Contract
Exhibit 10.1
Execution Version
2019 INCREMENTAL ASSUMPTION AGREEMENT
2019 INCREMENTAL ASSUMPTION AGREEMENT, dated as of March 27, 2019 (this “Agreement”), among Realogy Intermediate Holdings LLC (“Holdings”), Realogy Group LLC (the “Borrower”), the financial institution party hereto (the “2019 Incremental Revolving Facility Lender”) and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”).
W I T N E S S E T H:
WHEREAS, reference is made to the Amended and Restated Credit Agreement, dated as of March 5, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Holdings, the Borrower, the several lenders from time to time parties thereto (the “Lenders”), the Administrative Agent and the other agents parties thereto;
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make, and have made, certain loans and other extensions of credit to the Borrower;
WHEREAS, pursuant to Section 2.20 of the Credit Agreement, the Borrower wishes to obtain an Incremental Revolving Facility Commitment; and
WHEREAS, the Borrower, the 2019 Incremental Revolving Facility Lender and the Administrative Agent are willing to agree to this Agreement on the terms set forth herein.
NOW THEREFORE, in consideration of the premises and mutual covenants hereinafter set forth, the parties hereto agree as follows:
SECTION 1. Definitions. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Incremental Revolving Facility Commitment.
(a) The Borrower has requested an Incremental Revolving Facility Commitment of $25,000,000.00 and that the date on which such Incremental Revolving Facility Commitment becomes effective be the 2019 Effective Date (as defined below), and the 2019 Incremental Revolving Facility Lender has agreed to provide an Incremental Revolving Facility Commitment in an amount equal to $25,000,000.00.
(b) On the 2019 Effective Date, this Agreement shall constitute an “Incremental Assumption Agreement” pursuant to section 2.20 of the Credit Agreement, the Incremental Revolving Facility Commitment referred to in Section 2(a) above shall constitute an additional “Revolving Facility Commitment” and any loans made pursuant to such Incremental Revolving Facility Commitment shall constitute “Revolving Facility Loans” under the Credit Agreement as set forth in this Section 2.
(c) The Incremental Revolving Facility Commitment shall have the same terms and conditions as those of the Revolving Facility Commitments existing at the time of the 2019 Effective Date, including, for the avoidance of doubt, each of the terms and conditions existing under the Credit Agreement.
(d) Following the 2019 Effective Date, all Revolving Facility Loans shall be made in accordance with the aggregate Revolving Facility Commitments of the Revolving Facility Lenders after giving effect to the Incremental Revolving Facility Commitment contemplated hereby. Pursuant to
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Section 2.20(d) of the Credit Agreement, the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Revolving Facility Loans, including in respect of the Incremental Revolving Facility Commitment contemplated hereby, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis.
SECTION 3. Effectiveness. This Agreement (including the Incremental Revolving Facility Commitment provided herein) shall become effective as of the date (the “2019 Effective Date”) on which the following conditions have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received a duly executed and completed counterpart hereof that bears the signature of (i) the Borrower, (ii) Holdings, (iii) the Administrative Agent, and (iv) the 2019 Incremental Revolving Facility Lender.
(b) The Administrative Agent shall have received an Acknowledgment and Confirmation in the form of Annex I hereto from an authorized officer of each Loan Party.
(c) The Administrative Agent shall have received all fees payable thereto or to the 2019 Incremental Revolving Facility Lender on or prior to the 2019 Effective Date.
(d) To the extent invoiced, the Administrative Agent shall have received reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP) in connection with this Agreement and any other reasonable out-of-pocket expenses required to be reimbursed or paid by the Loan Parties under the Credit Agreement or under any Loan Document.
(e) No Event of Default or Default shall have occurred and be continuing.
(f) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower, certifying on behalf of the Borrower that, (i) after giving effect to this Agreement, the representations and warranties set forth in the Loan Documents are true and correct in all material respects on and as of the 2019 Effective Date 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 such representations and warranties are true and correct in all material respects as of such earlier date (other than the representations and warranties contained in Section 3.18 of the Credit Agreement, which shall be true and correct in all material respects as of the 2019 Effective Date)); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects, and (ii) no Default or Event of Default has occurred and is continuing on the 2019 Effective Date after giving effect to this Agreement.
(g) The Administrative Agent shall have received, on behalf of itself and the 2019 Incremental Revolving Facility Lender on the 2019 Effective Date (after giving effect hereto), a favorable written opinion of (i) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b) to the Credit Agreement, in each case (A) dated the 2019 Effective Date, (B) addressed to the Administrative Agent and the 2019 Incremental Revolving Facility Lender and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to this Agreement and the Loan Documents as the Administrative Agent shall reasonably request.
(h) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii) and (iii) below:
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(i) a copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the 2019 Effective Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the 2019 Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of this Agreement and the Loan Documents to which such person is a party and, in the case of the Borrower, the borrowings thereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the 2019 Effective Date,
(C) that the certificate or articles of incorporation, certificate of limited partnership or certificate of formation of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer executing any Loan Document (including the Acknowledgment and Confirmation in the form of Annex I hereto) or any other document delivered in connection herewith on behalf of such Loan Party; and
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above.
(i) The 2019 Incremental Revolving Facility Lender shall have received a solvency certificate in form and substance reasonably satisfactory to the Administrative Agent and signed by the Chief Accounting Officer of the Borrower.
(j) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act, requested not less than five business days prior to the date hereof.
(k) The Borrower shall be in Pro Forma Compliance after giving effect to the Incremental Revolving Facility Commitment requested and provided hereby on the 2019 Effective Date.
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SECTION 4. Representations and Warranties. The Borrower represents and warrants to the 2019 Incremental Revolving Facility Lender and the Administrative Agent that as of the 2019 Effective Date:
(a) This Agreement has been duly authorized, executed and delivered by it, and this Agreement and the Credit Agreement constitute its valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(b) Each of the representations and warranties set forth in Article III of the Credit Agreement are true and correct in all material respects on and as of the 2019 Effective Date with the same effect as though made on and as of the 2019 Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date (other than the representations and warranties contained in Section 3.18 of the Credit Agreement, which shall be true and correct in all material respects as of the 2019 Effective Date)); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects.
SECTION 5. Effect of this Agreement.
(a) This Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect.
(b) This Agreement and the Acknowledgment and Confirmation shall each constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 6. General.
(a) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(b) Costs and Expenses. The Borrower agrees to reimburse the Administrative Agent for its reasonable out-of-pocket expenses in connection with this Agreement, including the reasonable fees, charges and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, primary counsel for the Administrative Agent and the 2019 Incremental Revolving Facility Lender.
(c) Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by email or facsimile transmission (or other electronic transmission) shall be effective as delivery of a manually executed counterpart hereof.
(d) Headings. The headings of this Agreement are used for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
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(e) FATCA Grandfathered Status. Solely for purposes of determining withholding Taxes under FATCA, from and after the 2019 Effective Date, the Borrower and the Administrative Agent shall treat (and the 2019 Incremental Revolving Facility Lender hereby authorizes the Administrative Agent to treat) the Incremental Revolving Facility Commitment established hereby as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective duly authorized officers as of the day and year first above written.
| REALOGY GROUP LLC, as Borrower | ||
| By: |
/s/ Xxxxxxx X. Xxxxxxxxx | |
|
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| Name: Xxxxxxx X. Xxxxxxxxx | ||
| Title: Senior Vice President | ||
| REALOGY INTERMEDIATE HOLDINGS, LLC, as Holdings | ||
| By: |
/s/ Xxxxxxx X. Xxxxxxxxx | |
|
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| Name: Xxxxxxx X. Xxxxxxxxx | ||
| Title: Senior Vice President | ||
Signature Page to 2019 Incremental Assumption Agreement
| JPMORGAN CHASE BANK, N.A., as Administrative Agent | ||
| By: |
/s/ Xxxxx Xxxxxxxxx | |
|
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| Name: Xxxxx Xxxxxxxxx | ||
| Title: Vice President | ||
Signature Page to 2019 Incremental Assumption Agreement
| MUFG UNION BANK, N.A., as a 2019 Incremental Revolving Facility Lender | ||
| By: |
/s/ Xxxxxx Xxxxxxxxxx | |
|
| ||
| Name: Xxxxxx Xxxxxxxxxx | ||
| Title: Managing Director | ||
Signature Page to 2019 Incremental Assumption Agreement
Annex I
ACKNOWLEDGMENT AND CONFIRMATION
Reference is made to the 2019 INCREMENTAL ASSUMPTION AGREEMENT, dated as of March 27, 2019 (the “Agreement”; capitalized terms used herein without definition shall have the meanings therein), with respect to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 5, 2013 (as amended, modified, restated and supplemented from time to time prior to the effectiveness of the Agreement, the “Credit Agreement”), among Realogy Intermediate Holdings LLC (“Holdings”), Realogy Group LLC (the “Borrower”), the several lenders from time to time parties thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”) and the other agents parties thereto.
(a) The Borrower is obtaining an Incremental Revolving Facility Commitment pursuant to the Agreement as set forth therein. Each of the parties hereto hereby agrees, with respect to each Loan Document to which it is a party:
(i) all of its obligations, liabilities and indebtedness under such Loan Document shall remain in full force and effect on a continuous basis regardless of the effectiveness of the Agreement; and
(ii) all of the Liens and security interests created and arising under such Loan Document remain in full force and effect on a continuous basis, and the perfected status and priority of each such Lien and security interest continues in full force and effect on a continuous basis, unimpaired, uninterrupted and undischarged, regardless of the effectiveness of the Agreement, as collateral security for its obligations, liabilities and indebtedness under the Credit Agreement and related guarantees.
(b) This Acknowledgment and Confirmation shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents (as defined in the Credit Agreement).
(c) THIS ACKNOWLEDGMENT AND CONFIRMATION AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS ACKNOWLEDGMENT AND CONFIRMATION SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(d) This Acknowledgment and Confirmation may be executed by one or more of the parties to this Acknowledgment and Confirmation on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Acknowledgment and Confirmation by email or facsimile transmission (or other electronic transmission) shall be effective as delivery of a manually executed counterpart hereof.
IN WITNESS WHEREOF, each of the undersigned has caused this Acknowledgment and Confirmation to be duly executed and delivered as of the date first written above.
| REALOGY GROUP, LLC | ||
| By: |
/s/ Xxxxxxx X. Xxxxxxxxx | |
|
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| Name: Xxxxxxx X. Xxxxxxxxx | ||
| Title: Senior Vice President | ||
| REALOGY INTERMEDIATE HOLDINGS LLC | ||
| By: |
/s/ Xxxxxxx X. Xxxxxxxxx | |
|
| ||
| Name: Xxxxxxx X. Xxxxxxxxx | ||
| Title: Senior Vice President | ||
Signature Page to Acknowledgment and Confirmation
| SUBSIDIARY GUARANTORS: | ||
| CASTLE EDGE INSURANCE AGENCY, INC. | ||
| REALOGY OPERATIONS LLC | ||
| REALOGY SERVICES GROUP LLC | ||
| REALOGY SERVICES VENTURE PARTNER LLC | ||
| By: |
/s/ Xxxxxxx X. Xxxxxxxxx | |
|
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| Name: Xxxxxxx X. Xxxxxxxxx | ||
| Title: Senior Vice President | ||
Signature Page to Acknowledgment and Confirmation
| CARTUS CORPORATION | ||
| By: |
/s/ Xxxx X. Xxxxxx | |
|
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| Name: Xxxx X. Xxxxxx | ||
| Title: Chief Financial Officer | ||
Signature Page to Acknowledgment and Confirmation
| CASE TITLE COMPANY | ||
| CORNERSTONE TITLE COMPANY | ||
| EQUITY TITLE COMPANY | ||
| EQUITY TITLE MESSENGER SERVICE HOLDING LLC | ||
| GUARDIAN HOLDING COMPANY | ||
| LAKECREST TITLE, LLC | ||
| LAND TITLE AND ESCROW, INC. | ||
| SECURED LAND TRANSFERS LLC | ||
| TITLE RESOURCE GROUP AFFILIATES HOLDINGS LLC | ||
| TITLE RESOURCE GROUP HOLDINGS LLC | ||
| TITLE RESOURCE GROUP LLC | ||
| TITLE RESOURCE GROUP SETTLEMENT SERVICES, LLC | ||
| TRG MARYLAND HOLDINGS LLC | ||
| TRG SETTLEMENT SERVICES, LLP | ||
| TRG VENTURE PARTNER LLC | ||
| By: |
/s/ Xxxxxx Xxxxxxxxxx | |
|
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| Name: Xxxxxx Xxxxxxxxxx | ||
| Title: Chief Financial Officer | ||
Signature Page to Acknowledgment and Confirmation
| BETTER HOMES AND GARDENS REAL ESTATE LICENSEE LLC | ||
| BETTER HOMES AND GARDENS REAL ESTATE LLC | ||
| CENTURY 21 REAL ESTATE LLC | ||
| CGRN, INC. | ||
| CLIMB FRANCHISE SYSTEMS LLC | ||
| COLDWELL BANKER LLC | ||
| COLDWELL BANKER REAL ESTATE LLC | ||
| XXXXXXXX GROUP LLC | ||
| ERA FRANCHISE SYSTEMS LLC | ||
| ONCOR INTERNATIONAL LLC | ||
| REALOGY FRANCHISE GROUP LLC | ||
| REALOGY GLOBAL SERVICES LLC | ||
| REALOGY LICENSING LLC | ||
| SOTHEBY’S INTERNATIONAL REALTY AFFILIATES LLC | ||
| SOTHEBY’S INTERNATIONAL REALTY LICENSEE LLC | ||
| ZAPLABS LLC | ||
| By: |
/s/ Xxxxx Xxxxxx | |
|
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| Name: Xxxxx Xxxxxx | ||
| Title: Chief Financial Officer | ||
Signature Page to Acknowledgment and Confirmation
Signature Page to Acknowledgment and Confirmation
| NRT PROPERTY MANAGEMENT VIRGINIA LLC | ||
| NRT QUEENS LLC | ||
| NRT REFERRAL NETWORK LLC | ||
| NRT RELOCATION LLC | ||
| NRT RENTAL MANAGEMENT SOLUTIONS LLC | ||
| NRT REOEXPERTS LLC | ||
| NRT SUNSHINE INC | ||
| NRT TEXAS LLC | ||
| NRT UTAH LLC | ||
| NRT VACATION RENTALS ARIZONA LLC | ||
| NRT VACATION RENTALS CALIFORNIA, INC. | ||
| NRT VACATION RENTALS DELAWARE LLC | ||
| NRT VACATION RENTALS FLORIDA LLC | ||
| NRT VACATION RENTALS MARYLAND LLC | ||
| NRT WEST, INC. | ||
| NRT ZIPREALTY LLC | ||
| ON COLLABORATIVE, INC. (CA) | ||
| ON COLLABORATIVE LLC (DE) | ||
| REAL ESTATE REFERRAL LLC | ||
| REAL ESTATE REFERRALS LLC | ||
| REAL ESTATE SERVICES LLC | ||
| REFERRAL ASSOCIATES OF NEW ENGLAND LLC | ||
| REFERRAL NETWORK LLC | ||
| REFERRAL NETWORK, LLC | ||
| REFERRAL NETWORK PLUS, INC. | ||
| SOTHEBY’S INTERNATIONAL REALTY GLOBAL DEVELOPMENT ADVISORS LLC | ||
| SOTHEBY’S INTERNATIONAL REALTY, INC. | ||
| SOTHEBY’S INTERNATIONAL REALTY REFERRAL COMPANY INC. (CA) | ||
| SOTHEBY’S INTERNATIONAL REALTY REFERRAL COMPANY, LLC (DE) | ||
| THE SUNSHINE GROUP, LTD. | ||
| By: |
/s/ Xxxxx Xxxxxx | |
|
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| Name: Xxxxx Xxxxxx | ||
| Title: Chief Financial Officer | ||
Signature Page to Acknowledgment and Confirmation
