THIRD AMENDMENT
Exhibit 10.2
EXECUTION VERSION
THIRD AMENDMENT
THIRD AMENDMENT, dated as of July 20, 2016 (this “Amendment”), to the Amended and Restated Credit Agreement, dated as of March 5, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Realogy Intermediate Holdings LLC (“Holdings”), Realogy Group LLC (the “Borrower”), the several lenders from time to time parties thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”) and the other agents parties thereto.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make, and have made, certain loans and other extensions of credit to the Borrower;
WHEREAS, the Borrower has requested that the outstanding Initial Term B Loans (as such definition is amended hereby) be refinanced with a new term facility (the “Amended Term Loan Facility”) in accordance with Section 10.08(e) of the Credit Agreement by obtaining New Term Loan Commitments (as defined in Section 4 of this Amendment) and having existing Initial Term B Loans be continued as provided herein;
WHEREAS, JPMorgan Chase Bank, N.A. is the lead arranger and bookrunner for the Amended Term Loan Facility (in such capacity, the “Lead Arranger”) and BMO Capital Markets Corp., Barclays Bank PLC, Citigroup Global Markets Inc., Credit Agricole Corporate and Investment Bank, Credit Suisse Securities (USA) LLC, Xxxxxxx Xxxxx Bank USA, and Suntrust Xxxxxxxx Xxxxxxxx, Inc. are the joint lead arrangers and joint bookrunners for the Amended Term Loan Facility (collectively, the “Joint Bookrunners”);
WHEREAS, the loans under the Amended Term Loan Facility (the “New 2022 Term Loans”) will replace and refinance the currently outstanding Initial Term B Loans;
WHEREAS, except as otherwise provided herein, the New 2022 Term Loans will have the same terms as the Initial Term B Loans currently outstanding under the Credit Agreement;
WHEREAS, each existing Initial Term B Lender that executes and delivers a Lender Addendum (Cashless Roll) attached hereto (a “Lender Addendum (Cashless Roll)”) and in connection therewith agrees to continue all of its outstanding Initial Term B Loans as New 2022 Term Loans (such continued Initial Term B Loans, the “Continued Term Loans”, and such Lenders, collectively, the “Continuing Term Lenders”) will thereby (i) agree to the terms of this Amendment and (ii) agree to continue all of its existing Initial Term B Loans (such existing Initial Term B Loans, the “Existing Term Loans”, and the Lenders of such Existing Term Loans, collectively, the “Existing Term Lenders”) outstanding on the Third Amendment Effective Date (as defined below) as New 2022 Term Loans in a principal amount equal to the aggregate principal amount of such Existing Term Loans so continued (or such lesser amount as notified to such Lender by the Administrative Agent prior to the Third Amendment Effective Date);
WHEREAS, subject to the preceding recitals, each Person (other than a Continuing Term Lender in its capacity as such) that executes and delivers a Lender Addendum (Additional Term Lender) attached hereto (a “Lender Addendum (Additional Term Lender)” and, together with a Lender Addendum (Cashless Roll), a “Lender Addendum”)) and agrees in connection therewith to make New 2022 Term Loans (collectively, the “Additional Term Lenders”) will thereby (i) agree to the terms of this Amendment and (ii) commit to make New 2022 Term Loans to the Borrower on the Third Amendment Effective Date (the “Additional Term Loans”) in such amount (not in excess of any such commitment) as is determined by the Administrative Agent and notified to such Additional Term Lender;
WHEREAS, the proceeds of the Additional Term Loans will be used by the Borrower to repay in full the outstanding principal amount of the Existing Term Loans that are not continued as New 2022 Term Loans by Continuing Term Lenders;
WHEREAS, the Continuing Term Lenders and the Additional Term Lenders (collectively, the “New Term Lenders”) are severally willing to continue their Existing Term Loans as New 2022 Term Loans and/or to make New 2022 Term Loans, as the case may be, subject to the terms and conditions set forth in this Amendment;
WHEREAS, Section 10.08(e) of the Credit Agreement permits the Borrower to amend the Credit Agreement, with the written consent of the Administrative Agent and the New Term Lenders, to refinance the Existing Term Loans with the proceeds of the Amended Term Loan Facility, which constitute Replacement Term Loans under the Credit Agreement; and
WHEREAS, the Borrower, the New Term Lenders and the Administrative Agent are willing to agree to this Amendment on the terms set forth herein;
NOW THEREFORE, in consideration of the premises and mutual covenants hereinafter set forth, the parties hereto agree as follows:
SECTION 1. Definitions. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Amendments to Article I of the Credit Agreement. Section 1.01 of the Credit Agreement is hereby amended as follows:
(a) The following definitions are hereby added in the appropriate alphabetical order to Section 1.01:
“Anti-Corruption Laws” shall mean the Foreign Corrupt Practices Act of 1977, as amended, and other similar laws, rules and regulations of any jurisdiction that may be applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“EEA Financial Institution” shall mean (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
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“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Material Acquisition” shall mean any Permitted Business Acquisition that involves the payment of consideration or assumption of Indebtedness by the Borrower and its Subsidiaries in excess of $250,000,000.
“New 2022 Term Loans” shall have the meaning assigned to such term in the Third Amendment.
“RP Ratio Test” shall have the meaning assigned to such term in Section 6.06(m).
“Sanctioned Country” shall mean, at any time, a country or territory which is itself the subject or target of comprehensive Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Sudan, the Crimea region of Ukraine and Syria).
“Sanctioned Person” shall mean, at any time, (a) any person listed in any Sanctions-related list of designated persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or by the United Nations Security Council or the European Union, (b) any person located, organized or resident in a Sanctioned Country or (c) any person owned or controlled by any such person or persons described in the foregoing clauses (a) or (b).
“Sanctions” shall mean, economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
“Third Amendment” shall mean the Third Amendment, dated as of the Third Amendment Effective Date, to this Agreement.
“Third Amendment Effective Date” shall mean July 20, 2016.
“Write-Down and Conversion Powers” shall mean, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
(b) The definition of “Federal Funds Effective Rate” is hereby amended to include the following clause immediately before the end of the first sentence thereof:
provided, further, that if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero with respect to the Term Facility for purposes of this Agreement
(c) The definition of “Initial Term B Loan Commitment” is hereby amended and restated in its entirety as follows:
“Initial Term B Loan Commitment” shall mean, with respect to each Lender, the agreement, if any, of such Lender: (i) prior to the Amendment Effective Date, to make
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Initial Term B Loans as set forth in Section 2.01(a) on the Closing Date, (ii) on or after the Amendment Effective Date but prior to the Third Amendment Effective Date, (a) to continue its Existing Term Loans (as defined in the First Amendment) as a New Term Loan or (b) to make a New Term Loan in the amount provided for in the First Amendment or (iii) on or after the Third Amendment Effective Date, (a) to continue its Existing Term Loans (as defined in the Third Amendment) as a New 2022 Term Loan or (b) to make a New 2022 Term Loan in the amount provided for in the Third Amendment. The aggregate amount of the Initial Term B Loan Commitments on, and after giving effect to, the Third Amendment Effective Date is $1,100,000,000.
(d) The definition of “Initial Term B Loans” is hereby amended and restated in its entirety as follows:
“Initial Term B Loans” shall mean (i) prior to the Amendment Effective Date, a Loan made by an Initial Term B Lender pursuant to Section 2.01(a), (ii) on and after the Amendment Effective Date but prior to the Third Amendment Effective Date, any New Term Loans made or continued pursuant to the First Amendment or (iii) on and after the Third Amendment Effective Date, any New 2022 Term Loans made or continued pursuant to the Third Amendment.
(e) The definition of “LIBO Rate” is hereby amended to include the following clause immediately before the end thereof;
provided, further, that if such rate as published by BBA LIBOR (or other applicable source) shall be less than zero, such rate shall be deemed to be zero with respect to the Term Facility for purposes of this Agreement
(f) The definition of “Term B Facility Maturity Date” is hereby amended and restated in its entirety as follows:
“Term B Facility Maturity Date” shall mean July 20, 2022.
(g) The definition of “Term B Loans” is hereby amended and restated in its entirety as follows:
“Term B Loans” shall mean (i) prior to the Amendment Effective Date, the Initial Term B Loans that were made by the Lenders to the Borrower pursuant to Section 2.01(a), (ii) on or after the Amendment Effective Date but prior to the Third Amendment Effective Date, any New Term Loans made or continued hereunder pursuant to the First Amendment, (iii) on or after the Third Amendment Effective Date, any New 2022 Term Loans made or continued hereunder pursuant to the Third Amendment and (iii) any Incremental Term Loans in the form of Term B Loans having the same terms (including pricing, Yield and amortization) as the New 2022 Term Loans made by the Incremental Term Lenders to the Borrower pursuant to Section 2.01(d).
SECTION 3. Other Amendments to the Credit Agreement.
(a) Section 2.01 of the Credit Agreement is hereby amended as of the Third Amendment Effective Date by adding the following sentence immediately before the last sentence of Section 2.01(a):
“Following the making or continuation thereof, as applicable, on the Third Amendment Effective Date, the New 2022 Term Loans shall constitute Initial Term B Loans and Term B Loans, as applicable, in all respects.”
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(b) Section 2.08(a)(ii) of the Credit Agreement is hereby amended as of the Third Amendment Effective Date by replacing the phrase “Closing Date or Amendment Effective Date, as applicable” where used therein with the phrase “Closing Date, Amendment Effective Date or Third Amendment Effective Date, as applicable”.
(c) Section 2.11(h) of the Credit Agreement is hereby amended as of the Third Amendment Effective Date by replacing the phrase “twelve (12) month anniversary of the Amendment Effective Date” where used therein with the phrase “six (6) month anniversary of the Third Amendment Effective Date”.
(d) Section 2.20(b) of the Credit Agreement is hereby amended as of the Third Amendment Effective Date by replacing the phrase “eighteen (18) months after the Closing Date” where used therein with the phrase “eighteen (18) months after the Third Amendment Effective Date”.
(e) Article III of the Credit Agreement is hereby amended as of the Third Amendment Effective Date by adding the following section as a new Section 3.22:
“Anti-Corruption Laws and Sanctions. The Borrower has implemented and maintains in effect policies and procedures reasonably designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in the Borrower being designated as a Sanctioned Person. None of (a) the Borrower, any Subsidiary or any of their respective directors or officers, or (b) any employee of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Loan use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.”
(f) Article III of the Credit Agreement is hereby amended as of the Third Amendment Effective Date by adding the following section as a new Section 3.23:
“EEA Financial Institutions. No Loan Party is an EEA Financial Institution.”
(g) Section 5.01 of the Credit Agreement is hereby amended as of the Third Amendment Effective Date by adding the following section as a new Section 5.01(c):
“Maintain in effect and enforce policies and procedures reasonably designed to promote compliance in all material respects by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.”
(h) Section 6.06(m) of the Credit Agreement is hereby amended and restated in its entirety as of the Third Amendment Effective Date as follows:
“other Restricted Payments, provided, that (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) after giving effect thereto, the Total Net Leverage Ratio on a Pro Forma Basis shall not be greater than 4.00 to 1.00 (the “RP Ratio Test”);
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provided that, for the two fiscal quarters ended immediately following the closing of a Material Acquisition (including the fiscal quarter in which such Material Acquisition occurs), the RP Ratio Test shall be 4.50 to 1.00 with respect to then-existing common stock dividend and stock buyback programs; provided, however, that, after any such two fiscal quarter period, there shall be two consecutive fiscal quarters for which the RP Ratio Test shall be 4.00 to 1.00, regardless of any other Material Acquisitions.”
(i) Article VI of the Credit Agreement is hereby amended as of the Third Amendment Effective Date by adding the following section as a new Section 6.11:
“Use of Proceeds. Request any Loan, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Loan, (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country in violation of Sanctions, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto.”
(j) Article X of the Credit Agreement is hereby amended as of the Third Amendment Effective Date by adding the following section as a new Section 10.24:
“Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.”
SECTION 4. New 2022 Term Loans.
(a) Subject to the terms and conditions set forth herein (i) each Continuing Term Lender agrees to continue all (or such lesser amount as notified to such Lender by the Administrative Agent prior to the Third Amendment Effective Date) of its Existing Term Loans as a New 2022 Term Loan on the Third Amendment Effective Date in a principal amount equal to such Continuing Term Lender’s New Term Loan Commitment (as defined below) and (ii) each Additional Term Lender agrees to make a New
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2022 Term Loan on such date to the Borrower in a principal amount equal to such Additional Term Lender’s New Term Loan Commitment. For purposes hereof, a Person shall become a party to the Credit Agreement as amended hereby and a New Term Lender as of the Third Amendment Effective Date by executing and delivering to the Administrative Agent, on or prior to the Third Amendment Effective Date, a Lender Addendum (Additional Term Lender) in its capacity as a New Term Lender. For the avoidance of doubt, the Existing Term Loans of a Continuing Term Lender must be continued in whole and may not be continued in part unless approved by the Lead Arranger.
(b) Each Additional Term Lender will make its New 2022 Term Loan on the Third Amendment Effective Date by making available to the Administrative Agent, in the manner contemplated by Section 2.02 of the Credit Agreement, an amount equal to its New Term Loan Commitment. The “New Term Loan Commitment” (i) of any Continuing Term Lender will be the amount of its Existing Term Loans as set forth in the Register as of the Third Amendment Effective Date (or such lesser amount as notified to such Lender by the Administrative Agent prior to the Third Amendment Effective Date), which shall be continued as an equal amount of New 2022 Term Loans, and (ii) of any Additional Term Lender will be such amount (not exceeding any commitment offered by such Additional Term Lender) allocated to it by the Administrative Agent and notified to it on or prior to the Third Amendment Effective Date. The commitments of the Additional Term Lenders and the continuation undertakings of the Continuing Term Lenders are several, and no such Lender will be responsible for any other such Lender’s failure to make or acquire by continuation its New 2022 Term Loan. The New 2022 Term Loans may from time to time be ABR Loans or Eurocurrency Loans, as determined by the Borrower and notified to the Administrative Agent as contemplated by Sections 2.02 and 2.03 of the Credit Agreement. The Lenders having Existing Term Loans that are prepaid in connection with the making of the New 2022 Term Loans shall be entitled to the benefits of Section 2.16 of the Credit Agreement with respect thereto. The Continuing Term Lenders hereby waive the benefits of Section 2.16 of the Credit Agreement with respect thereto.
(c) The obligation of each New Term Lender to make or acquire by continuation New 2022 Term Loans on the Third Amendment Effective Date is subject to the satisfaction of the conditions set forth in Section 5 of this Amendment.
(d) On and after the Third Amendment Effective Date, each reference in the Credit Agreement to “Initial Term B Loans” shall be deemed a reference to the New 2022 Term Loans contemplated hereby, except as the context may otherwise require. Notwithstanding the foregoing, the provisions of the Credit Agreement with respect to indemnification, reimbursement of costs and expenses, increased costs and break funding payments shall continue in full force and effect with respect to, and for the benefit of, each Existing Term Lender in respect of such Lender’s Existing Term Loans to the same extent expressly set forth therein.
(e) The continuation of Continued Term Loans may be implemented pursuant to other procedures specified by the Lead Arranger, including by repayment of Continued Term Loans of a Continuing Term Lender followed by a subsequent assignment to it of New 2022 Term Loans in the same amount.
(f) For the avoidance of doubt, the Lenders hereby acknowledge and agree that, at the sole option of the Lead Arranger, any Lender with Existing Term Loans that are prepaid as contemplated hereby shall, automatically upon receipt of the amount necessary to purchase such Lender’s Existing Term Loans so replaced, at par, and pay all accrued interest thereon, be deemed to have assigned such Loans pursuant to a form of Assignment and Assumption and, accordingly, no other action by the Lenders, the Administrative Agent or the Loan Parties shall be required in connection therewith. The Lenders hereby agree to waive the notice requirements of Sections 2.10(d) and 2.11(a) of the Credit Agreement in connection with the prepayment or replacement of Existing Term Loans contemplated hereby.
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SECTION 5. Effectiveness. This Amendment shall become effective as of the date (the “Third Amendment Effective Date”) on which the following conditions have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received (i) a duly executed and completed counterpart hereof that bears the signature of the Borrower, (ii) a duly executed and completed counterpart hereof that bears the signature of the Administrative Agent and (iii) Lender Addenda, executed and delivered by the Continuing Term Lenders and the Additional Term Lenders.
(b) The Administrative Agent shall have received an Acknowledgment and Confirmation in the form of Annex I hereto from an authorized officer of each Loan Party.
(c) The Administrative Agent shall have received all fees payable thereto or to any Lender on or prior to the Third Amendment Effective Date.
(d) To the extent invoiced, the Administrative Agent shall have received reimbursement or payment of all reasonable out-of- pocket expenses (including reasonable fees, charges and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP) in connection with this Amendment and any other reasonable out-of- pocket expenses required to be reimbursed or paid by the Loan Parties under the Credit Agreement or under any Loan Document.
(e) No Event of Default or Default shall have occurred and be continuing.
(f) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower, certifying on behalf of the Borrower that, (i) after giving effect to the New 2022 Term Loans, the representations and warranties set forth in the Loan Documents, as amended by this Amendment, are true and correct in all material respects on and as of the Third Amendment Effective Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date (other than the representations and warranties contained in Section 3.18 of the Credit Agreement, which shall be true and correct in all material respects as of the Third Amendment Effective Date)) and (ii) no Default or Event of Default has occurred and is continuing on the Third Amendment Effective Date after giving effect to this Amendment and the New 2022 Term Loans.
(g) The Administrative Agent shall have received, on behalf of itself and the Lenders on the Third Amendment Effective Date (after giving effect hereto), a favorable written opinion of (i) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b) to the Credit Agreement, in each case (A) dated the Third Amendment Effective Date, (B) addressed to the Administrative Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to this Amendment and the Loan Documents as the Administrative Agent shall reasonably request.
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(h) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii) and (iii) below:
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Third Amendment Effective Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Third Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of this Amendment and the Loan Documents to which such person is a party and, in the case of the Borrower, the borrowings thereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Third Amendment Effective Date,
(C) that the certificate or articles of incorporation, certificate of limited partnership or certificate of formation of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer executing any Loan Document (including the Acknowledgment and Confirmation in the form of Annex I hereto) or any other document delivered in connection herewith on behalf of such Loan Party; and
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above.
(i) The Lenders shall have received a solvency certificate in form and substance reasonably satisfactory to the Administrative Agent and signed by the Chief Financial Officer of the Borrower.
(j) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act, requested not less than five business days prior to the date hereof.
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Notwithstanding any other provisions of this Amendment to the contrary, the Administrative Agent may appoint a fronting lender to act as the sole Additional Term Lender for purposes of facilitating funding on the Third Amendment Effective Date. Accordingly, any Lender Addendum (Additional Term Lender) submitted by or on behalf of an Additional Term Lender other than such fronting lender will be deemed ineffective unless accepted by the Lead Arranger in its sole discretion.
SECTION 6. Representations and Warranties. The Borrower represents and warrants to each of the Lenders and the Administrative Agent that as of the Third Amendment Effective Date:
6.1. This Amendment has been duly authorized, executed and delivered by it and this Amendment and the Credit Agreement, as amended hereby, constitutes its valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
6.2. Each of the representations and warranties set forth in Article III of the Credit Agreement are true and correct in all material respects on and as of the Third Amendment Effective Date with the same effect as though made on and as of the Third Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date (other than the representations and warranties contained in Section 3.18 of the Credit Agreement, which shall be true and correct in all material respects as of the Third Amendment Effective Date)).
SECTION 7. Effect of Amendment.
7.1. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and affect. Nothing herein shall be deemed to entitle the Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances.
7.2. On and after the Third Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference to the Credit Agreement in any other Loan Document shall be deemed a reference to the Credit Agreement as amended hereby. This Amendment and the Acknowledgment and Confirmation shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
7.3. Except as expressly provided herein or in the Credit Agreement, the Amended Term Loan Facility shall be subject to the terms and provisions of the Credit Agreement and the other Loan Documents.
SECTION 8. General.
8.1. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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8.2. Costs and Expenses. The Borrower 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 Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, primary counsel for the Administrative Agent, the Lead Arranger, the Joint Bookrunners and the Lenders.
8.3. Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Amendment by email or facsimile transmission (or other electronic transmission) shall be effective as delivery of a manually executed counterpart hereof.
8.4. Headings. The headings of this Amendment are used for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.
8.5. FATCA Grandfathered Status. Solely for purposes of determining withholding Taxes under FATCA, from and after the Third Amendment Effective Date, the Borrower and the Administrative Agent shall treat (and the New Term Lenders hereby authorize the Administrative Agent to treat) the New 2022 Term Loans as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized officers as of the day and year first above written.
| REALOGY GROUP LLC, as Borrower | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Executive Vice President, Chief Financial Officer and Treasurer | |
| REALOGY INTERMEDIATE HOLDINGS, LLC, as Holdings | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Executive Vice President, Chief Financial Officer and Treasurer | |
Signature Page to Amendment
| JPMORGAN CHASE BANK, N.A., as Administrative Agent | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: | Xxxxxx Xxxxx | |
| Title: | Vice President | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| JPMORGAN CHASE BANK, N.A., as a Revolving Facility Lender | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: | Xxxxxx Xxxxx | |
| Title: | Vice President | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| Barclays Bank PLC as a Revolving Facility Lender | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: | Xxxxxx Xxxxx | |
| Title: | Vice President | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| Citibank, N.A., as a Revolving Facility Lender | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Vice President | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Revolving Facility Lender | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Director | |
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | Managing Director | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| XXXXXXX XXXXX BANK USA, as a Revolving Facility Lender | ||
| By: | /s/ Xxxxx Xx | |
| Name: | Xxxxx Xx | |
| Title: | Authorized Signatory | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| SunTrust Bank, as a Revolving Facility Lender | ||
| By: | /s/ Xxxxx X. Xxxxx | |
| Name: | Xxxxx X. Xxxxx | |
| Title: | Vice President | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| Bank of Montreal, as a Revolving Facility Lender | ||
| By: | /s/ Xxxx X. Xxxx | |
| Name: | Xxxx X. Xxxx | |
| Title: | Vice President | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| Bank of America, N.A., as a Revolving Facility Lender | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxx | |
| Title: | Vice President | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| Citizens Bank, N.A., as a Revolving Facility Lender | ||
| By: | /s/ Xxxxx X. Xxxxx | |
| Name: | Xxxxx X. Xxxxx | |
| Title: | Director | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Revolving Facility Lender | ||
| By: | /s/ Xxxxxxxxxxx Xxx | |
| Name: | Xxxxxxxxxxx Xxx | |
| Title: | Authorized Signatory | |
| By: | /s/ Xxxx Xxxx | |
| Name: | Xxxx Xxxx | |
| Title: | Authorized Signatory | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| The Bank of Nova Scotia, as a Revolving Facility Lender | ||
| By: | /s/ Xxxxxxxx Saishio | |
| Name: | Xxxxxxxx Saishio | |
| Title: | Director | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| Xxxxx Fargo Bank, N.A., as a Revolving Facility Lender | ||
| By: | /s/ Xxxxxxxxx Xxxxxxxxxx | |
| Name: | Xxxxxxxxx Xxxxxxxxxx | |
| Title: | Vice President | |
Signature Page to Amendment
Accepted and agreed to solely
with respect to the amendment
set forth in Section 3(h) of this Amendment:
| People’s United Bank, National Association, as a Revolving Facility Lender | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Senior Vice President | |
Signature Page to Amendment
Annex I
ACKNOWLEDGMENT AND CONFIRMATION
(a) Reference is made to the THIRD AMENDMENT, dated as of July 20, 2016 (the “Amendment”; capitalized terms used herein without definition shall have the meanings therein), to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 5, 2013 (as amended, modified, restated and supplemented from time to time prior to the effectiveness of the Amendment, the “Credit Agreement”), among Realogy Intermediate Holdings LLC (“Holdings”), Realogy Group LLC (the “Borrower”), the several lenders from time to time parties thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”) and the other agents parties thereto.
(b) The Credit Agreement is being amended and the Borrower is obtaining New 2022 Term Loans to replace the Existing Term Loans pursuant to the Amendment as set forth therein (the “Amended Credit Agreement”). Each of the parties hereto hereby agrees, with respect to each Loan Document to which it is a party:
(i) all of its obligations, liabilities and indebtedness under such Loan Document shall remain in full force and effect on a continuous basis regardless of the effectiveness of the Amendment; and
(ii) all of the Liens and security interests created and arising under such Loan Document remain in full force and effect on a continuous basis, and the perfected status and priority of each such Lien and security interest continues in full force and effect on a continuous basis, unimpaired, uninterrupted and undischarged, regardless of the effectiveness of the Amendment, as collateral security for its obligations, liabilities and indebtedness under the Amended Credit Agreement and related guarantees.
(c) This Acknowledgment and Confirmation shall constitute a “Loan Document” for all purposes of the Amended Credit Agreement and the other Loan Documents (as defined in the Amended Credit Agreement).
(d) THIS ACKNOWLEDGMENT AND CONFIRMATION AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS ACKNOWLEDGMENT AND CONFIRMATION SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(e) This Acknowledgment and Confirmation may be executed by one or more of the parties to this Acknowledgment and Confirmation on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Acknowledgment and Confirmation by email or facsimile transmission (or other electronic transmission) shall be effective as delivery of a manually executed counterpart hereof.
IN WITNESS WHEREOF, each of the undersigned has caused this Acknowledgment and Confirmation to be duly executed and delivered as of the date first written above.
| REALOGY GROUP, LLC | ||
| By: |
| |
| Name: | ||
| Title: | ||
Signature Page to Acknowledgment and Confirmation
| REALOGY INTERMEDIATE HOLDINGS, LLC | ||
| By: |
| |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Executive Vice President, Chief | |
| Financial Officer and Treasurer | ||
Signature Page to Acknowledgment and Confirmation
| CASTLE EDGE INSURANCE AGENCY, INC. | ||
| REALOGY OPERATIONS LLC | ||
| REALOGY SERVICES GROUP LLC | ||
| REALOGY SERVICES VENTURE PARTNER LLC | ||
| By: |
| |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Chief Financial Officer | |
Signature Page to Acknowledgment and Confirmation
| CARTUS ASSET RECOVERY CORPORATION | ||
| CARTUS CORPORATION | ||
| MID-ATLANTIC SETTLEMENT SERVICES LLC | ||
| TRG MARYLAND HOLDINGS LLC | ||
| By: |
| |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Executive Vice President & Treasurer | |
Signature Page to Acknowledgment and Confirmation
| AMERICAN TITLE COMPANY OF HOUSTON | ||
| BURNET TITLE HOLDING LLC | ||
| BURNET TITLE LLC | ||
| CASE TITLE COMPANY | ||
| CORNERSTONE TITLE COMPANY | ||
| EQUITY TITLE COMPANY | ||
| EQUITY TITLE MESSENGER SERVICE HOLDING LLC | ||
| GUARDIAN HOLDING COMPANY | ||
| GUARDIAN TITLE AGENCY, LLC | ||
| KEYSTONE CLOSING SERVICES LLC | ||
| LAKECREST TITLE, LLC | ||
| MARKET STREET SETTLEMENT GROUP LLC | ||
| NATIONAL COORDINATION ALLIANCE LLC | ||
| NRT SETTLEMENT SERVICES OF MISSOURI LLC | ||
| NRT SETTLEMENT SERVICES OF TEXAS LLC | ||
| PROCESSING SOLUTIONS LLC | ||
| SECURED LAND TRANSFERS LLC | ||
| ST. XXX TITLE SERVICES LLC | ||
| TEXAS AMERICAN TITLE COMPANY | ||
| TITLE RESOURCE GROUP AFFILIATES HOLDINGS LLC | ||
| TITLE RESOURCE GROUP HOLDINGS LLC | ||
| TITLE RESOURCE GROUP LLC | ||
| TITLE RESOURCE GROUP SERVICES LLC | ||
| TRG SETTLEMENT SERVICES, LLP | ||
| By: |
| |
| Name: | Xxxxxx X. Xxxxxxx | |
| Title: | Chief Financial Officer | |
Signature Page to Acknowledgment and Confirmation
| BETTER HOMES AND GARDENS REAL ESTATE LICENSEE LLC | ||
| BETTER HOMES AND GARDENS REAL ESTATE LLC | ||
| CENTURY 21 REAL ESTATE LLC | ||
| CGRN, INC. | ||
| COLDWELL BANKER LLC | ||
| COLDWELL BANKER REAL ESTATE LLC | ||
| ERA FRANCHISE SYSTEMS LLC | ||
| GLOBAL CLIENT SOLUTIONS LLC | ||
| ONCOR INTERNATIONAL LLC | ||
| REALOGY FRANCHISE GROUP LLC | ||
| REALOGY GLOBAL SERVICES LLC | ||
| REALOGY LICENSING LLC | ||
| SOTHEBY’S INTERNATIONAL REALTY AFFILIATES LLC | ||
| SOTHEBY’S INTERNATIONAL REALTY LICENSEE LLC | ||
| ZAPLABS LLC | ||
| By: |
| |
| Name: | Xxxxxx X. Xxxxxxxx | |
| Title: | Chief Finance & Strategy Officer | |
Signature Page to Acknowledgment and Confirmation
| ALPHA REFERRAL NETWORK LLC | ||
| XXXXXXXXX LLC | ||
| BURNET REALTY LLC | ||
| CAREER DEVELOPMENT CENTER, LLC | ||
| CB COMMERCIAL NRT PENNSYLVANIA LLC | ||
| CDRE TM LLC | ||
| COLDWELL BANKER COMMERCIAL PACIFIC PROPERTIES LLC | ||
| COLDWELL BANKER PACIFIC PROPERTIES LLC | ||
| COLDWELL BANKER REAL ESTATE SERVICES LLC | ||
| COLDWELL BANKER RESIDENTIAL BROKERAGE COMPANY | ||
| COLDWELL BANKER RESIDENTIAL BROKERAGE LLC | ||
| COLDWELL BANKER RESIDENTIAL REAL ESTATE LLC | ||
| COLDWELL BANKER RESIDENTIAL REFERRAL NETWORK | ||
| COLDWELL BANKER RESIDENTIAL REFERRAL NETWORK, INC. | ||
| COLORADO COMMERCIAL, LLC | ||
| XXXXXXXX GROUP LLC | ||
| XXX.XXX CONNECTICUT REAL ESTATE LLC | ||
| XXX.XXX REAL ESTATE INCORPORATED | ||
| XXX.XXX REAL ESTATE LLC | ||
| HFS LLC | ||
| HOME REFERRAL NETWORK LLC | ||
| XXXX XXXXXXX LLC | ||
| XXXXXX XXXXXX PROPERTIES, L.P. | ||
| XXXXXX XXXXXX SOTHEBY’S INTERNATIONAL REALTY REFERRAL COMPANY LLC | ||
| MTPGP, LLC | ||
| NRT ARIZONA COMMERCIAL LLC | ||
| NRT ARIZONA LLC | ||
| NRT ARIZONA REFERRAL LLC | ||
| By: |
| |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Chief Financial Officer | |
Signature Page to Acknowledgment and Confirmation
| NRT CAROLINAS LLC | ||
| NRT CAROLINAS REFERRAL NETWORK LLC | ||
| NRT COLORADO LLC | ||
| NRT COLUMBUS LLC | ||
| NRT COMMERCIAL LLC | ||
| NRT COMMERCIAL UTAH LLC | ||
| NRT DEVELOPMENT ADVISORS LLC | ||
| NRT DEVONSHIRE LLC | ||
| NRT DEVONSHIRE WEST LLC | ||
| NRT FLORIDA LLC | ||
| NRT HAWAII REFERRAL, LLC | ||
| NRT LLC | ||
| NRT MID-ATLANTIC LLC | ||
| NRT MISSOURI LLC | ||
| NRT MISSOURI REFERRAL NETWORK LLC | ||
| NRT NEW ENGLAND LLC | ||
| NRT NEW YORK LLC | ||
| NRT NORTHFORK LLC | ||
| NRT PHILADELPHIA LLC | ||
| NRT PITTSBURGH LLC | ||
| NRT PROPERTY MANAGEMENT ARIZONA LLC | ||
| NRT PROPERTY MANAGEMENT ATLANTA LLC | ||
| NRT PROPERTY MANAGEMENT CALIFORNIA, INC. | ||
| NRT PROPERTY MANAGEMENT DC LLC | ||
| NRT PROPERTY MANAGEMENT DELAWARE LLC | ||
| NRT PROPERTY MANAGEMENT FLORIDA LLC | ||
| NRT PROPERTY MANAGEMENT GEORGIA LLC | ||
| NRT PROPERTY MANAGEMENT MARYLAND LLC | ||
| NRT PROPERTY MANAGEMENT MINNESOTA LLC | ||
| NRT PROPERTY MANAGEMENT NEW JERSEY LLC | ||
| By: |
| |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Chief Financial Officer | |
Signature Page to Acknowledgment and Confirmation
| NRT PROPERTY MANAGEMENT PENNSYLVANIA LLC | ||
| NRT PROPERTY MANAGEMENT SOUTH CAROLINA LLC | ||
| NRT PROPERTY MANAGEMENT TEXAS LLC | ||
| NRT PROPERTY MANAGEMENT VIRGINIA LLC | ||
| NRT REFERRAL NETWORK LLC | ||
| NRT RELOCATION LLC | ||
| NRT RENTAL MANAGEMENT SOLUTIONS LLC | ||
| NRT REOEXPERTS LLC | ||
| NRT SUNSHINE INC. | ||
| NRT TEXAS LLC | ||
| NRT UTAH LLC | ||
| NRT WEST, INC. | ||
| NRT ZIPREALTY LLC | ||
| REAL ESTATE REFERRAL LLC | ||
| REAL ESTATE REFERRALS LLC | ||
| REAL ESTATE SERVICES LLC | ||
| REALOGY CO-ISSUER GROUP | ||
| REFERRAL ASSOCIATES OF NEW ENGLAND LLC | ||
| REFERRAL NETWORK LLC | ||
| REFERRAL NETWORK, LLC | ||
| REFERRAL NETWORK PLUS, INC. | ||
| SOTHEBY’S INTERNATIONAL REALTY REFERRAL COMPANY, LLC | ||
| SOTHEBY’S INTERNATIONAL REALTY, INC. | ||
| THE SUNSHINE GROUP, LTD. | ||
| ZIPREALTY CALIFORNIA, INC. | ||
| By: |
| |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Chief Financial Officer | |
Signature Page to Acknowledgment and Confirmation
LENDER ADDENDUM (ADDITIONAL TERM LENDER) TO THE
AMENDMENT OF THE
CREDIT AGREEMENT
DATED AS OF MARCH 5, 2013
This Lender Addendum (Additional Term Lender) (this “Lender Addendum”) is referred to in, and is a signature page to, the Third Amendment (the “Amendment”) to the Amended and Restated Credit Agreement dated as of March 5, 2013 (the “Credit Agreement”), among Realogy Intermediate Holdings LLC (“Holdings”), Realogy Group LLC (the “Borrower”), the several lenders from time to time parties thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”) and the other agents parties thereto. Capitalized terms used but not defined in this Lender Addendum have the meanings assigned to such terms in the Amendment or the Credit Agreement, as applicable.
By executing this Lender Addendum as an Additional Term Lender, the undersigned institution agrees (A) to the terms of the Amendment and the Credit Agreement as amended thereby, (B) on the terms and subject to the conditions set forth in the Amendment and the Credit Agreement as amended thereby, to make and fund New 2022 Term Loans on the Third Amendment Effective Date in the amount of such Additional Term Lender’s New Term Loan Commitment and (C) that on the Third Amendment Effective Date it is subject to, and bound by, the terms and conditions of the Credit Agreement and other Loan Documents as a Lender thereunder.
|
Name of Institution: |
JPMorgan Chase Bank, N.A.
|
| Executing as an Additional Term Lender: | ||||||
| By: |
/s/ Xxxxxx Xxxxx |
|||||
| Name: |
Xxxxxx Xxxxx | |||||
| Title: |
Vice President | |||||
| For any institution requiring a second signature line: | ||||||
| By: |
|
|||||
| Name: |
||||||
| Title: |
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