FOURTEENTH OMNIBUS AMENDMENT AND PAYOFF AND REALLOCATION AGREEMENT (Apple Ridge Funding LLC)
Exhibit 10.1
EXECUTION VERSION
FOURTEENTH OMNIBUS AMENDMENT AND
PAYOFF AND REALLOCATION AGREEMENT
(Apple Ridge Funding LLC)
THIS Fourteenth Omnibus Amendment and Payoff and Reallocation Agreement (this “Amendment”) is entered into this 4th day of June, 2020 for the purpose of making amendments to the documents described in this Amendment and for the purpose of setting forth the agreement of the parties hereto with respect to the payoff of a portion of the Series 2011-1 Notes and reallocations related thereto.
WHEREAS, this Amendment is among (i) Cartus Corporation, a Delaware corporation (“Cartus”), (ii) Cartus Financial Corporation, a Delaware corporation (“CFC”), (iii) Apple Ridge Services Corporation, a Delaware corporation (“ARSC”) (iv) Apple Ridge Funding LLC, a limited liability company organized under the laws of the State of Delaware (the “Issuer”), (v) Realogy Group LLC (f/k/a Realogy Corporation), a Delaware limited liability company (“Realogy”), (vi) U.S. Bank National Association, a national banking association (“U.S. Bank”), as indenture trustee (the “Indenture Trustee”), paying agent, authentication agent, and transfer agent and registrar, (vii) the Managing Agents party to the Note Purchase Agreement defined below, (viii) the Purchasers party to the Note Purchase Agreement defined below and (ix) Crédit Agricole Corporate and Investment Bank (“CA-CIB”), as Administrative Agent and Lead Arranger (the “Administrative Agent”).
WHEREAS, this Amendment relates to the following documents (as such documents have previously been amended):
(i) Purchase Agreement, dated as of April 25, 2000 (the “Purchase Agreement”), by and between Cartus and CFC;
(ii) Transfer and Servicing Agreement, dated as of April 25, 2000 (the “Transfer and Servicing Agreement”), by and among ARSC, as transferor, Cartus, as originator and servicer, CFC, as originator, the Issuer, as transferee, and the Indenture Trustee;
(iii) Receivables Purchase Agreement, dated as of April 25, 2000 (the “Receivables Purchase Agreement”), by and between CFC and ARSC;
(iv) Master Indenture, dated as of April 25, 2000 (the “Master Indenture”), by and between the Issuer and U.S. Bank, as indenture trustee, paying agent, authentication agent and transfer agent and registrar;
(v) Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Supplement dated as of December 16, 2011 (the “Indenture Supplement”; and the Master Indenture as supplemented by the Indenture Supplement, the “Indenture”) by and between the Issuer and U.S. Bank, as indenture trustee, paying agent, authentication agent and transfer agent and registrar;
(vi) Note Purchase Agreement, dated as of December 14, 2011 (the “Note Purchase Agreement”), among the Issuer, Cartus, as Servicer, the financial institutions and commercial paper conduits party thereto and the Administrative Agent, relating to the Series 2011-1 Secured Variable Funding Notes.
WHEREAS, the Purchase Agreement, the Transfer and Servicing Agreement, the Receivables Purchase Agreement, the Master Indenture, the Indenture Supplement and the Note Purchase Agreement are collectively referred to in this Amendment as the “Affected Documents”; and
WHEREAS, terms used in this Amendment and not defined herein shall have the meanings assigned to such terms in the Master Indenture, and, if not defined therein, as defined in the Indenture Supplement:
NOW, THEREFORE, the parties hereto hereby recognize and agree:
1. Amendments to Indenture Supplement. Effective as of the date hereof, the Indenture Supplement is hereby amended as follows:
(a) The definition of “Fee Letter” set forth in Section 2.01 of the Indenture Supplement is hereby amended and restated in its entirety to read as follows:
“Fee Letter” shall mean that certain Third Amended and Restated Fee Letter, dated June 4, 2020, by and among the Issuer, the Administrative Agent and the Managing Agents in connection with the Note Purchase Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.
(b) The definition of “Stated Amount” set forth in Section 2.01 of the Indenture Supplement is hereby amended and restated in its entirety to read as follows:
“Stated Amount” shall mean $200,000,000 as such amount may be reduced or increased from time to time pursuant to Section 2.05 of the Note Purchase Agreement.
2. Amendments to Note Purchase Agreement. Effective as of the date hereof, the Note Purchase Agreement is hereby amended as follows:
(a) The definition of “Commitment Termination Date” set forth in Section 1.01 of the Note Purchase Agreement is hereby amended to delete therefrom the reference to “June 5, 2020” and to substitute therefor the date “August 5, 2020”.
(b) Schedule II to the Note Purchase Agreement is hereby amended and restated in its entirety in the form attached hereto as Exhibit A.
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3.Waiver of Delivery. Each of the Managing Agents signatory hereto waives any prior notice or delivery requirement set forth in the Transaction Documents with respect to this Amendment (including, without limitation, pursuant to Section 10.02 of the Master Indenture and Sections 2.05(a) and 2.11 of the Note Purchase Agreement).
4.Request of Extension of Term. The Issuer hereby requests that the Commitment Termination Date, as amended hereby, be further extended to June 4, 2021. Notwithstanding any provision of the Note Purchase Agreement, including, without limitation, Section 2.11, the Issuer shall not be required to deliver any additional notice of such request to the Managing Agents. None of the Committed Purchasers have any obligation to agree to such request or to otherwise extend the Commitment Termination Date.
5.Agreement With Respect to Payoff and Reallocation; Non-Pro Rata Decrease; Consents.
(a) Payoff and Reallocation Amount. At or before 12:00 noon (New York time) on the date hereof (the “Payment Time”), Issuer shall deposit, or cause to be deposited, in the Collection Account, in immediately available funds, the applicable amounts set forth in paragraph (b)(i) below (such amounts, collectively, the “Issuer Payoff Amount”). At or before the Payment Time, each of Crédit Agricole Corporate and Investment Bank (or any Purchaser in its Purchaser Group), The Bank of Nova Scotia (or any Purchaser in its Purchaser Group) and Barclays Bank PLC (or any Purchaser in its Purchaser Group) shall deposit, or cause to be deposited, in the Collection Account, in immediately available funds, the applicable amounts set forth in paragraph (b)(ii) below (such amounts, collectively, the “Purchaser Reallocation Amount” and, together with the Issuer Payoff Amount, the “Payoff and Reallocation Amount”). The Payoff and Reallocation Amount shall be wired to the parties identified in Schedule I hereto in accordance with the applicable payment instructions set forth on Schedule II hereto.
(b) Deposits in Collection Account.
(i) Issuer hereby agrees that it will by the Payment Time, deposit (or cause to be deposited) in the Collection Account, an amount, in immediately available funds, equal to $54,038.06, which represents all accrued Monthly Interest, Monthly Program Fees and all other amounts owing as of the Payment Time to ▇▇▇▇▇ Fargo Bank, National Association (“▇▇▇▇▇ Fargo”) as Managing Agent or to the Purchasers in the Purchaser Group for which it acts as Managing Agent pursuant to the Indenture Supplement or the Note Purchase Agreement (other than the share of the Series Outstanding Amount funded by the Purchaser Group for which it acts as Managing Agent). If the Payoff and Reallocation Amount is not received by ▇▇▇▇▇ Fargo by 5:00 p.m. (New York time) on the date hereof, and if not received by 5:00 p.m. (New York time) on any day to occur thereafter, then the Issuer shall owe to ▇▇▇▇▇ Fargo, and shall deposit or cause to be deposited in the Collection Account, an additional amount, in immediately available funds, equal to $1,443.90 for each such day until ▇▇▇▇▇ Fargo receives the Payoff and Reallocation Amount.
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(ii) Crédit Agricole Corporate and Investment Bank hereby agrees that the Purchasers in its Purchaser Group will by the Payment Time, deposit (or cause to be deposited) in the Collection Account, an amount, in immediately available funds, equal to $11,992,500.00. The Bank of Nova Scotia hereby agrees that the Purchasers in its Purchaser Group will by the Payment Time, deposit (or cause to be deposited) in the Collection Account, an amount, in immediately available funds, equal to $7,020,000.00. Barclays Bank PLC hereby agrees that the Purchasers in its Purchaser Group will by the Payment Time, deposit (or cause to be deposited) in the Collection Account, an amount, in immediately available funds, equal to $2,925,000.00. The aggregate amounts deposited pursuant to this Section 5(b)(ii) represent the share of the Series Outstanding Amount funded by the Purchaser Group for which ▇▇▇▇▇ Fargo acts as Managing Agent. Each of the parties hereto agree that the deposit of such amounts into the Collection Account pursuant to this Section 5(b)(ii) shall constitute an Increase by the respective Purchasers.
(c) Distribution by Indenture Trustee.
(i) The Indenture Trustee is hereby authorized and directed, as Indenture Trustee under the Indenture, at the Payment Time (or, if the amounts required to be deposited into the Collection Account pursuant to paragraph (a) above have not been deposited prior to the Payment Time, at such later time that such amounts have been so deposited), to withdraw and initiate the distribution to each of the parties listed on Schedule I hereto (the “Payoff and Release Parties”) of the amounts deposited into the Collection Account as described above in accordance with the instructions set forth on Schedule II hereto.
(ii) Each of the parties hereto agrees that upon the distribution of the amounts described above in accordance with Schedule I hereto, the Series 2011-1 Note in favor of ▇▇▇▇▇ Fargo shall be paid in full and discharged and deemed by all parties hereto to be cancelled as of the date hereof. ▇▇▇▇▇ Fargo agrees to deliver the original of its Series 2011-1 Note to the Indenture Trustee as soon as practicable. The Indenture Trustee is hereby authorized and directed to cancel such Series 2011-1 Note upon receipt thereof.
(iii) These directions are irrevocable and each of the parties hereto waives all notice, timing or other requirements set forth in any of the Transaction Documents with respect to the repayment of the share of the Series Outstanding Amount funded by the Purchaser Group for which ▇▇▇▇▇ Fargo acts as Managing Agent and the cancellation of the Series 2011-1 Note in favor of ▇▇▇▇▇ Fargo. Each party hereto hereby (a) consents to this Amendment and the terms and conditions contemplated hereby, (b) directs the Indenture Trustee to consent to, accept and execute this Amendment, and (c) waives any conditions precedent or other requirements set forth in the Indenture or any of the other Transaction Documents to the Indenture Trustee’s acceptance of this Amendment. To the extent the provisions of this Amendment conflict with the Indenture, the Note Purchase Agreement or any other Transaction Document, the parties hereto agree that the terms contained herein shall be controlling.
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(iv) U.S. Bank assumes no responsibility for the correctness of the recitals contained herein and shall not be responsible or accountable in any way whatsoever for, or with respect to, the validity, execution (other than with respect to itself) or sufficiency of this Amendment, and makes no representations with respect thereto. In entering into this Amendment, U.S. Bank shall be entitled to the benefit of every provision of the Indenture relating to the conduct of, affecting the liability of, or affording protection to it in its capacity as, the Indenture Trustee or in any of its other capacities thereunder, subject to any exceptions and restrictions contained in such provisions.
(d) Release. Effective as of the date hereof upon receipt of its portion of the Payoff and Reallocation Amount, (i) ▇▇▇▇▇ Fargo shall relinquish its respective rights and be released from its respective obligations in any capacity under the Note Purchase Agreement and each other Transaction Document, (ii) ▇▇▇▇▇ Fargo’s funding commitments (including its Commitment and obligation to fund any Increases) shall be terminated and (iii) ▇▇▇▇▇ Fargo shall cease to be a party to the Note Purchase Agreement and the other Transaction Documents and shall have no further rights or obligations thereunder except for rights and obligations which by their terms expressly survive termination of the Note Purchase Agreement and its obligations pursuant to Section 6.05 of the Note Purchase Agreement for events, actions or omissions occurring prior to the termination of ▇▇▇▇▇ Fargo’s rights and obligations under the Transaction Documents hereunder.
(e) Existing Fee Letter. ▇▇▇▇▇ Fargo acknowledges and agrees that notwithstanding the terms of that certain Second Amended and Restated Fee Letter, dated as of September 11, 2013 (the “Existing Fee Letter”), by and among the Issuer, the Administrative Agent, ▇▇▇▇▇ Fargo and the other Managing Agents party thereto, the consent of ▇▇▇▇▇ Fargo shall not be required in order to amend, restate, supplement or otherwise modify, or waive any provision of or provide any consent under, the Existing Fee Letter.
(f) Non-Pro Rata Payments. Notwithstanding any provision of the Indenture Supplement, the Note Purchase Agreement or any other Transaction Document to the contrary, each of the Managing Agents and the Purchasers hereby consents to the non-pro rata payments in respect of the share of the Series Outstanding Amount funded by the Purchaser Group for which ▇▇▇▇▇ Fargo acts as Managing Agent.
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(g) Waiver of Notice. Each party hereto acknowledges and agrees to each of the payments, terminations and releases set forth in this Section 5, and expressly waives any notice or other applicable requirement set forth in the Indenture or any other Transaction Document as a prerequisite or condition precedent to such payments, terminations and releases.
(h) Consents. To the extent that any consent of any party hereto is required under any other agreement to which it is a party for any of the transactions to be effected hereby, such party hereby grants such consent and waives any notice requirements or condition precedent to the effectiveness of any such transactions set forth in any agreement to which it is a party that has not been satisfied as of the date hereof (other than any requirements or conditions precedent set forth in this Amendment).
6.Further Assurances. The Issuer hereby reaffirms its agreements and obligations under Section 3.04 of the Master Indenture and Clause 6 of the Deed of Charge dated 16 December 2011 between the Issuer and the Indenture Trustee (the “Deed of Charge”), including, without limitation, with respect to the Charged Property (as defined in the Deed of Charge).
7.Conditions Precedent. This Amendment shall be effective upon (a) the Indenture Trustee’s receipt of counterparts to (i) this Amendment and (ii) the Fee Letter, in each case, duly executed by each of the parties thereto, (b) the Issuer’s payment of all fees required to be paid on or prior to the date hereof in accordance with the Fee Letter in accordance with the terms thereof, (c) the receipt by each Payoff and Release Party, by wire transfer of immediately available funds to the applicable account specified on Schedule II hereto, of an amount equal to its respective portion of the Payoff and Reallocation Amount and (d) the Issuer’s payment and/or reimbursement, to the extent invoiced, of the Administrative Agent’s, each Managing Agent’s and each Purchaser’s reasonable costs and expenses incurred in connection with this Amendment and the other Transaction Documents.
8.GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ §▇-▇▇▇▇ OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
9.Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement.
10.References to and Effect on Affected Documents. On and after the date hereof: (i) all references in any Affected Document to “this Agreement,” “hereof,” “herein” or words of similar effect referring to such Affected Document shall be deemed to be references to such Affected Document as amended by this Amendment; (ii) each reference in any of the Affected Documents to any other Affected Document and each reference in any of the other Transaction Documents among the parties hereto to any of the Affected Documents shall each mean and be a reference to such Affected Document as amended by this Amendment; and (iii) each reference in any Transaction Document among the parties hereto to any of the
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terms or provisions of an Affected Document which are redefined or otherwise modified hereby shall mean and be a reference to such terms or provisions as redefined or otherwise modified by this Amendment; provided, that, notwithstanding the foregoing or any other provisions of this Amendment, the amendments contained in this Amendment shall not be effective to (x) modify on a retroactive basis any representations or warranties previously made under any Affected Document with respect to Receivables transferred or purported to have been transferred prior to the date hereof, which representations and warranties shall continue to speak as of the dates such Receivables were transferred and based on the terms and provisions of the Affected Documents as in effect at such time or (y) otherwise modify the terms of any transfer or purported transfer of any Receivable transferred or purported to be transferred pursuant to an Affected Document prior to the date hereof.
11.Reaffirmation of Performance Guaranty. Effective as of the date hereof, Realogy, in its capacity as the Performance Guarantor under the Performance Guaranty, hereby consents to this Amendment and acknowledges and agrees that the Performance Guaranty remains in full force and effect is hereby reaffirmed, ratified and confirmed.
12.No Waiver. This Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Affected Documents other than as set forth herein, each of which Affected Documents, as modified hereby, remains in full force and effect and is hereby reaffirmed, ratified and confirmed.
13.Issuer Representations re: Outstanding Series. As of the date hereof, the Issuer represents and warrants that the Series 2011-1 Notes are the only Notes outstanding under the Master Indenture.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first above written.
CARTUS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP, CFO
CARTUS FINANCIAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP, CFO
APPLE RIDGE SERVICES CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP, CFO
APPLE RIDGE FUNDING LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP, CFO
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee, Paying Agent, Authentication Agent and Transfer Agent and Registrar
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Signature Page to Fourteenth Omnibus Amendment and Payoff and Reallocation Agreement
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Administrative Agent, a Managing Agent and a Committed Purchaser
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
ATLANTIC ASSET SECURITIZATION LLC, as a Conduit Purchaser
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
THE BANK OF NOVA SCOTIA, as a Managing Agent and a Committed Purchaser
By: /s/ ▇▇▇▇ ▇▇▇
Name: ▇▇▇▇ ▇▇▇
Title: Managing Director
LIBERTY STREET FUNDING LLC, as a Conduit Purchaser
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as a Managing Agent and a Committed Purchaser
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
Signature Page to Fourteenth Omnibus Amendment and Payoff and Reallocation Agreement
BARCLAYS BANK PLC, as a Managing Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
SHEFFIELD RECEIVABLES COMPANY LLC, as a Committed Purchaser and a Conduit Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
Signature Page to Fourteenth Omnibus Amendment and Payoff and Reallocation Agreement
EXHIBIT A
SCHEDULE II
PURCHASER GROUP INFORMATION
| Managing Agent | Conduit Purchaser(s) | Committed Purchaser(s) | Commitment | Purchaser Group Limit | Type | ||||||||||||
| Crédit Agricole Corporate and Investment Bank | Atlantic Asset Securitization LLC | Crédit Agricole Corporate and Investment Bank | $108,000,000 | $108,000,000 | CP Funding Purchaser Group | ||||||||||||
| The Bank of Nova Scotia | Liberty Street Funding LLC | The Bank of Nova Scotia | $62,000,000 | $62,000,000 | CP Funding Purchaser Group | ||||||||||||
| Barclays Bank PLC | Sheffield Receivables Company LLC | Sheffield Receivables Company LLC | $30,000,000 | $30,000,000 | CP Funding Purchaser Group | ||||||||||||
| TOTAL | $200,000,000 | $200,000,000 | |||||||||||||||
SCHEDULE I
PAYOFF AND REALLOCATION AMOUNT
As of the Payment Time, the portion of the Payoff and Reallocation Amount with respect to each of the Payoff and Release Parties is as set forth below:
▇▇▇▇▇ Fargo Bank, National Association $21,991,538.06 (plus, if the Payoff and Reallocation Amount is not received by ▇▇▇▇▇ Fargo Bank, National Association by 5:00 p.m. (New York time) on the date hereof, and if not received by 5:00 p.m. (New York time) on any day to occur thereafter, $1,443.90 for each such day)