Exhibit 10.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of April 17,
2002, by and among Apollo Investment Fund III, L.P., Apollo Overseas
Partners III, L.P. and Apollo (UK) Partners III, L.P. (collectively, the
"Original Sponsors"), AP RES LLC, a Delaware limited liability company (the
"Sponsor"), Cendant Corporation ("Cendant") and Cendant Real Estate
Holdings Inc. ("Purchaser").
WHEREAS, the Sponsor is the beneficial and record owner of
6,924,860.99 shares (the "Sponsor Shares") of NRT common stock, par value
$0.01 per share, which represent all of the outstanding shares of common
stock of NRT Incorporated ("NRT");
WHEREAS, the Original Sponsors contributed the Sponsor Shares to
the Sponsor, which is wholly owned by the Original Sponsors;
WHEREAS, pursuant to a letter agreement, dated as of December 5,
2000 (the "Option Agreement"), by and among the Original Sponsors, NRT and
Cendant, the Original Sponsors granted to Cendant the right and option (the
"Option") to purchase all of the Sponsor Shares (which option is binding
upon the Sponsor);
WHEREAS, pursuant to the Option Agreement, NRT (or Cendant, on
NRT's behalf) has the obligation to pay $166 million to the Original
Sponsors (the "Additional True Up Amount") on the earlier of the date of
the exercise of the Option or August 11, 2002;
WHEREAS, the parties hereto deem it desirable and in their
respective best interests to enter into this Agreement to provide for the
acquisition of the Sponsor Shares by Purchaser in exchange for shares of CD
common stock, par value $0.01 per share, of Cendant ("Cendant Common
Stock"), on the terms and subject to the conditions set forth herein;
WHEREAS, the parties intend for the terms and provisions of this
Agreement to supercede and replace the obligations of Cendant and NRT under
the Option Agreement and the Amended and Restated Stockholders Agreement,
dated as of September 30, 1999, by and among NRT, Apollo Management, L.P.,
the Original Sponsors and Cendant (the "Stockholders Agreement"); and
WHEREAS, concurrently with the execution of this Agreement,
Cendant and the Sponsor are entering into a Registration Rights Agreement
(the "Registration Rights Agreement") with respect to the Cendant Common
Stock issuable pursuant to this Agreement;
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Acquisition of the Sponsor Shares.
(a) At the Closing, (i) the Sponsor shall sell, assign, transfer
and convey to Purchaser, without representation or warranty (other than as
expressly provided herein), all of its right, title and interest in and to
the Sponsor Shares, free and clear of all Liens (as defined below), other
than Liens imposed as a result of actions by NRT, Purchaser or their
affiliates (provided that the Sponsor and its affiliates shall not be
deemed to be affiliates of NRT, Purchaser or their affiliates), and (ii)
Purchaser shall sell, assign, transfer and convey to the Sponsor, without
representation or warranty (other than as expressly provided herein), an
aggregate number of shares of Cendant Common Stock (the "Closing Cendant
Shares") equal to the quotient (rounded up to the nearest whole number)
obtained by dividing (x) $186 million by (y) the Cendant Closing Price (as
defined below), free and clear of all Liens, other than Liens imposed as a
result of actions by the Original Sponsors, the Sponsor or their affiliates
(provided that NRT, Purchaser or their affiliates shall not be deemed to be
affiliates of the Sponsor and its affiliates). For purposes of this
Agreement, the "Cendant Closing Price" shall mean the closing price per
share of Cendant Common Stock on the New York Stock Exchange (the "NYSE")
Composite Transaction Tape, as reported in the Wall Street Journal
(Northeast Edition), absent manifest error, on the trading day immediately
preceding the Closing Date.
(b) At the Closing, (i) the Sponsor shall deliver to Purchaser (A)
stock certificates representing the Sponsor Shares, duly endorsed for
transfer or accompanied by stock powers so duly endorsed, (B) evidence
reasonably satisfactory to Purchaser that Bear, Xxxxxxx & Co. Inc.'s
participation in the Sponsor Shares will be terminated in full at and as of
the Closing (and a statement in the form of Exhibit A hereto, executed by
Bear, Xxxxxxx & Co. Inc., shall be deemed to be reasonably acceptable to
Purchaser), and (C) a certificate in form and substance reasonably
satisfactory to Purchaser and duly executed by the Sponsor certifying all
facts necessary to exempt the transactions contemplated hereby from
withholding pursuant to the Foreign Investment in Real Property Act and
(ii) Purchaser shall deliver to the Sponsor certificates representing the
Closing Cendant Shares registered in the names of the Sponsor in accordance
with written instructions of the Sponsor delivered to Purchaser prior to
the Closing Date.
(c) On or prior to the Closing Date, Purchaser and the Sponsor
shall open a brokerage account (the "Brokerage Account") with a broker
selected by Purchaser in its sole discretion (the "Broker") and reasonably
acceptable to the Sponsor in terms of financial strength and national
reputation. Subject to the penultimate sentence of this paragraph, the
Brokerage Account shall provide Purchaser with the sole ability, in its
sole discretion, to sell, or cause to be sold, any shares of Cendant Common
Stock placed therein. The Closing Cendant Shares shall be deposited in the
Brokerage Account on the Closing Date in the name of and for the account of
the Sponsor. From and after the date on which the Shelf Registration
Statement (as defined in the Registration Rights Agreement) is declared
effective by the Securities and Exchange Commission (the "SEC"), Purchaser
shall from time to time cause the sale of the Closing Cendant Shares on
behalf of the Sponsor and shall use its reasonable efforts to cause the
sale of all of the Closing Cendant Shares to be completed no later than the
later of (i) the Payout Date or (ii) 30 days following the effectiveness
date of the Shelf Registration Statement (the later of such dates being
referred to as the "End Date"); provided, however, that if within 30 days
after the Shelf Registration Statement is declared effective, the Shelf
Registration Statement shall become subject to any stop order, injunction
or other order or requirement of the SEC or other governmental agency or
court, the date referred to in this clause (ii) shall be delayed until the
date on which the Shelf Registration Statement shall have been effective
for an aggregate of 30 days. Upon the settlement of each such sale, the
Broker will immediately remit, by wire transfer of immediately available
funds, the Proceeds (as defined below) of such sale up to an aggregate of
$186 million to such account or accounts specified by the Sponsor. If five
business days after the Payout Date, Purchaser shall be in default of its
obligations under Section 2(g) hereof, the Sponsor shall have the sole
ability, in its sole discretion, to sell or cause to be sold at prevailing
market prices, after giving effect to appropriate discounts (if any) for
block trades and restrictions on transfers, any Cendant Common Stock, in
one or a series of transactions, still remaining in the Brokerage Account.
For purposes hereof, "Payout Date" shall mean June 28, 2002 or, in the
event the Shelf Registration Statement is reviewed by the SEC prior to it
being declared effective, August 11, 2002.
(d) If the aggregate Proceeds from the sale of all of the Closing
Cendant Shares equal or exceed $186 million, Purchaser and the Sponsor
shall instruct the Broker, on the settlement date following the final sale
of the Closing Cendant Shares (the "Determination Date"), to pay $186
million of the Proceeds to the Sponsor and the remaining amounts (if any)
in the Brokerage Account to Cendant. As used in this Agreement, the
"Proceeds" from any sale of Cendant Common Stock on behalf of the Sponsor
hereunder shall be equal to the cash proceeds from such sale, net of all
underwriters', sale or brokers' commissions and discounts incurred in
connection with such sale.
(e) If the Proceeds from the sale of all of the Closing Cendant
Shares are less than $186 million (the difference between $186 million and
the Proceeds from the sale of all of the Closing Cendant Shares being
referred to as the "Adjustment Amount"), Purchaser shall pay to the Sponsor
the Adjustment Amount. The Adjustment Amount shall be payable, at
Purchaser's option (the exercise of which shall be set forth in a written
notice to the Sponsor delivered on the first business day following the
Determination Date), (i) by wire transfer in immediately available funds or
(ii) by delivery to the Brokerage Account on behalf of the Sponsor of a
number of additional shares of Cendant Common Stock (the "Additional
Cendant Shares"), the Proceeds of which shall be equal to or exceed the
Adjustment Amount. Purchaser shall cause the Additional Cendant Shares to
be sold on behalf of the Sponsor as soon as practicable following the
Determination Date. If the aggregate Proceeds from the sale of all of the
Additional Cendant Shares equal or exceed the Adjustment Amount, Purchaser
and the Sponsor shall instruct the Broker, on the settlement date following
the final sale of the Additional Cendant Shares, to pay the Adjustment
Amount to the Sponsor and the remaining amounts (if any) in the Brokerage
Account to Purchaser. If the aggregate Proceeds from the sale of the
Additional Cendant Shares do not equal or exceed the Adjustment Amount,
Purchaser or Cendant shall promptly following the settlement date of the
sale of the Additional Cendant Shares either pay to the Sponsor by wire
transfer of immediately available funds such difference or continue to
deposit additional Cendant Shares into the Brokerage Account (which shares
shall also constitute Additional Cendant Shares) until the Sponsor shall
have received an aggregate of $186 million in Proceeds or cash payments
hereunder. The parties hereto shall treat any payments made to the Sponsor
or Purchaser, as the case may be, pursuant to this Section 1(e) as a
purchase price adjustment for all tax purposes.
(f) Purchaser shall be entitled to deduct and withhold, or cause
to be deducted or withheld, from the consideration payable to Sponsor
hereunder such amounts as are required to be deducted or withheld with
respect to the making of such payment under the Internal Revenue Code of
1986, as amended (the "Code"), or any provision of applicable state, local
or foreign tax law. To the extent that amounts are so deducted and
withheld, such deducted and withheld amounts shall be treated for all
purposes of this Agreement as having been paid to such holders in respect
of which such deduction and withholding was made.
(g) Notwithstanding the foregoing, if by the Payout Date, the
Sponsor has not received the aggregate of $186 million in Proceeds or cash
payments from Purchaser under this Section 1, then Purchaser and Cendant,
jointly and severally, shall be obligated to pay to the Sponsor, no later
than the Payout Date, an amount in cash by wire transfer of immediately
available funds equal to the difference between (i) $186 million and (ii)
the aggregate Proceeds from the Brokerage Account received by the Sponsor
plus any cash payments to the Sponsor made previously by Purchaser or
Cendant pursuant to this Section 1. In the event of default by Purchaser
such that the Sponsor shall not have received $186 million by the Payout
Date, in addition to any other remedies that the Sponsor may have at law or
in equity, Purchaser and Cendant, jointly and severally, shall be obligated
to pay damages to the Sponsor in the form of interest on any unpaid amounts
at the rate of 8% per annum from August 11, 2002 until such unpaid amounts
have been paid in full.
(h) If paragraph (g) above is applicable, upon payment in full by
Cendant of its obligations under paragraph (g), any remaining Cendant
shares in the Brokerage Account shall be transferred to Cendant.
2. Closing. The closing (the "Closing") shall take place
simultaneously with the execution and delivery of this Agreement (the
"Closing Date"), at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
3. Representations and Warranties of the Sponsor. Each of the
Original Sponsors and the Sponsor (collectively, the "Sponsors") jointly
and severally represents and warrants to Cendant and Purchaser as of the
date hereof as follows:
(a) Authorization. Each of the Sponsor and the Original Sponsors
has all requisite power and authority to execute and deliver this Agreement
and the Registration Rights Agreement and consummate the transactions
contemplated hereby and thereby. The execution and delivery by each of the
Sponsor and the Original Sponsor of this Agreement and the Registration
Rights Agreement and the consummation of the transactions contemplated
hereby and thereby have been duly authored by all requisite action by each
of the Sponsor and the Original Sponsor. This Agreement and the
Registration Rights Agreement have been duly executed and delivered by each
of the Sponsor and the Original Sponsor and, assuming due execution by
Cendant and Purchaser (as applicable), each of this Agreement and the
Registration Rights Agreement constitutes a valid and binding obligation of
each of the Sponsor and the Original Sponsor, enforceable against each of
the Sponsor and the Original Sponsor in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws and subject to general
principles of equity.
(b) Experience; Access to Information. The Sponsor is an
accredited investor within the meaning of Regulation D promulgated by the
SEC and, by virtue of its experience in evaluating and investing in private
placement transactions of securities in companies similar to Cendant, the
Sponsor is capable of evaluating the merits and risks of its investment in
Cendant, and has the capacity to protect its own interests. The Sponsor
acknowledges that Cendant and Purchaser do not make any representation or
warranty as to the future profitability, success or business prospects of
Cendant.
(c) Investment. The Sponsor is acquiring the Closing Cendant
Shares and the Additional Cendant Shares (if any) for investment for its
own account, not as a nominee or agent, and not with the view to, or for
resale in connection with, any distribution of any part thereof, except
pursuant to an effective registration statement pursuant to the Securities
Act of 1933, as amended (the "Securities Act") or any applicable exemption
therefrom. The Sponsor understands that the Closing Cendant Shares and the
Additional Cendant Shares (if any) to be acquired by it have not been
registered under the Securities Act, or applicable state and other
securities laws by reason of a specific exemption from the registration
provisions of the Securities Act and applicable state and other securities
laws, the availability of which depends upon, among other things, the bona
fide nature of the investment intent and the accuracy of each of the
Sponsor's representations as expressed herein.
(d) Ownership of Shares. The Sponsor is the beneficial and record
owner of 6,924,860.99 shares of NRT common stock, par value $0.01 per
share, which shares constitute all of the outstanding common stock of NRT.
The only members of the Sponsor are the Original Sponsors and the sole
Manager of the Sponsor is Apollo Management, L.P.
(e) Valid Title. The Sponsor has valid title to the Sponsor Shares
and there are no liens, claims, security interests, encumbrances,
restrictions on transfer or voting (other than restrictions imposed under
federal or state securities laws or the Stockholders Agreement)
(collectively, "Liens") in respect of the Sponsor Shares. Delivery of the
Sponsor Shares to Cendant on the terms set forth herein shall convey valid
title to Cendant of all of the Sponsor Shares free and clear of all Liens,
other than those Liens created by Cendant or their affiliates (provided
that the Sponsor and its affiliates shall not be deemed to be affiliates of
Cendant or its affiliates).
(f) No Additional Representations. The representations and
warranties set forth in this Section 3 are the only representations and
warranties made by the Sponsor. Except as specifically set forth herein,
all warranties, express or implied, are hereby disclaimed and excluded,
including warranties of merchantability and fitness for a particular
purpose. In no event shall the Sponsor be liable for special, incidental or
consequential damages.
4. Representations and Warranties of Cendant and Purchaser.
Cendant and Purchaser represent and warrant to each of the Sponsor as of
the date hereof as follows:
(a) Authorization. Cendant and Purchaser have all requisite power
and authority to execute and deliver this Agreement and, in the case of
Cendant, the Registration Rights Agreement and to consummate the
transactions contemplated hereby and thereby. The execution and delivery by
Cendant and Purchaser of this Agreement and, in the case of Cendant, the
Registration Rights Agreement and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all requisite
action by such parties. This Agreement and the Registration Rights
Agreement have been duly executed and delivered by Cendant and Purchaser
(as applicable) and, assuming due execution by each of the Sponsor and the
Original Sponsor, each of this Agreement and the Registration Rights
Agreement constitutes a valid and binding obligation of Cendant and
Purchaser (as applicable), enforceable against Cendant and Purchaser (as
applicable) in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws and subject to general principles of equity.
(b) Experience; Access to Information. Purchaser is an accredited
investor within the meaning of Regulation D promulgated by the SEC and, by
virtue of its experience in evaluating and investing in private placement
transactions of securities in companies similar to NRT, Purchaser is
capable of evaluating the merits and risks of its investment in NRT, and
has the capacity to protect its own interests. Purchaser and Cendant
acknowledge that the Sponsor does not make any representation or warranty
as to the future profitability, success or business prospects of NRT.
(c) Investment. Purchaser is acquiring the Sponsor Shares for
investment for its own account, not as a nominee or agent, and not with the
view to, or for resale in connection with, any distribution of any part
thereof, except pursuant to an effective registration statement pursuant to
the Securities Act or an applicable exemption therefrom. Purchaser
understands that the Sponsor Shares to be acquired by it have not been
registered under the Securities Act, or applicable state and other
securities laws by reason of a specific exemption from the registration
provisions of the Securities Act and applicable state and other securities
laws, the availability of which depends upon, among other things, the bona
fide nature of the investment intent and the accuracy of Purchaser's
representations as expressed herein.
(d) Issuance. The issuance, sale and delivery of the Closing
Cendant Shares and the Additional Closing Shares (if any) have been duly
authorized by all requisite action of Cendant, and when issued, sold and
delivered in accordance with this Agreement, such Closing Cendant Shares
and Additional Closing Shares (if any) will be validly issued and
outstanding, fully paid and non-assessable, and free and clear of all
Liens, other than those Liens created by the Sponsor or its affiliates
(provided that Cendant and its affiliates shall not be deemed to be
affiliates of the Sponsor or its affiliates).
(e) No Additional Representations. The representations and
warranties set forth in this Section 4 are the only representations and
warranties made by Purchaser and Cendant. Except as specifically set forth
herein, all warranties, express or implied, are hereby disclaimed and
excluded, including warranties of merchantability an fitness for a
particular purpose. Neither Purchaser nor Cendant shall be liable for
special, incidental or consequential damages.
5. Restrictions on Transfer of Cendant Common Stock. The Sponsor
agrees that, prior to the earlier of the Payout Date or the End Date, it
will not, without the prior written consent of Purchaser, (a) offer for
sale, sell, contract to sell, pledge, grant any option to purchase, grant a
security interest in or otherwise encumber or directly or indirectly
otherwise dispose of, any of the Closing Cendant Shares or the Additional
Cendant Shares (if any) or (b) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Closing Cendant Shares or the Additional
Cendant Shares (if any).
6. Stop Transfer Orders, Legends. The stock certificates
representing the Closing Cendant Shares and the Additional Cendant Shares
(if any) shall bear the following legend (in addition to any legend
required under applicable state securities laws), and shall be subject to a
stop transfer order in accordance with therewith:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION UNLESS CENDANT CORPORATION RECEIVES AN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR
TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SAID ACT.
7. Public Announcements. Purchaser, Cendant, the Sponsor and the
Original Sponsors hereby covenant and agree to consult with each other
before issuing, and provide each other the opportunity to review and
comment upon, any press release or other public statement or disclosure
with respect to the transactions contemplated by this Agreement.
8. Termination of Certain Agreements. Effective at the Closing,
the Option Agreement shall terminate and be of no further force or effect,
except for the obligations of NRT and Cendant under Section 2 of the Option
Agreement, which shall terminate upon the fulfillment of all of Cendant's
or Purchaser's obligations under Section 1 hereof. Effective at the
Closing, the parties and NRT will enter into a letter agreement in the form
attached hereto as Exhibit B which shall terminate the Stockholders
Agreement, except for the Sponsors' obligations under Section 5.4 of the
Stockholders Agreement, and all of the Sponsors' and Apollo Management,
L.P.'s rights and obligations under the Amended and Restated Acquisition
Cooperation Agreement, dated September 30, 1999, by and among NRT, Cendant,
the Original Sponsors and Apollo Management, L.P.
9. Miscellaneous.
(a) Governing Law. All questions concerning the construction,
interpretation and validity of this Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New
York, without giving effect to any choice or conflict of law provision or
rule (whether in the State of New York or any other jurisdiction) that
would cause the application of the law of any jurisdiction other than the
State of New York.
(b) Notices. Any notice required or permitted by this Agreement
must be in writing and must be sent by facsimile, by nationally recognized
commercial overnight courier, or mailed by United States registered or
certified mail, addressed to the other party at the address below or to
such other address for notice (or facsimile number, in the case of a notice
by facsimile) as a party gives the other party written notice of in
accordance with this Section 9(b). Any such notice will effective as of the
date of receipt.
(i) If to Cendant or Purchaser, such notice shall be sent to:
Cendant Corporation
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxx
Senior Vice President, Legal
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
(ii) If to any of the Sponsor or the Original Sponsors, such notice
shall be sent to:
AP RES LLC
c/o Apollo Management, L.P.
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax:
Attention: Xxxx Xxxxxx
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax:
Attention: Xxxxxxx X. Xxx
(c) Submission to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to
the exclusive jurisdiction of any court of the State of New York or Federal
court of the United States of America sitting in the State of New York, and
any appellate court from any such courts, in any action or proceeding
arising out of or relating to this Agreement or for recognition or
enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such court of
the State of New York or, to the extent permitted by law, in any such
Federal court. Each of the parties agrees that service of any process,
summons, notice or document by U.S. registered mail to its respective
address set forth in Section ) (or to such other address for notice that
such party has given the other party written notice of in accordance with
Section 9(b)) shall be effective service of process for any litigation
brought against it in any such court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. EACH OF THE PARTIES HERETO IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND
EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT IN ANY COURT OF THE STATE OF NEW YORK OR FEDERAL
COURT SITTING IN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT.
(d) Counterparts. This Agreement may be executed in counterparts,
any one of which need not contain the signatures of more than one party,
but all such counterparts taken together when delivered shall constitute
one and the same agreement.
(e) Complete Agreement. This Agreement and the instruments or
agreements referred to herein contains the complete agreement among the
parties and supersedes any prior understandings, agreements or
representations by or between the parties, written or oral which may have
related to the subject matter hereof in any way.
(f) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and permitted assigns.
(g) Amendments. This Agreement may only be amended in a writing
executed by each of the parties hereto.
(h) Expenses. All reasonable out-of-pocket expenses of the parties
hereto, including legal fees, of Cendant, the Purchaser and the Sponsors
(in the case of the Sponsors not in excess of $50,000) in connection with
the negotiation, drafting, review or implementation of this Agreement or
the Registration Rights Agreement shall be borne by NRT.
[End of Document]
IN WITNESS WHEREOF, the parties hereto have caused their
authorized representatives to execute this Agreement on the date first
written above.
CENDANT CORPORATION APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P., its General Partner
By: /s/ Xxxx X. Xxxx By: Apollo Capital Management II, Inc., its General Partner
------------------------------
Name: Xxxx X. Xxxx By: /s/ Xxxx Xxxxxx
Title: Senior Vice President & ----------------------------------
Corporate Secretary Name: Xxxx Xxxxxx
Title: Vice President
CENDANT REAL APOLLO OVERSEAS PARTNERS III, L.P.
ESTATE HOLDINGS INC. By: Apollo Advisors II, L.P., its General Partner
By: Apollo Capital Management II, Inc., its General Partner
By: /s/ Xxxx X. Xxxx
------------------------------ By: /s/ Xxxx Xxxxxx
Name: Xxxx X. Xxxx ----------------------------------
Title: Senior Vice President & Name: Xxxx Xxxxxx
Corporate Secretary Title: Vice President
APOLLO (UK) PARTNERS III, L.P.
By: Apollo Advisors II, L.P., its General Partner
By: Apollo Capital Management II, Inc., its General Partner
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
AP RES LLC
By: Apollo Management, L.P, its Manager
By: AIF III Management, Inc., its General Partner
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Exhibit A
Bear, Xxxxxxx & Co. Inc. hereby acknowledges that upon the Closing
of the Stock Purchase Agreement (the "Stock Purchase Agreement"), dated
April 17, 2002, by and among Apollo Investment Fund III, L.P., Apollo
Overseas Partners III, L.P., Apollo (UK) Partners III, L.P., AP RES LLC
(the "Sponsor"), Cendant Corporation ("Cendant") and Cendant Real Estate
Holdings Inc. (the "Purchaser"), it will not have any continuing interest
or claims to the Sponsor Shares (as defined in the Stock Purchase
Agreement) and its claim or interest under the Participation Agreement,
dated August 11, 1997, will be only to a portion of the Proceeds (as
defined in the Stock Purchase Agreement) or cash received by the Sponsor in
accordance with the terms of the Participation Agreement.
Bear, Xxxxxxx & Co. Inc.
By: ___________________
Exhibit B
CENDANT CORPORATION
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
April 17, 2002
Apollo Investment Fund III, L.P.
Apollo Overseas Partners III, L.P.
Apollo (UK) Partners III, L.P.
AP RES LLC
c/o Apollo Management, L.P.
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: Termination of Certain Agreements
Relating to NRT Incorporated
---------------------------------
Gentlemen:
Reference is made to the Amended and Restated Stockholders
Agreement (the "Stockholders Agreement"), dated as of September 30, 1999,
by and among Apollo Investment Fund III, L.P., Apollo Overseas Partners
III, L.P. and Apollo (UK) Partners III, L.P. (collectively, the
"Sponsors"), Apollo Management, L.P., NRT Incorporated ("NRT") and Cendant
Corporation ("Cendant"). The parties hereto agree that upon the Closing (as
such term is defined in the Stock Purchase Agreement, executed on the date
hereof, by and among the Sponsors, AP RES LLC, NRT, Cendant and Cendant
Real Estate Holdings Inc.), the Stockholders Agreement shall be terminated
and be of no further force or effect, except for the Sponsors' obligations
under Section 5.4 of the Stockholders Agreement.
Reference is also made to the Amended and Restated Acquisition
Cooperation Agreement ("Acquisition Cooperation Agreement"), dated
September 30, 1999, by and among the Sponsors, Apollo Management, L.P., NRT
and Cendant. The parties hereto agree that upon the Closing, all of the
Sponsors' and Apollo Management, L.P.'s rights and obligations under the
Acquisition Cooperation Agreement shall be terminated and be of no further
force or effect.
IN WITNESS WHEREOF, the parties hereto have caused their
authorized representatives to execute this Agreement on the date first
written above.
CENDANT CORPORATION APOLLO INVESTMENT FUND III,
L.P.
By:__________________________ By: Apollo Advisors II, L.P., its General Partner
Name: Xxxx X. Xxxx By: Apollo Capital Management II, Inc., its General Partner
Title: Senior Vice President &
Corporate Secretary
By: __________________________
Name: Xxxx Xxxxxx
Title: Vice President
NRT INCORPORATED APOLLO OVERSEAS PARTNERS III, L.P.
By: ________________________ By: Apollo Advisors II, L.P., its General Partner
Name: By: Apollo Capital Management II, Inc., its General Partner
Title:
By: __________________________
Name: Xxxx Xxxxxx
Title: Vice President
AP RES LLC APOLLO (UK) PARTNERS III, L.P.
By: Apollo Management, L.P, its By: Apollo Advisors II, L.P., its General Partner
Manager By: Apollo Capital Management II, Inc., its General Partner
By: AIF III Management, Inc., its
General Partner
By: __________________________
By: ________________________ Name: Xxxx Xxxxxx
Name: Xxxx Xxxxxx Title: Vice President
Title: Vice President
APOLLO MANAGEMENT, L.P.
By: __________________________
Name: Xxxx Xxxxxx
Title: Vice President
