GUARANTY made by CENDANT CORPORATION in favor of JPMORGAN CHASE BANK, N.A., as Administrative Agent Dated as of July 7, 2006
Exhibit
10.1
made
by
CENDANT
CORPORATION
in
favor
of
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
Dated
as
of July 7, 2006
TABLE
OF
CONTENTS
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Page
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SECTION
1.
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DEFINED
TERMS
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1 | ||
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1.1
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Definitions
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1 | ||
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1.2
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Other
Definitional Provisions
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2 | ||
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SECTION
2.
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2 | |||
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2.1
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2 | |||
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2.2
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No
Subrogation
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3 | ||
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2.3
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Amendments,
etc. with respect to the Obligations; Waiver of Rights
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3 | ||
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2.4
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Guaranty
Absolute and Unconditional
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4 | ||
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2.5
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Reinstatement
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4 | ||
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2.6
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Payments
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4 | ||
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SECTION
3.
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REPRESENTATIONS
AND WARRANTIES
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4 | ||
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3.1
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Corporate
Existence and Power
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4 | ||
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3.2
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Corporate
Authority, No Violation and Compliance with Law
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5 | ||
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3.3
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Enforceability
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5 | ||
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SECTION
4.
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THE
ADMINISTRATIVE AGENT
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5 | ||
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SECTION
5.
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MISCELLANEOUS
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5 | ||
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5.1
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Amendments
in Writing
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6 | ||
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5.2
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Notices
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6 | ||
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5.3
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No
Waiver by Course of Conduct; Cumulative Remedies
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6 | ||
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5.4
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Enforcement
Expenses; Indemnification
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6 | ||
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5.5
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Successors
and Assigns
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6 | ||
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5.6
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Set-Off
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6 | ||
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5.7
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Severability
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6 | ||
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5.8
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Section
Headings
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7 | ||
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5.9
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Integration
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5.10
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GOVERNING
LAW
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7 |
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5.11
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Submission
To Jurisdiction; Waivers
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7 |
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5.12
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Acknowledgements
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7 |
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5.13
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Releases
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8 |
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5.14
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WAIVER
OF JURY TRIAL
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8 |
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SCHEDULE
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Schedule
1
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Notice
Addresses
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i
GUARANTY
(this “Guaranty”),
dated
as of July 7, 2006, made by CENDANT CORPORATION, a Delaware corporation (the
“Guarantor”),
in
favor of JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such capacity,
the “Administrative
Agent”)
for
the banks and other financial institutions or entities (the “Lenders”)
from
time to time parties to the Credit Agreement, dated as of July 7, 2006 (as
amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”),
among
WYNDHAM WORLDWIDE CORPORATION (the “Borrower”),
the
Subsidiary Borrowers (as defined in the Credit Agreement) from time to time
parties to the Credit Agreement, CITICORP USA, INC., as Syndication Agent,
BANK
OF AMERICA, N.A., THE BANK OF NOVA SCOTIA, and THE ROYAL BANK OF SCOTLAND PLC,
as Documentation Agents, CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as
Co-Documentation Agent, the Lenders and the Administrative Agent.
W I T N E S S E T H:
WHEREAS,
pursuant to the Credit Agreement, the Lenders have severally agreed to make
extensions of credit to the Borrower and the Subsidiary Borrowers upon the
terms
and subject to the conditions set forth therein;
WHEREAS,
the Borrower and each Subsidiary Borrower is a member of an affiliated group
of
companies that includes the Guarantor;
WHEREAS,
the Borrower, each Subsidiary Borrower and the Guarantor will derive substantial
direct and indirect benefit from the making of the extensions of credit under
the Credit Agreement; and
WHEREAS,
it is a condition precedent to the obligation of the Lenders to make their
respective extensions of credit to the Borrower and any Subsidiary Borrower
under the Credit Agreement that the Guarantor shall have executed and delivered
this Guaranty to the Administrative Agent for the ratable benefit of the
Lenders;
NOW,
THEREFORE, in consideration of the premises and to induce the Administrative
Agent and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective extensions of credit to the Borrower and each
Subsidiary Borrower thereunder, the Guarantor hereby agrees with the
Administrative Agent, for the ratable benefit of the Lenders, as
follows:
SECTION
1. DEFINED
TERMS
1.1 Definitions.
(a)
Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(b) The
following terms shall have the following meanings:
“Collateralized”:
secured by cash collateral arrangements and/or backstop letters of credit
entered into on terms and in amounts reasonably satisfactory to the
Administrative Agent and the relevant Issuing Lender.
“Obligations”:
the
collective reference to the unpaid principal of and interest on the Loans,
the
reimbursement obligations in respect of Letters of Credit and Competitive
Letters of Credit, the Guaranty (as defined in the Credit Agreement) and all
other obligations and liabilities of the Borrower and any Subsidiary Borrower
(including, without limitation, interest accruing at the then applicable rate
provided in the Credit Agreement after the maturity of the Loans and interest
accruing at the then applicable rate provided in the Credit Agreement after
the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower or any Subsidiary
Borrower, whether or not a claim for post-filing or post-petition interest
is
allowed in such proceeding) to the Administrative Agent or any Lender, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, the other Fundamental Documents (other than this
Guaranty), any Letter of Credit, Competitive Letter of Credit or any other
document made, delivered or given in connection with any of the foregoing,
in
each case whether on account of principal, interest, reimbursement obligations,
swap coupon or termination payments, fees or indemnities or reasonable
out-of-pocket costs or expenses (including, without limitation, all reasonable
out-of-pocket fees and disbursements of counsel to the Administrative Agent
or
to the Lenders that are required to be paid by the Borrower pursuant to the
terms of any of the foregoing agreements).
“Termination
Event”:
either
(i) the consummation of the Spin-Off or (ii) payment in full of the Obligations,
termination of the Commitments and termination or expiration of the Letters
of
Credit (or such Letters of Credit shall have been Collateralized).
1.2 Other
Definitional Provisions.
(a)
The
words “hereof,” “herein”, “hereto” and “hereunder” and words of similar import
when used in this Guaranty shall refer to this Guaranty as a whole and not
to
any particular provision of this Guaranty, and Section and Schedule references
are to this Guaranty unless otherwise specified.
(b) The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
SECTION
2. GUARANTY
2.1 Guaranty.
(a)
The
Guarantor hereby unconditionally and irrevocably (except as otherwise provided
in Section 5.13) guaranties to the Administrative Agent, for the ratable benefit
of the Lenders and their respective successors, indorsees, transferees and
assigns, the prompt and complete payment and performance by the Borrower and
any
Subsidiary Borrower when due (whether at the stated maturity, by acceleration
or
otherwise) of the Obligations.
(b) The
Guarantor further agrees to pay any and all reasonable documented expenses
(including, without limitation, the reasonable fees and disbursements of
counsel) which may be paid or incurred by the Administrative Agent, any Issuing
Lender or any Lender in enforcing, or obtaining advice of counsel in respect
of,
any rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, the Borrower or
any
Subsidiary Borrower under this Guaranty; provided,
however,
that
the Guarantor shall not be liable for the fees and expenses of more than one
separate firm for the Lenders or any Issuing Lender (unless there shall exist
an
actual conflict of interest among such Persons, and in such case, not more
than
two separate firms) in connection with any one such action or any separate,
but
substantially similar or related actions in the same jurisdiction, nor shall
the
Guarantor be liable for any settlement or proceeding effected without the
Guarantor’s written consent. This Guaranty shall remain in full force and effect
until the occurrence of a Termination Event.
2
(c) No
payment or payments made by the Borrower, any Subsidiary Borrower or any other
Person or received or collected by the Administrative Agent or any Lender from
the Borrower, any Subsidiary Borrower or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application, at any
time
or from time to time, in reduction of or in payment of the Obligations shall
be
deemed to modify, reduce, release or otherwise affect the liability of the
Guarantor hereunder which shall, notwithstanding any such payment or payments
(other than payments made by the Guarantor in respect of the Obligations or
payments received or collected from the Guarantor in respect of the
Obligations), remain liable for the Obligations until the occurrence of a
Termination Event.
(d) The
Guarantor agrees that whenever, at any time, or from time to time, it shall
make
any payment to the Administrative Agent or any Lender on account of its
liability hereunder, it will notify the Administrative Agent and such Lender
in
writing that such payment is made under this Guaranty for such
purpose.
2.2 No
Subrogation.
Notwithstanding any payment or payments made by the Guarantor hereunder, or
any
set-off or application of funds of the Guarantor by the Administrative Agent
or
any Lender, the Guarantor shall not be entitled to be subrogated to any of
the
rights of the Administrative Agent or any Lender against the Borrower or any
Subsidiary Borrower or against any collateral security or Guaranty or right
of
offset held by the Administrative Agent or any Lender for the payment of the
Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any Subsidiary Borrower
in
respect of payments made by the Guarantor hereunder, until the occurrence of
a
Termination Event. If any amount shall be paid to the Guarantor on account
of
such subrogation rights at any time before the occurrence of a Termination
Event, such amount shall be held by the Guarantor in trust for the
Administrative Agent and the Lenders, segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over
to
the Administrative Agent in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order
as
the Administrative Agent may determine.
2.3 Amendments,
etc. with respect to the Obligations; Waiver of Rights.
The
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantor, and without notice to or further
assent by the Guarantor, any demand for payment of any of the Obligations made
by the Administrative Agent or any Lender may be rescinded by the Administrative
Agent or such Lender, and any of the Obligations continued, and the Obligations,
or the liability of any other party upon or for any part thereof, or any
collateral security or guaranty therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released
by
the Administrative Agent or any Lender, and any collateral security, guaranty
or
right of offset at any time held by the Administrative Agent or any Lender
for
the payment of the Obligations may be sold, exchanged, waived, surrendered
or
released. Neither the Administrative Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held
by it
as security for the Obligations or for this Guaranty or any property subject
thereto. When making any demand hereunder against the Guarantor, the
Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on the Borrower or any Subsidiary Borrower, and any
failure by the Administrative Agent or any Lender to make any such demand or
to
collect any payments from the Borrower or such Subsidiary Borrower or any
release of the Borrower or any Subsidiary Borrower shall not relieve the
Guarantor of its obligations or liabilities hereunder, and shall not impair
or
affect the rights and remedies, express or implied, or as a matter of law,
of
the Administrative Agent or any Lender against the Guarantor. For the purposes
hereof “demand” shall include the commencement and continuance of any legal
proceedings.
3
2.4 Guaranty
Absolute and Unconditional.
The
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon this Guaranty or acceptance of this
Guaranty; the Obligations, and any of them, shall conclusively be deemed to
have
been created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon this Guaranty; and all dealings between the Borrower or any
Subsidiary Borrower and the Guarantor, on the one hand, and the Administrative
Agent and the Lenders, on the other, shall likewise be conclusively presumed
to
have been had or consummated in reliance upon this Guaranty. The Guarantor
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon the Borrower, any Subsidiary Borrower or the Guarantor
with respect to the Obligations. This Guaranty shall be construed as a
continuing, absolute and unconditional guaranty of payment without regard to
(a) the validity or enforceability of the Credit Agreement, any of the
Obligations or any other collateral security therefor or guaranty or right
of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at
any
time be available to or be asserted by they Borrower or any Subsidiary Borrower
against the Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrower,
such Subsidiary Borrower or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower or
such
Subsidiary Borrower for its Obligations, or of the Guarantor under this
Guaranty, in bankruptcy or in any other instance. When pursuing its rights
and
remedies hereunder against the Guarantor, the Administrative Agent and any
Lender may, but shall be under no obligation to, pursue such rights and remedies
as it may have against the Borrower, any Subsidiary Borrower or any other Person
or against any collateral security or guaranty for the Obligations or any right
of offset with respect thereto, and any failure by the Administrative Agent
or
any Lender to pursue such other rights or remedies or to collect any payments
from the Borrower, any Subsidiary Borrower or any such other Person or to
realize upon any such collateral security or guaranty or to exercise any such
right of offset, or any release of the Borrower, such Subsidiary Borrower or
any
such other Person or of any such collateral security, guaranty or right of
offset, shall not relieve the Guarantor of any liability hereunder, and shall
not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent or any Lender against
the Borrower or such Subsidiary Borrower. This Guaranty shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon the Guarantor and its successors and assigns thereof, and shall
inure
to the benefit of the Administrative Agent and the Lenders, and their respective
successors, indorsees, transferees and assigns, until the occurrence of a
Termination Event, notwithstanding that from time to time during the term of
the
Credit Agreement the Borrower and Subsidiary Borrowers may be free from any
Obligations.
2.5 Reinstatement.
This
Guaranty shall continue to be effective, or be reinstated, as the case may
be,
if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Subsidiary Borrower or upon or as a result
of the appointment of a receiver, intervenor or conservator of, or trustee
or
similar officer for, the Borrower or any Subsidiary Borrower or any substantial
part of the Borrower’s or such Subsidiary Borrower’s property, or otherwise, all
as though such payments had not been made.
2.6 Payments.
The
Guarantor hereby guaranties that payments hereunder will be paid to the
Administrative Agent without set-off or counterclaim in Dollars at the Funding
Office.
SECTION
3. REPRESENTATIONS
AND WARRANTIES
4
The
Guarantor hereby represents and warrants to the Administrative
Agent
and each Lender that:
3.1 Corporate
Existence and Power.
The
Guarantor has been duly organized and is validly existing in good standing
under
the laws of its jurisdictions of organization and is in good standing or has
applied for authority to operate as a foreign corporation or other organization
in all jurisdictions where the nature of its properties or business so requires
it and where a failure to be in good standing as a foreign corporation would
reasonably be expected to have a material adverse effect on the business,
assets, operations or condition, financial or otherwise, of the Guarantor.
The
Guarantor has the corporate power to execute, deliver and perform its
obligations under this Guaranty.
3.2 Corporate
Authority, No Violation and Compliance with Law.
The
execution, delivery and performance of this Guaranty (a) have been duly
authorized by all necessary corporate action on the part of the Guarantor,
(b)
will not violate any provision of any Applicable Law (including any laws related
to franchising) applicable to the Guarantor or any of its respective properties
or assets, (c) will not violate any provision of the certificate of
incorporation or by-laws of the Guarantor and (d) will not violate or be in
conflict with, result in a breach of, or constitute (with due notice or lapse
of
time or both) a default under, any material indenture, bond, note, instrument
or
any other material agreement to which the Guarantor is a party or by which
the
Guarantor or any of its respective properties or assets are bound.
3.3 Enforceability.
This
Guaranty constitutes a legal, valid and binding obligation of the Guarantor
(enforceable in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law). The
Guarantor agrees that the representations and warranties contained in this
Section 3.3 shall be deemed to have been made by the Guarantor on the date
of
each borrowing by the Borrower or any Subsidiary Borrower under the Credit
Agreement on and as of such date of borrowing as though made hereunder on and
as
of such date.
SECTION
4. THE
ADMINISTRATIVE AGENT
The
Guarantor acknowledges that the rights and responsibilities of the
Administrative Agent under this Guaranty with respect to any action taken by
the
Administrative Agent or the exercise or non-exercise by the Administrative
Agent
of any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Guaranty shall, as between the
Administrative Agent and the Lenders, be governed by the Credit Agreement and
by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Administrative Agent and the Guarantor, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders with full and valid authority so to act or refrain from acting,
and
the Guarantor shall not be under any obligation, or entitlement, to make any
inquiry respecting such authority.
5
SECTION
5. MISCELLANEOUS
5.1 Amendments
in Writing.
None of
the terms or provisions of this Guaranty may be waived, amended, supplemented
or
otherwise modified except by a written instrument executed by the Guarantor
and
the Administrative Agent; provided
that any
provision (other than Section 5.13) of this Guaranty may be waived by the
Administrative Agent and the Lenders in a letter or agreement executed by the
Administrative Agent and the Guarantor or by facsimile or other electronic
transmission from the Administrative Agent.
5.2 Notices.
All
notices, requests and demands to or upon the Administrative Agent or the
Guarantor hereunder shall be effected in the manner provided for in Section
10.1
of the Credit Agreement; provided that any such notice, request or demand to
or
upon the Guarantor shall be addressed to the Guarantor at its notice address
set
forth on Schedule 1.
5.3 No
Waiver by Course of Conduct; Cumulative Remedies.
Neither
the Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 5.1), delay, indulgence, omission or otherwise
be
deemed to have waived any right or remedy hereunder or to have acquiesced in
any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude
any
other or further exercise thereof or the exercise of any other right, power
or
privilege. A waiver by the Administrative Agent or any Lender of any right
or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of
any
other rights or remedies provided by law.
5.4 Enforcement
Expenses; Indemnification.
(a)
The
Guarantor agrees to pay or reimburse each Lender and the Administrative Agent
for all its reasonable documented out-of-pocket costs and expenses incurred
in
collecting against the Guarantor under this Guaranty, as applicable, or
otherwise enforcing or preserving any rights under this Guaranty, including,
without limitation, the reasonable fees and disbursements of counsel (including
the allocated fees and expenses of in-house counsel) to each Lender and of
counsel to the Administrative Agent; provided,
however,
that
the Guarantor shall not be liable for the fees and expenses of more than one
separate firm for the Lenders (unless there shall exist an actual conflict
of
interest among such Persons, and in such case, not more than two separate firms)
in connection with any one such action or any separate, but substantially
similar or related actions in the same jurisdiction, nor shall the Guarantor
be
liable for any settlement or proceeding effected without the Guarantor’s written
consent.
(b) The
Guarantor agrees to pay, and to save the Administrative Agent and the Lenders
harmless from, any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Guaranty to the extent the Borrower
would
be required to do so pursuant to Section 10.5 of the Credit
Agreement.
5.5 Successors
and Assigns.
This
Guaranty shall be binding upon the successors and assigns of the Guarantor
and
shall inure to the benefit of the Administrative Agent and the Lenders and
their
successors and assigns; provided that the Guarantor may not assign, transfer
or
delegate any of its rights or obligations under this Guaranty without the prior
written consent of the Administrative Agent.
5.6 Set-Off.
The
Guarantor hereby irrevocably authorizes the Administrative Agent and each Lender
at any time and from time to time while an Event of Default shall have occurred
and be
6
continuing,
without notice to the Guarantor, any such notice being expressly waived by
the
Guarantor, to set-off and appropriate and apply any and all deposits (general
or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct
or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender to or for the credit or the
account of the Guarantor, or any part thereof in such amounts as the
Administrative Agent or such Lender may elect, against and on account of the
obligations and liabilities of the Guarantor to the Administrative Agent or
such
Lender hereunder and claims of every nature and description of the
Administrative Agent or such Lender against the Guarantor, in any currency,
whether arising hereunder, under the Credit Agreement, any other Fundamental
Document or otherwise, as the Administrative Agent or such Lender may elect,
whether or not the Administrative Agent or any Lender has made any demand for
payment and although such obligations, liabilities and claims may be contingent
or unmatured. The Administrative Agent and each Lender shall notify the
Guarantor promptly of any such set-off and the application made by the
Administrative Agent or such Lender of the proceeds thereof, provided that
the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Administrative Agent and each Lender under this
Section 5.6 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Administrative Agent or such
Lender may have.
5.7 Severability.
Any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
5.8 Section
Headings.
The
Section headings used in this Guaranty are for convenience of reference only
and
are not to affect the construction hereof or be taken into consideration in
the
interpretation hereof.
5.9 Integration.
This
Guaranty represents the agreement of the Guarantor, the Administrative Agent
and
the Lenders with respect to the subject matter hereof and there are no promises,
undertakings, representations or warranties by the Guarantor, Administrative
Agent or any Lender relative to subject matter hereof and thereof not expressly
set forth or referred to herein.
5.10 GOVERNING
LAW.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS GUARANTY
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW
OF THE STATE OF NEW YORK.
5.11 Submission
To Jurisdiction; Waivers.
The
Guarantor hereby irrevocably and unconditionally:
(a) submits
for itself and its property in any legal action or proceeding relating to this
Guaranty, or for recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
7
(c) agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Guarantor at its address referred
to in Section 5.2 or at such other address of which the Administrative Agent
shall have been notified pursuant thereto;
(d) agrees
that nothing herein shall affect the right to effect service of process in
any
other manner permitted by law or shall limit the right to ▇▇▇ in any other
jurisdiction; and
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim
or
recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
5.12 Acknowledgements.
The
Guarantor hereby acknowledges that:
(a) it
has
been advised by counsel in the negotiation, execution and delivery of this
Guaranty;
(b) neither
the Administrative Agent nor any Lender has any fiduciary relationship with
or
duty to the Guarantor arising out of or in connection with this Guaranty, and
the relationship between the Guarantor, on the one hand, and the Administrative
Agent and Lenders, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no
joint
venture is created hereby or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Guarantor and the
Lenders.
5.13 Releases.
Notwithstanding any provision contained in this Guaranty to the contrary, (i)
upon the occurrence of a Termination Event, this Guaranty and all obligations
of
the Guarantor hereunder shall unconditionally terminate, all without delivery
of
any instrument or performance of any act by any party and (ii) this Section
5.13
shall not be waived, amended, modified, supplemented or nullified without the
prior written consent of the Guarantor.
5.14
WAIVER
OF JURY TRIAL.
THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN
ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTY AND FOR ANY COUNTERCLAIM
THEREIN.
8
IN
WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be duly
executed and delivered as of the date first above written.
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CENDANT
CORPORATION
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By:
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/s/
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Name: ▇▇▇▇▇
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Title:
Executive
Vice President and Treasurer
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SIGNATURE
PAGE TO GUARANTY
Schedule
1
NOTICE
ADDRESSES OF GUARANTORS
Cendant
Corporation
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Attention:
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Telecopy:
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Telephone:
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