Contract
EXECUTION
COPY
SECOND AMENDMENT, dated as of December 18, 2006 (this
“Amendment”), to the CREDIT AGREEMENT dated as of July 8, 2005, as
amended by the First Amendment dated as of December 7, 2006 (as further
amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”), among EXPEDIA, INC., a Delaware
corporation; EXPEDIA, INC., a Washington corporation; TRAVELSCAPE, LLC, a
Nevada limited liability company (successor to TRAVELSCAPE, INC., a Nevada
corporation); XXXXXX.XXX, a Delaware corporation; HOTWIRE, INC., a
Delaware corporation; the other Borrowing Subsidiaries from time to time
party thereto; the Lenders from time to time party thereto; JPMORGAN CHASE
BANK, N.A., as Administrative Agent; and X.X. Xxxxxx Europe Limited, as
London Agent.
WITNESSETH:
WHEREAS, the Lenders have agreed to extend credit to the Borrowers under the Credit Agreement
on the terms and subject to the conditions set forth therein; and
WHEREAS, the Company has requested that the Lenders amend certain provisions of the Credit
Agreement and the Lenders under the Credit Agreement whose signatures appear below, constituting at
least the Required Lenders, are willing to amend the Credit Agreement on the terms and subject to
the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties
hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not otherwise defined herein
(including in the preamble hereto) have the meanings assigned to them in the Credit Agreement.
SECTION 2. Amendment of Section 6.11. Section 6.11 of the Credit Agreement is hereby
amended in its entirety to read as follows:
“SECTION 6.11. Consolidated Net Worth. The Company will not at any time permit
Consolidated Net Worth to be less than the sum at such time of (a) US$4,500,000,000 and (b)
commencing with the fiscal quarter beginning on January 1, 2007, 50% of the Company’s Consolidated
Net Income for each fiscal quarter of the Company for which Consolidated Net Income is positive and
for which financial statements shall have been delivered under Section 5.01(a) or (b).”
SECTION 3. Representations, Warranties and Agreements. The Company, as to itself and
each of the Subsidiaries, hereby represents and warrants to and agrees with each Lender and the
Agents that:
2
(a) The representations and warranties set forth in Article III of the Credit Agreement, as
amended hereby, are true and correct in all material respects on and as of the Amendment Effective
Date (as defined below) and after giving effect to this Amendment, with the same effect as if made
on and as of such date, except to the extent such representations and warranties expressly relate
to an earlier date, in which case they were true and correct as of such earlier date.
(b) As of the Amendment Effective Date, after giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.
SECTION 4. Effectiveness. This Amendment shall become effective as of the date (the
“Amendment Effective Date”) on which the Administrative Agent shall have received duly
executed counterparts hereof that, when taken together, bear the authorized signatures of the
Company and Lenders constituting at least the Required Lenders.
SECTION 5. Credit Agreement. Except as specifically stated herein, the Credit
Agreement shall continue in full force and effect in accordance with the provisions thereof. As
used therein, the terms “Agreement”, “herein”, “hereunder”, “hereto”, “hereof” and words of similar
import shall, unless the context otherwise requires, refer to the Credit Agreement as modified
hereby.
SECTION 6. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Amendment may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original but
all of which, when taken together, shall constitute a single instrument. Delivery of an executed
counterpart of a signature page of this Amendment by telecopy shall be effective as delivery of a
manually executed counterpart hereof.
SECTION 8. Expenses. The Company agrees to reimburse the Administrative Agent for
its reasonable out-of-pocket expenses in connection with this Amendment, including the reasonable
fees, charges and disbursements of Cravath, Swaine & Xxxxx LLP, counsel for the Administrative
Agent.
3
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be duly executed
by their respective authorized officers as of the date first above written.
| EXPEDIA, INC., a Delaware corporation, |
||||
| by: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Vice President and Treasurer | |||
| JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent, |
||||
| by: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
To approve the Second Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution:
Fifth Third Bank
by:
|
/s/ Xxxx X. Xxxxx | |||
| Name: Xxxx X. Xxxxx | ||||
| Title: Vice President | ||||
by:
|
1 | |||
| Name: | ||||
| Title: |
| 1 | For any institution requiring a second signature line. |
To approve the Second Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution:
Wachovia Bank, N.A.
by:
|
/s/ Xxxxx Xxxxxxxx
|
|||
| Title: Vice President |
To approve the Second Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution:
The Royal Bank of Scotland, plc
by:
|
/s/ Xxxxxxx XxXxxxx
|
|||
| Title: Senior Vice President |
To approve the Second Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution:
Bank of America, N.A.
by:
|
/s/ Xxxx Xxxxxxxxxxx
|
|||
| Title: Vice President |
To approve the Second Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution:
U.S. BANK NATIONAL ASSOCIATION
by:
|
/s/ Kurban H. Merchant
|
|||
| Title: Vice President |
To approve the Second Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution:
BNP Paribas
by:
|
/s/ Xxxxx Xxxxxx
|
|||
| Title: Managing Director | ||||
by:
|
/s/ Xxxxxxx Baudon2
|
|||
| Title: Vice President |
| 2 | For any institution requiring a second signature line. |
To approve the Second Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution:
Sociète
Generale
by:
|
/s/ Xxxxx Xxxxx
|
|||
| Title: Vice President |
