Contract
Exhibit 10.1
FIFTH AMENDMENT dated as of September 10, 2018 (this “Amendment”), to the AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 5, 2014 (as heretofore amended, supplemented or otherwise modified, the “Credit Agreement”), among EXPEDIA GROUP, INC., a Delaware corporation, EXPEDIA, INC., a Washington corporation, TRAVELSCAPE, LLC, a Nevada limited liability company, HOTWIRE, INC., a Delaware corporation, the other BORROWING SUBSIDIARIES from time to time party thereto, the LENDERS from time to time party thereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent and London Agent.
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;
WHEREAS, the Company has requested that the Lenders agree to effect certain amendments to the Credit Agreement as set forth herein; and
WHEREAS, the parties hereto, which include Lenders constituting the Required Lenders as of the Fifth Amendment Effective Date (as defined below), 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 and the recitals hereto) have the meanings assigned to them in the Credit Agreement (as amended hereby).
SECTION 2. Amendment of Credit Agreement. Effective as of the Fifth Amendment Effective Date:
(a) The definition of “Designated Subsidiary” in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:
“Designated Subsidiary” means each Subsidiary that is (a) a Borrowing Subsidiary, (b) a Material Subsidiary or (c) an obligor (including pursuant to a Guarantee) under any Material Indebtedness of the Company or any other Domestic Subsidiary (other than any Specified Foreign Subsidiary or any CFC Holdco), in each case other than (i) except with respect to clause (c) above, any Specified Foreign Subsidiary or any CFC Holdco, (ii) except with respect to clause (a) or (c) above, (A) any other Foreign Subsidiary or (B) any subsidiary of a Foreign Subsidiary, other than any such subsidiary that is a Domestic Subsidiary if, prior to becoming a subsidiary of such Foreign Subsidiary, such Domestic Subsidiary was a direct
subsidiary of the Company or any other Domestic Subsidiary (which other Domestic Subsidiary was not itself a subsidiary of a Foreign Subsidiary), (iii) the New Headquarters SPV and the New Headquarters Parent SPV, (iv) except with respect to clause (a) or (c) above, any Subsidiary if, and for so long as, such Subsidiary is not a Wholly Owned Subsidiary, (v) except with respect to clause (a) or (c) above, Classic Vacations, LLC, a Nevada limited liability company, and (vi) any Securitization Subsidiary.
(b) The definition of “Guarantee Requirement” in Section 1.01 of the Credit Agreement is hereby amended by replacing each instance of the phrase “Sections 4.01(b) and 4.01(d)” with the phrase “Sections 4.01(b) and 4.01(d) of this Agreement as in effect on the Restatement Effective Date”.
(c) The definition of “Restatement Effective Date” in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:
“Restatement Effective Date” means September 5, 2014.
(d) Clause (d)(v) of Section 2.09 of the Credit Agreement is hereby amended by replacing the phrase “Sections 4.01(b) and 4.01(d)” with the phrase “Sections 4.01(b) and 4.01(d) of this Agreement as in effect on the Restatement Effective Date”.
(e) Section 6.08(s) of the Credit Agreement is hereby amended by replacing the phrase “(other than any Domestic Subsidiary that is expressly excluded from being a Designated Subsidiary pursuant to clauses (i) through (iv) of the definition of such term)” with the phrase “(other than any Domestic Subsidiary that is expressly excluded from being a Designated Subsidiary pursuant to clauses (i) through (vi) of the definition of such term)”.
(f) Section 9.14(a) of the Credit Agreement is hereby amended by replacing the phrase “that is not a Designated Subsidiary in reliance solely on clause (iii) of the definition of such term” with the phrase “that is not a Designated Subsidiary in reliance solely on clause (iv) of the definition of such term”.
SECTION 3. Representations and Warranties. The Company and each Borrowing Subsidiary represents and warrants to the Lenders that:
(a) This Amendment has been duly executed and delivered by the Company and each Borrowing Subsidiary and (assuming due execution by the parties hereto other than the Company and the Borrowing Subsidiaries) constitutes a legal, valid and binding obligation of the Company and each Borrowing Subsidiary, enforceable 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.
2
(b) Before and after giving effect to this Amendment, the representations and warranties set forth in Article III of the Credit Agreement are true and correct in all material respects (in all respects in the case of representations and warranties qualified by materiality in the text thereof) on and as of the Fifth Amendment Effective Date 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 so true and correct as of such earlier date.
(c) As of the Fifth Amendment Effective Date, before and 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 first date (the “Fifth Amendment Effective Date”) on which the Administrative Agent (or its counsel) shall have received duly executed counterparts hereof that, when taken together, bear the authorized signatures of the Company, each Borrowing Subsidiary, the Administrative Agent, the London Agent and Lenders constituting at least the Required Lenders. The Administrative Agent shall notify the Company, the Lenders and the Issuing Banks of the Fifth Amendment Effective Date, and such notice shall be conclusive and binding.
SECTION 5. Effect of this Amendment. (a) 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 Agents, the Issuing Banks or the Lenders 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 Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to any other consent to, or any other 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.
(b) On and after the Fifth Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “herein”, “hereunder”, “hereto”, “hereof” and words of similar import shall, unless the context otherwise requires, refer to the Credit Agreement as amended hereby, and each reference to the Credit Agreement in any other Loan Document shall be deemed to be a reference to the Credit Agreement as amended hereby. This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
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
3
constitute an original but all of which, when taken together, shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
SECTION 8. Fees and 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. All fees shall be payable in immediately available funds and shall not be refundable.
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the date first above written.
by: | |
/s/ Xxxxxx Xxxxxxx | |
Name: Xxxxxx Xxxxxxx Title: Chief Legal Officer and Secretary | |
EXPEDIA, INC., | |
by: | |
/s/ Xxxxxx Xxxxxxx | |
Name: Xxxxxx Xxxxxxx Title: Chief Legal Officer and Secretary | |
TRAVELSCAPE, LLC, | |
by: | |
/s/ Xxxxxx Xxxxxxx | |
Name: Xxxxxx Xxxxxxx Title: Chief Legal Officer and Secretary | |
HOTWIRE, INC., | |
by: | |
/s/ Xxxxxx Xxxxxxx | |
Name: Xxxxxx Xxxxxxx Title: Chief Legal Officer and Secretary | |
[Signature Page to Fifth Amendment]
SIGNATURE PAGE TO
FIFTH AMENDMENT TO
CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF
JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent and London Agent, | |
by: | |
/s/ Xxxxx X. Xxxxxx | |
Name: Xxxxx X. Thauer Title: Managing Director | |
[Signature Page to Fifth Amendment]
SIGNATURE PAGE TO
FIFTH AMENDMENT TO
CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF
BANK OF AMERICA, N.A., as a Lender and an Issuing Bank | |
by: | |
/s/ Xxxxxxxx Xxxxxxx | |
Name: Xxxxxxxx Tristan Title: Vice President | |
[Signature Page to Fifth Amendment]
SIGNATURE PAGE TO
FIFTH AMENDMENT TO
CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF
Name of Institution: BNP Paribas | |
by: | |
/s/ Xxxxxx Xxxxxx | |
Name: Xxxxxx Latuff Title: Managing Director | |
Name of Institution: BNP Paribas | |
by: | |
/s/ Xxxxxxx Dyld | |
Name: Xxxxxxx Dyld Title: Director | |
SIGNATURE PAGE TO
FIFTH AMENDMENT TO
CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF
Mizuho Bank, Ltd. | |
by: | |
/s/ Xxxxxxx Xxxxxxx | |
Name: Xxxxxxx Ventura Title: Managing Director | |
SIGNATURE PAGE TO
FIFTH AMENDMENT TO
CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF
Name of Institution: HSBC Bank USA, National Association | |
by: | |
/s/ Xxxx X. Xxxx | |
Name: Xxxx K. Levy Title: Vice President | |
SIGNATURE PAGE TO
FIFTH AMENDMENT TO
CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF
MUFG Bank, Ltd. | |
by: | |
/s/ Xxx Xxxxxxxxx | |
Name: Ola Anderssen Title: Director | |
SIGNATURE PAGE TO
FIFTH AMENDMENT TO
CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF
Royal Bank of Canada | |
by: | |
/s/ Xxxxx Xxxxxxxx | |
Name: Xxxxx Bosneaga Title: Vice-President | |
SIGNATURE PAGE TO
FIFTH AMENDMENT TO
CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF
Name of Institution: SUMITOMO MITSUI BANKING CORPORATION | |
by: | |
/s/ Xxxxx X. Xxxxxxxxx | |
Name: Xxxxx X. Weinstein Title: Managing Director | |
SIGNATURE PAGE TO
FIFTH AMENDMENT TO
CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF
EXPEDIA GROUP, INC.
Name of Institution: U.S. Bank National Association | |
by: | |
/s/ Xxxxx Xxxxxxx | |
Name: Lukas Coleman Title: Vice President | |
SIGNATURE PAGE TO
FIFTH AMENDMENT TO
CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF
EXPEDIA GROUP, INC.
Name of Institution: THE BANK OF NOVA SCOTIA | |
by: | |
/s/ Xxxxxxx Grad | |
Name: Xxxxxxx Grad Title: Director | |
SIGNATURE PAGE TO
FIFTH AMENDMENT TO
CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF
EXPEDIA GROUP, INC.
Name of Institution: XXXXXXX XXXXX BANK USA | |
by: | |
/s/ Xxxxx Xxxxxxx | |
Name: Xxxxx Minieri Title: Authorized Signatory | |
SIGNATURE PAGE TO
FIFTH AMENDMENT TO
CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF
EXPEDIA GROUP, INC.
Name of Institution: Standard Chartered Bank | |
by: | |
/s/ Xxxxxx Xxxxxxx | |
Name: Xxxxxx Mattern Title: Associate Director | |
