FIRST AMENDMENT
EXHIBIT
10.1
FIRST
AMENDMENT (this “Amendment”),
dated
as of March 9, 2006, to the Five Year Competitive Advance and Revolving Credit
Agreement (the “Credit
Agreement”)
dated
as of November 22, 2004, among CENDANT CORPORATION (the “Borrower”),
certain subsidiaries of the Borrower from time to time party thereto (the
“Subsidiary
Borrowers”),
the
lenders referred to therein (the “Lenders”),
and
JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative
Agent”)
for
the Lenders.
INTRODUCTORY
STATEMENT
The
Borrower has requested that the Lenders amend certain provisions of the Credit
Agreement as set forth herein.
Subject
to the terms and conditions set forth herein, the 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 Credit Agreement to the contrary, but subject to Section
6.2 of the Credit Agreement, as amended by this Amendment, the Lenders hereby
consent to the Spin-Offs (as defined below).
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 both the Real Estate Services
Spin-Off and the Hospitality Services Spin-Off (without regard to order) shall
have been consummated and (ii) November 22, 2009, or the immediately preceding
Business Day.;
(ii) by
inserting at the end of the definition of “Subsidiary Borrower” the
following:
“;
provided
that on
and after the First Amendment Effective Date, neither Avis Budget Holdings,
nor
any of its Subsidiaries may be designated as a Subsidiary Borrower”;
and
(iii) 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, to be entered into on or around the First Amendment
Effective Date, 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.
“First
Spin-Off”
means
the first to occur of any of the Spin-Offs.
“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 (r) thereof;
(ii) by
deleting paragraph (s) thereof in its entirety and inserting in lieu thereof
the
following new paragraph (s):
“(s) Indebtedness
of Avis Budget and its Subsidiaries under the Avis Budget Credit Agreement;
and”; and
(iii) by
inserting the following new paragraph (t):
“(t) 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):
“(c)
Notwithstanding anything to the contrary contained herein, nothing in this
Section 6.2 shall be deemed to prohibit the First Spin-Off.”
(d) Amendment
to Section 6.3 (Limitation on Liens).
Section
6.3 of the Credit Agreement is hereby amended by deleting from paragraph (h)
thereof “and (h) through (q)” and inserting in lieu thereof “, (h) through (q)
and (s)”.
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;
provided
that:
(i)
concurrently with the incurrence of any such Indebtedness, such Subsidiary
shall
enter into a written agreement, in form and substance reasonably satisfactory
to
the Administrative Agent, to guarantee the Obligations under the Credit
Agreement for such time as it remains a Subsidiary of the Borrower and the
Indebtedness incurred by such Subsidiary remains outstanding and (ii) if (x)
both the Real Estate Services Spin-Off and the Hospitality Services Spin-Off
have not occurred within 60 days of the first incurrence of Indebtedness
permitted by the waiver contained in this Section 4 and (y) any Indebtedness
permitted by the waiver contained in this Section 4 of a Subsidiary of the
Borrower remains outstanding at such time, the Borrower shall have taken all
actions required by Section 2.13 of the Credit Agreement to reduce the Total
Commitment to $1,000,000,000.
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, each Subsidiary Borrower, the Administrative Agent
and the Required Lenders.
(b)
Reduction
of Commitments.
The
Borrower shall have taken all actions required by Section 2.13 of the Credit
Agreement to reduce the Total Commitment to $2,000,000,000.
(c)
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).
7. SOLVENCY
CERTIFICATE.
Concurrently
with the effectiveness of the First 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.
8. 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.
9. 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.
10. 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.
11. 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]
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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/s/
Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
Title: Executive
Vice President and Treasurer
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CENDANT
MOBILITY HOLDINGS LIMITED,
as
a Subsidiary Borrower
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
Title: Executive
Vice President and Treasurer, Cendant
Corporation, by Power of Attorney
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GALILEO
INTERNATIONAL TECHNOLOGY, LLC, as a Subsidiary Borrower
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
Title:
Executive
Vice President and Treasurer, Cendant Corporation, by Power of
Attorney
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JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent and as a Lender
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By:
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/s/
Xxxxxxxx Xxxxx
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Name: Xxxxxxxx
Xxxxx
Title: Vice
President
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BANK
OF AMERICA, N.A., as a Lender
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By:
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/s/
Xxxx Xxxxxxxx
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Name: Xxxx
Xxxxxxxx
Title:
Senior Vice President
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BANK
OF CHINA, NEW YORK BRANCH, as a Lender
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By:
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/s/
Xxxxxxx Xxxxx
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Name: Xxxxxxx
Xxxxx
Title: Deputy
General Manager
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BANK
OF MONTREAL, as a Lender
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By:
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//s/
Xxxxxx X. Xxxxxx
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Name:
Xxxxxx X. Xxxxxx
Title:
Vice President
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THE
BANK OF NEW YORK, as a Lender
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By:
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/s/
Xxxxx Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
Title: Vice
President
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THE
BANK OF NOVA SCOTIA, as a Lender
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By:
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/s/
Xxxx X. Xxxxxx
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Name: Xxxx
X. Xxxxxx
Title:
Managing Director
|
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD, NEW YORK BRANCH, as a
Lender
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By:
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/s/
Xxxxx Xxx
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Name: Xxxxx
Xxx
Title:
Authorized Signatory
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BARCLAYS
BANK PLC, as a Lender
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By:
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/s/
Xxxxxxx Xxxx
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Name: Xxxxxxxx
Xxxx
Title:
Director
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BAYERISCHE
HYPO-UND VEREINSBANK AG NEW YORK BRANCH, as a Lender
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By:
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//s/
Xxx Xxxxxxxx
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Name: Xxx
Xxxxxxxx
Title:
Director
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By:
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/s/
Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx
Xxxxxxxx
Title:
Director
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CALYON
NEW YORK BRANCH, as a Lender
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By:
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/s/
Xxx Xxxxx
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Name: Xxx
Xxxxx
Title:
Director
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By:
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/s/
Yuri Muzichenko
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Name: Yuri
Muzichenko
Title:
Vice President
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XXXXX
XXX COMMERCIAL BANK, LTD., NEW YORK BRANCH, as a Lender
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By:
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/s/
Xxx X. X. Xxxx
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Name: Xxx
X. X. Xxxx
Title:
VP & General Manager
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CIBC
INC., as a Lender
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx
X. Xxxxxxxx
Title:
Executive Director
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CITICORP
NORTH AMERICA, as a Lender
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By:
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/s/
Xxxx Xxxxx
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Name: Xxxx
Xxxxx
Title:
Director
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MELLON
BANK, N.A., as a Lender
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By:
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/s/
Xxxxxx X. Xxxx
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Name: Xxxxxx
X. Xxxx
Title:
First Vice President
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XXXXXXX
XXXXX BANK USA, as a Lender
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By:
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/s/
Xxxxx Xxxxx
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Name: Xxxxx
Xxxxx
Title:
Director
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MIZUHO
CORPORATE BANK LIMITED, as a Lender
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Name: Xxxxxx
Xxxxxxxxx
Title:
Senior Vice President
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THE
NORTHERN TRUST COMPANY, as a Lender
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By:
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/s/
Xxxxx X. Xxxx
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Name: Xxxxx
X. Xxxx
Title:
Vice President
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PNC
BANK, NATIONAL ASSOCIATION, as a Lender
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By:
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/s/
Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx
Xxxxxxxx
Title:
Senior Vice President
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THE
ROYAL BANK OF SCOTLAND, PLC, as a Lender
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By:
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/s/
Xxxxx X. Xxxxxxxx
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Name: Xxxxx
X. Xxxxxxxx
Title:
Managing Director
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SUMITOMO
MITSUI BANKING CORPORATION, as a Lender
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By:
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/s/
Xxxxx X. Xxxx
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Name: Xxxxx
X. Xxxx
Title:
Senior Vice President
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SUNTRUST
BANK, as a Lender
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By:
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/s/
Xxxxxxxxx Xxxx
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Name: Xxxxxxxxx
Xxxx
Title:
Vice President
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UBS
LOAN FINANCE LLC, as a Lender
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/s/
Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
Title:
Director
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By:
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/s/
Xxxx X. Xxxx
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Name: Xxxx
X. Xxxx
Title:
Associate Director
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WACHOVIA
BANK, NATIONAL ASSOCIATION, as a Lender
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By:
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/s/
Xxxxx X. Xxxxxx
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Name: Xxxxx
X. Xxxxxx
Title:
Vice President
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XXXXX
FARGO BANK, as a Lender
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By:
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/s/
Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx
X. Xxxxxxxx
Title:
Senior Vice President
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WESTLB
AG, NEW YORK BRANCH as a Lender
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By:
|
/s/
Xxxx X. Xxxxxxxx
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Name: Xxxx
X. Xxxxxxxx
Title: Director
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By:
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/s/
Xxx Xxxx
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Name: Xxx
Xxxx
Title:
Director
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WESTPAC
BANKING CORPORATION, as a Lender
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By:
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/s/
Xxxxx Xxxxxx
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Name: Xxxxx
Xxxxxx
Title:
Head of Corporate & Institutional Banking,
Americas
Tier
0 Xxxxxxxx
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XXXXXXX
XXXXXX CREDIT CORPORATION
as
a Lender
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By:
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/s/
Xxxx Xxxxxx
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Name: Xxxx
Xxxxxx
Title:
Assistant 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 November 22,
2004
(as amended by the First Amendment, dated as of March 9, 2006, the “Credit
Agreement”)
among
Cendant Corporation, (the “Borrower”),
certain
subsidiaries of the Borrower from time to time party thereto,
the
lenders party thereto (the “Lenders”),
and
JPMorgan Chase Bank, 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 [First 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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