Contract
Exhibit (b)(2)
EXECUTION COPY
FIRST AMENDMENT, dated as of December 7, 2006 (this
“Amendment”), to the CREDIT AGREEMENT dated as of July 8, 2005 (as
amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”), among EXPEDIA, INC., a Delaware
corporation; EXPEDIA, INC., a Washington corporation; TRAVELSCAPE, LLC, a
Nevada limited liability company (successor to TRAVELSCAPE, INC., a Nevada
corporation); XXXXXX.XXX, a Delaware corporation; HOTWIRE, INC., a
Delaware corporation; the other Borrowing Subsidiaries from time to time
party thereto; the Lenders from time to time party thereto; JPMORGAN CHASE
BANK, N.A., as Administrative Agent; and X.X. Xxxxxx Europe Limited, as
London Agent.
WITNESSETH:
WHEREAS, the Lenders have agreed to extend credit to the Borrowers under the Credit Agreement
on the terms and subject to the conditions set forth therein; and
WHEREAS, the Company has requested that the Lenders amend certain provisions of the Credit
Agreement and the Lenders under the Credit Agreement whose signatures appear below, constituting at
least the Required Lenders, are willing to amend the Credit Agreement on the terms and subject to
the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties
hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not otherwise defined herein
(including in the preamble hereto) have the meanings assigned to them in the Credit Agreement.
SECTION 2. Amendment of Section 6.05. Section 6.05 of the Credit Agreement is hereby
amended in its entirety to read as follows (such amendment to be given effect as of July 8, 2005,
as if the Credit Agreement as originally executed had contained the amended section):
“SECTION 6.05. Restricted Payments. The Company will not, and will not permit any of
the Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except that (a) the Company may declare and pay dividends with respect to its
Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may
declare and pay dividends ratably with respect to their Equity Interests, (c) the Company may make
Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans
for management or employees of the Company and the Subsidiaries and (d) the Company may declare or
make, or agree to make, so long as no Default or Event of Default shall exist, and, if declared or
agreed
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to be made in accordance with this clause (d), may make, Restricted Payments in an aggregate
amount during any fiscal year not to exceed, when taken together with all other Restricted Payments
made or agreed to be made under this clause (d) during the term of this Agreement, 50% of the
Company’s cumulative Consolidated Net Income for each fiscal quarter of the Company for which
financial statements shall have been delivered under Section 5.01(a) or (b) commencing with the
first full fiscal quarter after the consummation of the Spin-Off; provided,
however, that so long as no Default or Event of Default shall exist or would be caused
thereby, the Company may make Restricted Payments without limitation if the Leverage Ratio as of
the end of the most recently completed fiscal quarter, giving pro forma effect to such Restricted
Payments and any related incurrence of Indebtedness as if they had occurred on the last day of such
quarter, shall have been equal to or less than 2.0 to 1.0.”
SECTION 3. Representations, Warranties and Agreements. The Company, as to itself and
each of the Subsidiaries, hereby represents and warrants to and agrees with each Lender and the
Agents that:
(a) The representations and warranties set forth in Article III of the Credit Agreement, as
amended hereby, are true and correct in all material respects on and as of the Amendment Effective
Date (as defined below) and after giving effect to this Amendment, with the same effect as if made
on and as of such date, except to the extent such representations and warranties expressly relate
to an earlier date, in which case they were true and correct as of such earlier date.
(b) As of the Amendment Effective Date, after giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.
SECTION 4. Effectiveness. This Amendment shall become effective as of the date (the
“Amendment Effective Date”) on which the Administrative Agent shall have received duly
executed counterparts hereof that, when taken together, bear the authorized signatures of the
Company and Lenders constituting at least the Required Lenders.
SECTION 5. Credit Agreement. Except as specifically stated herein, the Credit
Agreement shall continue in full force and effect in accordance with the provisions thereof. As
used therein, the terms “Agreement”, “herein”, “hereunder”, “hereto”, “hereof” and words of similar
import shall, unless the context otherwise requires, refer to the Credit Agreement as modified
hereby.
SECTION 6. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Amendment may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original but
all of which, when taken together, shall constitute a single
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instrument. Delivery of an executed counterpart of a signature page of this Amendment by
telecopy shall be effective as delivery of a manually executed counterpart hereof.
SECTION 8. Expenses. The Company agrees to reimburse the Administrative Agent for
its reasonable out-of-pocket expenses in connection with this Amendment, including the reasonable
fees, charges and disbursements of Cravath, Swaine & Xxxxx LLP, counsel for the Administrative
Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed by
their respective authorized officers as of the date first above written.
EXPEDIA, INC., a Delaware corporation, |
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by: | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Vice President and Treasurer | |||
JPMORGAN CHASE BANK,
N.A., individually and as
Administrative Agent, |
||||
by: | /s/ Xxxxx X. Xxxxxx | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Vice President | |||
To approve the First Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution: | ||||
Bank of America N.A. | ||||
by: | /s/ Xxxxxx X. Xxxx | |||
Name: Xxxxxx X. Xxxx | ||||
Title: Senior Vice President | ||||
by: | 1 | |||
Name: | ||||
Title: | ||||
1 For any institution requiring a second signature line. |
To approve the First Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution: | ||||
Wachovia Bank N.A. |
by: | /s/ Xxxxx Xxxxxxx | |||
Name: Xxxxx Xxxxxxx | ||||
Title: Vice President | ||||
To approve the First Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution: | ||||
The Royal Bank of Scotland plc |
by: | /s/ Xxxxx Xxxxxxxx | |||
Name: Xxxxx Xxxxxxxx | ||||
Title: Managing Director | ||||
To approve the First Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution: | ||||
HSBC Bank USA, N.A. |
by: | /s/ Xxxxxx Xxxxxxx | |||
Name: Xxxxxx Xxxxxxx | ||||
Title: Senior Vice President | ||||
To approve the First Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution: | ||||
BNP Paribas |
by: | /s/ Xxxxxxx Xxxx | |||
Name: Xxxxxxx Xxxx | ||||
Title: Managing Director | ||||
by: | /s/ Xxxxxxx Xxxxxx | |||
Name: Xxxxxxx Xxxxxx | ||||
Title: Vice President | ||||
To approve the First Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution: | ||||
Societe Generale |
by: | /s/ Xxxxx Xxxxx | |||
Name: Xxxxx Xxxxx | ||||
Title: Vice President | ||||
To approve the First Amendment to the Expedia, Inc. Credit Agreement:
Name of Institution: | ||||
U.S. Bank National Association |
by: | /s/ Xxxxx X. Xxxxxxx | |||
Name: Xxxxx X. Xxxxxxx | ||||
Title: Vice President | ||||