FIRST AMENDMENT
EXHIBIT
10.1
FIRST
AMENDMENT
FIRST
AMENDMENT (this “Amendment”),
dated
as of March 8, 2006, to the Three Year Senior Asset-Linked Revolving Credit
Agreement (the “Credit
Agreement”)
dated
as of June 17, 2004, among CENDANT CORPORATION (the “Borrower”),
the
lenders referred to therein (the “Lenders”),
CITICORP USA, INC., as syndication agent (the "Syndication
Agent"),
and
BANK OF AMERICA, N.A., as administrative agent (the “Administrative
Agent”)
for
the Lenders.
INTRODUCTORY
STATEMENT
The
Borrower has requested that the Required Lenders amend certain provisions of
the
Credit Agreement as set forth herein.
Subject
to the terms and conditions set forth herein, the Required Lenders and the
Administrative Agent consent to the proposed amendments to the Credit
Agreement.
Accordingly,
the parties hereto hereby agree as follows:
1. DEFINED
TERMS.
Unless
otherwise defined herein, capitalized terms have the meanings given to them
in
the Credit Agreement.
2. CONSENT.
Notwithstanding
any provision of the Fundamental Documents to the contrary, the Required Lenders
hereby consent to the Real Estate Services Spin-Off.
3. AMENDMENTS
TO THE CREDIT AGREEMENT.
(a) Amendments
to Article 1 (Definitions).
Section
1
of the Credit Agreement is hereby amended as follows:
(i) by
deleting the definition of “Maturity Date” and inserting in lieu thereof the
following new definition:
“Maturity
Date”
shall
mean the earlier to occur of (i) the date on which the tax-free distribution
for
the Hospitality Services Spin-Off is consummated and (ii) June 17, 2007, or
the
immediately preceding Business Day.; and
(ii) by
adding
thereto the following definitions in their appropriate alphabetical
order:
“Avis
Budget”
shall
mean Avis Budget Car Rental, LLC (formerly known as Cendant Car Rental Group,
Inc.).
“Avis
Budget Credit Agreement”
shall
mean the Credit Agreement, dated as of April [__], 2006, among Avis Budget,
the
lenders party thereto and JPMorgan Chase Bank, N.A., as administrative
agent.
“Avis
Budget Finance”
shall
mean Avis Budget Finance, Inc.
“Avis
Budget Holdings”
shall
mean Avis Budget Holdings, LLC.
“First
Amendment Effective Date”
shall
mean the date on which the First Amendment to this Agreement becomes effective
according to its terms.
“Hospitality
Services Spin-Off”
shall
mean the tax-free share distribution (and the actions taken in connection
therewith) by Cendant to its shareholders of the businesses of Cendant that
comprise its Hospitality Services and Timeshare Resorts segments as of the
First
Amendment Effective Date.
“Real
Estate Services Spin-Off”
shall
mean the tax-free share distribution (and the actions taken in connection
therewith) by Cendant to its shareholders of the businesses of Cendant that
comprise its Real Estate Services segment as of the First Amendment Effective
Date.
“Spin-Offs”
shall
mean the collective reference to the Hospitality Services Spin-Off, the Real
Estate Services Spin-Off and the Travel Distribution Group Spin-Off, each a
“Spin-Off”.
“Travel
Distribution Spin-Off”
shall
mean the tax-free share distribution (and the actions taken in connection
therewith) by Cendant to its shareholders of the businesses of Cendant that
comprise its Travel Distribution segment as of the First Amendment Effective
Date.
(b) Amendment
to Section 6.1 (Limitation on Indebtedness).
Section
6.1 of the Credit Agreement is hereby amended as follows:
(i) by
deleting “and” at the end of paragraph (l) thereof;
(ii) by
deleting paragraph (m) thereof in its entirety and inserting in lieu thereof
the
following new paragraph (m):
“(m) Indebtedness
of Avis Budget and its Subsidiaries under the Avis Budget Credit Agreement;
and”; and
(iii) by
inserting the following new paragraph (n):
“(n) Indebtedness
of Avis Budget and Avis Budget Finance under senior unsecured notes in an
aggregate principal amount not to exceed $1,000,000,000;”
(c) Amendment
to Section 6.2 (Consolidation, Merger, Sale of Assets).
Section
6.2 of the Credit Agreement is hereby amended by inserting the following new
paragraph (c):
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“(c) Notwithstanding
anything to the contrary contained herein, nothing in this Section 6.2 shall
be
deemed to prohibit the Real Estate Services Spin-Off.”
(d) Amendment
to Section 6.3 (Limitation on Liens).
Section
6.3 of the Credit Agreement is hereby amended as follows:
(i)
by
deleting “and” at the end of paragraph (k);
(ii)
by
replacing “.” with “;” at the end of paragraph (l);
(iii)
by
inserting the following new paragraph (m):
“(m) any
Liens
securing Indebtedness and related obligations of the Borrower or any of its
Material Subsidiaries to the extent such Indebtedness and related obligations
are permitted under Section 6.1(l) hereof.”; and
(iii)
by
inserting the following new paragraph (n):
“(n) any
Liens
securing Indebtedness and related obligations of the Borrower or any of its
Material Subsidiaries to the extent such Indebtedness and related obligations
are permitted under Section 6.1(m) hereof.”
4. WAIVER
OF
SECTION 6.1 (LIMITATION ON INDEBTEDNESS).
Compliance
with Section 6.1 of the Credit Agreement is hereby waived, solely for the
purpose of permitting certain Subsidiaries of the Borrower to incur and have
outstanding Indebtedness under senior unsecured credit facilities for the
purpose of making dividends to the Borrower to finance, in part, the repayment,
redemption, pre-funding or repurchase of existing Indebtedness of the Borrower
and to pay fees and expenses related to the foregoing and to the
Spin-Offs.
5. CONDITIONS
PRECEDENT.
This
Amendment shall become effective on the date on which the following conditions
are satisfied (the “Effective
Date”):
(a)
Amendment.
The
Administrative Agent shall have received a duly executed counterpart to this
Amendment from the Borrower, the Administrative Agent and the Required
Lenders.
(b)
Fees.
The
Administrative Agent shall have received all fees required to be paid on or
before the Effective Date, and all expenses required to be paid on or before
the
Effective Date for which invoices have been presented.
6. REPRESENTATIONS
AND WARRANTIES.
The
Borrower hereby represents and warrants that each of the representations and
warranties in Section 3 of the Credit Agreement (other than those contained
in
Sections 3.5 and 3.8) shall be, after giving effect to this Amendment, true
and
correct in all material respects as if made on and as of the Closing Date
(unless such representations and warranties are stated to relate to a specific
earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date).
3
7. AMENDMENTS
TO FUNDAMENTAL DOCUMENTS.
The
Borrower and the Required Lenders hereby agree that all references in the
Fundamental Documents to the Credit Agreement shall mean the Credit Agreement
as
amended hereby.
8. SOLVENCY
CERTIFICATE.
Concurrently
with the effectiveness of the Real Estate Services Spin-Off, the Borrower hereby
agrees to deliver to the Administrative Agent a solvency certificate from its
chief financial officer substantially in the form of Exhibit A
hereto.
9. NO
OTHER
AMENDMENTS; CONFIRMATION.
Except
as
expressly amended hereby, the provisions of the Credit Agreement and each of
the
Fundamental Documents are and shall remain in full force and
effect.
10. PAYMENT
OF EXPENSES.
The
Borrower agrees to pay or reimburse the Administrative Agent for all of its
reasonable and documented out-of-pocket costs and expenses incurred in
connection with this Amendment, any other documents prepared in connection
herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of one counsel to the
Administrative Agent.
11. GOVERNING
LAW.
THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF
NEW YORK.
12. COUNTERPARTS.
This
Amendment may be executed by one or more of the parties hereto on any number
of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. This Amendment may be
delivered by facsimile or electronic transmission of the relevant signature
pages hereof.
[remainder
of page intentionally left blank]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the day and the year first above written.
CENDANT
CORPORATION,
as
Borrower
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By:
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/Xxxxx
X. Xxxxxxx/
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Name:
Xxxxx X. Xxxxxxx
Title:
Executive Vice President and
Treasurer
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CITICORP
USA, INC.,
as
Syndication Agent
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By:
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/Xxxx
Xxxxx/
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Name:
Xxxx Xxxxx
Title:
Director
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BANK
OF AMERICA, N.A.,
as
Administrative Agent and as a Lender
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By:
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/Xxxx
Xxxxxxxx/
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Name:
Xxxx Xxxxxxxx
Title:
Senior Vice President
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Signature
Page to Amendment of
Cendant
Corporation Credit Agreement
By:
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/Xxxxx
Xxx/
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Name:
Xxxxx Xxx
Title:
Authorized Signatory
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Signature
Page to Amendment of
Cendant
Corporation Credit Agreement
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH (successor by
merger
to UFJ Bank Limited), as a Lender
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By:
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/Xxxxx
Xxx/
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Name:
Xxxxx Xxx
Title:
Authorized Signatory
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Signature
Page to Amendment of
Cendant
Corporation Credit Agreement
Calyon
New York Branch, as a Lender
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By:
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/Xxx
Xxxxx/
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Name:
Xxx Xxxxx
Title:
Director
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By:
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/Yufi
Muzichenko/
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Name:
Yufi Muzichenko
Title:
Vice President
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Signature
Page to Amendment of
Cendant
Corporation Credit Agreement
CREDIT
SUISSE, Cayman Islands Branch (formerly known as CREDIT SUISSE FIRST
BOSTON, acting through its Cayman Islands Branch), as a
Lender
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By:
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/Xxxx
X'Xxxx/
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Name:
Xxxx
X'Xxxx
Title:
Director
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By:
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/Xxxxxxxxx
Xxxxxxx/
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Name:
Xxxxxxxxx
Xxxxxxx
Title:
Vice President
|
Signature
Page to Amendment of
Cendant
Corporation Credit Agreement
XXXXXXX
XXXXX BANK USA, as a Lender
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By:
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/Xxxxx
Xxxxxxx/
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Name:
Xxxxx
Xxxxxxx
Title:
Vice President
|
Signature
Page to Amendment of
Cendant
Corporation Credit Agreement
Mizuho
Corporate Bank, Ltd, as a Lender
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By:
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/Xxxxxx
Xxxxxxxxx/
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Name:
Xxxxxx
Xxxxxxxxx
Title:
Senior Vice President & Group
Head
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Signature
Page to Amendment of
Cendant
Corporation Credit Agreement
The
Royal Bank of Scotland, plc, as a Lender
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By:
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/Xxxxx
X. Xxxxxxxx/
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Name:
Xxxxx
X. Xxxxxxxx
Title:
Managing Director
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Signature
Page to Amendment of
Cendant
Corporation Credit Agreement
SUMITOMO
MITSUI BANKING CORPORATION, as a Lender
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By:
|
/Xxxxx
X. Xxxx/
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Name:
Xxxxx
X. Xxxx
Title:
Senior Vice President
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EXHIBIT
A
FORM
OF
SOLVENCY CERTIFICATE
This
Solvency Certificate (this “Certificate”)
is
delivered in connection with the Credit Agreement, dated as of June 17, 2004
(as
amended by the First Amendment, dated as of April [__], 2006, the “Credit
Agreement”)
among
Cendant Corporation, (the “Borrower”),
the
lenders party thereto (the “Lenders”),
Citicorp USA, Inc., as syndication agent (the "Syndication
Agent")
and
Bank of America, N.A., as administrative agent (the “Administrative
Agent”)
for
the Lenders. Capitalized terms used herein without definition have the same
meanings as in the Credit Agreement.
I
am the
duly qualified and acting Chief Financial Officer of the Borrower and am
executing this document solely in that capacity. In such capacity, I have
participated actively in the management of its financial affairs and am familiar
with its consolidated financial statements. I have, together with other officers
of the Borrower, acted on behalf of the Borrower in connection with the
negotiation of the Credit Agreement and I am familiar with the terms and
conditions thereof.
In
my
capacity as an officer of the Borrower, I hereby certify that to my
knowledge:
As
of the
Date hereof, after giving effect to the Real Estate Services Spin-Off, the
Borrower and its Consolidated Subsidiaries
are
Solvent. For purposes of this paragraph (i) “the
Borrower and its Consolidated Subsidiaries” means the Borrower and its
Consolidated Subsidiaries, taken as a whole
and (ii)
“Solvent” means that (a) the
amount of the “present fair saleable value” of the assets determined on an
ongoing concern basis of the Borrower and its Consolidated Subsidiaries will,
as
of such date, exceed the amount of all “liabilities of the Borrower and its
Consolidated Subsidiaries, contingent or otherwise” determined on an ongoing
concern basis, as of such date, as such quoted terms are determined in
accordance with applicable federal and state laws governing determinations
of
the insolvency of debtors, (b) the present fair saleable value of the assets
determined on an ongoing concern basis of the Borrower and its Consolidated
Subsidiaries will, as of such date, be greater than the amount that will be
required to pay the liability determined on an ongoing concern basis of the
Borrower and its Consolidated Subsidiaries on their debts as such debts become
absolute and matured, (c) the Borrower and its Consolidated Subsidiaries will
not have, as of such date, an unreasonably small amount of capital with which
to
conduct the businesses in which they are engaged, and (d) the Borrower and
its
Consolidated Subsidiaries will be able to pay their debts as they mature. For
purposes of this definition, (i) “debt” means liability on a “claim”, and (ii)
“claim” means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to
an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
I
represent the foregoing information is provided to the best of my knowledge
and
believe and execute this Certificate this ___ day of _________
2006.
CENDANT
CORPORATION
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By:
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Name:
Title:
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