loss and credit) resulting from a breach by Cendant of a representation, covenant or obligation under this Agreement;

 

(ii)

the denominator of which is the sum of:

 

(I)

the aggregate amount of income and gain resulting from such Pre-2007 Shared Entity Audit; and

 

(II)

the aggregate amount of disallowed deduction, loss and credit resulting from such Pre-2007 Shared Entity Audit.

provided , however , that, for purposes of this definition, all credits shall be deemed to equal 2.857143.

 

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(16) “ CCRG Entities ” means Avis Budget Holdings, LLC, and Avis Budget Car Rental LLC and its direct and indirect Subsidiaries other than Cendant Canada.

(17) “ CCRG Entity Tax Return ” means:

 

(i)

any Income Tax Returns required to be filed by any Tax Group of which a CCRG Entity is the Common Parent;

 

(ii)

any U.S., state, local or foreign separate Income Tax Return required to be filed by a CCRG Entity; and

 

(iii)

any U.S., state, local or foreign Non-Income Tax Return required to be filed by a CCRG Entity.

(18) “ CCRG Entity Taxes ” means all Taxes required to be paid by or imposed upon a CCRG Entity with respect to all CCRG Entity Tax Returns.

(19) “ Cendant ” has the meaning set forth in the preamble of this Agreement.

(20) “ Cendant Canada ” means Cendant Canada, Inc., a Canadian corporation.

(21) “ Cendant Common Stock ” has the meaning set forth in the Separation and Distribution Agreement.

(22) “ Cendant Contingent Assets ” has the meaning set forth in the Separation and Distribution Agreement.

(23) “ Cendant Employee ” has the meaning set forth in the Separation and Distribution Agreement.

(24) “ Cendant Group ” means Cendant, CFHC LLC, Cendant Canada, Advance Ross Corporation, Advance Ross Intermediate Corporation, Advance Ross Sub Company and each of the CCRG Entities and each Business Entity that becomes a Subsidiary of Cendant.

(25) “ Cendant Indemnitees ” means Cendant, each member of the Cendant Group, each of their respective directors, officers, employees and agents and each of the heirs, executors, successors and assigns of any of the foregoing, except the Realogy Indemnitees, the Travelport Indemnitees and the Wyndham Indemnitees.

(26) “ Cendant Operations ” has the meaning set forth in Section 2.5(g) .

(27) “ Cendant Option ” means an option to acquire Cendant Common Stock.

(28) “ Cendant Option Holder ” means a holder of a Cendant Option.

(29) “ Cendant RSU ” means a restricted stock unit payable in shares of Cendant Common Stock.

(30) “ Cendant RSU Holder ” means a holder of a Cendant RSU.

 

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(31) “ Cendant Shared Entities ” means:

 

(i)

Cendant or any entity that merged with and into Cendant;

 

(ii)

CFHC or its successor, CFHC LLC or any entity that merged with and into CFHC or CFHC LLC, including, without limitation, Cendant Internet Group, Inc., Cendant Operations, Inc., TM Acquisition Corporation, Wizcom International, Ltd. and Travel Link Group, Inc.;

 

(iii)

Advance Ross Corporation, Advance Ross Intermediate Corporation and Advance Ross Sub Company; and

 

(iv)

CD Intellectual Property Holdings LLC and Cendant Canada.

(32) “ Cendant Subsidiaries ” means all direct and indirect Subsidiaries of Cendant, determined immediately after the Final Separation Date, including all CCRG Entities and all Cendant Shared Entities.

(33) “ CFHC ” means Cendant Finance Holding Corporation, a Delaware corporation and the predecessor of CFHC LLC.

(34) “ CFHC LLC ” means Cendant Finance Holding Company, LLC, a Delaware limited liability company that is directly and wholly-owned by Cendant.

(35) “ Code ” has the meaning referred to in the recitals to this Agreement.

(36) “ Common Parent ” means (i) for U.S. federal income tax purposes, the “common parent corporation” of an “affiliated group” (in each case, within the meaning of Section 1504 of the Code) filing a U.S. federal consolidated income tax return, or (ii) for state, local or foreign income tax purposes, the common parent (or similar term) of a consolidated, unitary, combined or similar group.

(37) “ Credit Carryover ” means the aggregate of all alternative minimum Tax credit carryovers, general business credit carryovers and foreign Tax credit carryovers.

(38) “ DCL ” has the meaning set forth in Section 10.2(m)(i) .

(39) “ Dispute ” means any dispute, controversy or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, validity or breach of this Agreement or otherwise arising out of, or in any way related to, this Agreement or the transactions contemplated thereby, including any claim based in contract, tort, statute or constitution.

(40) “ Dispute Notice ” has the meaning set forth in Section 12.1 .

(41) “ Distributions ” means, collectively, the Realogy Distribution, the Wyndham Distribution and the Travelport Distribution (if effected).

 

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(42) “ Distribution Taxes ” means the sum of all Realogy Distribution Taxes, Wyndham Distribution Taxes and Travelport Distribution Taxes, provided , however , if the Travelport Sale occurs, Travelport Distribution Taxes shall be deemed to equal zero.

(43) “ DRC ” has the meaning set forth in Section 10.2(m)(iii) .

(44) “ Due Date ” means the date (taking into account all valid extensions) upon which a Tax Return is required to be filed.

(45) “ Estimated Tax Return ” shall have the meaning set forth in Section 2.1(a)(iii)(E).

(46) “ Extraordinary Transaction ” means any transaction that is not in the Ordinary Course of Business and is not set forth or referred to in the Steps Memorandum, provided , however , that Extraordinary Transaction shall not include any Travelport Sale.

(47) “ Fault ” has the meaning set forth in Section 5.2 .

(48) “ Fifty Percent or Greater Interest ” means a “50-percent or greater interest” for purposes of Sections 355(d) and (e) of the Code and the Treasury Regulations promulgated thereunder.

(49) “ Final Determination ” means the final resolution of liability for any Tax for any taxable period, by or as a result of:

 

(i)

a final decision, judgment, decree or other order by any court of competent jurisdiction that can no longer be appealed;;

 

(ii)

a final settlement with the IRS, a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the Laws of other jurisdictions, which resolves the entire Tax liability for any taxable period;

 

(iii)

any allowance of a refund or credit in respect of an overpayment of Tax, but only after the expiration of all periods during which such refund may be recovered by the jurisdiction imposing the Tax; or

 

(iv)

any other final disposition, including by reason of the expiration of the applicable statute of limitations.

(50) “ Final Tax Attribute Allocation ” has the meaning set forth in Section 10.1(b) .

(51) “ Final Separation Date ” has the meaning set forth in the Separation and Distribution Agreement.

(52) “ Group ” means the Cendant Group, the Realogy Group, the Wyndham Group or the Travelport Group.

 

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(53) “ Hospitality Business ” has the meaning set forth in the Separation and Distribution Agreement.

(54) “ Hypothetical Tax Benefit Amount ” means, with respect to an Applicable Tax Benefit Party, the sum of:

 

(i)

product of (A) thirty-eight percent (38%) and (B) the excess, if any, of (x) the net operating loss carryovers (if any) that would have been Apportioned to the Applicable Tax Benefit Party or its Affiliates for its first Post-Distribution Tax Period assuming that the applicable Pre-2007 Shared Entity Audit had not resulted in any increase of taxable income and gain (or the disallowance of deduction, loss and credit) for such taxable period (but taking into account all increases of taxable income and gain (and all disallowances of items of deduction, loss and credit) resulting from Audits for all prior periods and utilization of net operating loss carryovers and Credit Carryovers as a result thereof) over (y) the net operating loss carryovers (if any) that will be Apportioned to the Applicable Tax Benefit Party or its Affiliates as of its first Post-Distribution Tax Period taking into account all increases of income and gain (and all disallowances of items of deductions, loss and credit) resulting from such applicable Pre-2007 Shared Entity Audit (and all increases of income and gain and all disallowances of deduction, loss and credit resulting from all Audits for all prior periods and utilization of net operating loss carryovers and Credit Carryovers as a result thereof); and

 

(ii)

the excess, if any, of (A) the Credit Carryovers (if any) that would have been Apportioned to the Applicable Tax Benefit Party or its Affiliates as of its first Post-Distribution Taxable Period assuming that the applicable Pre-2007 Shared Entity Audit had not resulted in any increases in taxable income and gain (or disallowances of deduction, loss or credit) for such taxable period (but taking into account all increases of taxable income and gain (and all disallowances of deduction, loss and credit) resulting from Audits for all prior periods and utilization of net operating loss carryovers and Credit Carryovers as a result thereof) over (y) the Credit Carryovers (if any) that will be Apportioned to the Applicable Tax Benefit Party or its Affiliates as of its first Post-Distribution Tax Period taking into account all increases of income and gain (and all disallowances of deduction, loss and credit) resulting from such applicable Pre-2007 Shared Entity Audit (and increases of income and gain and all disallowances of deduction, loss and credit resulting from all Audits for all prior periods and utilization of net operating loss carryovers and Credit Carryovers as a result thereof);

 

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provided , however , that, for the avoidance of doubt, the determination of amounts pursuant to this definition shall be made in a manner consistent with the provisions of Article X and provided , further , that, for the avoidance of doubt, there shall be no Hypothetical Tax Benefit Amount except in the case of a Section 8.9 Final Determination.

(55) “ Income Tax Returns ” mean all Tax Returns relating to Income Taxes.

(56) “ Income Taxes ” means: (i) all Taxes based upon, measured by, or calculated with respect to: (A) net income or profits (including, but not limited to, any capital gains, minimum Tax or any Tax on items of Tax preference, but not including sales, use, real or personal property, gross or net receipts, transfer or similar Taxes) or (B) multiple bases (including, but not limited to, corporate franchise, doing business and occupation Taxes) if one or more bases upon which such Tax may be based, measured by, or calculated with respect to, is described in clause (i)(A) above; or (ii) all U.S., state, local or foreign franchise Taxes, including in the case of each of (i) and (ii) any related interest and any penalties, additions to such Tax or additional amounts imposed with respect thereto by any Tax Authority.

(57) “ Independent Firm ” means a nationally recognized accounting firm other than Ernst & Young (LLP).

(58) “ Indemnified Party ” means the Party (or Indemnitee) which is or may be entitled pursuant to this Agreement to receive any payments (including reimbursement for Taxes or costs and expenses) from another Party or Parties to this Agreement.

(59) “ Indemnifying Party ” means the Party which is or may be required pursuant to this Agreement to make indemnification or other payments (including reimbursement for Taxes and costs and expenses) to another Party to this Agreement.

(60) “ Indemnitee ” means a Cendant Indemnitee, a Realogy Indemnitee, a Wyndham Indemnitee, or a Travelport Indemnitee.

(61) “ IP Companies ” means, collectively, ERA TM Corp., a California corporation, C21 TM Corp., a California corporation, and CB TM Corp., a California corporation.

(62) “ IRS ” means the United States Internal Revenue Service or any successor thereto, including, but not limited to its agents, representatives, and attorneys.

(63) “ Law ” means any U.S. or non-U.S. federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, administrative pronouncement, order, requirement or rule of law (including common law).

(64) “ Majority of the Parties ” means the consent of three of the Parties, provided , however , that if a Travelport Sale occurs, “Majority of the Parties” means the consent of two of the Parties (excluding Travelport).

 

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(65) “ New Realogy Gain Recognition Agreements ” has the meaning set forth in Section 10.3(m)(vii) .

(66) “ New Travelport Gain Recognition Agreements ” has the meaning set forth in Section 10.3(m)(ii) .

(67) “ New Wyndham Gain Recognition Agreements ” has the meaning set forth in Section 10.3(m)(v) .

(68) “ New York Courts ” has the meaning set forth in the Separation and Distribution Agreement.

(69) “ Non-Income Tax Returns ” mean all Tax Returns other than Income Tax Returns.

(70) “ Non-Income Taxes ” mean all Taxes other than Income Taxes.

(71) “ Non-Monetary Impairment ” has the meaning set forth in the Separation and Distribution Agreement.

(72) “ Ongoing Federal Income Tax Audit ” has the meaning set forth in Section 8.9(a) .

(73) “ Ongoing State Income Tax Audit ” has the meaning set forth in Section 8.9(a) .

(74) “ Options ” means, collectively, and as the context requires, Cendant Options, Realogy Options, Wyndham Options and Travelport Options.

(75) “ Ordinary Course of Business ” means an action taken by a Person only if such action is taken in the ordinary course of the normal day-to-day operations of such Person consistent with the past practices of such Person.

(76) “ Other Dispute ” has the meaning set forth in Section 12.2(b) .

(77) “ Party ” has the meaning set forth in the preamble hereto.

(78) “ Person ” means any natural person, firm, individual, corporation, business trust, joint venture, association, company, limited liability company, partnership or other organization or entity, whether incorporated or unincorporated, or any governmental entity.

(79) “ Plan of Separation ” has the meaning set forth in the recitals hereto.

(80) “ Post-2006 Cendant Shared Entity Tax Return ” means:

 

(i)

any Income Tax Return required to be filed by any Tax Group of which a Cendant Shared Entity is the Common Parent for Tax years beginning on or after January 1, 2007;

 

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(ii)

any U.S., state, local or foreign separate Income Tax Return required to be filed by a Cendant Shared Entity for Tax years beginning on or after January 1, 2007; and

 

(iii)

any U.S., state, local or foreign Non-Income Tax Return required to be filed by a Cendant Shared Entity for Tax years beginning on or after January 1, 2007.

(81) “ Post-2006 Cendant Shared Entity Taxes ” means all Taxes required to paid by or imposed upon a Cendant Shared Entity with respect to all Post-2006 Cendant Shared Entity Tax Returns.

(82) “ Post-2006 Existing Realogy Gain Recognition Agreements ” has the meaning set forth in Section 10.3(m)(xi).

(83) “ Post-2006 Existing Travelport Gain Recognition Agreements ” has the meaning set forth in Section 10.3(m)(ix).

(84) “ Post-2006 Existing Wyndham Gain Recognition Agreements ” has the meaning set forth in Section 10.3(m)(x).

(85) “ Post-2006 Shared Entity Tax Returns ” means, collectively, all Post-2006 Cendant Shared Entity Tax Returns and all Post-2006 Wyndham Shared Entity Tax Returns.

(86) “ Post-2006 Shared Entity Taxes ” means, collectively, all Post-2006 Cendant Shared Entity Taxes and all Post-2006 Wyndham Shared Entity Taxes.

(87) “ Post-2006 Wyndham Shared Entity Tax Returns ” means:

 

(i)

any Income Tax Returns required to be filed by any Tax Group of which a Wyndham Shared Entity is the Common Parent for Tax years beginning on or after January 1, 2007;

 

(ii)

any U.S. state, local or foreign separate Income Tax Return required to be filed by a Wyndham Shared Entity for Tax years beginning on or after January 1, 2007; and

 

(iii)

any U.S. state, local or foreign Non-Income Tax Return required to be filed by a Wyndham Shared Entity for taxable years beginning on or after January 1, 2007.

(88) “ Post-2006 Wyndham Shared Entity Taxes ” means all Taxes required to be paid or imposed upon a Wyndham Shared Entity with respect to all Post-2006 Wyndham Shared Entity Tax Returns.

(89) “ Post-Distribution Tax Detriment ” has the meaning set forth in Section 8.13 .

 

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(90) “ Post-Distribution Tax Period ” means:

 

(i)

in the case of Cendant, a Tax year beginning on or after January 1, 2007;

 

(ii)

in the case of Realogy, a Tax year beginning after the Realogy Distribution Date;

 

(iii)

in the case of Wyndham, a Tax year beginning after the Wyndham Distribution Date; and

 

(iv)

in the case of Travelport, a Tax year beginning after the Travelport Distribution Date.

(91) “ Pre-2007 Cendant Shared Entity Tax Returns ” means:

 

(i)

any Income Tax Returns required to be filed by any Tax Groups of which a Cendant Shared Entity is the Common Parent for Tax years ending on or prior to December 31, 2006;

 

(ii)

any U.S., state, local or foreign separate Income Tax Return required to be filed by a Cendant Shared Entity for Tax years ending on or prior to December 31, 2006; and

 

(iii)

any U.S., state, local or foreign Non-Income Tax Return required to be filed by a Cendant Shared Entity for Tax years ending on or prior to December 31, 2006.

(92) “ Pre-2007 Cendant Shared Entity Taxes ” means all Taxes required to paid by or imposed upon a Cendant Shared Entity with respect to all Pre-2007 Cendant Shared Entity Tax Returns.

(93) “ Pre-2007 Correlative Adjustment ” means a disallowance of an item of deduction, loss or credit (or an increase of an item of income or gain) included in the applicable Pre-2007 Shared Entity Tax Return that is related or attributable to the business or operations of any of the CCRG Entities, Realogy or its Subsidiaries, Wyndham or its Subsidiaries or Travelport or its Subsidiaries (as the case may be) and also is more likely than not to result in a related correlative increase of an item of deduction, loss or credit (or reduction of an item of income or gain for a Post-Distribution Tax Period of such entity). For purposes of this Agreement, a Correlative Adjustment shall not include any such disallowance or increase that more likely than not will result in an increase in basis in property the basis of which is neither deductible, depreciable or amortizable.

(94) “ Pre-2007 Realogy Separate Company Shared Tax Audit ” means all Audits relating to or involving Realogy Separate Company Shared Taxes.

(95) “ Pre-2007 Realogy Separate Company Shared Taxes ” means each of the separate company Taxes set forth on Schedule B (relating to periods ending on or prior to

 

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December 31, 2006) that could be required to be paid by Realogy or any of its Subsidiaries relating to the specific Tax issue(s) set forth on such Schedule; provided , however , that, notwithstanding anything to the contrary contained herein, each such Pre-2007 Realogy Separate Company Shared Tax shall be equal to the lesser of (i) the actual incremental Tax liability resulting from any Pre-2007 Realogy Separate Company Shared Tax Audit relating solely to such specific Tax issues set forth on Schedule B and (ii) the amount set forth on Schedule B relating to such specific Tax issue.

(96) “ Pre-2007 Separate Company Shared Tax Audits ” means, collectively, all Audits relating to Pre-2007 Separate Company Shared Taxes.

(97) “ Pre-2007 Separate Company Shared Taxes ” means, collectively, all Pre-2007 Realogy Separate Company Shared Taxes, all Pre-2007 Travelport Separate Company Shared Taxes and all Pre-2007 Wyndham Separate Company Shared Taxes.

(98) “ Pre-2007 Shared Entity Audit Other Adjustments ” means the sum of all increases in income and gain and all disallowances of deductions and losses resulting from a Pre-2007 Shared Entity Audit other than:

 

(i)

the aggregate amount of income and gain set forth in clause (i)(I), and the aggregate amount of disallowed deduction, loss and credit (and increased income and gain) set forth in clause (i)(II), of the defined term “CCRG Audit Sharing Percentage”;

 

(ii)

the aggregate amount of income and gain set forth in clause (i)(I), the aggregate amount of income and gain set forth in Clause (i)(II), the aggregate amount of disallowed deduction, loss and credit (and increased income and gain) set forth in clause (i)(III) and the aggregate amount of income and gain set forth in clause (i)(IV), of the defined term “Realogy Audit Sharing Percentage”;

 

(iii)

the aggregate amount of income and gain set forth in clause (i)(I), the aggregate amount of income and gain set forth in Clause (i)(II), the aggregate amount of disallowed deduction, loss and credit (and increased income and gain) set forth in clause (i)(III) and the aggregate amount of income and gain set forth in clause (i)(IV), of the defined term “Wyndham Audit Sharing Percentage”, and

 

(iv)

the aggregate amount of income and gain set forth in clause (i)(I), the aggregate amount of income and gain set forth in Clause (i)(II), the aggregate amount of disallowed deduction, loss and credit (and increased income and gain) set forth in clause (i)(III) and the aggregate amount of income and gain set forth in clause (i)(IV), of the defined term “Travelport Audit Sharing Percentage”, provided , however , that if the Travelport Sale occurs, all amounts referred to in this clause (iv) of this definition shall be deemed to equal zero.

provided , however , that, for purposes of this definition, all credits shall be deemed to equal 2.857143.

 

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(99) “ Pre-2007 Shared Entity Audits ” means all Audits relating to all Pre-2007 Shared Entity Tax Returns.

(100) “ Pre-2007 Shared Entity Audit Tax Amount ” has the meaning set forth in Section 8.8.

(101) “ Pre-2007 Shared Entity Taxes ” means, collectively, all Pre-2007 Cendant Shared Entity Taxes and all Pre-2007 Wyndham Shared Entity Taxes.

(102) “ Pre-2007 Shared Entity Tax Returns ” means, collectively, all Pre-2007 Cendant Shared Entity Tax Returns and all Pre-2007 Wyndham Shared Entity Tax Returns.

(103) “ Pre-2007 Travelport Separate Company Shared Tax Audit ” means all Audits relating to or involving Travelport Separate Company Shared Taxes.

(104) “ Pre-2007 Travelport Separate Company Shared Taxes ” means each of the separate company Taxes set forth on Schedule B (relating to periods ending on or prior to December 31, 2006) that could be required to be paid by Travelport or any of its Subsidiaries relating to the specific Tax issue(s) set forth on such Schedule; provided , however , that, notwithstanding anything to the contrary contained herein, each such Pre-2007 Travelport Separate Company Shared Tax shall be equal to the lesser of (i) the actual incremental Tax liability resulting from any Pre-2007 Travelport Separate Company Shared Tax Audit relating solely to such specific Tax issues set forth on Schedule B and (ii) the amount set forth on Schedule B relating to such specific Tax issue, provided , further , that Travelport Separate Company Shared Taxes shall be deemed to equal zero if the Travelport Sale occurs.

(105) “ Pre-2007 Wyndham Separate Company Shared Tax Audit ” means all Audits relating to or involving Wyndham Separate Company Shared Taxes.

(106) “ Pre-2007 Wyndham Separate Company Shared Taxes ” means each of the separate company Taxes set forth on Schedule B (relating to periods ending on or prior to December 31, 2006) that could be required to be paid by Wyndham or any of its Subsidiaries relating to the specific Tax issue(s) set forth on such Schedule; provided , however , that, notwithstanding anything to the contrary contained herein, each such Pre-2007 Wyndham Separate Company Shared Tax shall be equal to the lesser of (i) the actual incremental Tax liability resulting from any Pre-2007 Wyndham Separate Company Shared Tax Audit relating solely to such specific Tax issues set forth on Schedule B and (ii) the amount set forth on Schedule B relating to such specific Tax issue.

(107) “ Pre-2007 Wyndham Shared Entity Tax Returns ” means:

 

(i)

all Income Tax Returns required to be filed by all Tax Groups of which a Wyndham Shared Entity is the Common Parent for taxable years ending on or prior to December 31, 2006;

 

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(ii)

all U.S., state, local and foreign separate Income Tax Returns required to be filed by a Wyndham Shared Entity for taxable years ending on or prior to December 31, 2006; and

 

(iii)

all U.S., state, local and foreign Non-Income Tax Returns required to be filed by a Wyndham Shared Entity for taxable years ending on or prior to December 31, 2006.

(108) “ Pre-2007 Wyndham Shared Entity Taxes ” means all Taxes required to be paid or imposed upon a Wyndham Shared Entity with respect to all Pre-2007 Wyndham Shared Entity Tax Returns.

(109) “ Prime Rate ” has the meaning set forth in the Separation and Distribution Agreement.

(110) “ Proposed Acquisition Transaction ” means a transaction or series of transactions (or any agreement, understanding or arrangement, within the meaning of Section 355(e) of the Code and the Treasury Regulations promulgated thereunder, to enter into a transaction or series of related transactions), as a result of which any of the Parties (or any successor thereto) would merge or consolidate with any other Person or as a result of which any Person or any group of Persons would (directly or indirectly) acquire, or have the right to acquire (through an option or otherwise) from any of the Parties (or any successor thereto) and/or one or more holders of their common stock, respectively, any amount of stock of any of the Parties, as the case may be, that would, when combined with any other changes in ownership of the stock of such Party pertinent for purposes of Section 355(e) of the Code and the Treasury Regulations promulgated thereunder, comprise more than thirty–five percent (35%) or more of (i) the value of all outstanding stock of such Party as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series, or (ii) the total combined voting power of all outstanding stock of such Party as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series. For purposes of determining whether a transaction constitutes an indirect acquisition for purposes of the first sentence of this definition, any recapitalization resulting in a shift of voting power or any redemption of shares of stock shall be treated as an indirect acquisition of shares of stock by the non-exchanging shareholders. This definition and the application thereof is intended to monitor compliance with Section 355(e) of the Code and the Treasury Regulations promulgated thereunder and shall be interpreted accordingly by the parties in good faith.

(111) “ Real Estate Business ” has the meaning set forth in the Separation and Distribution Agreement.

(112) “ Realizable Tax Benefit ” means the Tax benefit potentially realizable (without applying a discount for the time value of money or for the lack of certainty of realization) by a Party or its Affiliates, which potential Tax benefit is solely attributable to the accrual or payment of a Tax, cost, expense, liability or other amount by such Party or its Affiliates which accrual or payment resulted in the right by such Party or it Affiliates to receive a payment from another Party pursuant to this Agreement, assuming an effective Tax rate of thirty-eight percent (38%).

 

15

(113) “ Realogy ” has the meaning set forth in the recitals to this Agreement.

(114) “ Realogy Audit Sharing Percentage ” means a ratio:

 

(i)

the numerator of which is the sum of:

 

(I)

the Realogy Sharing Percentage of the aggregate amount of all income and gain directly attributable to or resulting from any of the Distributions failing to qualify as a reorganization within the meaning of Sections 368(a)(1)(D) and 355 of the Code or as a distribution within the meaning of Section 355 of the Code, as the case may be, or the application of Sections 355(d) or (e) of the Code to any of the Distributions, to the extent such items of income or gain does not result and is not directly attributable to the Fault of any Party and/or its Affiliates;

 

(II)

the aggregate amount of all income and gain directly attributable to or resulting from the Realogy Distribution failing to qualify as a reorganization within the meaning of Sections 368(a)(1)(D) and 355 of the Code or as a distribution within the meaning of Section 355 of the Code, as the case may be, or the application of Sections 355(d) or (e) of the Code to the Realogy Distribution, to the extent such items of income or gain results from or is directly attributable to the Fault of Realogy or any of its Affiliates;

 

(III)

in the event of a Pre-2007 Shared Entity Audit that results in a Pre-2007 Correlative Adjustment that is directly related or attributable to the business or operations of Realogy or any of its Subsidiaries, the aggregate amount of disallowed deduction, loss and credit (and increases of income and gain) resulting from such Pre-2007 Correlative Adjustment;

 

(IV)

the aggregate amount of income and gain (and disallowed deduction, loss and credit) resulting from a breach by Realogy of a representation, covenant or obligation under this Agreement; and

 

(V)

the Realogy Sharing Percentage of the aggregate amount of all Pre-2007 Shared Entity Other Adjustments; and

 

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(ii)

the denominator of which is the sum of:

 

(I)

all aggregate amount of income and gain resulting from such Pre-2007 Shared Entity Audit; and

 

(II)

all aggregate amount of all disallowed deduction, loss and credit resulting from such Pre-2007 Shared Entity Audit.

provided , however , that, for purposes of this definition, all credits shall be deemed to equal 2.857143.

(115) “ Realogy Common Stock ” has the meaning set forth in the recitals hereto.

(116) “ Realogy Distribution ” means the distribution on the Realogy Distribution Date to holders of record of shares of Cendant Common Stock as of the Realogy Distribution Record Date of the Realogy Common Stock owned by Cendant on the basis of one (1) share of Realogy Common Stock for every four (4) outstanding shares of Cendant Common Stock.

(117) “ Realogy Distribution Date ” means the date on which Cendant distributes all of the issued and outstanding shares of Realogy Common Stock to the holders of Cendant Common Stock.

(118) “ Realogy Distribution Record Date ” means such date as may be determined by Cendant’s board of directors as the record date for the Realogy Distribution.

(119) “ Realogy Distribution Taxes ” means any and all Taxes required to be paid by or imposed on Cendant (or any Tax Group of which it is a member) resulting from, or directly arising in connection with, the failure of the Realogy Distribution to qualify under Section 355(a) or (c) of the Code or, if applicable, Section 361(c) of the Code, or the application of Sections 355(d) or (e) of the Code to the Realogy Distribution, or under the corresponding provisions of the Laws of other jurisdictions.

(120) “ Realogy Employee ” has the meaning set forth in the Separation and Distribution Agreement.

(121) “ Realogy Group ” means Realogy and each of the Realogy Subsidiaries and each Business Entity that becomes a Subsidiary of Realogy.

(122) “ Realogy Indemnitees ” means Realogy, each member of the Realogy Group, each of their respective directors, officers, employees and agents and each of the heirs, executors, successors and assigns of any of the foregoing.

(123) “ Realogy Option ” means an option to acquire Realogy Common Stock.

(124) “ Realogy Option Holder ” means a holder of a Realogy Option.

(125) “ Realogy RSU ” means a restricted stock unit payable in shares of Realogy Common Stock.

 

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(126) “ Realogy RSU Option ” means a holder of a Realogy RSU.

(127) “ Realogy Sharing Percentage ” means fifty percent (50%); provided , however , that in the event a Travelport Sale occurs, Realogy Sharing Percentage means sixty-two and one-half percent (62.5%) for all purposes (including with retroactive application).

(128) “ Realogy Subsidiaries ” means all direct and indirect Subsidiaries of Realogy, determined immediately after the Realogy Distribution (and predecessors of such entities).

(129) “ Realogy Subsidiary Corporation ” has the meaning as set forth in Section 10.3(m)(viii) .

(130) “ Realogy Tax Return ” means:

 

(i)

any Income Tax Returns required to be filed by any Tax Group of which Realogy or a Realogy Subsidiary is the Common Parent;

 

(ii)

any U.S., state, local or foreign separate Income Tax Return required to be filed by Realogy or a Realogy Subsidiary; and

 

(iii)

any U.S., state, local or foreign Non-Income Tax Return required to be filed by Realogy or a Realogy Subsidiary.

(131) “ Realogy Taxes ” means all Taxes required to be paid by or imposed upon Realogy or a Realogy Subsidiary with respect to all Realogy Tax Returns.

(132) “ Refund ” means any refund of Taxes (including any overpayment of Taxes for a period ending on or prior to December 31, 2006 that can be refunded or, alternatively, applied to future Taxes payable), including any interest paid on or with respect to such refund of Taxes, provided , however , that with respect to any refund of Taxes imposed on any Person, refunds shall be net of any Taxes imposed on or related or attributable to the receipt or accrual of such refund.

(133) “ Requesting Party ” has the meaning set forth in Section 5.3 .

(134) “ Restricted Period ” means:

 

(i)

in the case of Cendant, the period beginning the day after the Travelport Distribution Date and ending on the two-year anniversary thereof, provided , however , that, if the Travelport Sale occurs, the period beginning the day after the Wyndham Distribution Date and ending on the two-year anniversary thereof.

 

(ii)

in the case of Realogy, the period beginning the day after the Realogy Distribution Date and ending on the two-year anniversary thereof;

 

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(iii)

in the case of Wyndham, the period beginning the day after the Wyndham Distribution Date and ending on the two-year anniversary thereof; and

 

(iv)

in the case of Travelport, the period beginning the day after the Travelport Distribution Date and ending on the two-year anniversary thereof.

(135) “ RSU Effective Time ” means August 15, 2006.

(136) “ RSUs ” means, collectively, Cendant RSUs, Realogy RSUs, Wyndham RSUs and Travelport RSUs.

(137) “ Rules ” has the meaning set forth in Section 13.2 .

(138) “ Section 8.9 Final Determination ” has the meaning set forth in Section 8.9(a) .

(139) “ Separation and Distribution Agreement ” means the Separation and Distribution Agreement by and among Cendant, Realogy, Travelport and Wyndham, dated as of July 27, 2006.

(140) “ Shared Entities ” means, collectively, all Cendant Shared Entities and all Wyndham Shared Entities.

(141) “ Skadden ” means Skadden, Arps, Slate, Meagher & Flom LLP.

(142) “ Specified Shared Expenses ” has the meaning set forth in the Separation and Distribution Agreement.

(143) “ Spinco Parties ” means, collectively, Realogy, Wyndham and Travelport.

(144) “ Steps Memorandum ” means the memorandum attached hereto as Exhibit A.

(145) “ SU ” has the meaning set forth in Section 10.2(m)(ii) .

(146) “ Subsidiary ” of any Person means, on any date, any Person of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests or more than 50% of the profits or losses of which are, as of such date, owned, controlled or held by the applicable Person or one or more subsidiaries of such Person. For purposes hereof, none of the Parties or their respective Subsidiaries (determined, in the case of Cendant, immediately after the Final Distribution Date, in the case of Realogy, immediately after the Realogy Distribution, in the case of Wyndham, immediately after the Wyndham Distribution and in the case Travelport, immediately after the Final Distribution Date) shall be considered a “Subsidiary” of any of the other Parties or their respective Subsidiaries (determined on the same basis).

 

19

(147) “ Tax Benefit Actually Realized ” means an actual reduction in Taxes otherwise due and payable by a Party or its Affiliates which reduction is solely attributable to the accrual or payment of a Tax, cost, expense, liability or other amount by such Party or its Affiliates which accrual or payment resulted in the right by such Party or its Affiliates to receive a payment from another Party pursuant to this Agreement.

(148) “ Taxes ” means all taxes, charges, fees, duties, levies, imposts, or other similar assessments imposed by any federal, state, local or foreign Taxing Authority, including, but not limited to, income, gross receipts, excise, property, sales, use, license, capital stock, transfer, franchise, payroll, withholding, social security, value added and other taxes, and any interest, penalties or additions attributable thereto.

(149) “ Tax-Free Status ” means the qualification of the applicable Distribution and related transactions as a distribution in which no gain or loss is recognized, and no amount is included in income, including by reason of Distribution Taxes, for U.S. federal income Tax purposes (other than intercompany items, excess loss accounts or other items required to be taken into account pursuant to Treasury Regulations promulgated under Section 1502 of the Code).

(150) “ Tax Group ” means any U.S. federal, state, local or foreign affiliated, consolidated, combined, unitary or similar group that files an Income Tax Return.

(151) “ Tax Package ” means:

 

(i)

a pro forma Tax Return relating to the operations of a Spinco Party and/or its Subsidiaries that are required to be included in any Tax Group of which a Shared Entity is or was the Common Parent and such Spinco Party and/or such Subsidiaries is or was a member for one or more days in a taxable year; and

 

(ii)

all information relating to the operations of a Spinco Party and/or its Subsidiaries that is reasonably necessary to prepare and file the applicable Income Tax Return required to be filed by any Tax Group of which a Shared Entity is or was the common parent and such Spinco Party or any of its Subsidiaries is or was a member for one or more days in a Tax year.

(152) “ Tax Representation Letter ” means a letter containing certain representations and covenants issued by a Party to Skadden, Arps, Slate, Meagher & Flom LLP in connection with certain Tax opinions to be rendered by Skadden, Arps, Slate, Meagher & Flom LLP to Cendant in connection with the Plan of Separation.

(153) “ Tax Return ” means any return, report, certificate, form or similar statement or document (including any related or supporting information or schedule attached thereto and any information return, amended tax return, claim for refund or declaration of estimated tax) required to be supplied to, or filed with, a Taxing Authority in connection with the determination, assessment or collection of any Tax or the administration of any Laws, regulations or administrative requirements relating to any Tax.

 

20

(154) “ Tax Sharing Agreement Termination Date ” means, as between the applicable Parties and their respective Subsidiaries:

 

(i)

in the case of Realogy or any of its Subsidiaries, on the one hand, and any other Party or its Subsidiaries, on the other hand, the Realogy Distribution Date;

 

(ii)

in the case of Wyndham or any of its Subsidiaries, on the one hand, and any other Party or its Subsidiaries, on the other hand, the Wyndham Distribution Date; and

 

(iii)

in the case of Travelport or any of its Subsidiaries, on the one hand, and any other Party or its Subsidiaries, on the other hand, the Travelport Distribution Date.

(155) “ Taxing Authority ” means any governmental authority or any subdivision, agency, commission or authority thereof or any quasi-governmental or private body having jurisdiction over the assessment, determination, collection or imposition of any Tax (including the IRS).

(156) “ Travelport ” has the meaning set forth in the recitals to this Agreement.

(157) “ Travelport Audit Sharing Percentage ” means a ratio:

 

(i)

the numerator of which is the sum of:

 

(I)

the Travelport Sharing Percentage of the aggregate amount of all income and gain directly attributable to or resulting from any of the Distributions failing to qualify as a reorganization within the meaning of Sections 368(a)(1)(D) and 355 of the Code or as a distribution within the meaning of Section 355 of the Code, as the case may be, or the application of Sections 355(d) or (e) of the Code to any of the Distributions, to the extent such income or gain does not result and is not directly attributable to the Fault of any Party and/or its Affiliates;

 

(II)

the aggregate amount of all income and gain directly attributable to or resulting from the Travelport Distribution failing to qualify as a reorganization within the meaning of Sections 368(a)(1)(D) and 355 of the Code or as a distribution within the meaning of Section 355 of the Code, as the case may be, or the application of Sections 355(d) or (e) of the Code to the Travelport Distribution, to the extent such income or gain results from or is directly attributable to the Fault of Travelport or any of its Affiliates;

 

21

(III)

in the event of a Pre-2007 Shared Entity Audit that results in a Pre-2007 Correlative Adjustment that is directly related or attributable to the business or operations of Travelport or any of its Subsidiaries, the aggregate amount of all disallowed deduction, loss and credit (and increases of income and gain) resulting from such Pre-2007 Correlative Adjustment;

 

(IV)

the aggregate amount of all income and gain (and disallowed deduction, loss and credit) resulting from a breach by Travelport of a representation, covenant or obligation under this Agreement;

 

(V)

the Travelport Sharing Percentage of the aggregate amount of all Pre-2007 Shared Entity Other Adjustments; and

 

(ii)

the denominator of which is the sum of:

 

(I)

all aggregate amount of all income and gain resulting from such Pre-2007 Shared Entity Audit; and

 

(II)

all aggregate amount of all disallowed deduction, loss and credit resulting from such Pre-2007 Shared Entity Audit.

provided , however , that, for purposes of this definition, all credits shall be deemed to equal 2.857143; provided , further , that if the Travelport Sale occurs, “Travelport Audit Sharing Percentage” shall be deemed to equal zero percent (0%).

(158) “ Travelport Common Stock ” has the meaning set forth in the recitals hereto.

(159) “ Travelport Distribution ” means the distribution (if effected) on the Travelport Distribution Date to holders of record of shares of Cendant Common Stock as of the Travelport Distribution Record Date of the Travelport Common Stock owned by Cendant on the basis of one share of Travelport Common Stock for a number of outstanding shares of Cendant Common Stock, to be determined prior to such Distribution.

(160) “ Travelport Distribution Date ” means the date on which Cendant distributes (if effected) all of the issued and outstanding shares of Travelport Common Stock to the holders of Cendant Common Stock.

 

22

(161) “ Travelport Distribution Record Date ” means such date as may be determined by Cendant’s board of directors as the record date for the Travelport Distribution.

(162) “ Travelport Distribution Taxes ” means any and all Taxes required to be paid by or imposed on Cendant (or any Tax Group of which Cendant is a member) resulting from, or directly arising in connection with, the failure of the Travelport Distribution to qualify under Section 355(a) or (c) of the Code or, if applicable, Section 361(c) of the Code, or the application of Sections 355(d) or (e) of the Code to the Travelport Distribution, or under the corresponding provisions of the Laws of other jurisdictions, provided , however , if the Travelport Sale occurs, Travelport Distribution Taxes shall be deemed to equal zero.

(163) “ Travelport Employee ” has the meaning set forth in the Separation and Distribution Agreement.

(164) “ Travelport Gain Recognition Agreements ” has the meaning set forth in 10.3(m)(i).

(165) “ Travelport Group ” means Travelport and each of the Travelport Subsidiaries and each Business Entity that becomes a Subsidiary of Travelport.

(166) “ Travelport Indemnitees ” means Travelport, each member of the Travelport Group, each of their respective directors, officers, employees and agents and each of the heirs, executors, successors and assigns of any of the foregoing.

(167) “ Travelport Option ” means an option to acquire Travelport Common Stock.

(168) “ Travelport Option Holder ” means a holder of a Travelport Option.

(169) “ Travelport RSU ” means a restricted stock unit payable in shares of Travelport Common Stock.

(170) “ Travelport RSU Holder ” means a holder of a Travelport RSU.

(171) “ Travelport Sale ” has the meaning set forth in the recitals hereto.

(172) “ Travelport Sale Income Tax Amount ” has the meaning set forth in the Separation and Distribution Agreement.

(173) “ Travelport Sharing Percentage ” means twenty percent (20%); provided , however , that in the event a Travelport Sale occurs, Travelport Sharing Percentage zero percent (0%) for all purposes (including with retroactive application).

(174) “ Travelport Subsidiary ” means all direct and indirect Subsidiaries of Travelport, determined immediately after the Travelport Distribution.

(175) “ Travelport Subsidiary Corporation ” has the meaning set forth in Section 10.3(m)(iii) .

 

23

(176) “ Travelport Tax Return ” means:

 

(i)

any Income Tax Returns required to be filed by any Tax Group of which Travelport or a Travelport Subsidiary is the Common Parent;

 

(ii)

any U.S., state, local or foreign separate Income Tax Return required to be filed by Travelport or a Travelport Subsidiary; and

 

(iii)

any U.S., state, local or foreign Non-Income Tax Return required to be filed by Travelport or a Travelport Subsidiary.

(177) “ Travelport Taxes ” means all Taxes required to be paid by or imposed upon Travelport or a Travelport Subsidiary with respect to all Travelport Tax Returns.

(178) “ Travel Distribution Business ” has the meaning set forth in the Separation and Distribution Agreement.

(179) “ Treasury Regulations ” means the final and temporary (but not proposed) income tax regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

(180) “ Unqualified Tax Opinion ” means an unqualified “will” opinion of a Law firm of nationally recognized standing in the field of taxation, which opinion is reasonably acceptable to a Majority of the Parties and upon which each of the Parties may rely to confirm that a transaction (or transactions) will not result in Distribution Taxes, including confirmation in accordance with Circular 230 or otherwise that may be provided for purposes of avoiding any applicable penalties or additions to Tax.

(181) “ U.S. ” shall mean United States.

(182) “ Vehicle Rental Business ” has the meaning set forth in the Separation and Distribution Agreement.

(183) “ Wyndham ” has the meaning set forth in the recitals hereto.

(184) “ Wyndham Audit Sharing Percentage ” means a ratio:

 

(i)

the numerator of which is the sum of:

 

(I)

the Wyndham Sharing Percentage of the aggregate amount of all income and gain directly attributable to or resulting from any of the Distributions failing to qualify as a reorganization within the meaning of Sections 368(a)(1)(D) and 355 of the Code or as a distribution within the meaning of Section 355 of the Code, as the case may be, or the application of Sections 355(d) or (e) of the Code to any of the

 

24

Distributions, to the extent such items of income or gain do not result and is not directly attributable to the Fault of any Party and/or its Affiliates;

 

(II)

the aggregate amount of all income and gain directly attributable to or resulting from the Wyndham Distribution failing to qualify as a reorganization within the meaning of Sections 368(a)(1)(D) and 355 of the Code or as a distribution within the meaning of Section 355 of the Code, as the case may be, or the application of Sections 355(d) or (e) of the Code to the Wyndham Distribution, to the extent such items of income or gain result from or is directly attributable to the Fault of Wyndham or any of its Affiliates;

 

(III)

in the event of a Pre-2007 Shared Entity Audit that results in a Pre-2007 Correlative Adjustment that is directly related or attributable to the business or operations of Wyndham or any of its Subsidiaries, the aggregate amount of all disallowed deduction, loss and credit (and increases of income and gain) resulting from such Pre-2007 Correlative Adjustment;

 

(IV)

the aggregate amount of all income and gain (or disallowed deduction, loss and credit) resulting from a breach by Wyndham of a representation, covenant or obligation under this Agreement;

 

(V)

the Wyndham Sharing Percentage of the aggregate amount of all Pre-2007 Shared Entity Other Adjustments; and

 

(ii)

the denominator of which is the sum of:

 

(I)

all aggregate amount of all income and gain resulting from such Pre-2007 Shared Entity Audit; and

 

(II)

all aggregate amount of all disallowed deduction, loss and credit resulting from such Pre-2007 Shared Entity Audit.

provided , however , that, for purposes of this definition, all credits shall be deemed to equal 2.857143.

 

25

(185) “ Wyndham Common Stock ” has the meaning set forth in the recitals hereto.

(186) “ Wyndham Distribution ” means the distribution on the Wyndham Distribution Date to holders of record of shares of Cendant Common Stock as of the Wyndham Distribution Record Date of the Wyndham Common Stock owned by Cendant on the basis of one share of Wyndham Common Stock for every five (5) outstanding shares of Cendant Common Stock.

(187) “ Wyndham Distribution Date ” means the date on which Cendant distributes all of the issues and outstanding shares of Wyndham Common Stock to the holders of Cendant Common Stock.

(188) “ Wyndham Distribution Record Date ” means such date as may be determined by Cendant’s board of directors as the record date for the Wyndham Distribution.

(189) “ Wyndham Distribution Taxes ” means any and all Taxes required to be paid by or imposed on Cendant (or any Tax Group of which Cendant is a member) resulting from, or directly arising in connection with, the failure of the Wyndham Distribution to qualify under Section 355(a) or (c) of the Code or, if applicable, Section 361(c) of the Code, or the application of Sections 355(d) or (e) of the Code to the Wyndham Distribution, or under the corresponding provisions of the Laws of other jurisdictions.

(190) “ Wyndham Employee ” has the meaning set forth in the Separation and Distribution Agreement.

(191) “ Wyndham Gain Recognition Agreement ” has the meaning set forth in Section 10.3(m)(iv) .

(192) “ Wyndham Group ” means Wyndham, each of the Wyndham Subsidiaries, each of the Wyndham Shared Entities and each Business Entity that becomes a Subsidiary of Wyndham.

(193) “ Wyndham Indemnitees ” means Wyndham, each member of the Wyndham Group, each of their respective directors, officers, employees and agents and each of the heirs, executors, successors and assigns of any of the foregoing.

(194) “ Wyndham Option ” means an option to acquire Wyndham Common Stock.

(195) “ Wyndham Option Holder ” means a holder of a Wyndham Option.

(196) “ Wyndham RSU ” means a restricted stock unit payable in shares of Wyndham Common Stock.

(197) “ Wyndham RSU Holder ” means a holder of a Wyndham RSU.

 

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(198) “ Wyndham Shared Entities ” means:

 

(i)

Hospitality Operations, Inc. (fka Cendant Transportation Corporation);

 

(ii)

Wyndham Finance (UK);

 

(iii)

Pointlux S.a.r.l. (Luxembourg);

 

(iv)

Cendant Europe Limited (UK) and its Subsidiaries;

 

(v)

Pointeuro V Limited (UK);

 

(vi)

Pointeuro IV Limited (UK);

 

(vii)

RCI Global Vacation Network Aps (fka Cendant Denmark Aps) and its Subsidiaries;

 

(viii)

EMEA Holdings C.V. (Netherlands) and its Subsidiaries;

 

(ix)

RCI Global Vacation Network (UK) (fka Cendant (UK) Holdings Limited) and its Subsidiaries;

 

(x)

Pointtravel Co. Ltd. (UK) and its Subsidiaries; and

 

(xi)

Cycleagent Ltd. (UK).

(199) “ Wyndham Sharing Percentage ” means thirty percent (30%); provided , however , that in the event a Travelport Sale occurs, Wyndham Sharing Percentage means thirty-seven and one-half percent (37.5%) for all purposes (including with retroactive application).

(200) “ Wyndham Subsidiaries ” means all direct and indirect Subsidiaries of Wyndham, determined immediately after the Wyndham Distribution (and predecessors of such entities), provided , however , that Wyndham Subsidiaries shall not include any Wyndham Shared Entity (or any direct or indirect Subsidiary of any Wyndham Shared Entity).

(201) “ Wyndham Subsidiary Corporation ” has the meaning set forth in Section 10.3(m)(vi) .

(202) “ Wyndham Tax Returns ” means:

 

(i)

any Income Tax Returns required to be filed by any Tax Group of which Wyndham or a Wyndham Subsidiary is the Common Parent;

 

(ii)

any U.S., state, local or foreign separate Income Tax Return required to be filed by Wyndham or a Wyndham Subsidiary; and

 

(iii)

any U.S., state, local or foreign Non-Income Tax Return required to be filed by Wyndham or a Wyndham Subsidiary.

 

27

(203) “ Wyndham Taxes ” means all Taxes required to be paid by or imposed upon Wyndham or a Wyndham Subsidiary with respect to all Wyndham Tax Returns.

Section 1.2 References; Interpretation . References in this Agreement to any gender include references to all genders, and references to the singular include references to the plural and vice versa. Unless the context otherwise requires, the words “include”, “includes” and “including” when used in this Agreement shall be deemed to be followed by the phrase “without limitation”. Unless the context otherwise requires, references in this Agreement to Articles, Sections, Annexes, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Annexes, Exhibits and Schedules to, this Agreement. Unless the context otherwise requires, the words “hereof”, “hereby” and “herein” and words of similar meaning when used in this Agreement refer to this Agreement in its entirety and not to any particular Article, Section or provision of this Agreement.

Section 1.3 Effective Time; Suspension .

(a) This Agreement shall be effective as of the Realogy Distribution Date.

(b) Notwithstanding Section 1.3(a) above, as between any of the Parties that are Affiliates (without regard to the last sentence set forth in the definition of Affiliates), the provisions of, and the obligations under, this Agreement shall be suspended as between such Parties until:

 

(i)

in the case of Cendant and Wyndham, the Wyndham Distribution Date;

 

(ii)

subject to Section 1.3(c) , in the case of Wyndham and Travelport, the first to occur of the Wyndham Distribution Date or the Travelport Distribution Date; and

 

(iii)

subject to Section 1.3(c) , in the case of Cendant and Travelport, the Travelport Distribution Date.

(c) Notwithstanding anything to the contrary contained in this Agreement:

 

(i)

for so long as any Party is still an Affiliate (without regard to the last sentence set forth in such definition) of Cendant, Cendant shall be responsible for any Taxes or other amounts required to be paid by such Party pursuant to this Agreement; and

 

(ii)

if a Travelport Sale occurs, any and all rights and obligations of and to Travelport pursuant to this Agreement (including any and all obligations of Travelport to any other Person pursuant to Section 6.4 and any and all obligations of any of the Parties to Travelport Indemnitees pursuant to Article VI) shall be terminated and deemed null and void and be of no further force or effect.

 

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For the avoidance of doubt, in the event of a conflict between this Section 1.3(c) and any other provision of this Agreement, this Section 1.3(c) shall govern and control.

ARTICLE II

PREPARATION AND FILING OF TAX RETURNS

Section 2.1 Responsibility of Cendant to prepare and file Pre-2007 Cendant Shared Entity Tax Returns, Post-2006 Cendant Shared Entity Tax Returns and CCRG Entity Tax Returns .

(a) Pre-2007 Cendant Shared Entity Tax Returns .

 

(i)

General . To the extent not previously filed, subject to the rights and obligations of each of the Spinco Parties set forth herein, Cendant shall (at Cendant’s own cost and expense) prepare and file or cause to be prepared and filed, all Pre-2007 Cendant Shared Entity Tax Returns, provided , however , that all reasonable out-of-pocket costs and expenses incurred by Cendant in connection therewith shall be borne twenty-five percent (25%) by each of the Parties, provided , further , that, if the Travelport Sale occurs, such costs and expenses shall be borne thirty-three percent (33%) by each of Cendant, Realogy and Wyndham. Such Pre-2007 Cendant Shared Entity Tax Returns shall be prepared in a manner consistent with the past practice of each Cendant Shared Entity unless otherwise required by applicable Law. Payments by Realogy, Wyndham and Travelport, respectively, to Cendant for reasonable out-of-pocket costs and expenses incurred by Cendant shall be treated as amounts deductible by the paying Party pursuant to Section 162 of the Code, and none of the Parties shall take any position inconsistent with such treatment, except to the extent a Final Determination with respect to the paying Party causes such payment to not be so treated. Notwithstanding anything to the contrary contained in this Section 2.1(a)(i) , each of the state and local Income Tax Returns required to be filed by Cendant set forth on Schedule A shall be prepared by the Party identified on Schedule A (at its own cost and expense, including any out-of-pocket costs and expenses) on or prior to the date referred to in Schedule A.

 

(ii)

Tax Package . To the extent not previously provided, each of the Spinco Parties (at its own cost and expense) shall prepare and provide or cause to be prepared and provided to Cendant (and make available or cause to be made available to the other Spinco Parties) a Tax Package relating to each Pre-2007 Cendant Shared Entity Tax Return

 

29

required to be filed by any Tax Group of which a Cendant Shared Entity was the Common Parent and such Spinco Party or any of its Subsidiaries was a member for one or more days in the relevant Tax year. The Tax Package shall: (A) with respect to any Tax year of a Cendant Shared Entity ending on or prior to December 31, 2005, be provided to Cendant no later than July 31, 2006; and (B) with respect to any Tax year of a Cendant Shared Entity ending after December 31, 2005 and on or before December 31, 2006, be provided to Cendant no later than May 31, 2007 (other than U.S. Tax Returns for such Tax year of any foreign Subsidiary of the relevant Spinco Party, which shall be provided no later than July 31, 2007). For the avoidance of doubt, in the event a Spinco Party does not fulfill its obligations pursuant to this Section 2.1(a)(ii) , Cendant shall be entitled, at the sole cost and expense of such Spinco Party to prepare or cause to be prepared the information required to be included in the Tax Package for purposes of preparing any such Pre-2007 Cendant Shared Entity Tax Return.

 

(iii)

Procedures relating to the preparation and filing of Pre-2007 Cendant Shared Entity Tax Returns .

(A) Pre-2007 Cendant Shared Entity Tax Returns for Tax years ending on or prior to December 31, 2005 . In the case of Pre-2007 Cendant Shared Entity Tax Returns for Tax years ending on or prior to December 31, 2005, to the extent not previously filed, no later than thirty (30) days prior to the Due Date of each such Tax Return, Cendant (or in the case of a state or local Income Tax Return set forth in Schedule A , the Party responsible for preparing such Tax Return) shall make available or cause to be made available drafts of such Tax Return (together with all related work papers) to each of the Spinco Parties (or in the case of a state or local Income Tax Return set forth in Schedule A , to the other Parties). Each of the Parties shall have access to any and all data and information necessary for the preparation of all such Pre-2007 Cendant Shared Entity Tax Returns and the Parties shall cooperate fully in the preparation and review of such Tax Returns. Subject to the preceding sentence, no later than September 1, 2006 (or in the case of a state or local Income Tax Return set forth in Schedule A , the date set forth therein with respect to such Tax Return), a Party shall have a right to object to such Pre-2007 Shared Entity Tax Return (or items with respect thereto) by written notice to the other Parties; such written notice shall contain such disputed item (or items) and the basis for its objection.

(B) Pre-2007 Cendant Shared Entity Tax Returns for Tax years ending after December 31, 2005 . In the case of Pre-2007 Cendant Shared Entity Tax Returns for Tax years ending after December 31, 2005, to the extent not previously filed, no later than sixty (60) days prior to the Due Date of each such Pre-2007 Cendant Shared Entity Tax Return, Cendant

 

30

shall make available or cause to be made available drafts of such Tax Return (together with all related work papers) to each of the Spinco Parties. Each of the Spinco Parties shall have access to any and all data and information necessary for the preparation of all such Pre-2007 Cendant Shared Entity Tax Returns and the Parties shall cooperate fully in the preparation and review of such Tax Returns. No later than August 1, 2007 (or in the case of a state or local Income Tax Return set forth in Schedule A , forty-five days prior to the Due Date of such Tax Return), a Spinco Party shall have a right to object by written notice to Cendant and the other Spinco Parties; such written notice shall contain such disputed item (or items) and the basis for its objection.

(C) With respect to a Pre-2007 Cendant Shared Entity Tax Return prepared by Cendant (or in the case of a state or local Income Tax Return set forth in Schedule A , another Party) and submitted to the Spinco Parties (or Cendant) pursuant to Section 2.1(a)(iii)(A) or Section 2.1(a)(iii)(B) , as the case may be, if a Party does not object by proper written notice to the party responsible for preparing such Tax Return and the other Parties within the time period described in such sections, such Pre-2007 Cendant Shared Entity Tax Return shall be deemed to have been accepted and agreed upon, and final and conclusive, for purposes of this Section 2.1(a)(iii) . If a Party does object by proper written notice to the other Parties within such applicable time period, the Parties shall act in good faith to resolve any such dispute as promptly as practicable, provided , however , that, notwithstanding anything to the contrary contained herein, if the Parties have not reached a final resolution with respect to all disputed items for which proper written notice was given within fifteen (15) days prior to the Due Date for such Pre-2007 Cendant Shared Entity Tax Return, such Tax Return shall be filed as prepared by the Party responsible for preparing such Tax Return pursuant to this Section 2.1(a) (revised to reflect all initially disputed items that the Parties have agreed upon prior to such date). All Taxes required to be paid by a Spinco Party to Cendant with respect to a Pre-2007 Cendant Shared Entity Tax Return pursuant to Article III shall be based upon the amounts shown to be due and owing on such Tax Return as filed by Cendant and such Taxes shall be paid by such Spinco Party to Cendant no later than 5 days prior to the Due Date of such Tax Return.

(D) In the event that Cendant files a Pre-2007 Cendant Shared Entity Tax Return that includes properly disputed items pursuant to this Section 2.1(a)(iii) that were not finally resolved and agreed upon, such disputed item (or items) shall be resolved in accordance with Article XII . In the event that the resolution of such disputed item (or items) in accordance with Article XII with respect to a Pre-2007 Cendant Shared Entity Tax Return is inconsistent with such Pre-2007 Cendant Shared Entity Tax Return as filed by Cendant, Cendant (with cooperation from the other Parties) shall, as promptly as practicable, amend such Tax Return

 

31

to properly reflect the final resolution of the disputed item (or items). In the event that the amount of Taxes shown to be due and owing on a Pre-2007 Cendant Shared Entity Tax Return is adjusted as a result of a resolution pursuant to Article XII , proper adjustment shall be made to the amounts previously paid or required to be paid in accordance with Article III in a manner that reflects such resolution.

(E) Pre-2007 Cendant Shared Entity Tax Returns for estimated Income Taxes . Notwithstanding anything to the contrary in this Section 2.1 , in the case of any Pre-2007 Cendant Shared Entity Tax Return for estimated Income Taxes (“ Estimated Tax Returns ”) for periods ending after December 31, 2005, to the extent not previously filed, as soon as practicable prior to the Due Date of each such Estimated Tax Return, Cendant shall make available or cause to be made available drafts of such Estimated Tax Return (together with all related work papers) to each of the Spinco Parties. Each of the Spinco Parties shall have access to any and all data and information necessary for the preparation of such Estimated Tax Returns and the Parties shall cooperate fully in the preparation and review of such Estimated Tax Return. Subject to the preceding sentence, a Spinco Party shall have a right to object by written notice to Cendant and the other Spinco Parties (and such written notice shall contain such disputed item (or items) and the basis for its objection) and the principles of Section 2.1(a)(iii)(C) and Section 2.1(a)(iii)(D) shall apply to such Estimated Tax Return.

(b) Preparation and filing of Post-2006 Cendant Shared Entity Tax Returns and CCRG Entity Tax Returns .

 

(i)

To the extent not previously filed, no later than thirty (30) days prior to the Due Date of each CCRG Entity Tax Return for any Tax year ending on or prior to December 31, 2006 which CCRG Entity Tax Return includes income that is also included in a Pre-2007 Cendant Shared Entity Tax Return or a Pre-2007 Wyndham Shared Entity Tax Return, Cendant shall make available or cause to be made available drafts of such Tax Return to each of the Spinco Parties. All such CCRG Entity Tax Returns shall be prepared in accordance with past practice unless otherwise required by applicable Law.

 

(ii)

Cendant shall (at its own cost and expense) prepare and file or cause to be prepared and filed:

(A) all Post-2006 Cendant Shared Entity Tax Returns; and

(B) to the extent not previously filed and, subject to Section 2.1(b)(i) , all CCRG Entity Tax Returns.

 

32

Section 2.2 Responsibility of Realogy to prepare and file Realogy Tax Returns .

(a) To the extent not previously filed, no later than thirty (30) days prior to the Due Date of each Realogy Tax Return for any taxable period ending on or prior to December 31, 2006 which Realogy Tax Return includes income that is also included in a Pre-2007 Cendant Shared Entity Tax Return or a Pre-2007 Wyndham Shared Entity Tax Return, Realogy shall make available or cause to be made available drafts of such Tax Return to each of the other Spinco Parties and Cendant. All such Realogy Tax Returns shall be prepared in accordance with past practice unless otherwise required by applicable Law.

(b) To the extent not previously filed, Realogy shall (at its own cost and expense), subject to Section 2.2(a) , prepare and file or caused to be prepared and filed all Realogy Tax Returns.

Section 2.3 Responsibility of Wyndham to prepare and file Pre-2007 Wyndham Shared Entity Tax Returns, Post-2006 Wyndham Shared Entity Tax Returns and Wyndham Tax Returns .

(a) Pre-2007 Wyndham Shared Entity Tax Returns .

 

(i)

General . To the extent not previously filed, subject to the rights and obligations of each of Realogy and Travelport set forth herein, Wyndham shall (at Wyndham’s own cost and expense) prepare and file or cause to be prepared and filed all Pre-2007 Wyndham Shared Entity Tax Returns, provided , however , that all reasonable out-of-pocket costs and expenses incurred by Wyndham in connection therewith shall be borne twenty-five percent (25%) by each of Cendant, Realogy, Wyndham and Travelport, provided , further , that, if the Travelport Sale occurs, such costs and expenses shall be borne thirty-three percent (33%) by each of Cendant, Realogy and Wyndham. Such Pre-2007 Wyndham Shared Entity Tax Returns shall be prepared in a manner consistent with the past practice of each Wyndham Shared Entity unless otherwise required by applicable Law. Payments by Cendant, Realogy and Travelport, respectively, to Wyndham for reasonable out-of-pocket costs and expenses incurred by Wyndham shall be treated as amounts deductible by the paying Party pursuant to Section 162 of the Code, and none of the Parties shall take any position inconsistent with such treatment, except to the extent a Final Determination with respect to the Paying Party causes such payment to not be so treated.

 

(ii)

Tax Package . To the extent not previously provided, each of the other Spinco Parties and Cendant (at its own cost and expense) shall prepare and provide or cause to be prepared and provided to Wyndham (and make available or cause to be made available to the other Parties) a

 

33

Tax Package relating to each Pre-2007 Wyndham Shared Entity Tax Return required to be filed by any Tax Group of which a Wyndham Shared Entity was the Common Parent and such Spinco Party or any of its Subsidiaries or Cendant or any of its Subsidiaries was a member for one or more days in the relevant Tax year. The Tax Package shall: (A) with respect to any Tax year of a Wyndham Shared Entity ending on or prior to December 31, 2005, be provided to Wyndham no later than July 31, 2006; and (B) with respect to any Tax year of a Wyndham Shared Entity ending after December 31, 2005 and on or before December 31, 2006, be provided to Wyndham no later than May 31, 2007 (other than U.S. Tax Returns for such Tax year of any foreign Subsidiary of the relevant Party, which shall be provided no later than July 31, 2007). For the avoidance of doubt, in the event a Spinco Party does not fulfill its obligations pursuant to this Section 2.3(a)(ii) , Wyndham shall be entitled, at the sole cost and expense of such Spinco Party, to prepare or cause to be prepared the information required to be included in the Tax Package for purposes of preparing any such Pre-2007 Wyndham Shared Entity Tax Return.

 

(iii)

Procedures relating to the preparation and filing of Pre-2007 Wyndham Shared Entity Tax Returns .

(A) Pre-2007 Wyndham Shared Entity Tax Returns for Tax years ending on or prior to December 31, 2005 . In the case of Pre-2007 Wyndham Shared Entity Tax Returns for Tax years ending on or prior to December 31, 2005, to the extent not previously filed, no later than thirty (30) days prior to the Due Date of each such Tax Return, Wyndham shall make available or cause to be made available drafts of such Tax Return (together with all related work papers) to each of the other Spinco Parties. Each of the other Spinco Parties shall have access to any and all data and information necessary for the preparation of all such Pre-2007 Wyndham Shared Entity Tax Returns and the Spinco Parties shall cooperate fully in the preparation and review of such Tax Returns. Subject to the preceding sentence, no later than September 1, 2006, a Spinco Party shall have a right to object by written notice to Wyndham and the other Spinco Party; such written notice shall contain such disputed item (or items) and the basis for its objection.

(B) Pre-2007 Wyndham Shared Entity Tax Returns for Tax years ending after December 31, 2005 . In the case of Pre-2007 Wyndham Shared Entity Tax Returns for Tax years ending after December 31, 2005, to the extent not previously filed, no later than sixty (60) days prior to the Due Date of each such Pre-2007 Wyndham Shared Entity Tax Return, Wyndham shall make available or cause to be made available drafts of such Tax Return (together with all related work papers) to each of the other Spinco Parties. Each of the other Spinco Parties shall have access to any and all data and information necessary for the preparation of all such

 

34

Pre-2007 Wyndham Shared Entity Tax Returns and the Spinco Parties shall cooperate fully in the preparation and review of such Tax Returns. No later than August 1, 2007, a Spinco Party shall have a right to object by written notice to Wyndham and the other Spinco Party; such written notice shall contain such disputed item (or items) and the basis for its objection.

(C) With respect to a Pre-2007 Wyndham Shared Entity Tax Return prepared by Wyndham and submitted to the Spinco Parties pursuant to Section 2.3(a)(iii)(A) or Section 2.3(a)(iii)(B) , as the case may be, if a Spinco Party does not object by proper written notice to Wyndham and the other Spinco Party within the time period described in such sections, such Pre-2007 Wyndham Shared Entity Tax Return shall be deemed to have been accepted and agreed upon, and final and conclusive, for purposes of this Section 2.3(a)(iii) . If a Spinco Party does object by proper written notice to Wyndham and the other Spinco Party within such applicable time period, Wyndham and such Spinco Party (or Parties) shall act in good faith to resolve any such dispute as promptly as practicable, provided , however , that, notwithstanding anything to the contrary contained herein, if a Spinco Party (or Parties) and Wyndham have not reached a final resolution with respect to all disputed items for which proper written notice was given within fifteen (15) days prior to the Due Date for such Pre-2007 Wyndham Shared Entity Tax Return, such Tax Return shall be filed as prepared by Wyndham (revised to reflect all initially disputed items that the Spinco Parties have agreed upon prior to such date). All Taxes required to be paid by a Spinco Party to Wyndham with respect to a Pre-2007 Wyndham Shared Entity Tax Return pursuant to Article III shall be based upon the amounts shown to be due and owing on such Tax Return as filed by Wyndham and such Taxes shall be paid by such Spinco Party to Wyndham no later than five (5) days prior to the Due Date of such Tax Return.

(D) In the event that Wyndham files a Pre-2007 Wyndham Shared Entity Tax Return that includes properly disputed items pursuant to this Section 2.3(a)(iii) that were not finally resolved and agreed upon, such disputed item (or items) shall be resolved in accordance with Article XII . In the event that the resolution of such disputed item (or items) in accordance with Article XII with respect to a Pre-2007 Wyndham Shared Entity Tax Return is inconsistent with such Pre-2007 Wyndham Shared Entity Tax Return as filed by Wyndham, Wyndham shall, as promptly as practicable, amend such Tax Return to properly reflect the final resolution of the disputed item (or items). In the event that the amount of Taxes shown to be due and owing on a Pre-2007 Wyndham Shared Entity Tax Return is adjusted as a result of a resolution pursuant to Article XII , proper adjustment shall be made to the amounts previously paid or required to be paid in accordance with Article III in a manner that reflects such resolution.

 

35

(E) Pre-2007 Wyndham Shared Entity Tax Returns for estimated Income Taxes . Notwithstanding anything to the contrary contained in this Section 2.3 , in the case of any Estimated Tax Return for Pre-2007 Wyndham Shared Entity Taxes for periods ending after December 31, 2005, to the extent not previously filed, as soon as practicable prior to the Due Date of each such Estimated Tax Return, Wyndham shall make available or cause to be made available drafts of such Estimated Tax Return (together with all related work papers) to each of the Parties. Each of the Parties shall have access to any and all data and information necessary for the preparation of all such Estimated Tax Returns and the Parties shall cooperate fully in the preparation and review of such Estimated Tax Return. Subject to the preceding sentence, a Party shall have a right to object by written notice to Wyndham and the other Parties (and such written notice shall contain such disputed item (or items) and the basis for its objection) and the principles of Section 2.3(a)(iii)(C) and Section 2.3(a)(iii)(D) shall apply to such Estimated Tax Return.

(b) Filing of Post-2006 Wyndham Shared Entity Tax Returns and Wyndham Tax Returns .

 

(i)

To the extent not previously filed, no later than 30 days prior to the Due Date of each Wyndham Tax Return for any Tax year ending on or prior to December 31, 2006 which Wyndham Tax Return includes income that is also included in a Pre-2007 Cendant Shared Entity Tax Return or a Pre-2007 Wyndham Shared Entity Tax Return, Wyndham shall make available or cause to be made available drafts of such Tax Return to each of the other Parties. All such Wyndham Tax Returns shall be prepared in accordance with past practice unless otherwise required by applicable Law.

 

(ii)

Wyndham shall (at its own cost and expense) prepare and file or cause to be prepared and filed:

(A) all Post-2006 Wyndham Shared Entity Tax Returns; and

(B) to the extent not previously filed and, subject to Section 2.3(b)(i) , all Wyndham Tax Returns.

Section 2.4 Responsibility of Travelport to prepare and file Travelport Tax Returns .

(a) To the extent not previously filed, no later than thirty (30) days prior to the Due Date of each Travelport Tax Return for any taxable period ending on or prior to December 31, 2006 which Travelport Tax Return includes income that is also included in a Pre-2007 Cendant Shared Entity Tax Return or a Pre-2007 Wyndham Shared Entity Tax Return, Travelport shall make available or cause to be made available drafts of such Tax Return to each

 

36

of the other Parties. All such Travelport Tax Returns shall be prepared in accordance with past practice unless otherwise required by applicable Law.

(b) To the extent not previously filed, Travelport shall (at its own cost and expense), subject to Section 2.4(a) , prepare and file or caused to be prepared and filed all Travelport Tax Returns.

Section 2.5 Time of filing Tax Returns; manner of Tax Return preparation . Each Tax Return shall be filed on or prior to the Due Date for such Tax Return by the Party responsible for filing such Tax Return hereunder. Unless otherwise required by a Taxing Authority pursuant to a Final Determination, the Parties hereto shall prepare and file or cause to be prepared and filed all Tax Returns and take all other actions in a manner consistent with (and shall not take any position inconsistent with):

(a) the conversion of Cendant Car Rental Group, Inc. into a Delaware limited liability company as a tax-free liquidation under Section 332 of the Code;

(b) the conversion of Avis Car Rental Group, Inc. into a Delaware limited liability company as a tax-free liquidation under Section 332 of the Code;

(c) the conversion of Avis Group Holdings, Inc. into a Delaware limited liability company as a tax-free liquidation under Section 332 of the Code;

(d) the conversion of Avis Rent A Car System, Inc. into a Delaware limited liability company as a tax-free liquidation under Section 332 of the Code;

(e) the merger of TM Acquisition Corp. with and into CFHC LLC, with CFHC LLC surviving the merger, as a tax-free liquidation under Section 332 of the Code;

(f) the merger of Wizcom International, Inc. with and into CFHC LLC, with CFHC LLC surviving the merger, as a tax-free liquidation under Section 332 of the Code or as a reorganization under Section 368(a) of the Code;

(g) the contribution by Cendant Operations, Inc., a Delaware corporation (“ Cendant Operations ”), to CDRE TM Corp. (fka Nisbet Corporation), a Delaware corporation, of certain assets (including goodwill) as a transaction described in Section 351 of the Code;

(h) the merger of Cendant Operations with and into CFHC LLC, with CFHC LLC surviving the merger, as a tax-free liquidation under Section 332 of the Code;

(i) the contributions by CFHC LLC to each of the IP Companies of certain assets formerly owned by TM Acquisition Corp. as transactions described in Section 351 of the Code;

(j) the contribution by CFHC LLC to Realogy of all of the outstanding stock of each of the IP Companies as transactions described in Section 351 of the Code;

 

37

(k) the contributions to Realogy, together with the distributions of cash from Realogy to Cendant, which cash will be distributed solely to creditors of Cendant, and the distribution by Cendant to its stockholders of all of the stock of Realogy, as a reorganization under Sections 368(a)(1)(D) and 355 of the Code (and to which Sections 355(d) and (e) of the Code do not apply);

(l) the receipt by Cendant of approximately $2.225 billion (subject to adjustment) of cash distributed to it by Realogy in connection with the Realogy Distribution (which cash will be distributed solely to creditors of Cendant) as not resulting in income or gain pursuant to Section 361 of the Code (subject to the limitations set forth therein);

(m) the assumption by Realogy of liabilities, including Assumed Cendant Contingent Liabilities, pursuant to the Separation and Distribution Agreement or other Ancillary Agreements, as not resulting in income or gain pursuant to Section 357 of the Code;

(n) the distribution by Cendant to its stockholders of all of the stock of Realogy as a tax-free distribution under Section 355(a) of the Code to such stockholders;

(o) the contributions to Wyndham, together with the distributions of cash from Wyndham to Cendant, which cash will be distributed solely to creditors of Cendant, and the distribution by Cendant to its stockholders of all of the stock of Wyndham, as a reorganization under Sections 361(c), 368(a)(1)(D) and 355 of the Code (and to which Sections 355(d) and (e) of the Code do not apply);

(p) the receipt by Cendant of approximately $1.36 billion (subject to adjustment) of cash distributed to it by Wyndham in connection with the Wyndham Distribution (which cash will be distributed solely to creditors of Cendant) as not resulting in income or gain pursuant to Section 361 of the Code (subject to the limitations set forth therein);

(q) the assumption by Wyndham of liabilities, including Assumed Cendant Contingent Liabilities, pursuant to the Separation and Distribution Agreement or other Ancillary Agreements, as not resulting in income or gain pursuant to Section 357 of the Code;

(r) the distribution by Cendant to its stockholders of all of the stock of Wyndham as a tax-free distribution under Section 355(a) of the Code to such stockholders; and

(s) the distribution by Cendant to its stockholders of all of the stock of Travelport as a distribution within the meaning of Sections 355(a) and (c ) of the Code (and for which Sections 355(d) and (e) of the Code do not apply), provided , however , that this Section 2.5(s) shall not apply if the Travelport Sale occurs.

 

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ARTICLE III

RESPONSIBILITY FOR PAYMENT OF TAXES

Section 3.1 Responsibility of Cendant to pay Taxes .

(a) General . Except as otherwise provided in this Agreement (e.g., Section 3.5 , Section 8.8 , Section 8.13 , Section 10.2(b) and Section 10.3(d) ), Cendant shall be liable for and shall pay or cause to be paid to the applicable Taxing Authority:

 

(i)

all Post-2006 Cendant Shared Entity Taxes;

 

(ii)

all CCRG Entity Taxes; and

 

(iii)

amounts equal to the amounts Cendant actually receives from the Spinco Parties for Pre-2007 Cendant Shared Entity Taxes.

(b) Timing of Payments . All Taxes required to be paid or caused to be paid by Cendant to an applicable Taxing Authority pursuant to Section 3.1(a) shall be paid or caused to be paid by Cendant to such applicable Taxing Authority on or prior to the Due Date of the applicable Tax Return. Notwithstanding anything to the contrary contained herein, amounts Cendant actually receives from the other Parties for Pre-2007 Cendant Shared Entity Taxes shall be paid or caused to be paid by Cendant to the applicable Taxing Authority no later than the later of (x) the Due Date of the applicable Tax Return or (y) within two (2) Business Days after Cendant actually receives such amounts from the applicable Spinco Parties.

Section 3.2 Responsibility of Realogy to pay Taxes .

(a) Except as otherwise provided in this Agreement (e.g., Section 3.5 , Section 3.6 , Section 8.8 , Section 8.13 , Section 10.2(b) and Section 10.3(d) ), Realogy shall be liable for and shall pay or cause to be paid:

 

(i)

to Cendant, the Realogy Sharing Percentage of all Pre-2007 Cendant Shared Entity Taxes;

 

(ii)

to Wyndham, the Realogy Sharing Percentage of all Pre-2007 Wyndham Shared Entity Taxes;

 

(iii)

to Wyndham, the Realogy Sharing Percentage of all Pre-2007 Wyndham Separate Company Shared Taxes;

 

(iv)

to Travelport, the Realogy Sharing Percentage of all Pre-2007 Travelport Separate Company Shared Taxes;

 

(v)

to the applicable Taxing Authority, the Realogy Sharing Percentage of all Pre-2007 Realogy Separate Company Shared Taxes;

 

(vi)

except to the extent of any Pre-2007 Realogy Separate Company Shared Taxes, to the applicable Taxing Authority, all other Realogy Taxes; and

 

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(vii)

to the applicable Taxing Authority, amounts equal to the amounts Realogy actually receives from the other Parties for Pre-2007 Realogy Separate Company Shared Taxes.

(b) Timing of Payments .

 

(i)

Payment of Taxes required to be made by Realogy to Taxing Authorities . All Taxes required to be paid or caused to be paid by Realogy to an applicable Taxing Authority pursuant to Section 3.2(a) shall be paid or caused to be paid by Realogy to such applicable Taxing Authority on or prior to the Due Date of the applicable Tax Return. Notwithstanding anything to the contrary contained herein, amounts Realogy actually receives from the other Parties for Pre-2007 Realogy Separate Company Shared Taxes shall be paid or caused to be paid by Realogy to the applicable Taxing Authority no later than the later of (x) the Due Date of the applicable Tax Return or (y) within two (2) Business Days after Realogy actually receives such amounts from the applicable Parties.

 

(ii)

Payment of amounts required to be paid by Realogy to another Party pursuant to Section 3.2(a) . All amounts required to be paid or caused to be paid by Realogy to another Party pursuant to Section 3.2(a) shall be paid or caused to be paid by Realogy to such other Party no later than five (5) days prior to the Due Date of the applicable Tax Return.

Section 3.3 Responsibility of Wyndham to pay Taxes .

(a) Except as otherwise provided in this Agreement (e.g., Section 3.5 , Section 3.6 , Section 8.8 , Section 8.13 , Section 10.2(b) and Section 10.3(d) ), Wyndham shall be liable for and shall pay or cause to be paid:

 

(i)

to Cendant, the Wyndham Sharing Percentage of all Pre-2007 Cendant Shared Entity Taxes; and

 

(ii)

to the applicable Taxing Authority, the Wyndham Sharing Percentage of all Pre-2007 Wyndham Shared Entity Taxes;

 

(iii)

to the applicable Taxing Authority, all Post-2006 Wyndham Shared Entity Taxes;

 

(iv)

to Realogy, the Wyndham Sharing Percentage of all Pre-2007 Realogy Separate Company Shared Taxes;

 

(v)

to Travelport, the Wyndham Sharing Percentage of all Pre-2007 Travelport Separate Company Shared Taxes;

 

40

(vi)

to the applicable Taxing Authority, the Wyndham Sharing Percentage of all Pre-2007 Wyndham Separate Company Shared Taxes;

 

(vii)

except to the extent of any Pre-2007 Wyndham Separate Company Shared Taxes, to the applicable Taxing Authority, all other Wyndham Taxes; and

 

(viii)

to the applicable Taxing Authority, amounts equal to the amounts Wyndham actually receives from the other Parties for Pre-2007 Wyndham Shared Entity Taxes and Pre-2007 Wyndham Separate Company Shared Taxes.

(b) Timing of Payments .

 

(i)

Payment of Taxes required to be made by Wyndham to Taxing Authorities . All Taxes required to be paid or caused to be paid by Wyndham to an applicable Taxing Authority pursuant to Section 3.3(a) shall be paid or caused to be paid by Wyndham to such applicable Taxing Authority on or prior to the Due Date of the applicable Tax Return. Notwithstanding anything to the contrary contained herein, amounts Wyndham actually receives from the other Parties for Pre-2007 Wyndham Shared Entity Taxes and Pre-2007 Wyndham Separate Company Shared Taxes shall be paid or caused to be paid by Wyndham to the applicable Taxing Authority no later than the later of (x) the Due Date of the applicable Tax Return or (y) within two (2) Business Days after Wyndham actually receives such amounts from the applicable Parties.

 

(ii)

Payment of amounts required to be paid by Wyndham to another Party pursuant to Section 3.3(a) . All amounts required to be paid or caused to be paid by Wyndham to another Party pursuant to Section 3.3(a) shall be paid or caused to be paid by Wyndham to such other Party no later than five (5) days prior to the Due Date of the applicable Tax Return.

Section 3.4 Responsibility of Travelport to pay Taxes .

(a) Except as otherwise provided in this Agreement (e.g., Section 1.3(c) , Section 3.5 , Section 3.6 , Section 8.8 , Section 8.13 , Section 10.2(b) and Section 10.3(d) ), Travelport shall be liable for and shall pay or cause to be paid:

 

(i)

to Cendant, the Travelport Sharing Percentage of all Pre-2007 Cendant Shared Entity Taxes;

 

(ii)

to Wyndham, the Travelport Sharing Percentage of all Pre-2007 Wyndham Shared Entity Taxes;

 

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(iii)

to Realogy, the Travelport Sharing Percentage of all Pre-2007 Realogy Separate Company Shared Taxes;

 

(iv)

to Wyndham , the Travelport Sharing Percentage of all Pre-2007 Wyndham Separate Company Shared Taxes;

 

(v)

to the applicable Taxing Authority, the Travelport Sharing Percentage of all Pre-2007 Travelport Separate Company Shared Taxes;

 

(vi)

except to the extent of Pre-2007 Travelport Separate Company Shared Taxes, to the applicable Taxing Authority, all other Travelport Taxes; and

 

(vii)

to the applicable Taxing Authority, all amounts Travelport actually receives from the other Parties for Pre-2007 Travelport Separate Company Shared Taxes.

(b) Timing of Payments .

 

(i)

Payment of Taxes required to be made by Travelport to Taxing Authorities . All Taxes required to be paid or caused to be paid by Travelport to an applicable Taxing Authority pursuant to Section 3.4(a) shall be paid or caused to be paid by Travelport to such applicable Taxing Authority on or prior to the Due Date of the applicable Tax Return. Notwithstanding anything to the contrary contained herein, amounts Travelport actually receives from the other Parties for Pre-2007 Travelport Separate Company Shared Taxes shall be paid or caused to be paid by Travelport to the applicable Taxing Authority no later than the later of (x) the Due Date of the applicable Tax Return or (y) within two (2) Business Days after Travelport actually receives such amounts from the applicable Parties.

 

(ii)

Payment of amounts required to be paid by Travelport to another Party pursuant to Section 3.4(a) . All amounts required to be paid or caused to be paid by Travelport to another Party pursuant to Section 3.4(a) shall be paid or caused to be paid by Travelport to such other Party no later than five (5) days prior to the Due Date of the applicable Tax Return.

Section 3.5 Extraordinary Transactions .

(a) Cendant . From the period beginning on the Realogy Distribution Date and ending on December 31, 2006, none of the CCRG Entities shall effect or cause to be effected any Extraordinary Transaction. If any such Extraordinary Transaction is effected by any CCRG Entity, then notwithstanding anything to the contrary in this Agreement, Cendant shall be liable for and shall pay or cause to be paid to the applicable Taxing Authority with respect to any Cendant Shared Entity Tax Return all Taxes resulting from such Extraordinary Transaction and shall indemnify the other Parties for the aggregate amount of all net operating loss carryovers

 

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and Credit Carryovers that would have been allocated, apportioned or retained, as the case may be (“ Apportioned ”), to such Party and its Subsidiaries under applicable principles of the Code and the Treasury Regulations thereunder (and Article X hereof) as of its first Post-Distribution Tax Period had all the Extraordinary Transactions effected by the CCRG Entities not occurred (without applying a discount for the time value of money or for the future lack of certainty of realization and assuming an effective Tax rate of thirty-eight percent (38%)). Notwithstanding this Section 3.5(a) , in the event of a Pre-2007 Cendant Shared Entity Audit, (i)  Section 8.8 shall control with respect to any additional Taxes imposed on a Cendant Shared Entity resulting from any Extraordinary Transactions and (ii)  Section 8.9 shall control with respect to any indemnification relating to net operating loss carryovers and Credit Carryovers utilized as a result of any Extraordinary Transactions.

(b) Realogy . On the Realogy Distribution Date, none of Realogy or its Subsidiaries shall effect or cause to be effected any Extraordinary Transaction. If any such Extraordinary Transaction is effected by Realogy or any of its Subsidiaries, then notwithstanding anything to the contrary in this Agreement, Realogy shall be liable for and shall pay or cause to be paid to Cendant with respect to any Cendant Shared Entity Tax Return all Taxes resulting from such Extraordinary Transaction and shall indemnify the other Parties for the aggregate amount of all net operating loss carryovers and Credit Carryovers that would have been Apportioned to such Party and its Subsidiaries under applicable principles of the Code and the Treasury Regulations thereunder (and Article X hereof) as of its first Post-Distribution Tax Period had all the Extraordinary Transactions effected by Realogy and its Subsidiaries not occurred (without applying a discount for the time value of money or for the future lack of certainty of realization and assuming an effective Tax rate of thirty-eight percent (38%)). Notwithstanding this Section 3.5(b) , in the event of a Pre-2007 Cendant Shared Entity Audit, (i)  Section 8.8 shall control with respect to any additional Taxes imposed on a Cendant Shared Entity resulting from Extraordinary Transactions and (ii)  Section 8.9 shall control with respect to any indemnification relating to net operating loss carryovers and Credit Carryovers utilized as a result of any Extraordinary Transactions.

(c) Wyndham . From the period beginning on the Realogy Distribution Date and ending on and including the Wyndham Distribution Date, none of Wyndham or its Subsidiaries shall effect or cause to be effected any Extraordinary Transaction. If any such Extraordinary Transaction is effected by Wyndham or any of its Subsidiaries, then notwithstanding anything to the contrary in the Agreement, Wyndham shall be liable for and shall pay or cause to be paid to Cendant or the applicable Taxing Authority (as the case may be) with respect to any Shared Entity Tax Return all Taxes resulting from such Extraordinary Transaction and shall indemnify the other Parties for the aggregate amount of all net operating loss carryovers and Credit Carryovers that would have been Apportioned to such Party and its Subsidiaries under applicable principles of the Code and the Treasury Regulations thereunder (and Article X hereof) as of its first Post-Distribution Tax Period had all the Extraordinary Transactions effected by Wyndham and its Subsidiaries not occurred (without applying a discount for the time value of money or for the future lack of certainty of realization and assuming an effective Tax rate of thirty-eight percent (38%)). Notwithstanding this Section 3.5(c) , in the event of a Pre-2007 Shared Entity Audit, (i)  Section 8.8 shall control with respect to any additional Taxes imposed on a Shared Entity resulting from any Extraordinary Transactions and (ii)  Section 8.9 shall control with respect to any indemnification relating to net operating loss carryovers and Credit Carryovers utilized as a result of any Extraordinary Transactions.

 

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(d) Travelport . From the period beginning on the Realogy Distribution Date and ending on and including the Final Separation Date, none of Travelport or its Subsidiaries shall effect or cause to be effected any Extraordinary Transaction. If any such Extraordinary Transaction is effected by Travelport or any of its Subsidiaries, then notwithstanding anything to the contrary in the Agreement other than Section 1.3(c), Travelport shall be liable for and shall pay or cause to be paid to Cendant with respect to any Cendant Shared Entity Tax Return all Taxes resulting from such Extraordinary Transaction and shall indemnify the other Parties for the aggregate amount of all net operating loss carryovers and Credit Carryovers that would have been Apportioned to such Party and its Subsidiaries under applicable principles of the Code and the Treasury Regulations thereunder (and Article X hereof) as of its first Post-Distribution Tax Period had all the Extraordinary Transactions effected by Travelport and its Subsidiaries not occurred (without applying a discount for the time value of money or for the future lack of certainty of realization and assuming an effective Tax rate of thirty-eight percent (38%)). Notwithstanding this Section 3.5(d) , in the event of a Pre-2007 Cendant Shared Entity Audit, Section 8.8 shall control with respect to any additional Taxes imposed on a Cendant Shared Entity resulting from any Extraordinary Transactions and Section 8.9 shall control with respect to any indemnification relating to net operating loss carryovers and Credit Carryovers utilized as a result of any Extraordinary Transactions.

Section 3.6 Credit for Travelport Sale Income Tax Amount withheld by Cendant for estimated Taxes imposed on Cendant as a result of a Travelport Sale .

(a) General . Notwithstanding anything to the contrary contained in this Article III , if a Travelport Sale occurs, subject to Section 3.6(b) :

 

(i)

Realogy shall be deemed to have paid to Cendant in respect of Cendant Shared Entity Taxes an amount equal to the Realogy Sharing Percentage of the Travelport Sale Income Tax Amount (as determined in accordance with Section 12.3(a)(iii) of the Separation and Distribution Agreement);

 

(ii)

Wyndham shall be deemed to have paid to Cendant in respect of Cendant Shared Entity Taxes an amount equal to the Wyndham Sharing Percentage of the Travelport Sale Income Tax Amount (as determined in accordance with Section 12.3(a)(iii) of the Separation and Distribution Agreement).

(b) Amounts deemed paid by Realogy or Wyndham, as the case may be, pursuant to Section 3.6(a)(i) shall be deemed paid:

 

(i)

first, in respect of the amount of Income Taxes required to be paid by such Party to Cendant pursuant to this Article III in respect of U.S. federal consolidated income Taxes of Cendant due and owing;

 

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(ii)

second, in respect of the amount of Income Taxes required to be paid by such Party to Cendant pursuant to this Article III in respect of any state, local or foreign Income Taxes of Cendant due and owing; and

 

(iii)

third, any other Taxes required to be paid by such Party to Cendant pursuant to this Article III in respect of any Taxes not described in Section 3.6(b)(i) or Section 3.6(b)(ii) of Cendant due and owing.

(c) In the event that the amounts deemed paid by Realogy or Wyndham, as the case may be, pursuant to Section 3.6(a)(i) are in excess of the aggregate amounts required to be paid by Realogy or Wyndham, as the case may be, pursuant to this Article III , Cendant shall pay to:

 

(i)

Realogy, the Realogy Sharing Percentage of such excess; and

 

(ii)

Wyndham, the Wyndham Sharing Percentage of such excess.

ARTICLE IV

REFUNDS AND OTHER MATTERS

Section 4.1 Refunds relating to Pre-2007 Shared Entity Tax Returns .

(a) Realogy . Subject to Section 8.2(h), Realogy shall be entitled to the Realogy Sharing Percentage of all Refunds of Taxes with respect to: (i) all Pre-2007 Cendant Shared Entity Tax Returns and (ii) all Pre-2007 Wyndham Shared Entity Tax Returns.

(b) Wyndham . Subject to Section 8.2(h), Wyndham shall be entitled to the Wyndham Sharing Percentage of all Refunds of Taxes with respect to: (i) all Pre-2007 Cendant Shared Entity Tax Returns and (ii) all Pre-2007 Wyndham Shared Entity Tax Returns.

(c) Travelport . Subject to Section 8.2(h), Travelport shall be entitled to the Travelport Sharing Percentage of all Refunds of Taxes with respect to: (i) all Pre-2007 Cendant Shared Entity Tax Returns and (ii) all Pre-2007 Wyndham Shared Entity Tax Returns.

(d) Refunds resulting in correlative detriment . Notwithstanding anything to the contrary contained in Sections 4.1(a) , Section 4.1(b) or Section 4.1(c) , to the extent a Refund is reasonably likely to result in a correlative detriment to one or more of the Parties for an applicable Post Distribution Tax Period, such Refund shall to the extent thereof be paid proportionately to the Parties that are reasonably likely to realize such detriment, provided , however , if the Travelport Sale occurs, any correlative detriment to Travelport or any Travelport Subsidiary that is reasonable likely to occur as a result of a Refund shall be ignored.

 

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Section 4.2 Refunds for the benefit of Cendant . Cendant shall be entitled to all Refunds of Taxes with respect to:

(a) all Post-2006 Cendant Shared Entity Tax Returns; and

(b) all CCRG Entity Tax Returns.

Section 4.3 Refunds for the benefit of Realogy . Realogy shall be entitled to all Refunds of Taxes with respect to all Realogy Tax Returns.

Section 4.4 Refunds for the benefit of Wyndham . Wyndham shall be entitled to all Refunds of Taxes with respect to:

(a) all Post-2006 Wyndham Shared Entity Tax Returns; and

(b) all Wyndham Tax Returns.

Section 4.5 Refunds for the benefit of Travelport . Travelport shall be entitled to all Refunds of Taxes with respect to all Travelport Tax Returns.

Section 4.6 Carrybacks . Each of the Parties shall be permitted (but not required) to carry back net operating losses or other Tax attributes realized in any Post-Distribution Tax Period of such Party to any period preceding or including any of the Distributions, provided , however , that a Party shall not be permitted to carry back a net operating loss or other Tax attribute to:

(a) any Tax period relating to a Pre-2007 Cendant Shared Entity Tax Return without the consent of each of the Parties (not including Travelport if the Travelport Sale occurs); and

(b) any Tax period relating to a Pre-2007 Wyndham Shared Entity Tax Return without the consent of each of the Spinco Parties (not including Travelport if the Travelport Sale occurs).

Section 4.7 Amended Tax Returns .

(a) Pre-2007 Shared Entity Tax Returns and Post-2006 Shared Entity Tax Returns . Subject to Article VIII (relating to Audits):

 

(i)

Pre-2007 Cendant Shared Entity Tax Returns . Subject to Section 2.1(a)(iii)(D) , Cendant shall not amend or cause to be amended any Pre-2007 Cendant Shared Entity Tax Return without the consent of each of the Spinco Parties (except for Travelport if the Travelport Sale occurs).

 

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(ii)

Post-2006 Cendant Shared Entity Tax Returns . Cendant shall be entitled to amend or cause to be amended all Post-2006 Cendant Shared Entity Tax Returns.

 

(iii)

Pre-2007 Wyndham Shared Entity Tax Returns . Subject to Section 2.3(a)(iii)(D) , Wyndham shall not amend or cause to be amended any Pre-2007 Wyndham Shared Entity Tax Return without the consent of each of Realogy and Travelport (or, if the Travelport Sale occurs, without the consent of Realogy).

 

(iv)

Post-2006 Wyndham Shared Entity Tax Returns . Wyndham shall be entitled to amend or cause to be amended all Post-2006 Wyndham Shared Entity Tax Returns.

(b) CCRG Entity Tax Returns . Subject to Article VIII (relating to Audits), Cendant shall be entitled to amend or cause to be amended all CCRG Entity Tax Returns.

(c) Realogy Tax Returns . Subject to Article VIII (relating to Audits), Realogy shall be entitled to amend or cause to be amended all Realogy Tax Returns, provided , however , that Realogy shall not amend or cause to be amended any Realogy Tax Return to the extent such amendment affects Pre-2007 Realogy Separate Company Shared Taxes without the consent of each of Wyndham and Travelport (or, if the Travelport Sale occurs, without the consent of Wyndham).

(d) Wyndham Tax Returns . Subject to Article VIII (relating to Audits), Wyndham shall be entitled to amend or cause to be amended all Wyndham Tax Returns, provided , however , that Wyndham shall not amend or cause to be amended any Wyndham Tax Return to the extent such amendment affects Pre-2007 Wyndham Separate Company Shared Taxes, without the consent of Realogy and Travelport (or, if the Travelport Sale occurs, without the consent of Realogy).

(e) Travelport Tax Returns . Subject to Article VIII (relating to Audits), Travelport shall be entitled to amend or cause to be amended all Travelport Tax Returns, provided , however , that Travelport shall not amend or cause to be amended any Travelport Tax Return to the extent such amendment affects Pre-2007 Travelport Separate Company Shared Taxes, without the consent of each of Realogy and Wyndham.

Section 4.8 Payments of Refunds .

(a) Any Refund to which a Party is entitled pursuant to this Article IV that is received by another Party shall be paid by such other Party to such Party in immediately available funds within five (5) Business Days of receipt.

 

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(b) Notwithstanding Section 4.8(a) , to the extent a Party applies or causes to be applied an overpayment of Taxes as a credit toward or a reduction in Taxes otherwise payable (or a Taxing Authority requires such application in lieu of a Refund) and such Refund, if received, would have been payable by such Party to another Party (or Parties) pursuant to this Article IV , such Party shall be deemed to have actually received a Refund to the extent thereof and shall pay (in immediately available funds) such Refund to the Parties no later than the Due Date of the Tax Return on which such Refund is applied to reduce Taxes otherwise payable.

ARTICLE V

DISTRIBUTION TAXES

Section 5.1 Liability for Distribution Taxes . In the event that, following a Final Determination relating to a Pre-2007 Shared Entity Audit, it is determined Distribution Taxes are due and payable to a Taxing Authority, notwithstanding Article III , Section 8.8 and Section 8.9 shall govern and control the payment of amounts owed hereunder.

Section 5.2 Definition of Fault . For purposes of this Agreement, Distribution Taxes shall be deemed to result from the fault (“ Fault ”) of a Party if such Taxes are directly attributable to, or result from:

(a) any action, or failure or omission to act, by such Party or such Party’s Affiliates following a Distribution, including, without limitation, a cessation, transfer to Affiliates or others, disposition of its active trade or business within the meaning of Section 355(b) of the Code or other businesses, failure to maintain continuity of business enterprise, an issuance of stock, stock buyback, or payment of an extraordinary dividend by such Party or such Party’s Affiliates following such Distribution;

(b) the direct or indirect acquisition of all or a portion of such Party’s stock and/or its assets (or any transaction or series of related transactions that is deemed to be such an acquisition for purposes of Section 355(e) of the Code and the Treasury Regulations promulgated thereunder) by any means whatsoever by any person including pursuant to an issuance of stock by such Party or its Affiliates;

(c) any negotiations, understandings, agreements or arrangements by or involving such Party or its Affiliates with respect to transactions or events (including, without limitation, stock issuances pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions of stock, or a series of such transactions or events) that cause any of the Distributions or related transactions to be treated as part of a plan pursuant to which one or more persons acquire directly or indirectly a Fifty Percent or Greater Interest in any such Party; or

 

48

(d) any act or failure to act that is described in Section 5.3 hereof of any such Party (regardless of whether such act or failure to act is covered by a ruling, Unqualified Tax Opinion or waiver, described below).

Section 5.3 Limits on Proposed Acquisition Transactions and other transactions for Restricted Period . For the Restricted Period applicable to each of the Parties, respectively, such Party (a “ Requesting Party ”) shall not:

(a) enter into any Proposed Acquisition Transaction, approve any Proposed Acquisition Transaction for any purpose or permit any Proposed Acquisition Transaction to occur;

(b) merge or consolidate with any other person or liquidate or partially liquidate;

(c) sell or otherwise transfer in a single transaction or series of transactions 50% or more of the gross or net assets of the active trade or business (for purposes of Section 355(b) of the Code) or 50% or more of the consolidated gross or net assets of its businesses (such percentages to be measured based on fair market values as of the date of the applicable Distribution);

(d) amend its certificate of incorporation (or other organizational documents), or take any other action, whether through a stockholder vote or otherwise, affecting the voting rights of the stock of such Party; or

(e) take any other action or actions (including any action or transaction that would be reasonably likely to be inconsistent with any representations or covenants made by such Party in the Tax Representation Letter issued by such Party to Skadden in connection with the issuance by Skadden of its opinion relating to the Tax consequences of a Distribution or any of the positions set forth in Section 2.5 ) which in the aggregate (taking into account other transactions described in this section) would be reasonably likely to have the effect of causing or permitting one or more Persons (whether or not acting in concert) to acquire, directly or indirectly, stock of any of the Parties representing a Fifty Percent or Greater Interest in such Party or otherwise jeopardize Tax-Free Status;

provided , however , that such Requesting Party shall be permitted to take such action or one or more actions set forth in the foregoing clauses (a) through (e) if, prior to taking each such action(s): (1) such Requesting Party shall have requested that Cendant obtain a private letter ruling from the Internal Revenue Service and Cendant shall have received such ruling (or if Cendant is the Requesting Party, Cendant shall have received a ruling) in form and substance reasonably satisfactory to a Majority of the Parties that confirms that such action or actions will not result in Distribution Taxes, taking into account such actions and any other relevant transactions in the aggregate, (2) such Requesting Party shall provide each of the other Parties with an Unqualified Tax Opinion in form and substance reasonably satisfactory to a Majority of the Parties that confirms that such action or actions will not result in Distribution Taxes, taking into account such actions and any other relevant transactions in the aggregate, or (3) such

 

49

Requesting Party shall have received a written statement from each of the other Parties that provides that such other Party waives the requirement to obtain a ruling or opinion described in this paragraph. In determining whether such ruling or opinion is reasonably satisfactory, the Parties may consider, among other factors, the appropriateness of any underlying assumptions, representations and covenants made in connection with such ruling or opinion. The Requesting Party shall bear all costs and expenses of securing any such ruling or opinion and shall reimburse the other Parties for all reasonable out-of-pocket costs and expenses that such Parties may incur in good faith in seeking to obtain or evaluate any such ruling or opinion.

ARTICLE VI

INDEMNIFICATION

Section 6.1 Indemnification obligations of Cendant . Cendant shall and shall cause its Subsidiaries to indemnify the Realogy Indemnitees, the Travelport Indemnitees and the Wyndham Indemnitees and hold them harmless from and against (without duplication):

(a) all Taxes and other amounts for which Cendant is responsible under this Agreement; and

(b) all Taxes and reasonable out-of-pocket costs for advisors and other expenses attributable to a breach of any representation, covenant or obligation of Cendant under this Agreement.

Section 6.2 Indemnification obligations of Realogy . Realogy shall and shall cause its Subsidiaries to indemnify the Cendant Indemnitees, the Travelport Indemnitees and the Wyndham Indemnitees and hold them harmless from and against (without duplication):

(a) all Taxes and other amounts for which Realogy is responsible under this Agreement; and

(b) all Taxes and reasonable out-of-pocket costs for advisors and other expenses attributable to a breach of any representation, covenant or obligation of Realogy under this Agreement.

Section 6.3 Indemnification obligations of Wyndham . Wyndham shall and shall cause its Subsidiaries to indemnify the Cendant Indemnitees, the Realogy Indemnitees and the Travelport Indemnitees and hold them harmless from and against (without duplication):

(a) all Taxes and other amounts for which Wyndham is responsible under this Agreement; and

 

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(b) all Taxes and reasonable out-of-pocket costs for advisors and other expenses attributable to a breach of any representation, covenant or obligation of Wyndham under this Agreement.

Section 6.4 Indemnification obligations of Travelport . Travelport shall and shall cause its Subsidiaries to ind