Contract
EXECUTION
COPY
THIRD AMENDMENT, dated as of August 7, 2007 (this “Third
Amendment”), to the CREDIT AGREEMENT dated as of July 8, 2005, as
amended by the First Amendment dated as of December 7, 2006 and the Second
Amendment dated as of December 18, 2006 (as further amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”), among EXPEDIA, INC., a Delaware corporation; EXPEDIA,
INC., a Washington corporation; TRAVELSCAPE, LLC, a Nevada limited
liability company (successor to TRAVELSCAPE, INC., a Nevada corporation);
XXXXXX.XXX, a Delaware corporation; HOTWIRE, INC., a Delaware corporation;
the other Borrowing Subsidiaries from time to time party thereto; the
LENDERS from time to time party thereto; JPMORGAN CHASE BANK, N.A., as
Administrative Agent; and X.X. XXXXXX EUROPE LIMITED, as London Agent.
WITNESSETH:
WHEREAS, the Lenders have agreed to extend credit to the Borrowers under the Credit Agreement
on the terms and subject to the conditions set forth therein; and
WHEREAS, the Company has requested that the Lenders amend certain provisions of the Credit
Agreement, and the Lenders under the Credit Agreement whose signatures appear below, constituting
at least the Required Lenders, are willing to amend the Credit Agreement on the terms and subject
to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties
hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not otherwise defined herein
(including in the preamble hereto) have the meanings assigned to them in the Credit Agreement.
SECTION 2. Amendment of Credit Agreement. Effective as of the Third Amendment
Effective Date (as defined below), the Credit Agreement is hereby amended as follows:
(a) Amendment of Section 6.05. Section 6.05 of the Credit Agreement is amended to read in
its entirety as follows:
“SECTION 6.05. Restricted Payments. The Company will not, and will
not permit any of the Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except that (a) the Company may
declare and pay dividends with respect to its Equity Interests payable solely in
additional shares of its common stock, (b)
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Subsidiaries may declare and pay dividends ratably with respect to their
Equity Interests and (c) the Company may make Restricted Payments pursuant to and
in accordance with stock option plans or other benefit plans for management or
employees of the Company and the Subsidiaries; provided, however,
that so long as no Default or Event of Default shall exist or would be caused
thereby, the Company may make Restricted Payments without limitation if the
Leverage Ratio as of the end of the most recently completed fiscal quarter, giving
pro forma effect to such Restricted Payments and any related incurrence of
Indebtedness as if they had occurred on the last day of such quarter, shall have
been equal to or less than 3.0 to 1.0.”
(b) Amendment of Section 6.11. Section 6.11 of the Credit Agreement is amended to read in
its entirety as follows:
“SECTION 6.11. Consolidated Net Worth. The Company will not at any
time permit Consolidated Net Worth to be less than the sum at such time of (a)
US$3,500,000,000 and (b) commencing with the fiscal quarter beginning on October
1, 2007, 50% of the Company’s Consolidated Net Income for each fiscal quarter of
the Company for which Consolidated Net Income is positive and for which financial
statements shall have been delivered under Section 5.01(a) or (b).”
SECTION 3. Representations, Warranties and Agreements. The Company, as to itself and
each of the Subsidiaries, hereby represents and warrants to and agrees with each Lender and the
Agents that:
(a) The representations and warranties set forth in Article III of the Credit Agreement, as
amended hereby, are true and correct in all material respects on and as of the Third Amendment
Effective Date and after giving effect to this Third Amendment, with the same effect as if made on
and as of such date, except to the extent such representations and warranties expressly relate to
an earlier date, in which case they were true and correct as of such earlier date.
(b) As of the Third Amendment Effective Date, after giving effect to this Third Amendment,
no Default or Event of Default has occurred and is continuing.
SECTION 4. Effectiveness. This Third Amendment shall become effective as of the date
(the “Third Amendment Effective Date”) on which the Administrative Agent shall have
received duly executed counterparts hereof that, when taken together, bear the authorized
signatures of the Company and Lenders constituting at least the Required Lenders.
SECTION 5. Credit Agreement. Except as specifically stated herein, the Credit
Agreement shall continue in full force and effect in accordance with the provisions thereof. As
used therein, the terms “Agreement”, “herein”, “hereunder”, “hereto”,
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“hereof” and words of similar import shall, unless the context otherwise requires, refer to
the Credit Agreement as modified hereby.
SECTION 6. Applicable Law. THIS THIRD AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Third Amendment may be executed in counterparts (and
by different parties hereto on different counterparts), each of which shall constitute an original
but all of which, when taken together, shall constitute a single instrument. Delivery of an
executed counterpart of a signature page of this Third Amendment by telecopy shall be effective as
delivery of a manually executed counterpart hereof.
SECTION 8. Fees and Expenses. The Company agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this Third Amendment, including
the reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx LLP, counsel for the
Administrative Agent. The Company agrees to pay on the Third Amendment Effective Date to the
Administrative Agent, for the account of each Lender that executes and delivers a copy of this
Third Amendment to the Administrative Agent (or its counsel) at or prior to 5:00 p.m., New York
City time, on August 7, 2007 (the “Signing Date”), an amendment fee in an amount equal to
0.125% of the aggregate principal amount of the Commitments of such Lender outstanding on the
Signing Date. All fees shall be payable in immediately available funds and shall not be
refundable.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be duly executed by
their respective authorized officers as of the date first above written.
EXPEDIA, INC., a Delaware corporation,
| by: |
/s/ Xxxxx
X. Xxxxxx
|
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and General Counsel
JPMORGAN CHASE BANK, N.A., individually and as Administrative
Agent,
| by: |
/s/ Xxxxx
X. Xxxxxx
|
Name: Xxxxx X. Xxxxxx
Title: Executive Director
Name of Institution: Bank of America, N.A.
| by: |
/s/ Xxxxx X.
Xxxxxxx
|
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Name of Institution: The Governor and Company of the Bank of
Ireland
| by: |
/s/ Xxxxxx
Xxxxx
|
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
Name of Institution:1
| by: |
/s/ Xxxxx
Xxxx
|
Name: Xxxxx Xxxx
Title: Authorized Signatory
| 1 | For any Lender requiring a second signature line. |
Name of Institution: BARCLAYS BANK PLC
| by: |
/s/ Xxxxxx
Xxxx
|
Name: Xxxxxx Xxxx
Title: Manager
Name of Institution:1
| by: |
/s/
|
Name:
Title:
| 1 | For any Lender requiring a second signature line. |
Name of Institution: BNP PARIBAS
| by: |
/s/ Xxxxxxxxx
Xxxxx
|
Name: Xxxxxxxxx Xxxxx
Title: Vice President
Name of
Institution:1
BNP PARIBAS
| by: |
/s/ Xxxxxxx
Xxxx
|
Name: Xxxxxxx Xxxx
Title: Managing Director
| 1 | For any Lender requiring a second signature line. |
Name of Institution: FIFTH THIRD BANK
| by: |
/s/ Xxxx
Xxxxx
|
Name: Xxxx Xxxxx
Title: Vice President
Name of Institution:1
| by: |
/s/
|
Name:
Title:
| 1 | For any Lender requiring a second signature line. |
Name of Institution: HSBC BANK USA NATIONAL ASSOCIATION
| by: |
/s/ Xxxxx
Xxxxx
|
Name: Xxxxx Xxxxx
Title: Vice President
Name of Institution:1
| by: |
/s/
|
Name:
Title:
| 1 | For any Lender requiring a second signature line. |
Name of Institution: MIZUHO CORPORATE BANK, LTD.
| by: |
/s/ Xxxxxxx
Xxxxxxx
|
Name: Xxxxxxx Xxxxxxx
Title: Deputy General Manager
Name of Institution:1
| by: |
/s/
|
Name:
Title:
| 1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
Name of Institution: SOCIETE GENERALE
| by: |
/s/ Xxxxxxx
X. Xxxxxxxxx
|
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
Name of Institution:1
| by: |
/s/
|
Name:
Title:
| 1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
Name of Institution: Sumitomo Mitsui Banking Corporation
| by: |
/s/ Xxx X.
Xxxxxxxxx
|
Name: Xxx X. Xxxxxxxxx
Title: General Manager
Name of Institution:1
| by: |
/s/
|
Name:
Title:
| 1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
The Bank of New York
| by: |
/s/ Xxxxxx
Xxxxxx
|
Name: Xxxxxx Xxxxxx
Title: Vice President
SIGNATURE PAGE TO
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
Name of Institution: THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
| by: |
/s/ Xxxxxxx
Xxxxxx
|
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Name of Institution:1
| by: |
/s/
|
Name:
Title:
| 1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
Name of Institution: The Royal Bank of Scotland
| by: |
/s/ Xxxxxxx
XxXxxxx
|
Name: Xxxxxxx XxXxxxx
Title: Senior Vice President
Name of Institution:1
| by: |
/s/
|
Name:
Title:
| 1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
United Overseas Bank Limited, New York Agency
| by: |
/s/ Xxxxxx Xxx
|
Name: Xxxxxx Xxx
Title: SVP & GM
| by: |
/s/ Xxxxx
Xxxxx
|
Name: Xxxxx Xxxxx
Title: AVP
| 1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
Name of Institution: US BANK NATIONAL ASSOCIATION
| by: |
/s/ Kurban
H. Merchant
|
Name: Kurban H. Merchant
Title: Vice President
SIGNATURE PAGE TO
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
THIRD AMENDMENT TO
EXPEDIA, INC. CREDIT AGREEMENT
Name of Institution: Wachovia Bank, N.A.
| by: |
/s/ Xxxxx
Xxxxxxxx
|
Name: Xxxxx Xxxxxxxx
Title: Vice President
Name of Institution:1
| by: |
/s/
|
Name:
Title:
| 1 | For any Lender requiring a second signature line. |
