EXHIBIT 10.2
SECOND AMENDMENT, dated as of September 26, 1997 (this Second Amendment"), to
(i) the 364-day Competitive Advance and Revolving Credit Agreement, dated as of
March 4, 1997 (as heretofore and hereafter amended, supplemented or otherwise
modified from time to time, the "364-Day Credit Agreement"), among PHH
Corporation (the "Borrower"), PHH Vehicle Management Services, Inc. (the
"Canadian Borrower"), the Lenders referred to therein, The Chase Manhattan Bank,
as agent for the US Lenders (in such capacity, the "Administrative Agent"), and
The Chase Manhattan Bank of Canada, as administrative agent for the Canadian
Lenders (in such capacity, the "Canadian Agent"; together with the
Administrative Agent, the "Agents"), and (ii) the Five Year Competitive Advance
and Revolving Credit Agreement, dated as of March 4, 1997, (as heretofore and
hereafter amended, supplemented or otherwise modified from time to time, the
"Five Year Credit Agreement"; together with the 364-Day Credit Agreement, the
"Credit Agreements"), among the Borrower, the Lenders referred to therein and
the Administrative Agent.
W I T N E S S E T H:
WHEREAS, the Borrower's parent, HFS Incorporated, plans to merge with and
into CUC International Inc.;
WHEREAS, the Borrower and the Canadian Borrower has requested that the
Lenders amend certain provisions of the Credit Agreements in connection with
such merger;
WHEREAS, the Lenders have agreed to such amendments only upon the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, capitalized
terms which are defined in the Credit Agreements are used herein as therein
defined.
SECTION 2. Amendment to Section 1 of each Credit Agreement. Section 1 of
each Credit Agreement is hereby amended as follows:
(a) by deleting the definition of "Acquisition" contained therein in
its entirety and inserting in lieu thereof the following definition:
"Acquisition" shall mean the acquisition by HFS of all of the
voting common stock of the Borrower pursuant to the Agreement dated as of
November 10, 1996 between HFS, the Borrower and Mercury Acq. Corp.
(b) by deleting the definition of "Change of Control" contained therein
in its entirety and substituting in lieu thereof, the following definition:
"Change of Control" shall mean, (i) the acquisition by any Person
or group (within the meaning of Securities Exchange Act of 1934, as
amended, and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof), directly or indirectly,
beneficially or of record, of ownership or control of in excess of 50%
of the voting common stock of HFS on a fully diluted basis at any time
or (ii) at any time, individuals who upon consummation of the Merger
constituted the Board of Directors of HFS (together with any new
directors whose election by such
Board of Directors or whose nomination for election by the shareholders
of HFS, 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
date hereof 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 HFS then in office or (iii) HFS shall
cease to own, directly or through wholly-owned Subsidiaries, all of the
capital stock of the Borrower, free and clear of any direct or indirect
Liens.
(c) by adding the following definitions in alphabetical order therein
such that the following definitions shall, in their entirety, be as
follows:
"HFS" shall mean (i) prior to the date of the consummation of the
Merger, HFS Incorporated and (ii) upon consummation of the Merger, CUC
International Inc. (to be renamed Cendant Corporation) as successor to
HFS Incorporated pursuant to the Merger.
"Merger" shall mean the merger of HFS Incorporated into CUC
International Inc. with CUC International Inc. as the surviving entity.
SECTION 3. Amendment to Section 7(h) of each Credit Agreement. Section 7(h)
of each Credit Agreement is hereby amended by deleting the word "Incorporated"
in the sixth line therein.
SECTION 4. Conditions of Effectiveness. This Second Amendment shall become
effective as of the date hereof (the "Effective Date") upon the execution and
delivery by a duly authorized officer of each of the Borrower, the Canadian
Borrower, the Agents and the Required Lenders.
SECTION 5. Representation and Warranties. The Borrower and the Canadian
Borrower represent and warrant to each Lender that as of the Effective Date,
before and after giving effect to this Second Amendment: (i) no Default or Event
of Default has occurred and is continuing; (ii) the representations and
warranties made by each of the Borrower and the Canadian Borrower in or pursuant
to the 364-Day Credit Agreement, the Five Year Credit Agreement or any
Fundamental Documents are true and correct in all material respects on and as of
the Effective Date as if made on such date (except to the extent that any such
representation and warranty expressly relates to an earlier date) and (iii) this
Second Amendment constitutes the legal, valid and binding obligation of the
Borrower and the Canadian Borrower, enforceable against each of them in
accordance with its terms, except as such enforcement may be limited to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting credits' rights generally, by general equitable
principles (whether enforcement is sought by proceedings in equity or at law)
and an implied covenant of good faith and fair dealing.
SECTION 6. Continuing Effect of Credit Agreements. This Second Amendment
shall not constitute an amendment or waiver of or consent to any provision of
the Credit Agreements not expressly referred to herein and shall not be
construed as an amendment, waiver or consent to any action on the part of the
Borrower or the Canadian Borrower that would require an amendment, waiver or
consent of the Agent or the Lenders except as expressly stated herein. Except as
expressly consented to hereby, the provisions of the Credit Agreements are and
shall remain in full force and effect.
SECTION 7. Expenses. The Borrower and the Canadian Borrower agree to pay
and reimburse the Agents for all of their reasonable costs and out-of-pocket
expenses incurred in connection with the preparation, execution and delivery of
this Second Amendment and ancillary documents, including, without limitation,
the reasonable fees and disbursements of counsel to the Agents.
SECTION 8. Counterparts. This Second Amendment may be executed in any
number of counterparts by the parties hereto, each of which counterparts when so
executed shall be an original, but all counterparts taken together shall
constitute one and the same instrument.
SECTION 9. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
PHH CORPORATION
By: __/s/ Xxxxx X. Kridler________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
PHH VEHICLE MANAGEMENT SERVICES, INC.
By: __/s/ Xxxxx X. Kridler___________
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Vice President
THE CHASE MANHATTAN BANK OF
CANADA, as Canadian Agent
By: /s/ Xxxxxxxxx Xxxx
Name: Xxxxxxxxx Xxxx
Title: Vice President
BANK OF AMERICA NT & SA
(Successor By Merger to Bank of America
Illinois)
By: /s/ Xxxxxx Allrecht
Name: Xxxxxx Allrecht
Title: Vice President
BANK OF MONTREAL
By: /s/ Xxxxxx X. Xx Xxxxx
Name: Xxxxxx X. Xx Xxxxx
Title: Director
THE BANK OF NEW YORK
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxxx
Title: Authorized Signature
THE BANK OF TOKYO-MITSUBISHI
LIMITED, NEW YORK BRANCH
By: _________________________________
Name:
Title:
BANKERS TRUST COMPANY
By: _________________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Director, CIBC Wood Gundy
Securities Corp., as Agent
COMERICA BANK
By: _________________________________
Name:
Title:
COMMERZBANK AG (NEW YORK BRANCH)
By: /s/ Xxxxxx X. Xxxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer
CREDIT LYONNAIS NEW YORK BRANCH
By: _________________________________
Name:
Title:
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By: /s/ Gayma Z. Shivrarain
Name: Gayma Z. Shivrarain
Title: Vice President
By: /s/ Xxxx X. Xx Xxxx
Name: Xxxx X. Xx Xxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: _________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF MARYLAND
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK OF
MARYLAND
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
THE FUJI BANK LTD. NEW YORK BRANCH
By: _________________________________
Name:
Title:
MELLON BANK, N.A.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: _________________________________
Name:
Title:
NATIONSBANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ROYAL BANK OF CANADA
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Manager
THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Joint General Manager
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxxxxx
Title: Vice President
