TERM LOAN AGREEMENT (the "Agreement") dated as of May 29, 1998, among
CENDANT CORPORATION, a Delaware corporation (the "Borrower"), the Lenders
referred to herein, the Syndication Agent, Co-Documentation Agents, Managing
Agents and Co- Agents identified on the signature pages hereto and THE CHASE
MANHATTAN BANK, a New York banking corporation, as administrative agent (the
"Administrative Agent") for the Lenders.
INTRODUCTORY STATEMENT
The Borrower has requested that the Lenders establish a $3,250,000,000
committed term loan facility pursuant to which Term Loans may be made to the
Borrower.
Subject to the terms and conditions set forth herein, the Administrative
Agent is willing to act as agent for the Lenders, and each Lender is willing to
make Term Loans to the Borrower.
Accordingly, the parties hereto hereby agree as follows:
1. DEFINITIONS
For the purposes hereof unless the context otherwise requires, the
following terms shall have the meanings indicated, all accounting terms not
otherwise defined herein shall have the respective meanings accorded to them
under GAAP and all terms defined in the New York Uniform Commercial Code and not
otherwise defined herein shall have the respective meanings accorded to them
therein:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Term Loan bearing interest at a rate determined
by reference to the Alternate Base Rate in accordance with the provisions of
Article 2.
"ABR Spread" means 0%, except that if on any day the LIBOR Spread exceeds
1% then the ABR Spread for such day shall be 1% less than the LIBOR Spread.
"Affiliate" shall mean any Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with, the Borrower. For
purposes of this definition, a Person shall be deemed to be "controlled by"
another if such latter Person possesses, directly or indirectly, power either to
(i) vote 10% or more of the securities having ordinary voting power for the
election of directors of such controlled Person or (ii) direct or cause the
direction of the management and policies of such controlled Person whether by
contract or otherwise.
"Alternate Base Rate" shall mean for any day, a rate per annum (rounded
upwards to the nearest 1/16 of 1% if not already an integral multiple of 1/16 of
1%) equal to the greatest of (a) the Prime Rate in effect for such day, (b) the
Federal Funds Effective Rate in effect for such day plus 1/2 of 1% or (c) the
Base CD Rate in effect for such day plusr (c) the Base CD Rate in effect for
such day plus 1%. For purposes hereof, "Prime Rate" shall mean the rate per
annum publicly announced by the Administrative Agent from time to time as its
prime rate in effect at its principal office in New York City. For purposes of
this Agreement, any change in the Alternate Base Rate due to a change in the
Prime Rate shall be effective on the date such change in the Prime Rate is
announced as effective. "Federal Funds Effective Rate" shall mean, for any
period, a fluctuating interest rate per annum equal for each day during such
period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it. "Base CD Rate" shall mean the sum
of (a) the product of (i) the Average Weekly Three-Month Secondary CD Rate times
(ii) a fraction of which the numerator is 100% and the denominator is 100% minus
the aggregate rates of (A) basic and supplemental reserve requirements in effect
on the date of effectiveness of such Average Weekly Three-Month Secondary CD
Rate, as set forth below, under Regulation D of the Board applicable to
certificates of deposit in units of $100,000 or more issued by a "member bank"
located in a "reserve city" (as such terms are used in Regulation D) and (B)
marginal reserve requirements in effect on such date of effectiveness under
Regulation D applicable to time deposits of a "member bank" and (b) the
Assessment Rate. "Average Weekly Three-Month Secondary CD Rate" shall mean the
three-month secondary certificate of deposit ("CD") rate for the most recent
weekly period covered therein in the Federal Reserve Statistical release
entitled "Weekly Summary of Lending and Credit Measures (Averages of daily
figures)" released in the week during which occurs the day for which the CD rate
is being determined. The CD rate so reported shall be in effect, for the
purposes of this definition, for each day of the week in which the release date
of such publication occurs. If such publication or a substitute containing the
foregoing rate information is not published by the Federal Reserve for any week,
such average rate shall be determined by the Administrative Agent on the basis
of quotations received by it from three New York City negotiable certificate of
deposit dealers of recognized standing on the first Business Day of the week
succeeding such week for which such rate information is not published. If for
any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or Federal
Funds Effective Rate, or both, for any reason, including,
without limitation, the inability or failure of the
Administrative Agent to obtain sufficient bids or
publications in accordance with the terms hereof, the
Alternate Base Rate shall be determined without regard to
clause (b) or (c), or both, until the circumstances giving
rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Average Weekly
Three-Month Secondary CD Rate shall be effective on the
effective date of such change in the CD Rate. Any change in
the Alternate Base Rate due to a change in the Federal Funds
Effective Rate shall be effective on the effective date of
such change in the Federal Funds Effective Rate.
"Applicable Law" shall mean all provisions of statutes,
rules, regulations and orders of governmental bodies or
regulatory agencies applicable to a Person, and all orders
and decrees of all courts and arbitrators in proceedings or
actions in which the Person in question is a party.
"Assessment Rate" shall mean, for any day, the net
annual assessment rate (rounded upwards, if necessary, to
the next higher Basis Point) as most recently estimated by
the Administrative Agent for determining the then current
annual assessment payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor) for
insurance by such Corporation (or such successor) of time
deposits made in dollars at the Administrative Agent's
domestic offices.
"Assignment and Acceptance" shall mean an agreement in
the form of Exhibit C hereto, executed by the assignor,
assignee and the other parties as contemplated thereby.
"Basis Point" shall mean 1/100th of 1%.
"Board" shall mean the Board of Governors of the
Federal Reserve System.
"Borrowing" shall mean a group of Term Loans of a
single Interest Rate Type made by the Lenders on a single
date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request made pursuant
to Section 2.5 in the form of Exhibit-F.
"Business Day" shall mean any day other than a
Saturday, Sunday or other day on which banks in the State of
New York are permitted to close; provided, however, that
when used in connection with a LIBOR Loan, the term
"Business Day" shall also exclude any day on which banks are not open
for dealings in Dollar deposits on the London Interbank Market.
"Capital Expenditures" shall mean, with respect to any
Person for any period, the aggregate of all expenditures
(whether paid in cash or accrued as a liability) by such
Person during that period which, in accordance with GAAP,
are or should be included in "additions to property, plant
or equipment" or similar items reflected in the statement of
cash flows of such Person.
"Capital Lease" shall mean as applied to any Person,
any lease of any property (whether real, personal or mixed)
by that Person as lessee which, in accordance with GAAP, is
or should be accounted for as a capital lease on the balance
sheet of that Person.
"Capital Markets Transaction" means any issuance or
sale by the Borrower or any of its Subsidiaries (other than
PHH and its Subsidiaries) of any Capital Stock of the
Borrower or any of its Subsidiaries or any issuance or
incurrence by the Borrower or any of its Subsidiaries (other
than PHH and its Subsidiaries) of any Indebtedness (other
than any such issuance or sale to the Borrower or any of its
Subsidiaries), in each case where the Net Cash Proceeds of
any single transaction or series of related transactions
exceeds $25,000,000.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any
of the foregoing.
"CFHC" shall mean Cendant Finance Holding Corporation,
a Delaware corporation.
"CFHC Guarantee" shall mean the Guarantee to be
executed and delivered by CFHC in accordance with paragraph
(i) of Section 6.1, substantially in the form of Exhibit E.
"Change in Control" shall mean (i) the acquisition by
any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the Closing
Date), directly or indirectly, beneficially or of record, of
ownership or control of in excess of 30% of the voting
common stock of the Borrower on a fully diluted basis at any
time or (ii) if at any time, individuals who at the Closing
Date constituted the Board of Directors of the Borrower
(together with any new directors whose election by such
Board of Directors or whose nomination for election by the
shareholders of the Borrower, as the case may be, was approved by a
vote of the majority of the directors then
still in office who were either directors at the Closing
Date or whose election or a nomination for election was
previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Borrower then in
office.
"Chase" shall mean The Chase Manhattan Bank, a New York
banking corporation.
"Closing Date" shall mean the date on which the
conditions precedent to the making of the Term Loans as set
forth in Section 4.1 have been satisfied or waived, which
shall in no event be later than June 30, 1998.
"Code" shall mean the Internal Revenue Code of 1986 and
the rules and regulations issued thereunder, as now and
hereafter in effect, or any successor provision thereto.
"Consolidated Assets" shall mean, at any date of
determination, the total assets of the Borrower and its
Consolidated Subsidiaries determined in accordance with
GAAP.
"Consolidated EBITDA" shall mean, without duplication,
for any period for which such amount is being determined,
the sum of the amounts for such period of (i) Consolidated
Net Income, (ii) provision for taxes based on income, (iii)
depreciation expense, (iv) Consolidated Interest Expense,
(v) amortization expense, plus (vi) other non-cash items
reducing Consolidated Net Income, all as determined on a
consolidated basis for the Borrower and its Consolidated
Subsidiaries in accordance with GAAP.
"Consolidated Interest Expense" shall mean for any
period for which such amount is being determined, total
interest expense paid or payable in cash (including that
properly attributable to Capital Leases in accordance with
GAAP but excluding in any event all capitalized interest and
amortization of debt discount and debt issuance costs) of
the Borrower and its Consolidated Subsidiaries on a
consolidated basis including, without limitation, all
commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance
financing and net cash costs (or minus net profits) under
Interest Rate Protection Agreements. Notwithstanding the
foregoing, interest expense on any Indebtedness of the
Borrower or any of its Subsidiaries which (or the proceeds
of which) directly or indirectly provides credit support for
the RAC Loan Notes shall be deemed not to be included in
Consolidated Interest Expense.
"Consolidated Net Income" shall mean, for any period
for which such amount is being determined, the net income (loss) of
the Borrower and its Consolidated Subsidiaries
during such period determined on a consolidated basis for
such period taken as a single accounting period in
accordance with GAAP, provided that there shall be excluded
(i) income (or loss) of any Person (other than a
Consolidated Subsidiary of the Borrower) in which the
Borrower or any of its Consolidated Subsidiaries has an
equity investment or comparable interest, except to the
extent of the amount of dividends or other distributions
actually paid to the Borrower or of its Consolidated
Subsidiaries by such Person during such period, (ii) the
income (or loss) of any Person accrued prior to the date it
becomes a Consolidated Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any of its
Consolidated Subsidiaries or the Person's assets are
acquired by the Borrower or any of its Consolidated
Subsidiaries, (iii) the income of any Consolidated
Subsidiary of the Borrower to the extent that the
declaration or payment of dividends or similar distributions
by that Consolidated Subsidiary of the income is not at the
time permitted by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that
Consolidated Subsidiary, (iv) any extraordinary after-tax
gains and (v) any extraordinary pretax losses but only to
the extent attributable to a write-down of financing costs
relating to any existing and future indebtedness.
"Consolidated Net Worth" shall mean, as of any date of
determination, all items which in conformity with GAAP would
be included under shareholders' equity on a consolidated
balance sheet of the Borrower and its Subsidiaries at such
date.
"Consolidated Subsidiaries" shall mean all Subsidiaries
of the Borrower that are required to be consolidated with
the Borrower for financial reporting purposes in accordance
with GAAP.
"Consolidated Total Indebtedness" shall mean the total
amount of Indebtedness of the Borrower and its Consolidated
Subsidiaries determined on a consolidated basis using GAAP
principles of consolidation, but without regard to whether
or not any such Indebtedness would be required to be shown
on a consolidated balance sheet prepared in accordance with
GAAP; provided that Consolidated Total Indebtedness shall be
deemed to include, at the time of any computation thereof,
the aggregate amount of any outstanding loans to, any
investment in the capital stock of, any purchase price in
excess of the fair market value of assets of, and any other
investments by the Borrower and its Subsidiaries (other than
and PHH and its Subsidiaries) in, PHH and its Subsidiaries
(other than the purchase price paid by the Borrower to
acquire PHH). The amount of any such investment at any time shall
equal the original cost thereof plus any additions
thereto (in each case without giving effect to any
appreciation or depreciation in the value thereof) net of
any returns thereon actually received by the Borrower or any
of its Subsidiaries (other than and PHH and its
Subsidiaries).
"Default" shall mean any event, act or condition which
with notice or lapse of time, or both, would constitute an
Event of Default.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Environmental Laws" shall mean any and all federal,
state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees or requirements of any
Governmental Authority regulating, relating to or imposing
liability or standards of conduct concerning, any Hazardous
Material or environmental protection or health and safety,
as now or may at any time hereafter be in effect, including
without limitation, the Clean Water Act also known as the
Federal Water Pollution Control Act ("FWPCA"), 33-U.S.C.
PP-1251 et seq., the Clean Air Act ("CAA"), 42 U.S.C. PP-7401
et seq., the Federal Insecticide, Fungicide and Rodenticide
Act ("FIFRA"), 7-U.S.C. __136 et seq., the Surface Mining
Control and Reclamation Act ("SMCRA"), 30-U.S.C. PP-1201
et-seq., the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42-U.S.C. PP-9601
et seq., the Superfund Amendment and Reauthorization Act of
1986 ("XXXX"), Public Law 99-499, 100 Stat. 1613, the
Emergency Planning and Community Right to Know Act
("ECPCRKA"), 42-U.S.C. PP-11001 et seq., the Resource
Conservation and Recovery Act ("RCRA"), 42-U.S.C. PP-6901
et-seq., the Occupational Safety and Health Act as amended
("OSHA"), 29-U.S.C. PP-655 and PP-657, together, in each case,
with any amendment thereto, and the regulations adopted and
publications promulgated thereunder and all substitutions
thereof.
"Environmental Liabilities" shall mean any liability,
contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any
Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant
to which liability is assumed or imposed with respect to any
of the foregoing.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as such Act may be amended, and the
regulations promulgated thereunder.
"Event of Default" shall have the meaning given such
term in Article 7 hereof.
"Existing Credit Agreements" shall mean the collective
reference to (i) the 364-Day Competitive Advance and
Revolving Credit Agreement, dated as of October 2, 1996, as
amended, among the Borrower, the lenders referred to therein
and Chase, as administrative agent, and (ii) the Five Year
Competitive Advance and Revolving Credit Agreement, dated as
of October 2, 1996, as amended, among the Borrower, the
Lenders referred to therein and Chase, as Administrative
Agent.
"Fundamental Documents" shall mean this Agreement, any
Term Notes, the CFHC Guarantee (if and when executed) and
any other ancillary documentation which is required to be,
or is otherwise, executed by the Borrower and delivered to
the Administrative Agent in connection with this Agreement.
"GAAP" shall mean generally accepted accounting
principles consistently applied (except for accounting
changes in response to FASB releases or other authoritative
pronouncements) provided, however, that all calculations
made pursuant to Sections 6.7 and 6.8 and the related
definitions shall have been computed based on such generally
accepted accounting principles as are in effect on the
Closing Date.
"Governmental Authority" shall mean any federal, state,
municipal or other governmental department, commission,
board, bureau, agency or instrumentality, or any court, in
each case whether of the United States or foreign.
"Guaranty" shall mean, as to any Person, any direct or
indirect obligation of such Person guaranteeing or intended
to guarantee any Indebtedness, Capital Lease, dividend or
other monetary obligation ("primary obligation") of any
other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (a) to
purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of
any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or
services, in each case, primarily for the purpose of
assuring the owner of any such primary obligation of the
repayment of such primary obligation or (d) as a general partner of a
partnership or a joint venturer of a joint
venture in respect of indebtedness of such partnership or
such joint venture which is treated as a general partnership
for purposes of Applicable Law. The amount of any Guaranty
shall be deemed to be an amount equal to the stated or
determinable amount (or portion thereof) of the primary
obligation in respect of which such Guaranty is made or, if
not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such
Person is required to perform thereunder); provided,
however, that the amount of any Guaranty shall be limited to
the extent necessary so that such amount does not exceed the
value of the assets of such Person (as reflected on a
consolidated balance sheet of such Person prepared in
accordance with GAAP) to which any creditor or beneficiary
of such Guaranty would have recourse. Notwithstanding the
foregoing definition, the term "Guaranty" shall not include
any direct or indirect obligation of a Person as a general
partner of a general partnership or a joint venturer of a
joint venture in respect of Indebtedness of such general
partnership or joint venture, to the extent such
Indebtedness is contractually non-recourse to the assets of
such Person as a general partner or joint venturer (other
than assets comprising the capital of such general
partnership or joint venture).
"Hazardous Materials" shall mean any flammable
materials, explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances,
or similar materials defined as such in any Environmental
Law.
"Hotel Subsidiary" shall mean any Subsidiary of the
Borrower which (a) is engaged as its principal activity in
the hotel franchising business or related activities or (b)
owns or licenses from a Person other than the Borrower or
another Subsidiary, any proprietary right related to the
hotel franchising business.
"Indebtedness" shall mean (without double counting), at
any time and with respect to any Person, (i) indebtedness of
such Person for borrowed money (whether by loan or the
issuance and sale of debt securities) or for the deferred
purchase price of property or services purchased (other than
amounts constituting trade payables arising in the ordinary
course and payable within 180 days); (ii) indebtedness of
others which such Person has directly or indirectly assumed
or guaranteed (but only to the extent so assumed or
guaranteed) or otherwise provided credit support therefor,
including without limitation, Guaranties; (iii) indebtedness
of others secured by a Lien on assets of such Person,
whether or not such Person shall have assumed such
indebtedness (but only to the extent of the fair market
value of such assets); (iv) obligations of such Person in respect of
letters of credit, acceptance facilities, or
drafts or similar instruments issued or accepted by banks
and other financial institutions for the account of such
Person (other than trade payables arising in the ordinary
course and payable within 180 days); or (v) obligations of
such Person under Capital Leases. In order to avoid doubt
with respect to double counting, any Indebtedness of the
Borrower or any of its Subsidiaries, in an amount not to
exceed the principal of the RAC Loan Notes, which (or the
proceeds of which) directly or indirectly provides credit
support for the RAC Loan Notes shall be deemed not to be
Indebtedness for purposes of this Agreement.
"Interest Coverage Ratio" shall mean, for each period
for which it is to be determined, the ratio of (i)
Consolidated EBITDA minus the amount of Restricted Payments
and Capital Expenditures of the Borrower and its
Consolidated Subsidiaries (determined on a consolidated
basis, in accordance with GAAP) to the extent paid in cash
(including cash payments during such period to liquidate any
such item previously accrued as a liability) to (ii)
Consolidated Interest Expense.
"Interest Payment Date" shall mean, with respect to any
Borrowing, the last day of the Interest Period applicable
thereto and, in the case of a LIBOR Borrowing with an
Interest Period of more than three months' duration, each
day that would have been an Interest Payment Date had
successive Interest Periods of three months' duration been
applicable to such Borrowing, and, in addition, the date of
any refinancing or conversion of a Borrowing with, or to, a
Borrowing of a different Interest Rate Type.
"Interest Period" shall mean (a) as to any LIBOR
Borrowing, the period commencing on the date of such
Borrowing, and ending on the numerically corresponding day
(or, if there is no numerically corresponding day, on the
last day) in the calendar month that is 1, 2, 3, 6 or,
subject to each Lender's approval, 12 months thereafter, as
the Borrower may elect, and (b) as to any ABR Borrowing, the
period commencing on the date of such Borrowing and ending
on the earliest of (i) the next succeeding March 31, June
30, September 30 or December 31, commencing June 30, 1998,
(ii) the Maturity Date and (iii) the date such Borrowing is
refinanced with a Borrowing of a different Interest Rate
Type in accordance with Section 2.6 or is prepaid in
accordance with Section 2.13; provided, however, that (i) if
any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of LIBOR Loans
only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (ii) no
Interest Period with respect to any LIBOR Borrowing may be selected
which would result in any LIBOR Loans having
Interest Periods ending after the Maturity Date. Interest
shall accrue from, and including, the first day of an
Interest Period to, but excluding, the last day of such
Interest Period.
"Interest Rate Protection Agreement" shall mean any
interest rate swap agreement, interest rate cap agreement or
other similar financial agreement or arrangement.
"Interest Rate Type" when used in respect of any Term
Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Term Loan or on the Term Loans
comprising such Borrowing is determined. For purposes
hereof, "Rate" shall include LIBOR and the Alternate Base
Rate.
"Lender and "Lenders" shall mean the financial
institutions whose names appear on the signature pages
hereof and any assignee of a Lender pursuant to Section
9.3(b).
"Lending Office" shall mean, with respect to any of the
Lenders, the branch or branches (or affiliate or affiliates)
from which any such Lender's LIBOR Loans or ABR Loans, as
the case may be, are made or maintained and for the account
of which all payments of principal of, and interest on, such
Lender's LIBOR Loans or ABR Loans are made, as notified to
the Administrative Agent from time to time.
"LIBOR" shall mean, with respect to any LIBOR Borrowing
for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next Basis Point) equal to the
rate at which Dollar deposits approximately equal in
principal amount to the portion of such LIBOR Borrowing made
by the financial institution acting as Administrative Agent,
and for a maturity comparable to such Interest Period, are
offered to the principal London office of Chase in
immediately available funds in the London Interbank Market
at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"LIBOR Borrowing" shall mean a Borrowing comprised of
LIBOR Loans.
"LIBOR Loan" shall mean any Term Loan bearing interest
at a rate determined by reference to LIBOR in accordance
with the provisions of Article 2.
"LIBOR Spread" shall mean, at any date or any period of
determination, the LIBOR Spread that would be in effect on
such date or during such period pursuant to the chart set
forth in Section 2.22.
"Lien" shall mean any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind whatsoever
(including any conditional sale or other title retention
agreement, any lease in the nature thereof or agreement to
give any financing statement under the Uniform Commercial
Code of any jurisdiction).
"Margin Stock" shall be as defined in Regulation U of
the Board.
"Material Adverse Effect" shall mean a material adverse
effect on the business, assets, operations or condition,
financial or otherwise, of the Borrower and its Subsidiaries
taken as a whole (it is understood that, for purposes of
this definition, the accounting irregularities and the
amount thereof disclosed in the Press Release and the
related class action lawsuits do not constitute a Material
Adverse Effect).
"Material Subsidiary" shall mean (i) any Subsidiary of
the Borrower which, together with its Subsidiaries at the
time of determination, holds, or, solely with respect to
Sections 7(f) and 7(g), any group of Subsidiaries which, if
merged into each other at the time of determination would
hold, assets constituting 10% or more of Consolidated Assets
or accounts for 10% or more of Consolidated EBITDA for the
Rolling Period immediately preceding the date of
determination or (ii) any Subsidiary of the Borrower which
holds material trademarks, tradenames or other intellectual
property rights.
"Maturity Date" shall mean May 28, 1999.
"Moody's" shall mean Xxxxx'x Investors Service Inc.
"Multiemployer Plan" shall mean a plan described in
Section 3(37) of ERISA.
"Net Cash Proceeds" shall mean, when used in respect of
the sale, issuance or incurrence of any Capital Stock or
Indebtedness by the Borrower or any of its Subsidiaries, the
gross cash proceeds received by such Person from such sale,
issuance or incurrence less all legal expenses, commissions
and underwriters' discounts and other fees and expenses
incurred in connection therewith.
"Obligations" shall mean the obligation of the Borrower
to make due and punctual payment of principal of, and
interest on, the Term Loans and all other monetary
obligations of the Borrower to the Administrative Agent or
any Lender under this Agreement, the Term Notes or the
Fundamental Documents or with respect to any Interest Rate
Protection Agreements entered into between the Borrower and
any Lender.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation or any successor thereto.
"Permitted Encumbrances" shall mean Liens permitted
under Section 6.5 hereof.
"Person" shall mean any natural person, corporation,
division of a corporation, partnership, trust, joint
venture, association, company, estate, unincorporated
organization or government or any agency or political
subdivision thereof.
"PHH" shall mean PHH Corporation, a Maryland
corporation.
"Plan" shall mean an employee pension benefit plan
described in Section 3(2) of ERISA, other than a
Multiemployer Plan.
"Press Release" shall mean the Borrower's April 15,
1998 press release as to certain accounting irregularities
in the Alliance Marketing Division of the Borrower.
"Pro Forma Basis" shall mean in connection with any
transaction for which a determination on a Pro Forma Basis
is required to be made hereunder, that such determination
shall be made (i) after giving effect to any issuance of
Indebtedness, any acquisition, any disposition or any other
transaction (as applicable) and (ii) assuming that the
issuance of Indebtedness, acquisition, disposition or other
transaction and, if applicable, the application of any
proceeds therefrom, occurred at the beginning of the most
recent Rolling Period ending at least thirty (30) days prior
to the date on which such issuance of Indebtedness,
acquisition, disposition or other transaction occurred.
"RAC Loan Notes" shall mean the loan notes to be issued
by the Borrower to the sellers of the RAC Motoring Service
Limited business in connection with the Borrower's
acquisition of such business.
"Receivables Facility" shall mean the Coldwell Banker
Relocation Services, Inc. receivables facility evidenced by
the Amended and Restated Investor Funding Agreement, dated
as of October 5, 1994 among Coldwell Banker Funding
Corporation, Bankers Trust Company, the Investors party
thereto, Citicorp North America Inc. and Bank of America
Illinois, The Homeowner Employee Asset Receivable Trust
Amended and Restated Pooling and Servicing Agreement, dated
as October 5, 1994 among Coldwell Banker Funding
Corporation, Coldwell Banker Relocation Services, Inc.,
Citicorp North America, Inc. and Bankers Trust Company and
the Amended and Restated Purchase Agreement, dated as of
October 5, 1994 by and between Coldwell Banker Relocation Services,
Inc. and Coldwell Banker Funding Corporation, as
each of the foregoing may from time to time be amended,
modified or supplemented and any replacement or refinancing
thereof whether or not with the same parties.
"Reportable Event" shall mean any reportable event as
defined in Section 4043(b) of ERISA, other than a reportable
event as to which provision for 30-day notice to the PBGC
would be waived under applicable regulations had the
regulations in effect on the Closing Date been in effect on
the date of occurrence of such reportable event.
"Required Lenders" shall mean at any time Lenders
holding 51% of the aggregate principal amount of the Term
Loans at the time outstanding.
"Restricted Payment" shall mean (i) any distribution,
dividend or other direct or indirect payment on account of
shares of any class of stock of the Borrower or any
Subsidiary now or hereafter outstanding except for
distributions, dividends or other payments solely in shares
of capital stock of a Subsidiary which are distributed
pro-rata to its stockholders or solely in shares of capital
stock of the Borrower, (ii) any redemption or other
acquisition or re-acquisition by the Borrower or a
Subsidiary of any class of its own stock or other equity
interest of the Borrower, a Subsidiary or an Affiliate now
or hereafter outstanding, and (iii) any payment made to
retire, or obtain the surrender of any outstanding warrants
or options or other rights to purchase or acquire shares of
any class of stock of the Borrower or a Subsidiary now or
hereafter outstanding; provided, however, that the term
"Restricted Payment" as used herein, shall not include any
distribution, dividend, redemption or other payment made to
the Borrower by any of its Consolidated Subsidiaries, or to
any of the Borrower's Consolidated Subsidiaries by the
Borrower or any of its other Consolidated Subsidiaries.
"Rolling Period" shall mean with respect to any fiscal
quarter, such fiscal quarter and the three immediately
preceding fiscal quarters considered as a single accounting
period.
"S&P" shall mean Standard & Poor's Ratings Services.
"Statutory Reserves" shall mean a fraction (expressed
as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the
aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board and any
other banking authority to which the Administrative Agent or
any Lender is subject, for Eurocurrency Liabilities (as
defined in Regulation D). Such reserve percentages shall include those
imposed under Regulation D. LIBOR Loans shall
be deemed to constitute Eurocurrency Liabilities and as such
shall be deemed to be subject to such reserve requirements
without benefit of or credit for proration, exceptions or
offsets which may be available from time to time to any
Lender under Regulation D. Statutory Reserves shall be
adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Subsidiary" shall mean with respect to any Person, any
corporation, association, joint venture, partnership or
other business entity (whether now existing or hereafter
organized) of which at least a majority of the voting stock
or other ownership interests having ordinary voting power
for the election of directors (or the equivalent) is, at the
time as of which any determination is being made, owned or
controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries
of such Person; provided that for purposes of Sections 6.1,
6.5, 6.6, 6.7 and 6.8 hereof, PHH and its Subsidiaries shall
be deemed not to be Subsidiaries of the Borrower.
"Term Loans" shall mean the Term Loans made by the
Lenders to the Borrower pursuant to a notice given by the
Borrower under Section 2.5. Each Term Loan shall be a LIBOR
Loan or an ABR Loan.
"Term Note" shall have the meaning assigned to such
term in Section 2.8.
2. THE TERM LOANS
SECTION 2.1. Commitments.
Subject to the terms and conditions hereof and relying
upon the representations and warranties herein set forth, each
Lender agrees, severally and not jointly, to make Term Loans to
the Borrower, on a single borrowing date at any time on and after
the Closing Date and prior to June 30, 1998 in an aggregate
principal amount at any time outstanding not to exceed the amount
set forth opposite such Lender's name on Schedule 2.1.
SECTION 2.2. Term Loans.
(a) Term Loans shall be made as part of a Borrowing
consisting of Term Loans made by the Lenders ratably in
accordance with the amounts set forth in Schedule 2.1; provided,
however, that the failure of any Lender to make any Term Loan
shall not in itself relieve any other Lender of its obligation to
lend hereunder (it being understood, however, that no Lender
shall be responsible for the failure of any other Lender to make
any Term Loan required to be made by such other Lender). The
Term Loans comprising any Borrowing shall be (i) in the case of
LIBOR Loans, in an aggregate principal amount that is an integral multiple of
$5,000,000 and not less than $10,000,000 and (ii) in
the case of ABR Loans, in an aggregate principal amount that is
an integral multiple of $500,000 and not less than $5,000,000.
(b) Each Borrowing shall be comprised entirely of
LIBOR Loans or ABR Loans, as the Borrower may request pursuant to
Section 2.4 or 2.5, as applicable. Each Lender may at its option
make any LIBOR Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Term Loan, provided that
any exercise of such option shall not affect the obligation of
the Borrower to repay such Term Loan in accordance with the terms
of this Agreement and the applicable Term Note. Borrowings of
more than one Interest Rate Type may be outstanding at the same
time; provided, however, that the Borrower shall not be entitled
to request any Borrowing that, if made, would result in an
aggregate of more than 9 separate Borrowings being outstanding
hereunder at any one time. For purposes of the calculation
required by the immediately preceding sentence, LIBOR Loans
having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate
Borrowing, and all Borrowings of a single Interest Rate Type made
on a single date shall be considered a single Borrowing if such
Borrowings have a common Interest Period.
(c) Subject to Section 2.6, each Lender shall make the
Term Loan to be made by it hereunder on the proposed date thereof
by making funds available at the offices of the Administrative
Agent's Agent Bank Services Department, 1 Chase Xxxxxxxxx Xxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxx,
for credit to Cendant Corporation Clearing Account, Account No.
144812905 (Reference: Cendant Corporation Credit Agreement dated
as of May 29, 1998) no later than 1:00 P.M. New York City time in
Federal or other immediately available funds. Upon receipt of
the funds to be made available by the Lenders to fund any
Borrowing hereunder, the Administrative Agent shall disburse such
funds by depositing them into an account of the Borrower
maintained with the Administrative Agent. Term Loans shall be
made by all the Lenders pro rata in accordance with Section 2.1
and this Section 2.2.
(d) Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request any
Borrowing if the Interest Period requested with respect thereto
would end after the Maturity Date.
SECTION 2.3. Use of Proceeds.
The proceeds of the Term Loans shall be used for
working capital and general corporate purposes of the Borrower
and its Subsidiaries, including, without limitation, for
acquisitions, support of the Borrower's commercial paper program
and refinancing of the Borrower's indebtedness under the Existing
Credit Agreements.
SECTION 2.4. Reserved.
SECTION 2.5. Borrowing Procedure.
In order to effect a Borrowing, the Borrower shall hand
deliver or telecopy to the Administrative Agent a Borrowing
Request in the form of Exhibit F (a) in the case of a LIBOR
Borrowing, not later than 12:00 (noon), New York City time, three
Business Days before a proposed Borrowing, and (b) in the case of
an ABR Borrowing, not later than 12:00 (noon), New York City
time, on the day of a proposed Borrowing. Such Borrowing Request
shall be irrevocable and shall in each case specify (a) whether
the Borrowing then being requested is to be a LIBOR Borrowing or
an ABR Borrowing, (b) the date of such Borrowing (which shall be
a Business Day) and the amount thereof and (c) if such Borrowing
is to be a LIBOR Borrowing, the Interest Period with respect
thereto. If no election as to the Interest Rate Type of a
Borrowing is specified in any such Borrowing Request, then the
requested Borrowing shall be an ABR Borrowing. If no Interest
Period with respect to any LIBOR Borrowing is specified in any
such Borrowing Request, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. If the
Borrower shall not have given a Borrowing Request in accordance
with this Section 2.5 of its election to refinance a Borrowing
prior to the end of the Interest Period in effect for such
Borrowing, then the Borrower shall (unless such Borrowing is
repaid at the end of such Interest Period) be deemed to have
given notice of an election to refinance such Borrowing with an
ABR Borrowing. The Administrative Agent shall promptly advise
the Lenders of any notice given pursuant to this Section 2.5 and
of each Lender's portion of the requested Borrowing.
SECTION 2.6. Refinancings.
The Borrower may refinance all or any part of any
Borrowing with a Borrowing of the same or a different Interest
Rate Type pursuant to a Borrowing Request under Section 2.5,
subject to the conditions and limitations set forth herein and
elsewhere in this Agreement; provided, however, that at any time
after the occurrence, and during the continuation, of a Default
or an Event of Default, a Borrowing or portion thereof may only
be refinanced with an ABR Borrowing. Any Borrowing or part
thereof so refinanced shall be deemed to be repaid in accordance
with Section 2.8 with the proceeds of a new Borrowing hereunder
and the proceeds of the new Borrowing, which will repay the
Borrowing being refinanced, shall not be paid by the Lenders to
the Administrative Agent or by the Administrative Agent to the
Borrower, and each new Borrowing will merely reflect a new or
continued interest rate option.
SECTION 2.7. Fees.
(a) The Borrower agrees to pay the Administrative
Agent, for its own account, the fees at the times and in the
amounts provided for in the letter agreement dated May 4, 1998
among the Borrower, Chase and Chase Securities Inc.
(b) All fees shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for
distribution, if and as appropriate, among the Lenders. Once
paid, none of the fees shall be refundable under any
circumstances.
SECTION 2.8. Repayment of Term Loans; Evidence of
Debt.
(a) The Borrower hereby unconditionally promises to pay
to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Term Loan of such Lender on
the Maturity Date (or such earlier date on which the Term Loans
become due and payable pursuant to Article 7). The Borrower
hereby further agrees to pay interest on the unpaid principal
amount of the Term Loans from time to time outstanding from the
date hereof until payment in full thereof at the rates per annum,
and on the dates, set forth in Section 2.9.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of
the Borrower to such Lender resulting from the Term Loans of such
Lender, including the amounts of principal and interest payable
and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the
Register pursuant to Section 9.3(e), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each
Term Loan made hereunder, the Interest Rate Type thereof and each
Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) both
the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts
of each Lender maintained pursuant to Section 2.8 shall, to the
extent permitted by applicable law, be prima facie evidence of
the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable
interest) the Term Loans made to the Borrower by such Lender in
accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and
deliver to such Lender a promissory note of the Borrower
evidencing the Term Loans of such Lender, substantially in the
form of Exhibit A with appropriate insertions as to date and
principal amount (a "Term Note").
SECTION 2.9. Interest on Term Loans.
(a) Subject to the provisions of Section 2.10, the
Term Loans comprising each LIBOR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over
a year of 360 days) at a rate per annum equal to LIBOR for the
Interest Period in effect for such Borrowing plus the applicable
LIBOR Spread from time to time in effect. Interest on each LIBOR
Borrowing shall be payable on each applicable Interest Payment
Date.
(b) Subject to the provisions of Section 2.10, the
Term Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over
a year of 365 or 366 days, as the case may be, when determined by
reference to the Prime Rate and over a year of 360 days at all
other times) at a rate per annum equal to the Alternate Base Rate
plus the applicable ABR Spread from time to time, if any.
(c) Interest on each Term Loan shall be payable in
arrears on each Interest Payment Date applicable to such Term
Loan. LIBOR or the Alternate Base Rate for each Interest Period
or day within an Interest Period shall be determined by the
Administrative Agent, and such determination shall be conclusive
absent manifest error.
SECTION 2.10. Interest on Overdue Amounts.
If the Borrower shall default in the payment of the
principal of, or interest on, any Term Loan or any other amount
becoming due hereunder, the Borrower shall on demand from time to
time pay interest, to the extent permitted by Applicable Law, on
such defaulted amount up to (but not including) the date of
actual payment (after as well as before judgment) at a rate per
annum computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as applicable, in the case of
amounts bearing interest determined by reference to the Prime
Rate and a year of 360 days in all other cases, equal to (a) in
the case of the remainder of the then current Interest Period for
any LIBOR Loan, the rate applicable to such Term Loan under
Section 2.9 plus 2% per annum and (b) in the case of any other
amount, the rate that would at the time be applicable to an ABR
Loan under Section 2.9 plus 2% per annum.
SECTION 2.11. Alternate Rate of Interest.
In the event, and on each occasion, that on the day two
Business Days prior to the commencement of any Interest Period
for a LIBOR Loan, the Administrative Agent shall have determined
that Dollar deposits in the amount of the requested principal
amount of such LIBOR Loan are not generally available in the
London Interbank Market, or that the rate at which such Dollar
deposits are being offered will not adequately and fairly reflect
the cost to any Lender of making or maintaining its portion of
such LIBOR Loans during such Interest Period, or that reasonable
means do not exist for ascertaining LIBOR, the Administrative
Agent shall, as soon as practicable thereafter, give written or
telecopier notice of such determination to the Borrower and the
Lenders. In the event of any such determination, until the
Administrative Agent shall have determined that circumstances
giving rise to such notice no longer exist, any request by the
Borrower for a LIBOR Borrowing pursuant to Section 2.5 shall be
deemed to be a request for an ABR Loan. Each determination by
the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.12. Reserved.
SECTION 2.13. Prepayment of Term Loans.
(a) Prior to the Maturity Date, the Borrower shall
have the right at any time to prepay any Borrowing, in whole or
in part, subject to the requirements of Section 2.17 but
otherwise without premium or penalty, upon prior written or
telecopy notice to the Administrative Agent before 12:00 noon New
York City time at least one Business Day in the case of an ABR
Loan and at least three Business Days in the case of a LIBOR
Loan; provided, however, that each such partial prepayment shall
be in an integral multiple of $5,000,000 and in a minimum
aggregate principal amount of $10,000,000.
(b) Within three Business Days of receipt by the
Borrower or any of its Subsidiaries of any Net Cash Proceeds from
a Capital Markets Transaction, the Borrower shall prepay a
principal amount of the Term Loans equal to the amount of such
Net Cash Proceeds, subject to the last sentence of this
paragraph. Any prepayments required by this paragraph shall be
applied to outstanding ABR Loans up to the full amount thereof
before they are applied to outstanding LIBOR Loans.
Notwithstanding the foregoing, the Borrower and its Subsidiaries
(i) may retain the first $250,000,000 of Net Cash Proceeds from
Capital Markets Transactions arising after the Closing Date (in
addition to any such Net Cash Proceeds applied in accordance with
the following clause (ii)), (ii) may apply up to $650,000,000 of
any Net Cash Proceeds from Capital Markets Transactions intended
to finance or refinance the acquisition of American Bankers
Insurance Group, Inc. for such purposes and (iii) shall not be required to
prepay the Term Loans pursuant to this paragraph (b)
from the proceeds of the revolving credit facilities of the
Borrower existing on the Closing Date and refinancings thereof.
(c) Each notice of prepayment pursuant to Section 2.13
shall specify the specific Borrowing(s), the prepayment date and
the aggregate principal amount of each Borrowing to be prepaid,
shall be irrevocable and shall commit the Borrower to prepay such
Borrowing(s) by the amount stated therein. All prepayments under
this Section 2.13 shall be accompanied by the payment of unpaid
accrued interest on the principal amount being prepaid to the
date of prepayment. Any amounts prepaid pursuant to this Section
2.13 may not be reborrowed.
(d) In the event the amount of any prepayment required
to be made pursuant to paragraph (b) above shall exceed the
aggregate principal amount of the applicable outstanding ABR
Loans (the amount of any such excess being called the "Excess
Amount"), the Borrower shall have the right, in lieu of making
such prepayment in full, to prepay all the outstanding ABR Loans
and to retain an amount equal to the Excess Amount to be applied
to the prepayment of the applicable LIBOR Loans at the end of the
current Interest Periods applicable thereto.
SECTION 2.14. Eurodollar Reserve Costs.
The Borrower shall pay to the Administrative Agent for
the account of each Lender, so long as such Lender shall be
required under regulations of the Board to maintain reserves with
respect to liabilities or assets consisting of, or including,
Eurocurrency Liabilities (as defined in Regulation D of the
Board), additional interest on the unpaid principal amount of
each LIBOR Loan made to the Borrower by such Lender, from the
date of such Term Loan until such Term Loan is paid in full, at
an interest rate per annum equal at all times during each
Interest Period for such Term Loan to the remainder obtained by
subtracting (i) LIBOR for such Interest Period from (ii) the rate
obtained by multiplying LIBOR as referred to in clause (i) above
by the Statutory Reserves of such Lender for such Interest
Period. Such additional interest shall be determined by such
Lender and notified to the Borrower (with a copy to the
Administrative Agent) not later than five Business Days before
the next Interest Payment Date for such Term Loan, and such
additional interest so notified to the Borrower by any Lender
shall be payable to the Administrative Agent for the account of
such Lender on each Interest Payment Date for such Term Loan.
SECTION 2.15. Reserve Requirements; Change in
Circumstances.
(a) Notwithstanding any other provision herein, if
after the date of this Agreement any change in Applicable Law or
regulation or in the interpretation or administration thereof by
any Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law)
(i) shall subject any Lender to, or increase the net amount of,
any tax, levy, impost, duty, charge, fee, deduction or
withholding with respect to any LIBOR Loan, or shall change the
basis of taxation of payments to any Lender of the principal of
or interest on any LIBOR Loan made by such Lender or any other
fees or amounts payable hereunder (other than (x) taxes imposed
on the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office or its applicable
Lending Office or by any political subdivision or taxing
authority therein (or any tax which is enacted or adopted by such
jurisdiction, political subdivision or taxing authority as a
direct substitute for any such taxes) or (y) any tax, assessment,
or other governmental charge that would not have been imposed but
for the failure of any Lender to comply with any certification,
information, documentation or other reporting requirement), (ii)
shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender, or
(iii) shall impose on any Lender or the London Interbank Market
any other condition affecting this Agreement or any LIBOR Loan
made by such Lender, and the result of any of the foregoing shall
be to increase the cost to such Lender of making or maintaining
any LIBOR Loan or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal,
interest or otherwise) in respect thereof by an amount deemed in
good faith by such Lender to be material, then the Borrower shall
pay such additional amount or amounts as will compensate such
Lender for such increase or reduction to such Lender upon demand
by such Lender.
(b) If, after the date of this Agreement, any Lender
shall have determined in good faith that the adoption after the
date hereof of any applicable law, rule, regulation or guideline
regarding capital adequacy, or any change therein, or any change
in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance
by any Lender (or any Lending Office of such Lender) with any
request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect
of reducing the rate of return on such Lender's capital or on the
capital of the Lender's holding company, if any, as a consequence
of its obligations hereunder to a level below that which such
Lender (or its holding company) could have achieved but for such
applicability, adoption, change or compliance (taking into
consideration such Lender's policies or the policies of its
holding company, as the case may be, with respect to capital
adequacy) by an amount deemed by such Lender to be material,
then, from time to time, the Borrower shall pay to the
Administrative Agent for the account of such Lender such
additional amount or amounts as will compensate such Lender for
such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in
reasonable detail (i) such amount or amounts as shall be
necessary to compensate such Lender as specified in paragraph (a)
or (b) above, as the case may be, and (ii) the calculation of
such amount or amounts referred to in the preceding clause (i),
shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay the Administrative Agent
for the account of such Lender the amount shown as due on any
such certificate within 10 Business Days after its receipt of the
same.
(d) Failure on the part of any Lender to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with
respect to any Interest Period shall not constitute a waiver of
such Lender's rights to demand compensation for any increased
costs or reduction in amounts received or receivable or reduction
in return on capital with respect to such Interest Period or any
other Interest Period. The protection of this Section 2.14 shall
be available to each Lender regardless of any possible contention
of invalidity or inapplicability of the law, regulation or
condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as
practicable after it becomes aware of the occurrence of an event
or the existence of a condition that (i) would cause it to incur
any increased cost under this Section 2.15, Section 2.16 or
Section 2.21 or (ii) would require the Borrower to pay an
increased amount under this Section 2.15, Section 2.16 or Section
2.21, it will use reasonable efforts to notify the Borrower of
such event or condition and, to the extent not inconsistent with
such Lender's internal policies, will use its reasonable efforts
to make, fund or maintain the affected Term Loans of such Lender
through another Lending Office of such Lender if as a result
thereof the additional monies which would otherwise be required
to be paid or the reduction of amounts receivable by such Lender
thereunder in respect of such Term Loans would be materially
reduced, or any inability to perform would cease to exist, or the
increased costs which would otherwise be required to be paid in
respect of such Term Loans pursuant to this Section 2.15, Section
2.16 or Section 2.21 would be materially reduced or the taxes or
other amounts otherwise payable under this Section 2.15, Section
2.16 or Section 2.21 would be materially reduced, and if, as
determined by such Lender, in its sole discretion, the making,
funding or maintaining of such Term Loans through such other
Lending Office would not otherwise materially adversely affect
such Term Loans or such Lender.
(f) In the event any Lender shall have delivered to
the Borrower a notice that LIBOR Loans are no longer available
from such Lender pursuant to Section 2.16, that amounts are due
to such Lender pursuant to paragraph (c) hereof or that any of
the events designated in paragraph (e) hereof have occurred, the
Borrower may (but subject in any such case to the payments required by Section
2.17), provided that there shall exist no
Default or Event of Default, upon at least five Business Days'
prior written or telecopier notice to such Lender and the
Administrative Agent, but not more than 30 days after receipt of
notice from such Lender, identify to the Administrative Agent a
lending institution reasonably acceptable to the Administrative
Agent which will purchase the amount of outstanding Term Loans
from the Lender providing such notice and such Lender shall
thereupon assign any Term Loans owing to such Lender and Term
Notes held by such Lender to such replacement lending institution
pursuant to Section 9.3. Such notice shall specify an effective
date for such assignment and at the time thereof, the Borrower
shall pay all accrued interest and all other amounts (including
without limitation all amounts payable under this Section) owing
hereunder to such Lender as at such effective date for such
assignment.
SECTION 2.16. Change in Legality.
(a) Notwithstanding anything to the contrary herein
contained, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with
the administration or interpretation thereof shall make it
unlawful for any Lender to make or maintain any LIBOR Loan or to
give effect to its obligations as contemplated hereby, then, by
written notice to the Borrower and to the Administrative Agent,
such Lender may:
(i) declare that LIBOR Loans will not thereafter be
made by such Lender hereunder, whereupon the Borrower shall
be prohibited from requesting LIBOR Loans from such Lender
hereunder unless such declaration is subsequently withdrawn;
and
(ii) require that all outstanding LIBOR Loans made by
it be converted to ABR Loans, in which event (A) all such
LIBOR Loans shall be automatically converted to ABR Loans as
of the effective date of such notice as provided in Section
2.16(b) and (B) all payments and prepayments of principal
which would otherwise have been applied to repay the
converted LIBOR Loans shall instead be applied to repay the
ABR Loans resulting from the conversion of such LIBOR Loans.
(b) For purposes of this Section 2.16, a notice to the
Borrower by any Lender pursuant to Section 2.16(a) shall be
effective on the date of receipt thereof by the Borrower.
SECTION 2.17. Reimbursement of Lenders.
(a) The Borrower shall reimburse each Lender on demand
for any loss incurred or to be incurred by it in the reemployment
of the funds released (i) by any prepayment (for any reason) or
refinancing of any LIBOR Loan if such LIBOR Loan is repaid or
refinanced other than on the last day of the applicable Interest Period for
such Term Loan or (ii) in the event that after the
Borrower delivers a notice of borrowing under Section 2.5 in
respect of LIBOR Loans, the applicable Term Loan is not made on
the first day of the Interest Period specified by the Borrower
for any reason other than (I) a suspension or limitation under
Section 2.16 of the right of the Borrower to select a LIBOR Loan
or (II) a breach by a Lender of its obligations hereunder. In
the case of such failure to borrow, such loss shall be the amount
as reasonably determined by such Lender as the excess, if any of
(A) the amount of interest which would have accrued to such
Lender on the amount not borrowed, at a rate of interest equal to
the interest rate applicable to such Term Loan pursuant to
Section 2.9, for the period from the date of such failure to
borrow, to the last day of the Interest Period for such Term Loan
which would have commenced on the date of such failure to borrow,
over (B) the amount realized by such Lender in reemploying the
funds not advanced during the period referred to above. In the
case of a payment other than on the last day of the Interest
Period for a Term Loan, such loss shall be the amount as
reasonably determined by the Administrative Agent as the excess,
if any, of (A) the amount of interest which would have accrued on
the amount so paid at a rate of interest equal to the interest
rate applicable to such Term Loan pursuant to Section 2.9, for
the period from the date of such payment to the last day of the
then current Interest Period for such Term Loan, over (B) the
amount equal to the product of (x) the amount of the Term Loan so
paid times (y) the current daily yield on U.S. Treasury
Securities (at such date of determination) with maturities
approximately equal to the remaining Interest Period for such
Term Loan times (z) the number of days remaining in the Interest
Period for such Term Loan. Each Lender shall deliver to the
Borrower from time to time one or more certificates setting forth
the amount of such loss (and in reasonable detail the manner of
computation thereof) as determined by such Lender, which
certificates shall be conclusive absent manifest error. The
Borrower shall pay to the Administrative Agent for the account of
each Lender the amount shown as due on any certificate within
thirty (30) days after its receipt of the same.
(b) In the event the Borrower fails to prepay any Term
Loan on the date specified in any prepayment notice delivered
pursuant to Section 2.13(a), the Borrower on demand by any Lender
shall pay to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any
loss incurred by such Lender as a result of such failure to
prepay, including, without limitation, any loss, cost or expenses
incurred by reason of the acquisition of deposits or other funds
by such Lender to fulfill deposit obligations incurred in
anticipation of such prepayment. Each Lender shall deliver to
the Borrower and the Administrative Agent from time to time one
or more certificates setting forth the amount of such loss (and
in reasonable detail the manner of computation thereof) as
determined by such Lender, which certificates shall be conclusive
absent manifest error.
SECTION 2.18. Pro Rata Treatment.
Except as permitted or required under Sections 2.14,
2.15(c), 2.16 and 2.17, each Borrowing, each payment or
prepayment of principal of any Borrowing, each payment of
interest on the Term Loans and each refinancing of any Borrowing
with, or conversion of any Borrowing to, another Borrowing, or
continuation of any Borrowing, shall be allocated pro rata among
the Lenders in accordance with the respective principal amount of
their outstanding Term Loans. Each Lender agrees that in
computing such Lender's portion of any Borrowing to be made
hereunder, the Administrative Agent may, in its discretion, round
each Lender's percentage of such Borrowing computed in accordance
with Section 2.1, to the next higher or lower whole dollar
amount.
SECTION 2.19. Right of Setoff.
If any Event of Default shall have occurred and be
continuing and any Lender shall have requested the Administrative
Agent to declare the Term Loans immediately due and payable
pursuant to Article 7, each Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by
Applicable Law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any
time held by such Lender and any other indebtedness at any time
owing by such Lender to, or for the credit or the account of, the
Borrower, against any of and all the obligations now or hereafter
existing under this Agreement and the Term Loans held by such
Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement or such Term Loans and
although such Obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such setoff and
application made by such Lender, but the failure to give such
notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section 2.19
are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 2.20. Manner of Payments.
All payments by the Borrower hereunder and under the
Term Notes shall be made in Dollars in Federal or other
immediately available funds at the office of the Administrative
Agent's Agent Bank Services Department, 1 Chase Xxxxxxxxx Xxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxx,
for credit to Cendant Corporation Clearing Account, Account No.
144812905 (Reference: Cendant Corporation Credit Agreement dated
as of May 29, 1998) no later than 12:00 noon, New York City time,
on the date on which such payment shall be due. Interest in
respect of any Term Loan hereunder shall accrue from and
including the date of such Term Loan to, but excluding, the date
on which such Term Loan is paid or refinanced with a Term Loan of
a different Interest Rate Type.
SECTION 2.21. United States Withholding.
(a) Prior to the date of the initial Term Loans
hereunder, and from time to time thereafter if requested by the
Borrower or the Administrative Agent or required because, as a
result of a change in Applicable Law or a change in circumstances
or otherwise, a previously delivered form or statement becomes
incomplete or incorrect in any material respect, each Lender
organized under the laws of a jurisdiction outside the United
States shall provide, if applicable, the Administrative Agent and
the Borrower with complete, accurate and duly executed forms or
other statements prescribed by the Internal Revenue Service of
the United States certifying such Lender's exemption from, or
entitlement to a reduced rate of, United States withholding taxes
(including backup withholding taxes) with respect to all payments
to be made to such Lender hereunder and under the Term Notes.
(b) The Borrower and the Administrative Agent shall be
entitled to deduct and withhold any and all present or future
taxes or withholdings, and all liabilities with respect thereto,
from payments hereunder or under the Term Notes, if and to the
extent that the Borrower or the Administrative Agent in good
faith determines that such deduction or withholding is required
by the law of the United States, including, without limitation,
any applicable treaty of the United States. In the event the
Borrower or the Administrative Agent shall so determine that
deduction or withholding of taxes is required, it shall advise
the affected Lender as to the basis of such determination prior
to actually deducting and withholding such taxes. In the event
the Borrower or the Administrative Agent shall so deduct or
withhold taxes from amounts payable hereunder, it (i) shall pay
to or deposit with the appropriate taxing authority in a timely
manner the full amount of taxes it has deducted or withheld; (ii)
shall provide evidence of payment of such taxes to, or the
deposit thereof with, the appropriate taxing authority and a
statement setting forth the amount of taxes deducted or withheld,
the applicable rate, and any other information or documentation
reasonably requested by the Lenders from whom the taxes were
deducted or withheld; and (iii) shall forward to such Lenders any
receipt for such payment or deposit of the deducted or withheld
taxes as may be issued from time to time by the appropriate
taxing authority. Unless the Borrower and the Administrative
Agent have received forms or other documents satisfactory to them
indicating that payments hereunder or under the Term Notes are
not subject to United States withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the
Borrower or the Administrative Agent may withhold taxes from such
payments at the applicable statutory rate in the case of payments
to or for any Lender organized under the laws of a jurisdiction
outside the United States.
(c) Each Lender agrees (i) that as between it and the
Borrower or the Administrative Agent, it shall be the Person to
deduct and withhold taxes, and to the extent required by law it shall deduct
and withhold taxes, on amounts that such Lender may
remit to any other Person(s) by reason of any undisclosed
transfer or assignment of an interest in this Agreement to such
other Person(s) pursuant to paragraph (g) of Section 9.3 and (ii)
to indemnify the Borrower and the Administrative Agent and any
officers, directors, agents, or employees of the Borrower or the
Administrative Agent against, and to hold them harmless from, any
tax, interest, additions to tax, penalties, reasonable counsel
and accountants' fees, disbursements or payments arising from the
assertion by any appropriate taxing authority of any claim
against them relating to a failure to withhold taxes as required
by Applicable Law with respect to amounts described in clause (i)
of this paragraph (c).
(d) Each assignee of a Lender's interest in this
Agreement in conformity with Section 9.3 shall be bound by this
Section 2.21, so that such assignee will have all of the
obligations and provide all of the forms and statements and all
indemnities, representations and warranties required to be given
under this Section 2.21.
(e) In the event that any withholding taxes shall
become payable solely as a result of any change in any statute,
treaty, ruling, determination or regulation occurring after the
Initial Date in respect of any sum payable hereunder or under any
other Fundamental Document to any Lender or the Administrative
Agent (i) the sum payable by the Borrower shall be increased as
may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under
this Section 2.21) such Lender or the Administrative Agent (as
the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with Applicable Law. For purposes of
this Section 2.21, the term "Initial Date" shall mean (i) in the
case of the Administrative Agent, the date hereof, (ii) in the
case of each Lender as of the date hereof, the date hereof and
(iii) in the case of any other Lender, the effective date of the
Assignment and Acceptance pursuant to which it became a Lender.
SECTION 2.22. Certain Pricing Adjustments.
The applicable LIBOR Spread in effect from time to time
shall be determined in accordance with the following table:
Applicable LIBOR Spread
Period (in Basis Points)
Closing Date through
November 30, 1998 62.5
December 1, 1998 through
February 28, 1999 87.5
March 1, 1999 and 100.0
thereafter
In addition, for any day that the S&P/Xxxxx'x ratings
on the Borrower's senior unsecured long-term debt is less than
BBB-/Baa3 (or is not rated by at least one of S&P and Xxxxx'x),
the applicable LIBOR Spread will increase by 50 basis points. In
the event the S&P rating on the Borrower's senior unsecured long-
term debt is not equivalent to the Xxxxx'x rating on such debt,
the higher rating will determine the applicable LIBOR Spread,
unless the S&P and Xxxxx'x ratings are more than one level apart,
in which case the rating one level below the higher rating will
be determinative. In the event that the Borrower's senior
unsecured long-term debt is rated by only one of S&P and Xxxxx'x,
then that single rating shall be determinative. The Borrower
shall cause its senior unsecured long-term debt to be rated by
either S&P or Xxxxx'x. Any increase in the applicable LIBOR
Spread determined in accordance with this paragraph shall become
effective on the date of announcement or publication by the
Borrower or either such rating agency of a reduction in such
rating or, in the absence of such announcement or publication, on
the effective date of such decreased rating, or on the date of
any request by the Borrower to either of such rating agencies not
to rate its senior unsecured long-term debt or on the date either
of such rating agencies announces it shall no longer rate the
Borrower's senior unsecured long-term debt. Any decrease in the
applicable LIBOR Spread shall be effective on the date of
announcement or publication by either of such rating agencies of
an increase in rating or in the absence of announcement or
publication on the effective date of such increase in rating.
3. REPRESENTATIONS AND WARRANTIES OF BORROWER
In order to induce the Lenders to enter into this
Agreement and to make the Term Loans provided for herein, the
Borrower makes the following representations and warranties to
the Administrative Agent and the Lenders, all of which shall
survive the execution and delivery of this Agreement, the
issuance of the Term Notes and the making of the Term Loans:
SECTION 3.1. Corporate Existence and Power.
The Borrower and its Subsidiaries have been duly
organized and are validly existing in good standing under the
laws of their respective jurisdictions of incorporation and are
in good standing or have applied for authority to operate as a foreign
corporation in all jurisdictions where the nature of
their properties or business so requires it and where a failure
to be in good standing as a foreign corporation would have a
Material Adverse Effect. The Borrower has the corporate power to
execute, deliver and perform its obligations under this Agreement
and the other Fundamental Documents and other documents
contemplated hereby and to borrow hereunder.
SECTION 3.2. Corporate Authority, No Violation and
Compliance with Law.
The execution, delivery and performance of this
Agreement and the other Fundamental Documents and the borrowings
hereunder (a) have been duly authorized by all necessary
corporate action on the part of the Borrower, (b) will not
violate any provision of any Applicable Law (including any laws
related to franchising) applicable to the Borrower or any of its
Subsidiaries or any of their respective properties or assets, (c)
will not violate any provision of the Certificate of
Incorporation or By-Laws of the Borrower or any of its
Subsidiaries, or any indenture, any agreement for borrowed money,
any bond, note or other similar instrument or any other material
agreement to which the Borrower or any of its Subsidiaries is a
party or by which the Borrower or any of its Subsidiaries or any
of their respective properties or assets are bound, (d) will not
be in conflict with, result in a breach of, or constitute (with
due notice or lapse of time or both) a default under, any
material indenture, agreement, bond, note or instrument and (e)
will not result in the creation or imposition of any Lien upon
any property or assets of the Borrower or any of its Subsidiaries
other than pursuant to this Agreement or any other Fundamental
Document.
SECTION 3.3. Governmental and Other Approval and
Consents.
No action, consent or approval of, or registration or
filing with, or any other action by, any governmental agency,
bureau, commission or court is required in connection with the
execution, delivery and performance by the Borrower of this
Agreement or the other Fundamental Documents.
SECTION 3.4. Financial Statements of Borrower.
The revised condensed unaudited consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of
December 31, 1997, together with the related unaudited statements
of income, shareholders' equity and cash flows for the fiscal
year then ended, as adjusted to give effect to the accounting
irregularities described in the Press Release which are known to
the Borrower and prepared in good faith and based upon reasonable
assumptions, fairly present the financial condition of the
Borrower and its Consolidated Subsidiaries as at the date indicated and the
results of operations and cash flows for the
period indicated in conformity with GAAP.
SECTION 3.5. No Material Adverse Change.
Since December 31, 1997, there has been no material
adverse change in the business, assets, operations, or condition,
financial or otherwise, of the Borrower and its Subsidiaries
taken as a whole (it is understood that, for purposes of this
Section, the accounting irregularities and the amount thereof
disclosed in the Press Release and the related class action
lawsuits do not constitute a material adverse change).
SECTION 3.6. Subsidiaries.
Annexed hereto as Schedule 3.6 is a correct and
complete list as of the Closing Date of all Material Subsidiaries
of the Borrower showing, as to each Material Subsidiary, its
name, the jurisdiction of its incorporation, its authorized
capitalization and the ownership of the capital stock of such
Material Subsidiary.
SECTION 3.7. Copyrights, Patents and Other Rights.
Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents
and other intellectual property material to its business, and the
use thereof by the Borrower and its Subsidiaries does not
infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.8. Title to Properties.
Each of the Borrower and its Material Subsidiaries will
have at the Closing Date good title or valid leasehold interests
to each of the properties and assets reflected on the balance
sheets referred to in Section 3.4, except for minor defects in
title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for
their intended purposes, and all such properties and assets will
be free and clear of Liens, except Permitted Encumbrances.
SECTION 3.9. Litigation.
Except as set forth on Schedule 3.9, there are no
lawsuits or other proceedings pending (including, but not limited
to, matters relating to environmental liability), or, to the
knowledge of the Borrower, threatened, against or affecting the
Borrower or any of its Subsidiaries or any of their respective
properties, by or before any Governmental Authority or
arbitrator, which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any of its Subsidiaries
is in default with respect to any order, writ, injunction, decree, rule or
regulation of any Governmental Authority, which
default would have a Material Adverse Effect.
SECTION 3.10. Federal Reserve Regulations.
Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or
carrying any Margin Stock. No part of the proceeds of the Term
Loans will be used, whether immediately, incidentally or
ultimately, for any purpose violative of or inconsistent with any
of the provisions of Regulation T, U or X of the Board.
SECTION 3.11. Investment Company Act.
The Borrower is not, and will not during the term of
this Agreement be, (x) an "investment company", within the
meaning of the Investment Company Act of 1940, as amended, or (y)
subject to regulation under the Public Utility Holding Company
Act of 1935, as amended or the Federal Power Act, as amended.
SECTION 3.12. Enforceability.
This Agreement and the other Fundamental Documents to
which the Borrower is a party when executed will constitute
legal, valid and enforceable obligations (as applicable) of the
Borrower (subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and to
general principles of equity).
SECTION 3.13. Taxes.
The Borrower and each of its Subsidiaries has filed or
caused to be filed all federal, state and local tax returns which
are required to be filed, and has paid or has caused to be paid
all taxes as shown on said returns or on any assessment received
by them in writing, to the extent that such taxes have become
due, except (a) as permitted by Section 5.4 hereof or (b) to the
extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.14. Compliance with ERISA.
Each of the Borrower and its Subsidiaries is in
compliance in all material respects with the provisions of ERISA
and the Code applicable to Plans, and the regulations and
published interpretations thereunder, if any, which are
applicable to it. Neither the Borrower nor any of its
Subsidiaries has, with respect to any Plan established or
maintained by it, engaged in a prohibited transaction which would
subject it to a material tax or penalty on prohibited
transactions imposed by ERISA or Section 4975 of the Code. No
liability to the PBGC that is material to the Borrower and its Subsidiaries
taken as a whole has been, or to the Borrower's best
knowledge is reasonably expected to be, incurred with respect to
the Plans and there has been no Reportable Event and no other
event or condition that presents a material risk of termination
of a Plan by the PBGC. Neither the Borrower nor any of its
Subsidiaries has engaged in a transaction which would result in
the incurrence of a material liability under Section 4069 of
ERISA. As of the Closing Date, neither the Borrower nor any of
its Subsidiaries contributes to a Multiemployer Plan, and has not
incurred any liability that would be material to the Borrower and
its Subsidiaries taken as a whole on account of a partial or
complete withdrawal (as defined in Sections 4203 and 4205 of
ERISA, respectively) with respect to any Multiemployer Plan.
SECTION 3.15. Disclosure.
As of the Closing Date, neither this Agreement nor the
Confidential Information Memorandum dated May 1998, at the time
it was furnished, contained any untrue statement of a material
fact or omitted to state a material fact, under the circumstances
under which it was made, necessary in order to make the
statements contained herein or therein not misleading. At the
Closing Date, there is no fact known to the Borrower which,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. The Borrower has delivered
to the Administrative Agent certain projections relating to the
Borrower and its Consolidated Subsidiaries. Such projections are
based on good faith estimates and assumptions believed to be
reasonable at the time made, provided, however, that the Borrower
makes no representation or warranty that such assumptions will
prove in the future to be accurate or that the Borrower and its
Consolidated Subsidiaries will achieve the financial results
reflected in such projections.
SECTION 3.16. Environmental Liabilities.
Except with respect to any matters, that, individually
or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) except
as set forth on Schedule 3.16, has become subject to any
Environmental Liability, (iii) except as set forth on Schedule
3.16, has received notice of any claim with respect to any
Environmental Liability or (iv) except as set forth on Schedule
3.16, knows of any basis for any Environmental Liability.
4. CONDITIONS OF LENDING
SECTION 4.1. Conditions Precedent to Term Loans.
The obligation of each Lender to make its Term Loan is
subject to the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall
have received this Agreement and each of the other
Fundamental Documents, each executed and delivered by a duly
authorized officer of the Borrower.
(b) Corporate Documents for the Borrower. The
Administrative Agent shall have received, with copies for
each of the Lenders, a certificate of the Secretary or
Assistant Secretary of the Borrower dated the date of the
initial Term Loans and certifying (A) that attached thereto
is a true and complete copy of the certificate of
incorporation and by-laws of the Borrower as in effect on
the date of such certification; (B) that attached thereto is
a true and complete copy of resolutions adopted by the Board
of Directors of the Borrower authorizing the borrowings
hereunder and the execution, delivery and performance in
accordance with their respective terms of this Agreement and
any other documents required or contemplated hereunder; and
(C) as to the incumbency and specimen signature of each
officer of the Borrower executing this Agreement or any
other document delivered by it in connection herewith (such
certificate to contain a certification by another officer of
the Borrower as to the incumbency and signature of the
officer signing the certificate referred to in this
paragraph (b)).
(c) Financial Statements. The Lenders shall have
received the revised condensed unaudited consolidated
balance sheet of the Borrower and its Consolidated
Subsidiaries as of December 31, 1997, together with the
related unaudited statements of income, shareholders' equity
and cash flows for such period prepared in conformity with
GAAP, in each case as adjusted for the accounting
irregularities disclosed in the Press Release which are
known to the Borrower and certified by the Borrower's chief
financial officer as being prepared in good faith based upon
reasonable assumptions.
(d) Opinions of Counsel. The Administrative Agent
shall have received the favorable written opinions, dated
the date of the initial Term Loans and addressed to the
Administrative Agent and the Lenders, of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel to the Borrower and of
Xxxxx X. Xxxxxxx, Senior Executive Vice President and
General Counsel of the Borrower, substantially in the form
of Exhibits B-1 and B-2 hereto, respectively.
(e) No Material Adverse Change. The Administrative
Agent shall be satisfied that no material adverse change
shall have occurred with respect to the business, assets,
operations or condition, financial or otherwise, of the
Borrower and its Consolidated Subsidiaries, taken as a
whole, since December 31, 1997 (it is understood that, for
purposes of this paragraph, the accounting irregularities and the
amount thereof disclosed in the Press Release and
the related class action lawsuits do not constitute a
material adverse change).
(f) Payment of Fees. The Administrative Agent shall
be satisfied that all amounts payable to the Administrative
Agent and the other Lenders pursuant hereto or with regard
to the transactions contemplated hereby have been or are
simultaneously being paid.
(g) Litigation. No litigation shall be pending or
threatened which would be likely to have a Material Adverse
Effect, or which could reasonably be expected to materially
adversely affect the ability of the Borrower to fulfill its
obligations hereunder or to otherwise materially impair the
interests of the Lenders.
(h) Officer's Certificate. The Administrative Agent
shall have received a certificate of the Borrower's chief
executive officer or chief financial officer certifying, as
of the date of the making of the initial Term Loans,
compliance with the conditions set forth in paragraphs (l)
and (m) of this Section 4.1.
(i) Other Credit Facilities. All amounts, if any,
made available to the Borrower under the $500,000,000 credit
facility due June 15, 1998 from The Chase Manhattan Bank and
the $500,000,000 credit facility due July 31, 1998 from Bank
of America NT&SA shall have been repaid, and such credit
facilities shall have been cancelled.
(j) Other Documents. The Administrative Agent shall
have received such other documents as the Administrative
Agent may reasonably require.
(k) Notice. The Administrative Agent shall have
received a notice with respect to such Term Loan as required
by Article-2 hereof.
(l) Representations and Warranties. The
representations and warranties set forth in Article 3 hereof
and in the other Fundamental Documents shall be true and
correct in all material respects on and as of the date of
the initial Term Loans hereunder (except to the extent that
such representations and warranties expressly relate to an
earlier date) with the same effect as if made on and as of
such date.
(m) No Event of Default. On the date of the initial
Term Loans hereunder, the Borrower shall be in material
compliance with all of the terms and provisions set forth
herein to be observed or performed and no Event of Default
or Default shall have occurred and be continuing.
5. AFFIRMATIVE COVENANTS
From the date of the Term Loans and for so long as any
amount shall remain outstanding under any Term Note or unpaid
under this Agreement, the Borrower agrees that, unless the
Required Lenders shall otherwise consent in writing, it will, and
will cause each of its Subsidiaries to:
SECTION 5.1. Financial Statements, Reports, etc.
Deliver to each Lender:
(a) As soon as is practicable, but in any event within
100 days after the end of each fiscal year of the Borrower
(or, in the case of its 1997 fiscal year, on or prior to
August 31, 1998), the audited consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as at the end
of, and the related consolidated statements of income,
shareholders' equity and cash flows for such year, and the
corresponding figures as at the end of, and for, the
preceding fiscal year, accompanied by an opinion of Deloitte
& Touche LLP or such other independent certified public
accountants of recognized standing as shall be retained by
the Borrower and satisfactory to the Administrative Agent,
which report and opinion shall be prepared in accordance
with generally accepted auditing standards relating to
reporting and which report and opinion shall (A) be
unqualified as to going concern and scope of audit and shall
state that such financial statements fairly present the
financial condition of the Borrower and its Consolidated
Subsidiaries, as at the dates indicated and the results of
the operations and cash flows for the periods indicated and
(B) contain no material exceptions or qualifications except
for qualifications relating to accounting changes (with
which such independent public accountants concur) in
response to FASB releases or other authoritative
pronouncements;
(b) As soon as is practicable, but in any event within
55 days after the end of each of the first three fiscal
quarters of each fiscal year (or, in the case of the fiscal
quarter ending on or about March 31, 1998, on or prior to
August 31, 1998), the unaudited consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries, as at the
end of, and the related unaudited statements of income (or
changes in financial position) for such quarter and for the
period from the beginning of the then current fiscal year to
the end of such fiscal quarter and the corresponding figures
as at the end of, and for, the corresponding period in the
preceding fiscal year, together with a certificate signed by
the chief financial officer or a vice president responsible
for financial administration of the Borrower to the effect
that such financial statements, while not examined by
independent public accountants, reflect, in his opinion and in the
opinion of the Borrower, all adjustments necessary to
present fairly the financial position of the Borrower and
its Consolidated Subsidiaries, as the case may be, as at the
end of the fiscal quarter and the results of their
operations for the quarter then ended in conformity with
GAAP consistently applied, subject only to year-end and
audit adjustments and to the absence of footnote disclosure;
(c) Together with the delivery of the statements
referred to in paragraphs (a) and (b) of this Section 5.1, a
certificate of the chief financial officer or a vice
president responsible for financial administration of the
Borrower, substantially in the form of Exhibit D hereto (i)
stating whether or not the signer has knowledge of any
Default or Event of Default and, if so, specifying each such
Default or Event of Default of which the signer has
knowledge, the nature thereof and any action which the
Borrower has taken, is taking, or proposes to take with
respect to each such condition or event and (ii)
demonstrating in reasonable detail compliance with the
provisions of Sections 6.7 and 6.8 hereof;
(d) Promptly upon their becoming available, copies of
all financial statements, reports, notices and proxy
statements sent or made available by the Borrower or any of
its Subsidiaries to its shareholders generally, of all
regular and periodic reports and all registration statements
and prospectuses, if any, filed by any of them with any
securities exchange or with the Securities and Exchange
Commission, or any comparable foreign bodies, and of all
press releases and other statements made available generally
by any of them to the public concerning material
developments in the business of the Borrower or any of its
Subsidiaries;
(e) Promptly upon any executive officer of the
Borrower or any of its Subsidiaries obtaining knowledge of
the occurrence of any Default or Event of Default, a
certificate of the president or chief financial officer of
the Borrower specifying the nature and period of existence
of such Default or Event of Default and what action the
Borrower has taken, is taking and proposes to take with
respect thereto;
(f) Promptly upon any executive officer of the
Borrower or any of its Subsidiaries obtaining knowledge of
(i) the institution of any action, suit, proceeding,
investigation or arbitration by any Governmental Authority
or other Person against or affecting the Borrower or any of
its Subsidiaries or any of their assets, or (ii) any
material development in any such action, suit, proceeding,
investigation or arbitration (whether or not previously
disclosed to the Lenders), which, in each case might
reasonably be expected to have a Material Adverse Effect, the Borrower
shall promptly give notice thereof to the
Lenders and provide such other information as may be
reasonably available to it (without waiver of any applicable
evidentiary privilege) to enable the Lenders to evaluate
such matters;
(g) With reasonable promptness, such other information
and data with respect to the Borrower and its Subsidiaries
as from time to time may be reasonably requested by any of
the Lenders; and
(h) Together with each set of financial statements
required by paragraph (a) above, a certificate of the
independent certified public accountants rendering the
report and opinion thereon (which certificate may be limited
to the extent required by accounting rules or otherwise) (i)
stating whether, in connection with their audit, any Default
or Event of Default has come to their attention, and if such
a Default or Event of Default has come to their attention,
specifying the nature and period of existence thereof, and
(ii) stating that based on their audit nothing has come to
their attention which causes them to believe that the
matters specified in paragraph (c)(ii) above for the
applicable fiscal year are not stated in accordance with the
terms of this Agreement.
SECTION 5.2. Corporate Existence; Compliance with
Statutes.
Do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its corporate
existence, material rights, licenses, permits and franchises and
comply, except where failure to comply, either individually or in
the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, with all provisions of Applicable Law,
and all applicable restrictions imposed by, any Governmental
Authority, including without limitation, the Federal Trade
Commission's "Disclosure Requirements and Prohibitions Concerning
Franchising and Business Opportunity Ventures" as amended from
time to time (16 C.F.R. PP-436.1 et seq.) and all state laws and
regulations of similar import; provided, however, that mergers,
dissolutions and liquidations permitted under Section 6.4 shall
be permitted.
SECTION 5.3. Insurance.
Maintain with financially sound and reputable insurers
insurance in such amounts and against such risks as are
customarily insured against by companies in similar businesses;
provided however, that (a) workmen's compensation insurance or
similar coverage may be effected with respect to its operations
in any particular state or other jurisdiction through an
insurance fund operated by such state or jurisdiction and (b) such insurance
may contain self-insurance retention and
deductible levels consistent with normal industry practices.
SECTION 5.4. Taxes and Charges.
Duly pay and discharge, or cause to be paid and
discharged, before the same shall become delinquent, all federal,
state or local taxes, assessments, levies and other governmental
charges, imposed upon the Borrower or any of its Subsidiaries or
their respective properties, sales and activities, or any part
thereof, or upon the income or profits therefrom, as well as all
claims for labor, materials, or supplies which if unpaid could
reasonably be expected to result in a Material Adverse Effect;
provided, however, that any such tax, assessment, charge, levy or
claim need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate proceedings
and if the Borrower shall have set aside on its books reserves
(the presentation of which is segregated to the extent required
by GAAP) adequate with respect thereto if reserves shall be
deemed necessary by the Borrower in accordance with GAAP; and
provided, further, that the Borrower will pay all such taxes,
assessments, levies or other governmental charges forthwith upon
the commencement of proceedings to foreclose any Lien which may
have attached as security therefor (unless the same are fully
bonded or otherwise effectively stayed).
SECTION 5.5. ERISA Compliance and Reports.
Furnish to the Administrative Agent (a) as soon as
possible, and in any event within 30 days after any executive
officer (as defined in Regulation C under the Securities Act of
1933) of the Borrower knows that (i) any Reportable Event with
respect to any Plan has occurred, a statement of the chief
financial officer of the Borrower, setting forth details as to
such Reportable Event and the action which it proposes to take
with respect thereto, together with a copy of the notice, if any,
required to be filed by the Borrower or any of its Subsidiaries
of such Reportable Event with the PBGC or (ii) an accumulated
funding deficiency has been incurred or an application has been
made to the Secretary of the Treasury for a waiver or
modification of the minimum funding standard or an extension of
any amortization period under Section 412 of the Code with
respect to a Plan, a Plan has been or is proposed to be
terminated in a "distress termination" (as defined in Section
4041(c) of ERISA), proceedings have been instituted to terminate
a Plan or a Multiemployer Plan, a proceeding has been instituted
to collect a delinquent contribution to a Plan or a Multiemployer
Plan, or either the Borrower or any of its Subsidiaries will
incur any liability (including any contingent or secondary
liability) to or on account of the termination of or withdrawal
from a Plan under Sections 4062, 4063, 4064 of ERISA or the
withdrawal or partial withdrawal from a Multiemployer Plan under
Sections 4201 or 4204 of ERISA, a statement of the chief
financial officer of the Borrower, setting forth details an to such event and
the action it proposes to take with respect
thereto, (b) promptly upon the reasonable request of the
Administrative Agent, copies of each annual and other report with
respect to each Plan and (c) promptly after receipt thereof, a
copy of any notice the Borrower or any of its Subsidiaries may
receive from the PBGC relating to the PBGC's intention to
terminate any Plan or to appoint a trustee to administer any
Plan; provided that the Borrower shall not be required to notify
the Administrative Agent of the occurrence of any of the events
set forth in the preceding clauses (a) and (c) unless such event,
individually or in the aggregate, could reasonably be expected to
result in a material liability to the Borrower and its
Subsidiaries taken as a whole.
SECTION 5.6. Maintenance of and Access to Books and
Records; Examinations.
Maintain or cause to be maintained at all times true
and complete books and records of its financial operations (in
accordance with GAAP) and provide the Administrative Agent and
its representatives access to all such books and records and to
any of their properties or assets during regular business hours,
in order that the Administrative Agent may make such audits and
examinations and make abstracts from such books, accounts and
records and may discuss the affairs, finances and accounts with,
and be advised as to the same by, officers and independent
accountants, all as the Administrative Agent may deem appropriate
for the purpose of verifying the various reports delivered
pursuant to this Agreement or for otherwise ascertaining
compliance with this Agreement.
SECTION 5.7. Maintenance of Properties.
Keep its properties which are material to its business
in good repair, working order and condition consistent with
industry practice.
SECTION 5.8. Changes in Character of Business.
Cause the Borrower and its Subsidiaries taken as a
whole to be primarily engaged in the franchising and services
businesses.
SECTION 5.9. CFHC Guarantee.
In the case of CFHC, on the date of the execution and
delivery of the CFHC Guarantee cause CFHC to deliver to the
Administrative Agent, with copies for each of the Lenders (i) a
certificate of the Secretary or Assistant Secretary of CFHC dated
such date and certifying (A) that attached thereto is a true and
complete copy of the certificate of incorporation and by-laws of
CFHC as in effect on such date; (B) that attached thereto is a
true and complete copy of resolutions adopted by the Board of
Directors of CFHC authorizing the execution, delivery and performance in
accordance with its terms of the CFHC Guarantee
and any other documents required or contemplated hereunder; and
(C) as to the incumbency and specimen signature of each officer
of CFHC executing the CFHC Guarantee or any other document
delivered by it in connection herewith (such certificate to
contain a certification by another officer of CFHC as to the
incumbency and signature of the officer signing the certificate
referred to in this Section) and (ii) a legal opinion from
counsel to CFHC with respect to the CFHC Guarantee, such opinion
to be in the form reasonably requested by the Administrative
Agent.
6. NEGATIVE COVENANTS
From the date of the initial Term Loan and for so long
as any amount shall remain outstanding under any Term Note or
unpaid under this Agreement, unless the Required Lenders shall
otherwise consent in writing, the Borrower agrees that it will
not, nor will it permit any of its Subsidiaries to, directly or
indirectly:
SECTION 6.1. Limitation on Indebtedness.
Incur, assume or suffer to exist any Indebtedness of
any Material Subsidiary except:
(a) Indebtedness in existence on the date hereof, or
required to be incurred pursuant to a contractual obligation
in existence on the date hereof, which in either case, is
listed on Schedule 6.1 hereto, but not any extensions or
renewals thereof, unless effected on substantially the same
terms or on terms not more adverse to the Lenders;
(b) purchase money Indebtedness (including Capital
Leases) to the extent permitted under Section 6.5(b);
(c) Guaranties;
(d) Indebtedness owing by any Material Subsidiary to
the Borrower or any other Subsidiary;
(e) Indebtedness of any Material Subsidiary of the
Borrower issued and outstanding prior to the date on which
such Subsidiary became a Subsidiary of the Borrower (other
than Indebtedness issued in connection with, or in
anticipation of, such Subsidiary becoming a Subsidiary of
the Borrower); provided that immediately prior and on a Pro
Forma Basis after giving effect to, such Person becoming a
Subsidiary of the Borrower, no Default or Event of Default
shall occur or then be continuing and the aggregate
principal amount of such Indebtedness, when added to the
aggregate outstanding principal amount of Indebtedness
permitted by paragraphs (f) and (g) below, shall not exceed
$400,000,000;
(f) any renewal, extension or modification of
Indebtedness under paragraph (e) above so long as (i) such
renewal, extension or modification is effected on
substantially the same terms or on terms which, in the
aggregate, are not more adverse to the Lenders and (ii) the
principal amount of such Indebtedness is not increased;
(g) other Indebtedness of any Material Subsidiary in
an aggregate principal amounts which, when added to the
aggregate outstanding principal amount of Indebtedness
permitted by paragraphs (e) and (f) above, does not exceed
$400,000,000;
(h) in addition to the Indebtedness permitted by
paragraphs (a)-(g) above and paragraph (i) below,
Indebtedness of PHH Corporation and its Subsidiaries so long
as, after giving effect to the incurrence of such
Indebtedness and the use of the proceeds thereof, the ratio
of Indebtedness of PHH and its Subsidiaries to consolidated
shareholders' equity of PHH is less than 10 to 1; and
(i) in addition to the Indebtedness permitted by
paragraphs (a)-(h) above, Indebtedness of CFHC so long as
CFHC shall have guaranteed payment of the Borrower's
obligations under this Agreement pursuant to the CFHC
Guarantee.
SECTION 6.2. INTENTIONALLY OMITTED.
SECTION 6.3. Hotel Subsidiaries.
No Hotel Subsidiary shall incur or suffer to exist any
obligation to advance money to purchase securities from, or
otherwise make any investment in, any Person engaged in the
gaming business.
SECTION 6.4. Consolidation, Merger, Sale of Assets.
(a) Neither the Borrower nor any of its Material
Subsidiaries (in one transaction or series of transactions) will
wind up, liquidate or dissolve its affairs, or enter into any
transaction of merger or consolidation, except any merger,
consolidation, dissolution or liquidation (i) in which the
Borrower is the surviving entity or if the Borrower is not a
party to such transaction then a Subsidiary is the surviving
entity or the successor to the Borrower has unconditionally
assumed in writing all of the payment and performance obligations
of the Borrower under this Agreement and the other Fundamental
Documents, (ii) in which the surviving entity becomes a
Subsidiary of the Borrower immediately upon the effectiveness of
such merger, consolidation, dissolution or liquidation, or (iii)
involving a Subsidiary in connection with a transaction permitted
by Section 6.4(b); provided, however, that immediately prior to
and on a Pro Forma Basis after giving effect to any such transaction described
in any of the preceding clauses (i), (ii)
and (iii) no Default or Event of Default has occurred and is continuing.
(b) The Borrower and its Subsidiaries (either
individually or collectively and whether in one transaction or
series of related transactions) will not sell or otherwise
dispose of all or substantially all of the assets of the Borrower
and its Subsidiaries, taken as a whole.
SECTION 6.5. Limitations on Liens.
Suffer any Lien on the property of the Borrower or any
of the Material Subsidiaries, except:
(a) deposits under worker's compensation, unemployment
insurance and social security laws or to secure statutory
obligations or surety or appeal bonds or performance or
other similar bonds in the ordinary course of business, or
statutory Liens of landlords, carriers, warehousemen,
mechanics and material men and other similar Liens, in
respect of liabilities which are not yet due or which are
being contested in good faith, Liens for taxes not yet due
and payable, and Liens for taxes due and payable, the
validity or amount of which is currently being contested in
good faith by appropriate proceedings and as to which
foreclosure and other enforcement proceedings shall not have
been commenced (unless fully bonded or otherwise effectively
stayed);
(b) purchase money Liens granted to the vendor or
Person financing the acquisition of property, plant or
equipment if (i) limited to the specific assets acquired
and, in the case of tangible assets, other property which is
an improvement to or is acquired for specific use in
connection with such acquired property or which is real
property being improved by such acquired property; (ii) the
debt secured by the Lien is the unpaid balance of the
acquisition cost of the specific assets on which the Lien is
granted; and (iii) such transaction does not otherwise
violate this Agreement;
(c) Liens upon real and/or personal property, which
property was acquired after the date of this Agreement (by
purchase, construction or otherwise) by the Borrower or any
of its Material Subsidiaries, each of which Liens existed on
such property before the time of its acquisition and was not
created in anticipation thereof; provided, however, that no
such Lien shall extend to or cover any property of the
Borrower or such Material Subsidiary other than the
respective property so acquired and improvements thereon;
(d) Liens arising out of attachments, judgments or
awards as to which an appeal or other appropriate proceedings for
contest or review are promptly commenced
(and as to which foreclosure and other enforcement
proceedings (i) shall not have been commenced (unless fully
bonded or otherwise effectively stayed) or (ii) in any event
shall be promptly fully bonded or otherwise effectively
stayed);
(e) Liens created under any Fundamental Document;
(f) Existing Liens listed on Schedule 6.5 and any
extensions or renewals thereof;
(g) Liens in connection with the Receivables Facility;
and
(h) Liens consisting of cash and/or cash equivalents
collateral securing the RAC Loan Notes or guarantees thereof
provided that the amount of such cash collateral shall not
exceed the amount of unpaid principal and accrued interest
on the RAC Loan Notes at any time; and
(i) other Liens securing obligations having an
aggregate principal amount not to exceed 15% of Consolidated
Net Worth.
SECTION 6.6. Sale and Leaseback.
Enter into any arrangement with any Person or Persons,
whereby in contemporaneous transactions the Borrower or any of
its Subsidiaries sells essentially all of its right, title and
interest in a material asset and the Borrower or any of its
Subsidiaries acquires or leases back the right to use such
property except that the Borrower may enter into sale-leaseback
transactions relating to assets not in excess of $200,000,000 in
the aggregate on a cumulative basis.
SECTION 6.7. Leverage.
Permit the ratio of Consolidated Total Indebtedness on
the last day of any fiscal quarter to Consolidated EBITDA for the
Rolling Period ended on such day to be more than 3.5 to 1.0.
SECTION 6.8. Interest Coverage Ratio.
Permit the Interest Coverage Ratio for any Rolling
Period to be less than 3.0 to 1.0.
SECTION 6.9. Accounting Practices.
Establish a fiscal year ending on other than
December 31, or modify or change accounting treatments or
reporting practices except as otherwise required or permitted by
GAAP.
7. EVENTS OF DEFAULT
In the case of the happening and during the continuance
of any of the following events (herein called "Events of
Default"):
(a) any representation or warranty made by the
Borrower or CFHC in this Agreement or any other Fundamental
Document or in connection with this Agreement or with the
execution and delivery of the Term Notes or the Borrowings
hereunder, or any statement or representation made in any
report, financial statement, certificate or other document
furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender under
or in connection with this Agreement, shall prove to have
been false or misleading in any material respect when made
or delivered;
(b) default shall be made in the payment of any
principal of or interest on the Term Loans or of any fees or
other amounts payable by the Borrower hereunder, when and as
the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise, and in the case of
payments of interest, such default shall continue unremedied
for five days, and in the case of payments other than of any
principal amount of or interest on the Term Loans, such
default shall continue unremedied for five days after
receipt by the Borrower of an invoice therefor;
(c) default shall be made in the due observance or
performance of any covenant, condition or agreement
contained in Section 5.1(e) (with respect to notice of
Default or Events of Default), 5.8 or Article 6 of this
Agreement;
(d) default shall be made by the Borrower or CFHC in
the due observance or performance of any other covenant,
condition or agreement to be observed or performed pursuant
to the terms of this Agreement, or any other Fundamental
Document and such default shall continue unremedied for
thirty (30) days after the Borrower obtains knowledge of
such occurrence;
(e) (i) default in payment shall be made with respect
to any Indebtedness of the Borrower or any of its
Subsidiaries where the amount or amounts of such
Indebtedness exceeds $50,000,000 in the aggregate; or (ii)
default in payment or performance shall be made with respect
to any Indebtedness of the Borrower or any of its
Subsidiaries where the amount or amounts of such
Indebtedness exceeds $50,000,000 in the aggregate, if the
effect of such default is to result in the acceleration of
the maturity of such Indebtedness; or (iii) any other circumstance
shall arise (other than the mere passage of
time) by reason of which the Borrower or any Subsidiary of
the Borrower is required to redeem or repurchase, or offer
to holders the opportunity to have redeemed or repurchased,
any such Indebtedness where the amount or amounts of such
Indebtedness exceeds $50,000,000 in the aggregate; provided
that clause (iii) shall not apply to secured Indebtedness
that becomes due as a result of a voluntary sale of the
property or assets securing such Indebtedness and provided,
further clauses (ii) and (iii) shall not apply to any
Indebtedness of any Subsidiary issued and outstanding prior
to the date such Subsidiary became a Subsidiary of the
Borrower (other than Indebtedness issued in connection with,
or in anticipation of, such Subsidiary becoming a Subsidiary
of the Borrower) if such default or circumstance arises
solely as a result of a "change of control" provision
applicable to such Indebtedness which becomes operative as a
result of the acquisition of such Subsidiary by the Borrower
or any of its Subsidiaries;
(f) the Borrower or any of its Material Subsidiaries
shall generally not pay its debts as they become due or
shall admit in writing its inability to pay its debts, or
shall make a general assignment for the benefit of
creditors; or the Borrower or any of its Material
Subsidiaries shall commence any case, proceeding or other
action seeking to have an order for relief entered on its
behalf as debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or
its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors or seeking appointment
of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property or
shall file an answer or other pleading in any such case,
proceeding or other action admitting the material
allegations of any petition, complaint or similar pleading
filed against it or consenting to the relief sought therein;
or the Borrower or any Material Subsidiary thereof shall
take any action to authorize any of the foregoing;
(g) any involuntary case, proceeding or other action
against the Borrower or any of its Material Subsidiaries
shall be commenced seeking to have an order for relief
entered against it as debtor or to adjudicate it a bankrupt
or insolvent, or seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or
its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeking appointment
of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property,
and such case, proceeding or other action (i) results in the
entry of any order for relief against it or (ii) shall
remain undismissed for a period of sixty (60) days;
(h) the occurrence of a Change in Control;
(i) final judgment(s) for the payment of money in
excess of $50,000,000 shall be rendered against the Borrower
or any of its Subsidiaries which within thirty (30) days
from the entry of such judgment shall not have been
discharged or stayed pending appeal or which shall not have
been discharged within thirty (30) days from the entry of a
final order of affirmance on appeal; or
(j) a Reportable Event relating to a failure to meet
minimum funding standards or an Inability to pay benefits
when due shall have occurred with respect to any Plan under
the control of the Borrower or any of its Subsidiaries and
shall not have been remedied within 45 days after the
occurrence of such Reportable Event, if the occurrence
thereof could reasonably be expected to have a Material
Adverse Effect;
then, in every such event and at any time thereafter during the
continuance of such event, the Administrative Agent may or shall,
if directed by the Required Lenders, declare the principal of and
the interest on the Term Loans and the Term Notes and all other
amounts payable hereunder or thereunder to be forthwith due and
payable, whereupon the same shall become and be forthwith due and
payable, without presentment, demand, protest, notice of
acceleration, notice of intent to accelerate or other notice of
any kind, all of which are hereby expressly waived, anything in
this Agreement or in the Term Notes to the contrary
notwithstanding. If an Event of Default specified in paragraph
(f) or (g) above shall have occurred, the principal of and
interest on the Term Loans and the Term Notes and all other
amounts payable hereunder or thereunder shall thereupon and
concurrently become due and payable without presentment, demand,
protest, notice of acceleration, notice of intent to accelerate
or other notice of any kind, all of which are hereby expressly
waived, anything in this Agreement or the Term Notes to the
contrary notwithstanding.
8. THE ADMINISTRATIVE AGENT
SECTION 8.1. Administration by Administrative Agent.
The general administration of the Fundamental Documents
and any other documents contemplated by this Agreement shall be
by the Administrative Agent or its designees. Each of the
Lenders hereby irrevocably authorizes the Administrative Agent,
at its discretion, to take or refrain from taking such actions as
agent on its behalf and to exercise or refrain from exercising
such powers under the Fundamental Documents, the Term Notes and
any other documents contemplated by this Agreement as are
delegated by the terms hereof or thereof, as appropriate,
together with all powers reasonably incidental thereto. The
Administrative Agent shall have no duties or responsibilities except as set
forth in the Fundamental Documents. Any Lender
which is a Syndication Agent, Co-Documentation Agent, Managing
Agent or Co-Agent (as indicated on the signature pages hereto)
for the credit facility hereunder shall not have any duties or
responsibilities except as a Lender hereunder.
SECTION 8.2. Advances and Payments.
(a) On the date of the making of the Term Loans, the
Administrative Agent shall be authorized (but not obligated) to
advance, for the account of each of the Lenders, the amount of
the Term Loan to be made by it in accordance with this Agreement.
Each of the Lenders hereby authorizes and requests the
Administrative Agent to advance for its account, pursuant to the
terms hereof, the amount of the Term Loan to be made by it,
unless with respect to any Lender, such Lender has theretofore
specifically notified the Administrative Agent that such Lender
does not intend to fund that particular Term Loan. Each of the
Lenders agrees forthwith to reimburse the Administrative Agent in
immediately available funds for the amount so advanced on its
behalf by the Administrative Agent pursuant to the immediately
preceding sentence. If any such reimbursement is not made in
immediately available funds on the same day on which the
Administrative Agent shall have made any such amount available on
behalf of any Lender in accordance with this Section 8.2, such
Lender shall pay interest to the Administrative Agent at a rate
per annum equal to the Administrative Agent's cost of obtaining
overnight funds in the New York Federal Funds Market.
Notwithstanding the preceding sentence, if such reimbursement is
not made by the second Business Day following the day on which
the Administrative Agent shall have made any such amount
available on behalf of any Lender or such Lender has indicated
that it does not intend to reimburse the Administrative Agent,
the Borrower shall immediately pay such unreimbursed advance
amount (plus any accrued, but unpaid interest at the rate
applicable to ABR Term Loans) to the Administrative Agent.
(b) Any amounts received by the Administrative Agent
in connection with this Agreement or the Term Notes the
application of which is not otherwise provided for shall be
applied, in accordance with each of the Lenders' pro rata
interest therein (and subject to Section 9.3(k) with respect to
any Lender which meets its obligations hereunder by or through an
SPC), first, to pay accrued but unpaid interest on the Term
Loans, second, to pay the principal balance outstanding on the
Term Loans and third, to pay other amounts payable to the
Administrative Agent and/or the Lenders. All amounts to be paid
to any of the Lenders by the Administrative Agent shall be
credited to the Lenders, after collection by the Administrative
Agent, in immediately available funds either by wire transfer or
deposit in such Lender's correspondent account with the
Administrative Agent, or as such Lender and the Administrative
Agent shall from time to time agree.
SECTION 8.3. Sharing of Setoffs and Cash Collateral.
Each of the Lenders agrees that if it shall, through
the operation of Section 2.19 hereof or the exercise of a right
of banker's lien, setoff or counterclaim against the Borrower,
including, but not limited to, a secured claim under Section 506
of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim and
received by such Lender under any applicable bankruptcy,
insolvency or other similar law, or otherwise, obtain payment in
respect of its Term Loans as a result of which the unpaid portion
of its Term Loans is proportionately less than the unpaid portion
of any of the other Lenders (a) it shall promptly purchase at par
(and shall be deemed to have thereupon purchased) from such other
Lenders a participation in the Term Loans of such other Lenders,
so that the aggregate unpaid principal amount of each of the
Lenders' Term Loans and its participation in Term Loans of the
other Lenders shall be in the same proportion to the aggregate
unpaid principal amount of all Term Loans then outstanding as the
principal amount of its Term Loans prior to the obtaining of such
payment was to the principal amount of all Term Loans outstanding
prior to the obtaining of such payment and (b) such other
adjustments shall be made from time to time as shall be equitable
to ensure that the Lenders share such payment pro rata.
SECTION 8.4. Notice to the Lenders.
Upon receipt by the Administrative Agent from the
Borrower of any communication calling for an action on the part
of the Lenders, or upon notice to the Administrative Agent of any
Event of Default, the Administrative Agent will in turn
immediately inform the other Lenders in writing (which shall
include telegraphic communications) of the nature of such
communication or of the Event of Default, as the case may be.
SECTION 8.5. Liability of Administrative Agent.
(a) The Administrative Agent, when acting on behalf of
the Lenders may execute any of its duties under this Agreement by
or through its officers, agents, or employees and neither the
Administrative Agent nor its directors, officers, agents,
employees or affiliates shall be liable to the Lenders or any of
them for any action taken or omitted to be taken in good faith,
or be responsible to the Lenders or to any of them for the
consequences of any oversight or error of judgment, or for any
loss, unless the same shall happen through its gross negligence
or willful misconduct. The Administrative Agent and its
directors, officers, agents, employees and affiliates shall in no
event be liable to the Lenders or to any of them for any action
taken or omitted to be taken by it pursuant to instructions
received by it from the Required Lenders or in reliance upon the
advice of counsel selected by it. Without limiting the
foregoing, neither the Administrative Agent nor any of its
directors, officers, employees, agents or affiliates shall be responsible to
any of the Lenders for the due execution,
validity, genuineness, effectiveness, sufficiency, or
enforceability of, or for any statement, warranty, or
representation in, or for the perfection of any security interest
contemplated by, this Agreement or any related agreement,
document or order, or for the designation or failure to designate
this transaction as a "Highly Leveraged Transaction" for
regulatory purposes, or shall be required to ascertain or to make
any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants, or
agreements of this Agreement or any related agreement or
document.
(b) Neither the Administrative Agent nor any of its
directors, officers, employees, agents or affiliates shall have
any responsibility to the Borrower on account of the failure or
delay in performance or breach by any of the Lenders or the
Borrower of any of their respective obligations under this
Agreement or the Term Notes or any related agreement or document
or in connection herewith or therewith.
(c) The Administrative Agent in such capacity
hereunder shall be entitled to rely on any communication,
instrument, or document reasonably believed by it to be genuine
or correct and to have been signed or sent by a Person or Persons
believed by it to be the proper Person or Persons, and it shall
be entitled to rely on advice of legal counsel, independent
public accountants, and other professional advisers and experts
selected by it.
SECTION 8.6. Reimbursement and Indemnification.
Each of the Lenders severally and not jointly agrees
(i) to reimburse the Administrative Agent, in the amount of its
proportionate share, for any expenses and fees incurred for the
benefit of the Lenders under the Fundamental Documents,
including, without limitation, counsel fees and compensation of
agents and employees paid for services rendered on behalf of the
Lenders, and any other expense incurred in connection with the
administration or enforcement thereof not reimbursed by the
Borrower or one of its Subsidiaries, and (ii) to indemnify and
hold harmless the Administrative Agent and any of its directors,
officers, employees, or agents, on demand, in the amount of its
proportionate share, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted
against it or any of them in any way relating to or arising out
of the Fundamental Documents or any action taken or omitted by it
or any of them under the Fundamental Documents to the extent not
reimbursed by the Borrower or one of its Subsidiaries (except
such as shall result from the gross negligence or willful
misconduct of the Person seeking indemnification).
SECTION 8.7. Rights of Administrative Agent.
It is understood and agreed that Chase shall have the
same rights and powers hereunder (including the right to give
such instructions) as the other Lenders and may exercise such
rights and powers, as well as its rights and powers under other
agreements and instruments to which it is or may be party, and
engage in other transactions with the Borrower as though it were
not the Administrative Agent on behalf of the Lenders under this
Agreement.
SECTION 8.8. Independent Investigation by Lenders.
Each of the Lenders acknowledges that it has decided to
enter into this Agreement and to make the Term Loans hereunder
based on its own analysis of the transactions contemplated hereby
and of the creditworthiness of the Borrower and agrees that the
Administrative Agent shall not bear responsibility therefor.
SECTION 8.9. Notice of Transfer.
The Administrative Agent may deem and treat any Lender
that is a party to this Agreement as the owner of such Lender's
respective portions of the Term Loans for all purposes, unless
and until a written notice of the assignment or transfer thereof
executed by any such Lender shall have been received by the
Administrative Agent and become effective pursuant to Section
9.3.
SECTION 8.10. Successor Administrative Agent.
The Administrative Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Administrative Agent from among the
Lenders. If no successor Administrative Agent shall have been so
appointed by the Required Lenders and shall have accepted such
appointment, within 30 days after the retiring Administrative
Agent's giving of notice of resignation, the retiring
Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which with the consent of the
Borrower, which will not be unreasonably withheld, shall be a
commercial bank organized or licensed under the laws of the
United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of
this Article 8 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement.
9. MISCELLANEOUS
SECTION 9.1. Notices.
Notices and other communications provided for herein
shall be in writing and shall be delivered or mailed (or in the
case of telegraphic communication, if by telegram, delivered to
the telegraph company and, if by telex, telecopy, graphic
scanning or other telegraphic communications equipment of the
sending party hereto, delivered by such equipment) addressed, if
to the Administrative Agent or Chase, to it at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000 Attn: Xxxxxxxxx Xxxxxx, or if to
the Borrower, to it at 0 Xxxxxx Xxx, Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx, Vice Chairman and Chief Financial
Officer and Xxxxx X. Xxxxxxx, Senior Executive Vice President and
General Counsel, with a copy to Skadden, Arps, Slate, Xxxxxxx &
Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxx Xxxxxxx,
or if to a Lender, to it at its address notified to the
Administrative Agent (or set forth in its Assignment and
Acceptance or other agreement pursuant to which it became a
Lender hereunder), or such other address as such party may from
time to time designate by giving written notice to the other
parties hereunder. All notices and other communications given to
any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the fifth
Business Day after the date when sent by registered or certified
mail, postage prepaid, return receipt requested, if by mail, or
when delivered to the telegraph company, charges prepaid, if by
telegram, or when receipt is acknowledged, if by any telecopier
or telegraphic communications equipment of the sender, in each
case addressed to such party as provided in this Section 9.1 or
in accordance with the latest unrevoked written direction from
such party.
SECTION 9.2. Survival of Agreement, Representations
and Warranties, etc.
All warranties, representations and covenants made by
each of the Borrower and CFHC in the Fundamental Documents or in
any certificate or other instrument delivered by it or on its
behalf in connection with this Agreement shall be considered to
have been relied upon by the Administrative Agent and the Lenders
and shall survive the making of the Term Loans herein
contemplated and the issuance and delivery to the Administrative
Agent of the Term Notes regardless of any investigation made by
the Administrative Agent or the Lenders or on their behalf and
shall continue in full force and effect so long as any amount due
or to become due hereunder is outstanding and unpaid. All
statements in any such certificate or other instrument shall
constitute representations and warranties by the Borrower
hereunder.
SECTION 9.3. Successors and Assigns; Syndications;
Term Loan Sales; Participations.
(a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party (provided, however, that
the Borrower may not assign its rights hereunder without the
prior written consent of all the Lenders), and all covenants,
promises and agreements by, or on behalf of, the Borrower which
are contained in this Agreement shall inure to the benefit of the
successors and assigns of the Lenders.
(b) Each of the Lenders may (but only with the prior
written consent of the Administrative Agent and the Borrower,
which consents shall not be unreasonably withheld or delayed)
assign to one or more banks or other entities all or a portion of
its interests, rights and obligations under this Agreement
(including, without limitation, all or a portion of the Term
Loans at the time owing to it and the Term Notes held by it);
provided, however, that (1) each assignment shall be of a
constant, and not a varying, percentage of the assigning Lender's
rights and obligations under this Agreement, (2) the amount of
the Term Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Lender) shall be in a minimum principal amount of $10,000,000
(or, if less, the outstanding principal amount of the assigning
Lender's Term Loans), unless otherwise agreed by the Borrower and
the Administrative Agent and (3) the parties to each such
assignment shall execute and deliver to the Administrative Agent,
for its acceptance and recording in the Register (as defined
below), an Assignment and Acceptance, together with any Term Note
subject to such assignment (if required hereunder) and a
processing and recordation fee of $3,500. Upon such execution,
delivery, acceptance and recording, and from and after the
effective date specified in each Assignment and Acceptance, which
effective date shall be not earlier than five Business Days after
the date of acceptance and recording by the Administrative Agent,
(x) the assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the
assigning Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of the assigning Lender's
rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto).
(c) Notwithstanding the other provisions of this
Section 9.3, each Lender may at any time make an assignment of
all or any part of its interests, rights and obligations under
this Agreement to (i) any affiliate of such Lender or (ii) any
other Lender hereunder.
(d) By executing and delivering an Assignment and
Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than the representation and
warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse
claim, the assigning Lender makes no representation or warranty
and assumes no responsibility with respect to any statements,
warranties or representations made in, or in connection with,
this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the
Fundamental Documents or any other instrument or document
furnished pursuant hereto or thereto; (ii) such Lender assignor
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or CFHC
or the performance or observance by the Borrower or CFHC of any
of its obligations under the Fundamental Documents; (iii) such
assignee confirms that it has received a copy of this Agreement,
together with copies of the most recent financial statements
delivered pursuant to Sections 5.1(a) and 5.1(b) (or if none of
such financial statements shall have then been delivered, then
copies of the financial statements referred to in Section 3.4
hereof) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the assigning Lender, the
Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) such assignee appoints
and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under the
Fundamental Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that
it will be bound by the provisions of this Agreement and will
perform in accordance with its terms all of the obligations which
by the terms of this Agreement are required to be performed by it
as a Lender.
(e) The Administrative Agent, on behalf of the
Borrower, shall maintain at its address at which notices are to
be given to it pursuant to Section 9.1, a copy of each Assignment
and Acceptance delivered to it and a register for the recordation
of the names and addresses of the Lenders and the principal
amount of the Term Loans owing to each Lender from time to time
(the "Register"). The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower,
the Administrative Agent and the Lenders may (and, in the case of
any Term Loan or other obligation hereunder not evidenced by a
Term Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Term Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement
and the other Fundamental Documents, notwithstanding any notice to the contrary.
Any assignment of any Term Loan or other
obligation hereunder not evidenced by a Term Note shall be
effective only upon appropriate entries with respect thereto
being made in the Register. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee, any Term Notes
subject to such assignment (if required hereunder) and the
processing and recordation fee, the Administrative Agent (subject
to the right, if any, of the Borrower to require its consent
thereto) shall, if such Assignment and Acceptance has been
completed and is substantially in the form of Exhibit C hereto,
(i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give
prompt written notice thereof to the Borrower. If a portion of
the Term Loans owing to any Lender has been assigned by an
assigning Lender, then such Lender shall deliver its Term Note,
if any, at the same time it delivers the applicable Assignment
and Acceptance to the Administrative Agent. Within five Business
Days after receipt of the notice (or such shorter period as is
agreed to by the Borrower), the Borrower, at its own expense,
shall execute and deliver to the applicable Lenders at their
request, a new Term Note to the order of such assignee in an
amount equal to the Term Loans assigned to it pursuant to such
Assignment and Acceptance, and a new Term Note to the order of
the assigning Lender in an amount equal to the Term Loans
retained by it hereunder. Any new Term Notes shall be in an
aggregate principal amount equal to the aggregate principal
amount of the Term Loans of the respective assigning Lenders.
All new Term Notes shall be dated the date hereof and shall
otherwise be in substantially the forms of Exhibit A hereto.
(g) Each of the Lenders may without the consent of the
Borrower or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights
and obligations under this Agreement (including, without
limitation, all or a portion of the Term Loans owing to it and
the Term Note or Term Notes held by it); provided, however, that
(i) any such Lender's obligations under this Agreement shall
remain unchanged, (ii) such participant shall not be granted any
voting rights under this Agreement, except with respect to
matters requiring the consent of each of the Lenders hereunder,
(iii) any such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations,
(iv) the participating banks or other entities shall be entitled
to the cost protection provisions contained in Sections 2.14,
2.15, 2.17 and 2.21(e) hereof but a participant shall not be
entitled to receive pursuant to such provisions an amount larger
than its share of the amount to which the Lender granting such
participation would have been entitled to receive, and (v) the
Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement.
(h) The Lenders may, in connection with any assignment
or participation or proposed assignment or participation pursuant
to this Section 9.3, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower furnished to the Administrative Agent by or on behalf of
the Borrower; provided that prior to any such disclosure, each
such assignee or participant or proposed assignee or participant
shall agree, by executing a confidentiality letter in form and
substance equivalent to the confidentiality provisions of Section
9.15 to preserve the confidentiality of any confidential
information relating to the Borrower received from such Lender.
(i) Each Lender hereby represents that it is a
commercial lender or financial institution which makes loans in
the ordinary course of its business and that it will make the
Term Loans hereunder for its own account in the ordinary course
of such business; provided, however, that, subject to preceding
clauses (a) through (h), the disposition of the Term Notes or
other evidence of Indebtedness held by that Lender shall at all
times be within its exclusive control.
(j) The Borrower consents that any Lender may at any
time and from time to time pledge, or otherwise grant a security
interest in, any Term Loan or any Term Note evidencing such Term
Loan (or any part thereof), including any such pledge or grant to
any Federal Reserve Bank, and this Section shall not apply to any
such pledge or grant; provided that no such pledge or grant shall
release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
(k) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender") may grant to a special
purpose funding vehicle (an "SPC") of such Granting Lender,
identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Term Loan that
such Granting Lender would otherwise be obligated to make to the
Borrower pursuant to Section 2.1 or 2.6, provided that (i)
nothing herein shall constitute a commitment to make any Term
Loan by any SPC and (ii) if an SPC elects not to exercise such
option or otherwise fails to provide all or any part of such Term
Loan or fund any other obligation required to be funded by it
hereunder, the Granting Lender shall be obligated to make such
Term Loan or fund such obligation pursuant to the terms hereof.
The making of a Term Loan by an SPC hereunder shall satisfy the
obligation of the Granting Lenders to make Term Loans to the same
extent, and as if, such Loan were made by the Granting Lender.
Each party hereto hereby agrees that no SPC shall be liable for
any payment under this Agreement for which a Lender would
otherwise be liable, for so long as, and to the extent, the
related Granting Lender makes such payment. In furtherance of the foregoing,
each party hereto hereby agrees that, prior to the
date that is one year and one day after the payment in full of
all outstanding senior indebtedness of any SPC, it will not
institute against or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings
under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in
this Section 9.3 any SPC may (i) with notice to, but without the
prior written consent of, the Borrower or the Administrative
Agent and without paying any processing fee therefor, assign as
collateral security all or a portion of its interests in any Term
Loan to its Granting Lender or to any financial institutions
providing liquidity and/or credit facilities to or for the
account of such SPC to fund the Term Loans made by SPC or to
support the securities (if any) issued by such SPC to fund such
Term Loans and (ii) disclose on a confidential basis any non-
public information relating to its Term Loans to any rating
agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.
Notwithstanding any other provision of this Agreement, the
Borrower agrees that it will not use the proceeds of any Term
Loan made by a Lender which is funded through an SPC to be used
to purchase or carry Margin Stock if such Lender (i) notifies the
Borrower that its Term Loan will be funded through an SPC and
(ii) requests the Borrower prior to the Closing Date not to use
the proceeds of its Term Loan for such purpose.
SECTION 9.4. Expenses; Documentary Taxes.
Whether or not the transactions hereby contemplated
shall be consummated, the Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Administrative Agent in
connection with the syndication, preparation, execution, delivery
and administration of this Agreement, the Term Notes and the
making of the Term Loans, including but not limited to any
internally allocated audit costs, the reasonable fees and
disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the
Administrative Agent, as well as all reasonable out-of-pocket
expenses incurred by the Lenders in connection with any
restructuring or workout of this Agreement or the Term Notes or
in connection with the enforcement or protection of the rights of
the Lenders in connection with this Agreement or the Term Notes
or any other Fundamental Document, and with respect to any action
which may be instituted by any Person against any Lender in
respect of the foregoing, or as a result of any transaction,
action or nonaction arising from the foregoing, including but not
limited to the fees and disbursements of any counsel for the
Lenders. Such payments shall be made on the date of execution of
this Agreement and thereafter on demand. The Borrower agrees
that it shall indemnify the Administrative Agent and the Lenders
from, and hold them harmless against, any documentary taxes,
assessments or charges made by any Governmental Authority by
reason of the execution and delivery of this Agreement or the Term Notes or any
other Fundamental Document. The obligations of
the Borrower under this Section shall survive the termination of
this Agreement and/or the payment of the Term Loans.
SECTION 9.5. Indemnity.
Further, by the execution hereof, the Borrower agrees
to indemnify and hold harmless the Administrative Agent and the
Lenders and their respective directors, officers, employees and
agents (each, an "Indemnified Party") from and against any and
all expenses (including reasonable fees and disbursements of
counsel), losses, claims, damages and liabilities arising out of
any claim, litigation, investigation or proceeding (regardless of
whether any such Indemnified Party is a party thereto) in any way
relating to the transactions contemplated hereby, but excluding
therefrom all expenses, losses, claims, damages, and liabilities
arising out of or resulting from the gross negligence or willful
misconduct of the Indemnified Party seeking indemnification,
provided, however, that the Borrower shall not be liable for the
fees and expenses of more than one separate firm for all such
Indemnified Parties in connection with any one such action or any
separate but substantially similar or related actions in the same
jurisdiction, nor shall the Borrower be liable for any settlement
of any proceeding effected without the Borrower's written
consent, and provided further, however, that this Section 9.5
shall not be construed to expand the scope of the Borrower's
reimbursement obligations specified in Section 9.4. The
obligations of the Borrower under this Section 9.5 shall survive
the termination of this Agreement and/or payment of the Term
Loans.
SECTION 9.6. CHOICE OF LAW.
THIS AGREEMENT AND THE TERM NOTES HAVE BEEN EXECUTED
AND DELIVERED IN THE STATE OF NEW YORK AND SHALL IN ALL RESPECTS
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF
SUCH STATE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
WHOLLY WITHIN SUCH STATE AND, IN THE CASE OF PROVISIONS RELATING
TO INTEREST RATES, ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
SECTION 9.7. No Waiver.
No failure on the part of the Administrative Agent or
any Lender to exercise, and no delay in exercising, any right,
power or remedy hereunder or under the Term Notes shall operate
as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or
remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
SECTION 9.8. Extension of Maturity.
Except as otherwise specifically provided in Article 8
hereof, should any payment of principal of or interest on the
Term Notes or any other amount due hereunder become due and
payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day and, in the
case of principal, interest shall be payable thereon at the rate
herein specified during such extension.
SECTION 9.9. Amendments, etc.
No modification, amendment or waiver of any provision
of this Agreement, and no consent to any departure by the
Borrower herefrom or therefrom, shall in any event be effective
unless the same shall be in writing and signed or consented to in
writing by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the
purpose for which given; provided, however, that no such
modification or amendment shall without the written consent of
each Lender affected thereby (x) alter the stated maturity or
principal amount of any installment of any Term Loan, or decrease
the rate of interest payable thereon or decrease any fees payable
hereunder or extend the date on which any interest is due, or (y)
waive a default under Section 7(b) hereof with respect to a
scheduled principal installment of any Term Loan; and provided,
further that no such modification or amendment shall without the
written consent of all of the Lenders (i) amend or modify any
provision of this Agreement which provides for the unanimous
consent or approval of the Lenders, or (ii) amend this Section
9.9 or the definition of Required Lenders. No such amendment or
modification may adversely affect the rights and obligations of
the Administrative Agent hereunder without its prior written
consent. No notice to or demand on the Borrower shall entitle
the Borrower to any other or further notice or demand in the
same, similar or other circumstances. Each holder of a Term Note
shall be bound by any amendment, modification, waiver or consent
authorized as provided herein, whether or not a Term Note shall
have been marked to indicate such amendment, modification, waiver
or consent and any consent by any holder of a Term Note shall
bind any Person subsequently acquiring a Term Note, whether or
not a Term Note is so marked.
SECTION 9.10. Severability.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 9.11. SERVICE OF PROCESS; WAIVER OF JURY
TRIAL.
(a) THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE STATE COURTS OF THE STATE OF NEW YORK LOCATED
IN NEW YORK COUNTY AND TO THE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, FOR THE
PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF
OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF BROUGHT
BY THE ADMINISTRATIVE AGENT OR A LENDER. THE BORROWER TO THE
EXTENT PERMITTED BY APPLICABLE LAW (A) HEREBY WAIVES, AND AGREES
NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURTS, ANY
CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF
THE ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE
FROM ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING
IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR THE
SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT,
AND (B) HEREBY WAIVES THE RIGHT TO ASSERT IN ANY SUCH ACTION,
SUIT OR PROCEEDING ANY OFFSETS OR COUNTERCLAIMS EXCEPT
COUNTERCLAIMS THAT ARE COMPULSORY OR OTHERWISE ARISE FROM THE
SAME SUBJECT MATTER. THE BORROWER HEREBY CONSENTS TO SERVICE OF
PROCESS BY MAIL AT ITS ADDRESS TO WHICH NOTICES ARE TO BE GIVEN
PURSUANT TO SECTION 9.1 HEREOF. THE BORROWER AGREES THAT ITS
SUBMISSION TO JURISDICTION AND CONSENT TO SERVICE OF PROCESS BY
MAIL IS MADE FOR THE EXPRESS BENEFIT OF THE ADMINISTRATIVE AGENT
AND THE LENDERS. FINAL JUDGMENT AGAINST THE BORROWER IN ANY SUCH
ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN ANY OTHER JURISDICTION (A) BY SUIT, ACTION OR
PROCEEDING ON THE JUDGMENT, A CERTIFIED OR TRUE COPY OF WHICH
SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND THE AMOUNT OF
INDEBTEDNESS OR LIABILITY OF THE SUBMITTING PARTY THEREIN
DESCRIBED OR (B) IN ANY OTHER MANNER PROVIDED BY, OR PURSUANT TO,
THE LAWS OF SUCH OTHER JURISDICTION, PROVIDED, HOWEVER, THAT THE
ADMINISTRATIVE AGENT OR A LENDER MAY AT IS OPTION BRING SUIT, OR
INSTITUTE OTHER JUDICIAL PROCEEDINGS AGAINST THE BORROWER OR ANY
OF ITS ASSETS IN ANY XXXXX XX XXXXXXX XXXXX XX XXX XXXXXX XXXXXX
OR OF ANY COUNTRY OR PLACE WHERE THE BORROWER OR SUCH ASSETS MAY
BE FOUND.
(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES, AND
COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM
IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION, OR CAUSE OF
ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT
MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH PARTY
HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT THE PROVISIONS
OF THIS SECTION 9.11(b) CONSTITUTE A MATERIAL INDUCEMENT UPON
WHICH THE OTHER PARTIES HAVE RELIED, ARE RELYING AND WILL RELY IN
ENTERING INTO THIS AGREEMENT. THE PARTIES HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 9.11(b) WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF SUCH OTHER PARTY TO
THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.
SECTION 9.12. Headings.
Section headings used herein are for convenience only
and are not to affect the construction of or be taken into
consideration in interpreting this Agreement.
SECTION 9.13. Execution in Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, but all
of which taken together shall constitute one and the same
instrument.
SECTION 9.14. Entire Agreement.
This Agreement represents the entire agreement of the
parties with regard to the subject matter hereof and the terms of
any letters and other documentation entered into among the
Borrower, the Administrative Agent or any Lender (other than the
provisions of the letter agreement dated May 4, 1998, among the
Borrower, Chase and Chase Securities Inc., relating to fees and
expenses and syndication issues) prior to the execution of this
Agreement which relate to Term Loans to be made hereunder shall
be replaced by the terms of this Agreement.
SECTION 9.15. Confidentiality.
Each of the Administrative Agent and the Lenders agrees
to keep confidential all non-public information provided to it by
the Borrower and its Subsidiaries pursuant to this Agreement that
is designated by the Borrower as confidential; provided that
nothing herein shall prevent the Administrative Agent or any
Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any affiliate of any
Lender, (b) to any participant or assignee (each, a "Transferee")
of such Lender or prospective Transferee which agrees to comply
with the provisions of this Section, (c) any of its employees,
directors, agents, attorneys, accountants and other professional
advisors, (d) upon the request or demand of any governmental or
regulatory authority having jurisdiction over it, (e) in response
to any order of any court or other governmental authority or as
may otherwise be required pursuant to any requirement of Law, (f)
if requested or required to do so in connection with any
litigation or similar proceeding, (g) which has been publicly
disclosed other than in breach of this Section 9.15, (h) to the
National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that
requires access to information about a Lender's investment
portfolio in connection with ratings issued with respect to such
Lender or (i) in connection with the exercise of any remedy
hereunder or under any other Fundamental Document.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and the year first
above written.
CENDANT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Title: Vice Chairman and Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Administrative Agent and Lender
By: /s/ Xxxxxx X. Xxxxxx
Title: Managing Director
BANK OF AMERICA NT&SA,
as Syndication Agent and Lender
By: /s/ Xxxxx X. Xxxxxxxxx
Title: Managing Director
BARCLAYS BANK PLC, as Co-
Documentation Agent and Lender
By: /s/ Xxxx Xxxxxx
Title: Director
THE BANK OF NOVA SCOTIA,
as Co-Documentation Agent and as Lender
By: /s/ Xxxxx X. Xxxxx
Title: Senior Relationship Manager
CREDIT LYONNAIS NEW YORK BRANCH,
as Co-Documentation Agent and as Lender
By: /s/ Xxxxxxxx Xxxxx
Title: First Vice President-Manager
NATIONSBANK, N.A.,
as Co-Documentation Agent and as Lender
By: /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
as Managing Agent and as Lender
By: /s/ Xxxxxxxxx Xxxxxxx
Title: Executive Director
FIRST UNION NATIONAL BANK,
as Managing Agent and as Lender
By: /s/ Xxxx X. Xxxxx
Title: Senior Vice President
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY,
as Managing Agent and as Lender
By: /s/ Xxxx X. Xxxxxx
Title: Senior Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
as Co-Agent and as Lender
By: /s/ Xxxxxxx Xxxxxxxx
Title: Attorney-in-fact
BANQUE PARIBAS, NEW YORK BRANCH,
as Co-Agent and as Lender
By: /s/ Xxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxx X. Xx Xxxxxxx, III
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
as Co-Agent and as Lender
By: /s/ Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxx
Title: Director
FLEET NATIONAL BANK,
as Co-Agent and as Lender
By: /s/ Xxxxxxx X. Xxxxxx
Title: Vice President
THE FUJI BANK, LIMITED NEW YORK BRANCH,
as Co-Agent and as Lender
By: /s/ Xxxxxxx Xxxxxxx
Title: Vice President and Manager
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH,
as Co-Agent and as Lender
By: /s/ Xxxxxxxxx Xxxxx
Title: Joint General Manager
BANQUE NATIONALE DE PARIS, NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
By: /s/ Xxxxxxx X. Xxxx
Title: Senior Vice President
BANK BRUSSELS XXXXXXX, NEW YORK BRANCH
By: /s/ Xxxx Xxxxxx
Title: Vice President and Manager
By: /s/ Xxxxxxxx X. X. Vangaever
Title: Senior Vice President Credit
MELLON BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
Title: First Vice President
COMERICA BANK
By: /s/ Xxxxxxxx X. Xxxxxxxx
Title: Account Officer
ROYAL BANK OF CANADA
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Senior Manager
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxxxxxxxxxx
Title: Vice President
EXECUTION COPY
$3,250,000,000
TERM LOAN AGREEMENT
Dated as of May 29, 1998
among
CENDANT CORPORATION,
as Borrower
THE LENDERS REFERRED TO HEREIN,
BANK OF AMERICA NT&SA, as Syndication Agent
BARCLAYS BANK PLC
THE BANK OF NOVA SCOTIA
CREDIT LYONNAIS NEW YORK BRANCH
NATIONSBANK, N.A.,
as Co-Documentation Agents
CIBC INC.
FIRST UNION NATIONAL BANK
THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW YORK BRANCH
as Managing Agents
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
CREDIT SUISSE FIRST BOSTON
FLEET NATIONAL BANK
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH
THE FUJI BANK LIMITED, NEW YORK BRANCH
BANQUE PARIBAS,
as Co-Agents
and
THE CHASE MANHATTAN BANK, as Administrative Agent
TABLE OF CONTENTS
Page
------
1. DEFINITIONS................................................................................................. 1
2. THE TERM LOANS.............................................................................................. 15
SECTION 2.1. Commitments.............................................................................. 15
SECTION 2.2. Term Loans............................................................................... 15
SECTION 2.3. Use of Proceeds.......................................................................... 16
SECTION 2.4. Reserved................................................................................. 17
SECTION 2.5. Borrowing Procedure...................................................................... 17
SECTION 2.6. Refinancings............................................................................. 17
SECTION 2.7. Fees..................................................................................... 18
SECTION 2.8. Repayment of Term Loans; Evidence of
Debt....................................................................... 18
SECTION 2.9. Interest on Term Loans................................................................... 19
SECTION 2.10. Interest on Overdue Amounts............................................................. 19
SECTION 2.11. Alternate Rate of Interest.............................................................. 20
SECTION 2.12. Reserved................................................................................ 20
SECTION 2.13. Prepayment of Term Loans................................................................ 20
SECTION 2.14. Eurodollar Reserve Costs................................................................ 21
SECTION 2.15. Reserve Requirements; Change in
Circumstances.............................................................. 21
SECTION 2.16. Change in Legality...................................................................... 24
SECTION 2.17. Reimbursement of Lenders................................................................ 24
SECTION 2.18. Pro Rata Treatment...................................................................... 26
SECTION 2.19. Right of Setoff......................................................................... 26
SECTION 2.20. Manner of Payments...................................................................... 00
XXXXXXX 0.00. Xxxxxx Xxxxxx Withholding............................................................... 27
SECTION 2.22. Certain Pricing Adjustments............................................................. 28
3. REPRESENTATIONS AND WARRANTIES OF BORROWER.................................................................. 29
SECTION 3.1. Corporate Existence and Power............................................................ 29
SECTION 3.2. Corporate Authority, No Violation and
Compliance with Law........................................................ 30
SECTION 3.3. Governmental and Other Approval and
Consents................................................................... 30
SECTION 3.4. Financial Statements of Borrower......................................................... 30
SECTION 3.5. No Material Adverse Change............................................................... 31
SECTION 3.6. Subsidiaries............................................................................. 31
SECTION 3.7. Copyrights, Patents and Other Rights..................................................... 31
SECTION 3.8. Title to Properties...................................................................... 31
SECTION 3.9. Litigation............................................................................... 31
SECTION 3.10. Federal Reserve Regulations............................................................. 32
SECTION 3.11. Investment Company Act.................................................................. 32
SECTION 3.12. Enforceability.......................................................................... 32
SECTION 3.13. Taxes................................................................................... 32
SECTION 3.14. Compliance with ERISA................................................................... 32
SECTION 3.15. Disclosure.............................................................................. 33
SECTION 3.16. Environmental Liabilities............................................................... 33
4. CONDITIONS OF LENDING....................................................................................... 33
SECTION 4.1. Conditions Precedent to Term Loans....................................................... 33
(a) Loan Documents........................................................................... 34
(b) Corporate Documents for the Borrower..................................................... 34
(c) Financial Statements..................................................................... 34
(d) Opinions of Counsel...................................................................... 34
(e) No Material Adverse Change............................................................... 34
(f) Payment of Fees.......................................................................... 35
(g) Litigation............................................................................... 35
(h) Officer's Certificate.................................................................... 35
(j) Other Documents.......................................................................... 35
(k) Notice................................................................................... 35
(l) Representations and Warranties........................................................... 35
(m) No Event of Default...................................................................... 35
5. AFFIRMATIVE COVENANTS....................................................................................... 36
SECTION 5.1. Financial Statements, Reports, etc....................................................... 36
SECTION 5.2. Corporate Existence; Compliance with
Statutes................................................................... 38
SECTION 5.3. Insurance................................................................................ 38
SECTION 5.4. Taxes and Charges........................................................................ 39
SECTION 5.5. ERISA Compliance and Reports............................................................. 39
SECTION 5.6. Maintenance of and Access to Books and
Records; Examinations...................................................... 40
SECTION 5.7. Maintenance of Properties................................................................ 40
SECTION 5.8. Changes in Character of Business......................................................... 40
SECTION 5.9. CFHC Guarantee........................................................................... 40
6. NEGATIVE COVENANTS.......................................................................................... 41
SECTION 6.1. Limitation on Indebtedness............................................................... 41
SECTION 6.2. INTENTIONALLY OMITTED.................................................................... 42
SECTION 6.3. Hotel Subsidiaries....................................................................... 42
SECTION 6.4. Consolidation, Merger, Sale of Assets.................................................... 42
SECTION 6.5. Limitations on Liens..................................................................... 43
SECTION 6.6. Sale and Leaseback....................................................................... 44
SECTION 6.7. Leverage................................................................................. 44
SECTION 6.8. Interest Coverage Ratio.................................................................. 44
SECTION 6.9. Accounting Practices..................................................................... 44
7. EVENTS OF DEFAULT........................................................................................... 45
8. THE ADMINISTRATIVE AGENT.................................................................................... 47
SECTION 8.1. Administration by Administrative Agent................................................... 47
SECTION 8.2. Advances and Payments.................................................................... 48
SECTION 8.3. Sharing of Setoffs and Cash Collateral................................................... 49
SECTION 8.4. Notice to the Lenders.................................................................... 49
SECTION 8.5. Liability of Administrative Agent........................................................ 49
SECTION 8.6. Reimbursement and Indemnification........................................................ 50
SECTION 8.7. Rights of Administrative Agent........................................................... 51
SECTION 8.8. Independent Investigation by Lenders..................................................... 51
SECTION 8.9. Notice of Transfer....................................................................... 51
SECTION 8.10. Successor Administrative Agent.......................................................... 51
9. MISCELLANEOUS............................................................................................... 52
SECTION 9.1. Notices.................................................................................. 52
SECTION 9.2. Survival of Agreement, Representations
and Warranties, etc........................................................ 52
SECTION 9.3. Successors and Assigns; Syndications;
Term Loan Sales; Participations............................................ 53
SECTION 9.4. Expenses; Documentary Taxes.............................................................. 57
SECTION 9.5. Indemnity................................................................................ 58
SECTION 9.6. CHOICE OF LAW............................................................................ 58
SECTION 9.7. No Waiver................................................................................ 58
SECTION 9.8. Extension of Maturity.................................................................... 59
SECTION 9.9. Amendments, etc.......................................................................... 59
SECTION 9.10. Severability............................................................................ 59
SECTION 9.11. SERVICE OF PROCESS; WAIVER OF JURY
TRIAL...................................................................... 60
SECTION 9.12. Headings................................................................................ 61
SECTION 9.13. Execution in Counterparts............................................................... 61
SECTION 9.14. Entire Agreement........................................................................ 61
SECTION 9.15. Confidentiality......................................................................... 61
-i-
SCHEDULES
2.1 Commitments
3.6 Material Subsidiaries
3.9 Litigation
6.1 Existing Indebtedness
6.5 Existing Liens
EXHIBITS
A Form of Term Note
B-1 Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx
B-2 Opinion of General Counsel
C Form of Assignment and Acceptance
D Form of Compliance Certificate
E Form of CFHC Guarantee
F Form of Borrowing Request
EXHIBIT A
FORM OF TERM NOTE
$____________ New York, New York
as of May 29, 1998
FOR VALUE RECEIVED, CENDANT CORPORATION, a Delaware corporation (the
"Obligor"), DOES HEREBY PROMISE TO PAY to the order of [insert name of Lender]
(the "Lender") at the office of The Chase Manhattan Bank at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, in lawful money of the United States of America in
immediately available funds, the principal amount of DOLLARS ($__________), or
the aggregate unpaid principal amount of all Term Loans (as defined in the Term
Loan Agreement referred to below) made by the Lender to the Obligor pursuant to
the Term Loan Agreement referred to below, whichever is less, on such date or
dates as is required by said Term Loan Agreement, and to pay interest on the
unpaid principal amount from time to time outstanding hereunder, in like money,
at such office, and at such times and in such amounts as set forth in Section
2.9 of said Term Loan Agreement.
The Obligor and any and all sureties, guarantors and endorsers of this Note
and all other parties now or hereafter liable hereon severally waive applicable
grace periods, demand, presentment for payment, protest, notice of any kind
(including, but not limited to, notice of dishonor, notice of protest, notice of
intention to accelerate or notice of acceleration) and diligence in collecting
and bringing suit against any party hereto and agree to the extent permitted by
applicable law (i) to all extensions and partial payments, with or without
notice, before or after maturity, (ii) to any substitution, exchange or release
of any security now or hereafter given for this Note, (iii) to the release of
any party primarily or secondarily liable hereon, and (iv) that it will not be
necessary for any holder of this Note, in order to enforce payment of this Note,
to first institute or exhaust such holder's remedies against the Obligor or any
other party liable herefor or against any security for this Note. The
nonexercise by the holder of this Note of any of its rights hereunder in any
particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
This Note is one of the Term Notes referred to in Term Loan Agreement dated
as of May 29, 1998 (as the same may be amended, supplemented or otherwise
modified, renewed or replaced from time to time, the "Term Loan Agreement"),
among the Obligor, the lenders referred to therein and The Chase Manhattan Bank,
as Administrative Agent.
This Note is entitled to the benefits of the Term Loan Agreement which,
among other things, contains provisions for optional and mandatory prepayment
and for acceleration of the maturity hereof upon the occurrence of certain
events, all as provided in the Term Loan Agreement.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS
OF THE STATE OF NEW YORK.
CENDANT CORPORATION
By
Name:
Title:
[LAST PAGE OF NOTE]
Unpaid Name of
Principal Person
Amount Payments Balance Making
Date and Type of Loan Principal Interest of Note Notation
------------- ---------------- --------- -------- ---------- --------
Exhibit B-1
[Letterhead of Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP]
May 29, 1998
The Chase Manhattan Bank, a New York
banking corporation, as
Administrative Agent
for the Lenders pursuant to
the Term Loan Agreement referred to
below and the Lenders referred
to therein
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Term Loan Agreement, dated as of May 29, 1998
(the "Credit Agreement"), among Cendant
Corporation (the "Borrower"), the financial
institutions referred to therein (the
"Lenders"), the other agents referred to
therein and The Chase Manhattan Bank, a New
York banking corporation, as administrative
agent for such Lenders (in such capacity, the
"Agent")
Ladies and Gentlemen:
We have acted as special counsel to the Borrower, a
Delaware corporation, in connection with the preparation,
execution and delivery of, and the initial borrowing under, the
Term Loan Agreement, and certain other agreements, instruments
and documents related to the Term Loan Agreement. This opinion
is being delivered pursuant to Section 4.1(d) of the Term Loan
Agreement. Capitalized terms used herein and not otherwise
defined herein shall have the same meanings herein as ascribed
thereto in the Term Loan Agreement.
In our examination, we have assumed the genuineness of
all signatures including endorsements, the legal capacity of
natural persons, the authenticity of all documents submitted to
us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and
the authenticity of the originals of such copies. As to any
facts material to this opinion which we did not independently
establish or verify, we have relied upon statements and
representations of the Borrower and its officers and other representatives and
of public officials, including the facts set
forth in the Borrower's Certificate described below.
In rendering opinions set forth herein, we have
examined and relied on originals or copies of the following:
(a) the Term Loan Agreement;
(b) the Term Notes;
(c) the certificate of the Borrower dated the date
hereof, a copy of which is attached as Exhibit A hereto (the
"Borrower's Certificate");
(d) certified copies of the Certificate of
Incorporation and By-Laws of the Borrower;
(e) a certified copy of certain resolutions of the
Board of Directors of the Borrower adopted on __________,
1998;
(f) a certificate from public officials in the state
of incorporation of the Borrower as to the good standing of
the Borrower in such jurisdiction; and
(g) such other documents as we have deemed necessary
or appropriate as a basis for the opinions set forth below.
The Term Loan Agreement, and the Term Notes shall
hereinafter be referred to collectively as the "Transaction
Documents."
Members of our firm are admitted to the bar of the
State of New York. We express no opinion as to the laws of any
jurisdiction other than (i) the laws of the State of New York,
(ii) the General Corporation Law of Delaware and (iii) the
federal laws of the United States of America to the extent
specifically referred to herein.
Based upon the foregoing and subject to the
limitations, qualifications, exceptions and assumptions set forth
herein, we are of the opinion that:
1. The Borrower has been duly incorporated and is
validly existing and in good standing under the laws of the State
of Delaware. Relying solely upon a certificate of good standing
of the Borrower, the Borrower is qualified to do business and is
in good standing in the State of Delaware.
2. The Borrower has the corporate power and corporate
authority to execute, deliver and perform all of its obligations
under the each of the Transaction Documents. The execution and
delivery of each of the Transaction Documents and the consummation by the
Borrower of the transactions contemplated
thereby have been duly authorized by all requisite corporate
action on the part of the Borrower. Each of the Transaction
Documents has been duly executed and delivered by the Borrower.
3. Each of the Transaction Documents constitutes the
valid and binding obligation of the Borrower enforceable against
the Borrower in accordance with its terms subject to the
following qualifications:
(i) enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether
enforcement is sought in equity or at law); and
(ii) we express no opinion as to the enforceability
of any rights to contribution or indemnification provided
for in the Transaction Documents which are violative of
public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or
regulation).
4. The execution and delivery by the Borrower of the
Transaction Documents and the performance by the Borrower its
obligations under the Transaction Documents do not (i) conflict
with the Certificate of Incorporation or By-laws of the Borrower,
(ii) constitute a violation of or a default under any Applicable
Contracts (as hereinafter defined) or (iii) cause the creation of
any security interest or lien upon any of the property of the
Borrower pursuant to any Applicable Contracts. We do not express
any opinion, however, as to whether the execution, delivery or
performance by the Borrower of the Transaction Documents will
constitute a violation of or a default under any covenant,
restriction or provision with respect to financial ratios or
tests or any aspect of the financial condition or results of
operations of the Borrower. For purposes of this paragraph 4,
"Applicable Contracts" mean those agreements or instruments set
forth on Schedule III to the Borrower's Certificate and which
have been identified to us as all the agreements and instruments
a violation of which could reasonably be expected to have a
materially adverse effect on the business, operations, assets or
liabilities or condition (financial or otherwise) of the
Borrower.
5. Neither the execution, delivery or performance by
the Borrower of the Transaction Documents nor the compliance by
the Borrower with the terms and provisions thereof will
contravene any provision of any Applicable Laws. For purposes of
this paragraph 5, "Applicable Laws" shall mean the General
Corporation Law of Delaware and those laws, rules and regulations
of the State of New York and of the United States of America
(including, without limitation, Regulations U and X of the Federal Reserve
Board) which, in our experience, are normally
applicable to transactions of the type contemplated by the
Transaction Documents and are not the subject of a specific
opinion herein referring expressly to a particular law or laws.
6. No Governmental Approval (as hereinafter defined),
which has not been obtained or taken and is not in full force and
effect, is required to authorize or is required in connection
with the execution, delivery or performance of any of the
Transaction Documents by the Borrower except those Governmental
Approvals set forth in Schedule I to the Borrower's Certificate.
For the purposes of this paragraph 6, the term "Governmental
Approval" means any consent, approval, license, authorization or
validation of, or filing, recording or registration with, any
state or federal executive, legislative, judicial,
administrative, or regulatory body which, in our experience, are
normally applicable to transactions of the type contemplated by
the Transaction Documents (each a "Governmental Authority")
pursuant to Applicable Laws.
7. Neither the execution, delivery or performance by
the Borrower of its obligations under the Transaction Documents
nor compliance by the Borrower with the terms thereof will
contravene any Applicable Order. For purposes of this paragraph
7, the term "Applicable Orders" means those orders or decrees of
Governmental Authorities identified on Schedule II to the
Borrower's Certificate as being all of the orders and decrees
which are material to the business, operation or financial
condition of the Borrower.
8. The Borrower is not required to be registered as
an "investment company" under the Investment Company Act of 1940,
as amended.
9. The Borrower is not a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as
amended.
In rendering the foregoing opinions, we have assumed,
with your consent, that:
(a) the execution, delivery and performance of any of
the obligations of the Borrower under the Transaction
Documents do not and will not conflict with, contravene,
violate or constitute a default under (i) any lease,
indenture, instrument or other agreement to which the
Borrower is subject (other than the Applicable Contracts as
to which we express our opinion in paragraph 4 herein), (ii)
any rule, law or regulation to which the Borrower is subject
(other than Applicable Laws as to which we express our
opinion in paragraph 5 herein), or (iii) any judicial or
administrative order or decree of any governmental authority (other
than Applicable Orders as to which we express our
opinion in paragraph 7 herein); and
(b) no authorization, consent or other approval of,
notice to or filing with any court, governmental authority
or regulatory body (other than Governmental Approvals as to
which we express our opinion in paragraph 6 herein) is
required to authorize or is required in connection with the
execution, delivery or performance by the Borrower of any of
the Transaction Documents or the transactions contemplated
thereby.
Our opinions are also subject to the following
assumptions and qualifications:
(a) the Term Loan Agreement constitutes the legal,
valid and binding obligation of each party thereto (other
than the Borrower) enforceable against such party (other
than the Borrower) in accordance with its terms;
(b) we express no opinion as to the effect on the
opinions expressed herein of (i) the compliance or
non-compliance of the Lenders or any party (other than the
Borrower to the extent expressly set forth herein) to the
Transaction Documents with any state, federal or other laws
or regulations applicable to them or (ii) the legal or
regulatory status or the nature of the business of the
Lenders; and
(c) in rendering our opinions expressed herein, we
express no opinion as to the applicability or effect of any
fraudulent transfer or similar law on the Transaction
Documents or any transactions contemplated thereby.
This opinion is being furnished only to you and is
solely for your benefit and is not to be used, circulated,
quoted, relied upon or otherwise referred to by any other Person
or for any other purpose without our prior written consent.
Very truly yours,
Exhibit A to
SASM&F Opinion
CENDANT CORPORATION
Borrower's Certificate
The undersigned, duly elected and authorized officer of
Cendant Corporation, a Delaware corporation (the "Borrower"),
does hereby certify to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
("SASM&F"), in connection with the opinion of counsel to be given
by SASM&F (the "SASM&F Opinion") on behalf of the Borrower to The
Chase Manhattan Bank, as administrative agent on behalf of the
Lenders pursuant to Section 4.1(d) of the Term Loan Agreement,
dated as of May 29, 1998, among the Borrower, the Lenders and
agents referred to therein and The Chase Manhattan Bank, as
administrative agent for the Lenders (the "Term Loan Agreement"),
as follows:
1. Terms used in this Borrower's Certificate (this
"Certificate") and not defined herein shall have the same
meanings as in the SASM&F Opinion of even date herewith given to
The Chase Manhattan Bank, as Administrative Agent on behalf of
the Lenders, and to the Lenders.
2. Due inquiry has been made of all persons deemed
necessary or appropriate to verify or confirm the statements
contained herein.
3. SASM&F may rely upon the representations and
warranties that the Borrower has made to the Lenders in Article 3
of the Term Loan Agreement. The undersigned has made a careful
review of the representations and warranties of the Borrower
contained in the Term Loan Agreement and hereby confirms, to the
best of his or her knowledge and belief, that such
representations and warranties are true, correct and complete on
and as of the date of this Certificate.
4. There is no action, proceeding or investigation,
pending or threatened before any federal or state court or
governmental authority located in the United States of America,
against the Borrower which purports to place or may place in
question the validity or enforceability of the Term Loan
Agreement or the obligations and agreements contemplated
thereunder.
5. Except as set forth on Schedule I hereto, no
Governmental Approval is required to authorize or is required in
connection with the execution, delivery or performance of the
Term Loan Agreement by the Borrower.
6. Set forth on Schedule II hereto is a true and
complete list of all Applicable Orders of Governmental Authorities, and neither
the execution, delivery or performance
of the Term Loan Agreement nor compliance by the Borrower with
the terms thereof will contravene any such Applicable Order.
7. Set forth on Schedule III hereto is a true and
complete list of all Applicable Contracts, and the execution,
delivery or performance of any of the Term Loan Agreement by the
Borrower will not conflict with, violate or create or require the
creation of a security interest pursuant to any such Applicable
Contracts.
8. Less than 20 percent of the assets of the Borrower
on a consolidated basis and on an unconsolidated basis consists
of margin stock (as such term is defined in Regulation U of the
Board of Governors of the Federal Reserve System).
9. The Borrower (a) is primarily engaged, directly or
through a wholly-owned subsidiary or subsidiaries, in a business
or businesses other than that of investing, reinvesting, owning,
holding or trading in securities, (b) is not engaged and does not
propose to engage in the business of issuing face-amount
certificates of the installment type, and has not been engaged in
such business and does not have any such certificate outstanding,
and (c) is not engaged and does not propose to engage in the
business of investing, reinvesting, owning, holding or trading in
securities, and does not own or propose to acquire investment
securities (as defined in Section 3(a) of the Investment Company
Act of 1940, as amended) having a value exceeding 40 percent of
the value of such party's total assets (exclusive of government
securities and cash items) on an unconsolidated basis.
10. The Borrower does not own or operate facilities
used for the generation, transmission or distribution of electric
energy for sale ("electric utility facilities").
11. The Borrower does not own or operate facilities
used for the distribution at retail of natural or manufactured
gas for heat, light or power ("gas utility facilities").
12. The Borrower, directly or indirectly, or through
one or more intermediary companies, does not own, control or hold
with power to vote (a) 10% or more of the outstanding securities,
such as notes, drafts, stock, treasury stock, bonds, debentures,
certificates of interest or participation in any profit-sharing
agreements or in oil, gas, other mineral royalties or leases,
collateral-trust certificates, preorganization certificates or
subscriptions, transferable shares, investment contracts, voting-
trust certificates, certificates of deposit for a security,
receiver's or trustee's certificates or instruments commonly
known as a "security" (including certificates of interest or
participation in, temporary or interim certificates for, receipt
for, guaranty of, assumption of liability on or warrants or
rights to subscribe to or purchase any of the foregoing)
presently entitling it to vote in the direction or management of,
or any such instrument issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent
or agents for the owner or holder of such instrument is presently
entitled to vote in the direction or management of, any
corporation, partnership, association, joint-stock company, joint
venture or trust that owns or operates any electric utility
facilities or gas utility facilities or (b) any other interest,
directly or indirectly, or through one or more intermediary
entities, in (i) any corporation, partnership association, joint-
stock company, joint venture or trust that owns or operates any
electric utility facilities or gas utility facilities or (ii) any
of the foregoing types of entities which have received notice of
the type described in Paragraph 9 below.
13. The Borrower has not received notice that the
Securities and Exchange Commission has determined, or may
determine, that the Borrower exercises a controlling influence
over the management or direction of the policies of a gas utility
company or any electric utility company as to make it subject to
the obligations, duties and liabilities imposed upon holding
companies by the Public Utility Holding Company Act of 1935, as
amended.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of the ___ day of May, 1998.
CENDANT CORPORATION
By
Name: Xxxxx X. Xxxxxxx
Title: Senior Executive Vice
President and General
Counsel
Schedule I to
Borrower's Certificate
Government Approvals
None.
Schedule II to
Borrower's Certificate
Applicable Orders of
Governmental Authorities
None.
Exhibit B-2
[Letterhead of Cendant Corporation]
May 29, 1998
The Chase Manhattan Bank, a New York
banking corporation, as Administrative
Agent for the Lenders pursuant to
the Term Loan Agreement referred to
below and the Lenders referred to therein
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Term Loan Agreement, dated as of May 29, 1998
(the "Term Loan Agreement"), among Cendant
Corporation, a Delaware corporation (the
"Borrower"), the financial institutions
referred to therein (the "Lenders"), the
other agents referred to therein and The
Chase Manhattan Bank, a New York banking
corporation, as administrative agent for such
Lenders (in such capacity, the "Agent")
Ladies and Gentlemen:
I am the general counsel of the Borrower and have acted
as such in connection with the preparation, execution and
delivery of, and the initial borrowing under, the Term Loan
Agreement, and certain other agreements, instruments and
documents related to the Term Loan Agreement. This opinion is
being delivered pursuant to Section 4.1(d) of the Term Loan
Agreement. Capitalized terms used herein and not otherwise
defined herein shall have the same meanings herein as ascribed
thereto in the Term Loan Agreement.
In my examination, I have assumed the authenticity of
all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified
or photostatic copies, and the authenticity of the originals of
such copies. As to any facts material to this opinion which I
did not independently establish or verify, I have relied upon
statements and representations of the Borrower and its other
officers and other representatives.
In rendering the opinions set forth herein, I have
examined and relied on originals or copies of the following:
(a) the Term Loan Agreement;
(b) the Term Notes;
(c) [Insert appropriate agreements];
(d) such other documents as I have deemed necessary or
appropriate as a basis for the opinions set forth below.
The Credit Agreement and the Term Notes shall
hereinafter be referred to collectively as the "Transaction
Documents."
I am admitted to the bar of the State of New York and
express no opinion as to the laws of any other jurisdiction.
Based upon the foregoing and subject to the
limitations, qualifications, exceptions and assumptions set forth
herein, I am of the opinion that:
1. The execution and delivery by the Borrower of each
of the Transaction Documents and the performance by the Borrower
of its obligations under each of the Transaction Documents, each
in accordance with its terms, (i) do not constitute a violation
of or conflict with, constitute a breach or a default under
______________ or any document executed and delivered by the
Borrower contemporaneously therewith as contemplated thereby,
(ii) constitute a violation of or a default under any agreement
or instrument a violation of which could reasonably be expected
to have a Materially Adverse Effect on the business, operations,
assets or liabilities or condition (financial or otherwise) of
the Borrower or its Subsidiaries or (iii) cause the creation of
any security interest or lien upon any of the property of any of
the Subsidiaries which could reasonably be expected to have a
Materially Adverse Effect.
2. I am not aware of any judgment, order, lawsuit or
other proceeding pending (including but not limited to matters
relating to environmental liability) against the Borrower or to
which any of its properties are subject by or before any state or
federal executive, legislative, judicial, administrative, or
regulatory body or arbitrator which would be likely to have a
Material Adverse Effect or which reasonably could be expected to
materially adversely affect the ability of the Borrower to
fulfill its obligations under the Term Loan Agreement, or any
document executed and delivered by the Borrower contemporaneously
therewith as contemplated thereby or would otherwise materially
impair the interests of the Lenders.
This opinion is being furnished only to you and is
solely for your benefit and is not to be used, circulated,
quoted, relied upon or otherwise referred to by any other Person
or for any other purpose without my prior written consent.
Very truly yours,
Xxxxx X. Xxxxxxx
General Counsel
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is hereby made to the Term Loan Agreement
dated as of May 29, 1998 (such agreement as it may be amended,
supplemented or otherwise modified, renewed or replaced from time
to time, the "Term Loan Agreement"), among Cendant Corporation
(the "Company"), the lenders and agents referred to therein (the
"Lenders") and The Chase Manhattan Bank as Administrative Agent
for the Lenders (in such capacity, the "Administrative Agent").
Terms defined in the Term Loan Agreement are used herein with the
same meanings. This Assignment and Acceptance, between the
Assignor (as set forth on Schedule I hereto and made a part
hereof) and the Assignee (as set forth on Schedule I hereto and
made a part hereof) is dated as of the Effective Date (as set
forth on Schedule I hereto and made a part hereof, the "Effective
Date").
1. The Assignor hereby irrevocably sells and assigns
to the Assignee without recourse to the Assignor, and the
Assignee hereby irrevocably purchases and assumes from the
Assignor without recourse to the Assignor, as of the Effective
Date, the interest(s) set forth on Schedule I hereto (the
"Assigned Interest(s)") in and to all or a portion of the
Assignor's rights and obligations under the Term Loan Agreement
with respect to its Term Loans as are set forth on Schedule I
hereto, in the amount(s) as are set forth on Schedule I hereto,
provided, however, it is expressly understood and agreed that (i)
the Assignor is not assigning to the Assignee and the Assignor
shall retain (A) all of the Assignor's rights under Section 2.15
of the Term Loan Agreement with respect to any cost, reduction or
payment incurred or made prior to the Effective Date, including,
without limitation the rights to indemnification and to
reimbursement for taxes, costs and expenses and (B) any and all
amounts paid to the Assignor prior to the Effective Date and (ii)
both Assignor and Assignee shall be entitled to the benefits of
Sections 9.4 and 9.5 of the Term Loan Agreement.
2. The Assignor (i) makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in, or in
connection with, the Term Loan Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of the Fundamental Documents or any other instrument or
document furnished pursuant thereto, other than that it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse claim;
(ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Company or the performance or observance by the Company of any of
its obligations under the Term Loan Agreement or any Fundamental
Document or any other instrument or document furnished pursuant
thereto; and (iii) attaches any Term Note held by it and, if such
a Term Note exists, requests that the Administrative Agent
exchange such Term Note for a new Term Note payable to the
Assignor (if the Assignor has retained a portion of its Term
Loans) and a new Term Note payable to the Assignee in the
respective amounts which reflect the assignment being made hereby
(and after giving effect to any other assignments which have
become effective on the Effective Date).
3. The Assignee (i) represents and warrants that it
is legally authorized to enter into this Assignment and
Acceptance; (ii) confirms that it has received a copy of the Term
Loan Agreement, together with copies of the most recent financial
statements delivered pursuant to Sections 5.1(a) and 5.1(b)
thereof (or if none of such financial statements shall have then
been delivered, then copies of the financial statements referred
to in Section 3.4 thereof) and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and
Acceptance; (iii) agrees that it will, independently and without
reliance upon the Assignor, the Administrative Agent or any other
Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Term Loan
Agreement; (iv) appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such
powers under the Fundamental Documents as are delegated to the
Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it
will be bound by the provisions of the Term Loan Agreement and
will perform in accordance with its terms all the obligations
which by the terms of the Term Loan Agreement are required to be
performed by it as a Lender; and (vi) if the Assignee is
organized under the laws of a jurisdiction outside the United
States, attaches the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee's
exemption from United States withholding taxes with respect to
all payments to be made to the Assignee under the Term Loan
Agreement, or such other documents as are necessary to indicate
that all such payments are subject to such tax at a rate reduced
by an applicable tax treaty.
4. Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent
pursuant to Section 9.3 of the Term Loan Agreement, effective as
of the Effective Date (which shall not, unless otherwise agreed
to by the Administrative Agent, be earlier than five Business
Days after the date of acceptance and recording by the
Administrative Agent of the executed Assignment and Acceptance).
5. Upon such acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignee
whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by
the Administrative Agent for periods prior to the Effective Date
or with respect to the making of this assignment directly between
themselves.
6. From and after the Effective Date, (i) the
Assignee shall be a party to the Term Loan Agreement and, to the
extent provided in this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and under the other
Fundamental Documents and shall be bound by the provisions
thereof and (ii) the Assignor shall, to the extent provided in
this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Term Loan Agreement.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
New York.
8. This Assignment and Acceptance may be executed in
counterparts, each of which shall be deemed to constitute an
original, but all of which when taken together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective duly
authorized officers specified on Schedule I hereto.
Schedule I to Assignment and Acceptance respecting the Term
Loan Agreement dated as of May 29, 1998 among Cendant
Corporation, the Lenders referred to therein and The Chase
Manhattan Bank, as Administrative Agent.
Legal Name of Assignor:
Legal Name of Assignee:
Effective Date of Assignment:
The outstanding balance of
Term Loans owing to Assignor
(unreduced by any assignments
thereof which have not yet
become effective): $
Amount of the Assignor's Term
Loans Assigned (must be
$10,000,000 or more): $
Accepted:
THE CHASE MANHATTAN BANK, as
Administrative Agent, as Assignor
By By
Name: Name:
Title: Title:
, as Assignee
By
Name:
Title:
Consented To:
CENDANT CORPORATION
By
Name:
Title:
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [Chief Financial Officer or
Vice President responsible for financial administration] of
CENDANT CORPORATION, a Delaware corporation (the "Company");
2. I have reviewed the terms of the Term Loan
Agreement dated as of May 29, 1998, among the Company, the
Lenders and agents referred to therein and The Chase Manhattan
Bank, as Administrative Agent (as such agreement may be amended,
supplemented or otherwise modified, renewed or replaced from time
to time, the "Term Loan Agreement"; capitalized terms used herein
without definition shall have the meanings set forth in the Term
Loan Agreement) the Term Notes and I have made, or have caused to
be made under my supervision, in reasonable detail, a review of
the transactions and condition of the Company and its
Subsidiaries during the accounting period covered by the attached
financial statements;
3. The examinations described in paragraph (2) did
not disclose the existence of any condition or event which
constitutes an Event of Default or Default during, or at the end
of, the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set
forth in paragraph 4 below;
4. In the course of the performance of my duties, I
would normally have knowledge of any condition or event which
would constitute an Event of Default or Default. As of the date
of this Certificate, I have no knowledge of any such condition or
event, except as set forth below:
Describe below (or in a separate attachment to this
Certificate) the exceptions, if any, to paragraphs (3) and (4)
above by listing, in detail, the nature of each condition or
event, the period during which it has existed and the action
which the Company has taken, is taking, or proposes to take, with
respect to each such condition or event:
5. Attached hereto, in reasonable detail, are the
computations and comparisons required to demonstrate compliance
with the provisions of Sections 6.7 and 6.8 of the Term Loan
Agreement.
The foregoing certifications, together with the
computations and comparisons set forth in the attachments hereto
and the financial statements attached to this Certificate in
support hereof, are made and delivered this day of ,
pursuant to Section 5.1(c) of the Term Loan Agreement.
CENDANT CORPORATION
By:_____________________
Name:________________
Title:_______________
Attachments
1. financial statements; and
2. the computations and comparisons (in reasonable
detail) required to demonstrate compliance with the
provisions of Section 6.7 and 6.8 of the Term Loan
Agreement.
EXHIBIT E
FORM OF GUARANTEE
GUARANTEE, dated as of ______ __, 199__, made by CENDANT FINANCE HOLDING
CORPORATION, a Delaware corporation (the "Guarantor"), in favor of THE CHASE
MANHATTAN BANK, as administrative agent (in such capacity, the "Administrative
Agent") for the lenders (the "Lenders") parties to the Term Loan Agreement,
dated as of May 29, 1998 (as amended, supplemented or otherwise modified from
time to time, the "Term Loan Agreement"), among Cendant Corporation (the
"Borrower"), the Lenders, the agents identified therein and the Administrative
Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Term Loan Agreement, the Lenders have agreed to
make term loans ("Term Loans") to the Borrower upon the terms and subject to the
conditions set forth therein;
WHEREAS, the Borrower owns directly or indirectly all of the issued and
outstanding stock of the Guarantor;
WHEREAS, the proceeds of the Term Loans will be used in part to enable the
Borrower to make valuable transfers (as determined as provided herein) to the
Guarantor in connection with the operation of its business;
WHEREAS, the Borrower and the Guarantor are engaged in related businesses,
and the Guarantor will derive substantial direct and indirect benefit from the
making of the Term Loans; and
WHEREAS, the Guarantor is required to execute and deliver this Guarantee to
the Administrative Agent for the ratable benefit of the Lenders pursuant to
paragraph (i) of Section 6.1 of the Term Loan Agreement to the extent required
thereby;
NOW, THEREFORE, in consideration of the premises, the Guarantor hereby
agrees with the Administrative Agent, for the ratable benefit of the Lenders, as
follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined in the Term
Loan Agreement and used herein shall have the meanings given to them in the Term
Loan Agreement.
(b) As used herein, "Obligations" means the collective reference to (i) the
obligation of the Borrower to make due and punctual payment to principal of and
interest on the Term Loans
and all other monetary obligations of the Borrower to the Administrative Agent
or any Lender
(including, without
limitation, interest accruing at the then applicable rate
provided in the Term Loan Agreement after the maturity of the
Term Loans and interest accruing at the then applicable rate
provided in the Term Loan Agreement after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) under the Term Loan Agreement, the
Term Notes or the other Fundamental Documents or with respect to
any Interest Rate Protection Agreements entered into between the
Borrower any Lender or affiliate of a Lender and (iii) _________.
[ADD OTHER GUARANTEED OBLIGATIONS]
(c) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Guarantee shall refer to this
Guarantee as a whole and not to any particular provision of this
Guarantee, and section and paragraph references are to this
Guarantee unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
2. Guarantee (a) Subject to the provisions of paragraph
2(b), the Guarantor hereby unconditionally and irrevocably
guarantees to the Administrative Agent, for the ratable benefit
of the Lenders and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) Anything herein or in any other Fundamental Document to
the contrary notwithstanding, the maximum liability of the
Guarantor hereunder and under the other Fundamental Documents
shall in no event exceed the amount which can be guaranteed by
the Guarantor under applicable federal and state laws relating to
the insolvency of debtors.
(c) The Guarantor further agrees to pay any and all
expenses (including, without limitation, all reasonable fees and
disbursements of counsel) which may be paid or incurred by the
Administrative Agent or any Lender in enforcing any rights with
respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, the
Guarantor under this Guarantee. This Guarantee shall remain in
full force and effect until the Obligations are paid in full,
notwithstanding that from time to time prior thereto the Borrower
may be free from any Obligations.
(d) The Guarantor agrees that the Obligations may at any
time and from time to time exceed the amount of the liability of
the Guarantor hereunder without impairing this Guarantee or affecting the
Rights and remedies of the Administrative Agent or any Lender hereunder.
(e) No payment or payments made by the Borrower, any other
guarantor or any other Person or received or collected by the
Administrative Agent or any Lender from the Borrower any other
guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any
time or from time to time in reduction of or in payment of the
Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Guarantor hereunder which
shall, notwithstanding any such payment or payments (other than
payments made by the Guarantor in respect of the Obligations or
payments received or collected from the Guarantor in respect of
the Obligations), remain liable for the Obligations up to the
maximum liability of such Guarantor hereunder until the
Obligations are paid in full.
3. Right of Set-off. If any Event of Default shall have
occurred and be continuing and any Lender shall have requested
the Administrative Agent to declare the Term Loans immediately
due and payable pursuant to Article 7 of the Term Loan Agreement,
each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by Applicable Law, to set
off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by such Lender and
any other indebtedness at any time owing by such Lender to, or
for the credit or the account of, the Borrower, against any of
and all the obligations now or hereafter existing under this
Guarantee and the Term Loans held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this
Guarantee or such Term Loans and although such Obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower
after any such setoff and application made by such Lender, but
the failure to give such notice shall not affect the validity of
such setoff and application. The rights of each Lender under
this Section 3 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
4. No Subrogation. Notwithstanding any payment or payments
made by the Guarantor hereunder or any set-off or application of
funds of the Guarantor by any Lender, the Guarantor shall not be
entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against the Borrower or any
other guarantor or any collateral security or guarantee or right
of offset held by any Lender for the payment of the Obligations,
nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other
guarantor in respect of payments made by the Guarantor hereunder,
until all amounts owing to the Administrative Agent and the
Lenders by the Borrower on account of the Obligations are paid in
full. If any amount shall be paid to the Guarantor on account of
such subrogation rights at any time when all of the Obligations
shall not have been paid in full, such amount shall be held by the Guarantor in
trust for the Administrative Agent and the
Lenders, segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the
Administrative Agent in the exact form received by such Guarantor
(duly indorsed by the Guarantor to the Administrative Agent, if
required), to be applied against the Obligations, whether matured
or unmatured, in such order as the Administrative Agent may
determine.
5. Amendments, etc. with respect to the Obligations; Waiver
of Rights. The Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against
the Guarantor and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made
by the Administrative Agent or any Lender may be rescinded by
such party and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any
part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the
Administrative Agent or any Lender, and the Term Loan Agreement,
the Term Notes and the other Fundamental Documents and any other
documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in
part, as the Administrative Agent (or the Required Lenders, as
the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time
held by the Administrative Agent or any Lender for the payment of
the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Administrative Agent nor any Lender shall
have any obligation to protect, secure, perfect or insure any
Lien at any time held by it as security for the Obligations or
for this Guarantee or any property subject thereto. When making
any demand hereunder against the Guarantor, the Administrative
Agent or any Lender may, but shall be under no obligation to,
make a similar demand on the Borrower or any other guarantor, and
any failure by the Administrative Agent or any Lender to make any
such demand or to collect any payments from the Borrower or any
such other guarantor or any release of the Borrower or such other
guarantor shall not relieve the Guarantor of its obligations or
liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the
Administrative Agent or any Lender against any of the Guarantors.
For the purposes hereof "demand" shall include the commencement
and continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. The Guarantor
waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of
reliance by the Administrative Agent or any Lender upon this
Guarantee or acceptance of this Guarantee; the Obligations, and
any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee; and all dealings between the
Borrower and the Guarantor, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in
reliance upon this Guarantee. The Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Borrower or the Guarantor with respect
to the Obligations. The Guarantor understands and agrees that
this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the
validity, regularity or enforceability of the Term Loan
Agreement, any Term Note or any Fundamental Document, any of the
Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender,
(b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or
be asserted by the Borrower against the Administrative Agent or
any Lender, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the Borrower or such Guarantor)
which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrower for the Obligations,
or of the Guarantor under this Guarantee, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder
against the Guarantor, the Administrative Agent and any Lender
may, but shall be under no obligation to, pursue such rights and
remedies as it may have against the Borrower or any other Person
or against any collateral security or guarantee for the
Obligations or any right of offset with respect thereto, and any
failure by the Administrative Agent or any Lender to pursue such
other rights or remedies or to collect any payments from the
Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of
offset, or any release of the Borrower or any such other Person
or any such collateral security, guarantee or right of offset,
shall not relieve the Guarantor of any liability hereunder, and
shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the
Administrative Agent and the Lenders against the Guarantor. This
Guarantee shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon each
Guarantor and the successors and assigns thereof, and shall inure
to the benefit of the Administrative Agent and the Lenders, and
their respective successors, indorsees, transferees and assigns,
until all the Obligations and the obligations of the Guarantor
under this Guarantee shall have been satisfied by payment in
full.
7. Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the
Administrative Agent or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or the
Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or the Guarantor or
any substantial part of its property, or otherwise, all as though
such payments had not been made.
8. Payments. The Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-
off or counterclaim in U.S. Dollars at the office of the
Administrative Agent located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
9. Representations and Warranties. The Guarantor hereby
makes the following representations and warranties, all of which
shall survive the execution and delivery of this Guarantee:
(a) CFHC has the corporate power to execute, deliver and
perform its obligations under this Guarantee.
(b) The execution, delivery and performance of this
Guarantee (a) have been duly authorized by all necessary
corporate action on the part of the Guarantor, (b) will not
violate any provision of any Applicable Law (including any laws
related to franchising) applicable to the Guarantor or any of its
Subsidiaries or any of its properties or assets, (c) will not
violate any provision of the Certificate of Incorporation or
By-Laws of the Guarantor or any of its Subsidiaries or any
indenture, any agreement for borrowed money, any bond, note or
other similar instrument or any other material agreement to which
the Guarantor or any of its Subsidiaries is a party or by which
the Guarantor or any of its Subsidiaries or any of their
respective properties or assets are bound, (d) will not be in
conflict with, result in a breach of, or constitute (with due
notice or lapse of time or both) a default under, any material
indenture, agreement, bond, note or instrument and (e) will not
result in the creation or imposition of any Lien upon any
property or assets of the Guarantor any of its Subsidiaries.
(c) No action, consent or approval of, or registration or
filing with, or any other action by, any governmental agency,
bureau, commission or court is required in connection with the
execution, delivery and performance by the Guarantor of this
Guarantee.
(d) This Guarantee constitutes the legal, valid and
enforceable obligation of the Guarantor (subject, as to
enforcement, to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and to general
principles of equity).
10. Authority of Administrative Agent. The Guarantor
acknowledges that the rights and responsibilities of the
Administrative Agent under this Guarantee with respect to any action taken by
the Administrative Agent of any option, right,
request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as between the
Administrative Agent and the Lenders, be governed by the Term
Loan Agreement and by such other agreements with respect thereto
as may exist from time to time among them, but, as between the
Administrative Agent and the Guarantor, the Administrative Agent
shall be conclusively presumed to be acting as agent for the
Lenders with full and valid authority so to act or refrain from
acting, and no Guarantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
11. Notices. All notices, requests and demands to or upon
the Administrative Agent, any Lender or the Guarantor to be
effective shall be in writing (or by telex, fax or similar
electronic transfer confirmed in writing) and shall be deemed to
have been duly given or made (1) when delivered by hand or (2) if
given by mail, when deposited in the mails by certified mail,
return receipt requested, or (3) if by telex, fax or similar
electronic transfer, when sent and receipt has been confirmed,
addressed as follows:
(a) if to the Administrative Agent or any Lender, at its
address or transmission number for notices provided in Section
9.1 of the Term Loan Agreement; and
(b) if to the Guarantor, at its address or transmission
number for notices set forth under its signature below.
The Administrative Agent, each Lender and the Guarantor may
change its address and transmission numbers for notices by notice
in the manner provided in this Section.
12. Counterparts. This Guarantee may be executed by one or
more of the Guarantor on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the
counterparts of this Guarantee signed by the Guarantor shall be
lodged with the Administrative Agent.
13. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
14. Integration. This Guarantee represents the agreement
of the Guarantor with respect to the subject matter hereof and
there are no oral understandings and no promises or
representations by the Administrative Agent or any Lender
relative to the subject matter hereof not reflected herein.
15. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Guarantee may be
waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Guarantor and the
Administrative Agent, provided that any provision of this
Guarantee may be waived by the Administrative Agent and the
Lenders in a letter or agreement executed by the Administrative
Agent or by telex or facsimile transmission from the
Administrative Agent.
(b) Neither the Administrative Agent nor any Lender shall
by any act (except by a written instrument pursuant to paragraph
15(a) hereof), delay, indulgence, omission or otherwise be deemed
to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of
any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Administrative
Agent or any Lender, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise
of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent
or any Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy
which the Administrative Agent or such Lender would otherwise
have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
16. Section Headings. The section headings used in this
Guarantee are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in
the interpretation hereof.
17. Successors and Assigns. This Guarantee shall be
binding upon the successors and assigns of the Guarantor and
shall inure to the benefit of the Administrative Agent and the
Lenders and their successors and assigns.
18. Governing Law. This Guarantee shall be governed by,
and construed and interpreted in accordance with, the law of the
State of New York.
19. Service of Process; Waiver of Jury Trial. (a) THE
GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
STATE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY
AND TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, FOR THE PURPOSES OF ANY SUIT,
ACTION OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON THIS
GUARANTEE OR THE SUBJECT MATTER HEREOF BROUGHT BY THE
ADMINISTRATIVE AGENT OR A LENDER. THE GUARANTOR TO THE EXTENT
PERMITTED BY APPLICABLE LAW (A) HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY
OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURTS, ANY CLAIM THAT
IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE
ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM
ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING IS
BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER OR THAT THIS GUARANTEE OR THE
SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT,
AND (B) HEREBY WAIVES THE RIGHT TO ASSERT IN ANY SUCH ACTION,
SUIT OR PROCEEDING ANY OFFSETS OR COUNTERCLAIMS EXCEPT
COUNTERCLAIMS THAT ARE COMPULSORY OR OTHERWISE ARISE FROM THE
SAME SUBJECT MATTER. THE GUARANTOR HEREBY CONSENTS TO SERVICE OF
PROCESS BY MAIL AT ITS ADDRESS TO WHICH NOTICES ARE TO BE GIVEN
PURSUANT TO SECTION 11 HEREOF. THE GUARANTOR AGREES THAT ITS
SUBMISSION TO JURISDICTION AND CONSENT TO SERVICE OF PROCESS BY
MAIL IS MADE FOR THE EXPRESS BENEFIT OF THE ADMINISTRATIVE AGENT
AND THE LENDERS. FINAL JUDGMENT AGAINST THE GUARANTOR IN ANY
SUCH ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN ANY OTHER JURISDICTION (A) BY SUIT, ACTION OR
PROCEEDING ON THE JUDGMENT, A CERTIFIED OR TRUE COPY OF WHICH
SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND THE AMOUNT OF
INDEBTEDNESS OR LIABILITY OF THE SUBMITTING PARTY THEREIN
DESCRIBED OR (B) IN ANY OTHER MANNER PROVIDED BY, OR PURSUANT TO,
THE LAWS OF SUCH OTHER JURISDICTION, PROVIDED, HOWEVER, THAT THE
ADMINISTRATIVE AGENT OR A LENDER MAY AT ITS OPTION BRING SUIT, OR
INSTITUTE OTHER JUDICIAL PROCEEDINGS AGAINST THE GUARANTOR OR ANY
OF ITS ASSETS IN ANY XXXXX XX XXXXXXX XXXXX XX XXX XXXXXX XXXXXX
OR OF ANY COUNTRY OR PLACE WHERE THE GUARANTOR OR SUCH ASSETS MAY
BE FOUND.
(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES, AND
COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM
IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION, OR CAUSE OF
ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT
MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH PARTY
HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT THE PROVISIONS
OF THIS 19(b) CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE
OTHER PARTIES HAVE RELIED, ARE RELYING AND WILL RELY IN ENTERING
INTO THIS AGREEMENT. THE PARTIES HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 19(b) WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF SUCH OTHER PARTY TO THE WAIVER
OF ITS RIGHTS TO TRIAL BY JURY.
IN WITNESS WHEREOF, the undersigned has caused this
Guarantee to be duly executed and delivered by its duly
authorized officer as of the day and year first above written.
CENDANT FINANCE HOLDING
CORPORATION
By_______________________
Title____________________
Address for Notices:
0 Xxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: ______________
Fax:_____________________
EXHIBIT F
FORM OF BORROWING REQUEST
The Chase Manhattan Bank, as Administrative Agent
for the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: [Date]
Ladies and Gentlemen:
The undersigned, Cendant Corporation (the "Borrower"),
refers to the Term Loan Agreement dated as of May 29, 1998 (as
the same may be amended, supplemented or otherwise modified,
renewed or replaced from time to time, the "Term Loan
Agreement"), among the Borrower, the Lenders and agents referred
to therein and The Chase Manhattan Bank, as Administrative Agent.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Term Loan
Agreement. The Borrower hereby gives you notice pursuant to
Section 2.5 of the Term Loan Agreement that it requests a
Borrowing under the Term Loan Agreement and in that connection
sets forth below the terms on which such Borrowing is requested
to be made:
(A) Date of the Borrowing
(which is a Business Day)
(B) Principal Amount of the
Borrowing $
(C) Interest Rate Type of the
Borrowing
(D) Interest Period(s) with
respect to the LIBOR
Loan(s) and the last day
of such Interest
Period(s)
Upon acceptance of the Term Loans to be made by the
Lenders in response to this request, the Borrower shall be deemed
to have represented and warranted that the conditions to each
Loan specified in Section 4.1(l) and (m) of the Term Loan
Agreement have been satisfied.
Very truly yours,
CENDANT CORPORATION
By:____________________
Name:_______________
Title:______________
--------
Shall (a) in the case of ABR Loans, be in an integral
multiple of $500,000 and not less than $5,000,000 and (b) in
the case of LIBOR Loans, be in an integral multiple of
$5,000,000 and not less than $10,000,000.
LIBOR Borrowing or ABR Borrowing.
Shall be subject to the definition of "Interest Period"
and shall not end later than the Maturity Date. [Complete
only in the case where LIBOR Loan(s) are being requested.]
