Fourth Omnibus Amendment and Agreement among Cartus Corporation, Cartus Relocation Corporation, Kenosia Funding, LLC, The Bank of New York, Gotham Funding Corporation, and The Bank of Tokyo-Mitsubishi UFJ, Ltd.
This agreement, dated February 28, 2007, amends the terms of the Secured Variable Funding Notes, Series 2002-1, and related documents among Cartus Corporation, Cartus Relocation Corporation, Kenosia Funding, LLC, The Bank of New York (as Trustee), Gotham Funding Corporation (as Purchaser), and The Bank of Tokyo-Mitsubishi UFJ, Ltd. (as Administrative Agent). The amendments include changes to key definitions, principal amounts, and certain deadlines. The agreement becomes effective upon receipt of required documents and a $25,000 fee. All other terms of the original documents remain in effect.
AGREEMENT
(Kenosia)
1. | The Indenture is hereby amended as follows: |
1.1 | The definition of Stated Amount in Section 1.01 is hereby deleted in its entirety and the following is substituted therefor: |
"Stated Amount" shall mean $175,000,000. |
1.2 | Section 10.01(n) is hereby amended to delete therefrom the phrase 100 days and to substitute therefor the phrase 110 days. |
2. | The Note Purchase Agreement is hereby amended as follows: |
2.1 | The definition of Change of Control in Section 1.1 is hereby deleted in its entirety and the following is substituted therefor: | ||
Change of Control means either (i) the Parent shall for any reason cease to own and control, directly or indirectly, free and clear of all Liens, claims and Transfer Restrictions, 100% of the Voting Stock of each of each of the Originators and the Issuer or (ii) any Person (or two or more Persons acting in concert) shall have acquired beneficial ownership, directly or indirectly, of, Voting Stock representing more than 50% of the combined voting power of all equity securities of the Parent, or shall have otherwise acquired by contract or otherwise, control over, such Voting Stock. For the avoidance of doubt, consummation of the Merger shall constitute a Change of Control. | |||
2.2 | The definition of Maximum Principal Amount in Section 1.1 is hereby deleted in its entirety and the following is substituted therefor: | ||
Maximum Principal Amount means the sum of (i) $175,000,000 minus (ii) the aggregate of all reductions pursuant to Section 2.4(a) or (c) hereof. | |||
2.3 | Section 1.1 is hereby further amended to add the following definition in alphabetical order: |
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CARTUS CORPORATION | ||||
By: | /s/ Eric Barnes | |||
Name: Eric Barnes | ||||
Title: SVP, CFO | ||||
CARTUS RELOCATION CORPORATION | ||||
By: | /s/ Eric Barnes | |||
Name: Eric Barnes | ||||
Title: SVP, CFO | ||||
KENOSIA FUNDING, LLC | ||||
By: | /s/ Eric Barnes | |||
Name: Eric Barnes | ||||
Title: SVP, CFO | ||||
THE BANK OF NEW YORK, | ||||
not in its individual capacity | ||||
but solely as Trustee | ||||
By: | /s/ Catherine Murray | |||
Name: Catherine Murray | ||||
Title Assistant Vice President |
GOTHAM FUNDING CORPORATION, | ||||
as Purchaser | ||||
By: | /s/ R. Douglas Donaldson | |||
| | | | the Special Committees belief in March 2006 in the stockholder value opportunity presented by the potential business combination under the terms of the Offer with MFS. |
In addition, the Special Committee also identified and considered a variety of potentially negative factors in its initial deliberations concerning the Offer, including:
| our ability to obtain the necessary financing to pay the cash consideration, and the potential terms of such financing; |
| the challenges of combining the businesses of two major corporations, including the risks of diverting management resources for an extended period of time to ensure the two businesses are integrated properly and effectively; |
| the potential that the additional incremental debt associated with the Offer could cause us to have reduced financial flexibility; |
|