Realogy 10K 2010 Annual report | RLGY Filing

Exhibit 10.6

INCREMENTAL ASSUMPTION AGREEMENT

INCREMENTAL ASSUMPTION AGREEMENT, dated as of February 3, 2011 (this “Incremental Assumption Agreement”), by and among Domus Intermediate Holdings Corp. (“Holdings”), Realogy Corporation (the “Borrower”), the First Lien Lenders party hereto and JPMorgan Chase Bank, N.A. (“JPMorgan Chase Bank”), as administrative agent (the “Administrative Agent”).

WITNESSETH:

WHEREAS, reference is hereby made to the Credit Agreement, dated as of April 10, 2007, as amended by the First Amendment dated as of the date hereof (the “Credit Agreement”; capitalized terms used but not defined herein shall have the meaning provided in the Credit Agreement), by and among Holdings, the Borrower, the Lenders party thereto from time to time, the Administrative Agent, the Syndication Agent and the Documentation Agents;

WHEREAS, pursuant to Section 2.20(e) of the Credit Agreement, the Borrower may, pursuant to an Extension Offer, request Extended First Lien Term Loans, Extended Revolving Facility Commitments and Extended Synthetic L/C Commitments;

WHEREAS, pursuant to Section 2.20(h) of the Credit Agreement, the Borrower may, pursuant to an Extension Offer, request an extension of the Revolving Facility Maturity Date applicable to any Revolving Facility Commitments and convert such Revolving Facility Commitments to Extended First Lien Term Loans;

WHEREAS, the Borrower hereby requests that the First Lien Lenders (a) extend the maturity date with respect to all or a portion of their existing First Lien Term Loans (such extended Loans, for purposes hereof, the “Extended FL Term Loans”), (b) extend the maturity date with respect to all or a portion of their Revolving Facility Commitments after giving effect to the Converted Term Loans described below (such extended Commitments, for purposes hereof, the “Extended RF Commitments”), (c) extend the Synthetic L/C Maturity Date applicable to all or a portion of the Synthetic L/C Commitments of such Lenders (such extended Commitments, for purposes hereof, the “Extended Synthetic Commitments”) and (d) convert a portion of their Revolving Facility Commitments to Extended FL Term Loans (such converted Revolving Facility Commitments, “Converted Term Loans”), all on the terms set forth in this Incremental Assumption Agreement;

WHEREAS, the terms of this Incremental Assumption Agreement shall be deemed to be the Extension Offer required by Sections 2.20(e) and (h) of the Credit Agreement;

WHEREAS, on the Incremental Assumption Closing Date (as defined below) the Borrower shall make a prepayment on account of the principal of the Extended FL Term Loans (excluding for this purpose Converted Term Loans) in an amount equal to the gross proceeds of the First and a Half Lien Refinancing Notes, which shall not be less than $700,000,000 (such prepayment, the “Incremental Assumption Closing Date Prepayment”);

WHEREAS, the First Lien Lenders party hereto are willing to (a) extend all or a portion of their existing First Lien Term Loans, Revolving Facility Commitments and/or the Synthetic L/C Maturity Date applicable to all or a portion of the Synthetic L/C Commitments of such Lenders and/or (b) convert all or a portion of their Revolving Facility Commitments to Converted Term Loans, in each case as and to the extent indicated on such Lender’s signature page attached hereto; and

WHEREAS, the terms of the Extended FL Term Loans (including the Converted Term Loans), to the extent different from those provided for Term B Loans in the Loan Documents, are reasonably satisfactory to the Administrative Agent, in each case as evidenced by the Administrative Agent being party hereto;

NOW, THEREFORE, the parties hereto agree as follows:

SECTION.Defined Terms. Terms used but not otherwise defined herein shall have the meanings assigned thereto in the Credit Agreement. As used in this Incremental Assumption Agreement, the following terms shall have the meanings specified below:

“Converted Term Loans” shall have the meaning assigned to such term in the fourth WHEREAS paragraph hereof.

“Extended First Lien Term Lender” shall mean a Lender with outstanding Extended FL Term Loans.

“Extended FL Term Loans” shall have the meaning assigned to such term in the fourth WHEREAS paragraph hereof, and shall include Converted Term Loans (except to the extent otherwise specifically excluded therefrom pursuant to the terms of this Incremental Assumption Agreement).

“Extended RF Availability Period” shall mean the period from and including the Incremental Assumption Closing Date to but excluding the earlier of the Extended RF Maturity Date and the date of termination of the Extended RF Commitments.

“Extended RF Commitments” shall have the meaning assigned to such term in the fourth WHEREAS paragraph hereof.

“Extended RF Lender” shall mean a Lender with Extended RF Commitments or outstanding Extended RF Loans.

“Extended RF Loans” shall mean, at any time with respect to each Extended RF Lender, a portion of such Extended RF Lender’s Revolving Facility Loans equal tothe product of (x) the aggregate amount of Revolving Facility Loans of such Extended RF Lender outstanding at such time and (y) the Extended RF Percentage of such Extended RF Lender.

“Extended RF Maturity Date” shall mean April 10, 2016.

“Extended RF Percentage” shall mean, at any time with respect to each Extended RF Lender, (x) the Extended RF Commitments of such Lender in effect at such timedivided by (y) the sum of the Extended RF Commitments and Non-Extended Revolving Facility Commitments of such Lender in effect at such time, in each case after giving effect to this Incremental Assumption Agreement and the conversion of Revolving Facility Commitments to Extended FL Term Loans effected hereunder.

“Extended Synthetic Commitments” shall have the meaning assigned to such term in the fourth WHEREAS paragraph hereof.

“Extended Synthetic Lenders” shall mean Synthetic L/C Lenders with Extended Synthetic Commitments.

“Incremental Assumption Closing Date” shall mean the date on which the conditions set forth in Section 8 are satisfied, which date shall be February 3, 2011.

“Incremental Assumption Closing Date Prepayment” shall have the meaning assigned to such term in the sixth WHEREAS paragraph hereof.

“Newly Extended Revolving Facility Commitments” shall have the meaning assigned to such term in Section 4(d).

“Newly Extended Revolving Loans” shall have the meaning assigned to such term in Section 4(d).

“Newly Extended Synthetic Commitments” shall have the meaning assigned to such term in Section 5(c).

“Newly Extended Term Loans” shall have the meaning assigned to such term in Section 2(c).

“Non-Extended FL Term Loans” shall mean any Term B Loans that are not Extended FL Term Loans.

“Non-Extended RF Commitments” shall mean any Revolving Facility Commitments that are not Extended RF Commitments.

“Specified Extended RF Lender” shall mean each of JPMorgan Chase Bank, N.A., Barclays Bank PLC, Credit Suisse AG, Cayman Islands Branch and Goldman Sachs Lending Partners LLC.

SECTION 2.Terms of the Extended FL Term Loans.

(a)Credit Agreement Governs. Except as set forth in this Incremental Assumption Agreement, the Extended FL Term Loans shall have the same terms as the Term B Loans and the Extended FL Term Loans shall be subject to the provisions of the Credit Agreement and the other Loan Documents as modified hereby.

(b)Applicable Rate. The Applicable Margin with respect to the Extended FL Term Loans shall be 4.25% per annum in the case of any Eurocurrency Loan and 3.25% per annum in the case of any ABR Loan;provided that if at any time any Non-Extended FL Term Loans become Extended Term Loans (“Newly Extended Term Loans”) and such Newly Extended Term Loans have an effective yield higher than the effective yield of the Extended FL Term Loans, the Applicable Margin with respect to the Extended FL Term Loans shall be increased such that the effective yield of the Extended FL Term Loans is equal to the effective yield of the Newly Extended Term Loans.

(c)Maturity Date and Amortization. The Incremental Term Facility Maturity Date for the Extended FL Term Loans shall be October 10, 2016, and on such date the Borrower shall repay to the Administrative Agent for the ratable account of the Extended First Lien Term Lenders the aggregate principal amount of all Extended FL Term Loans then outstanding. After giving effect to the Incremental Assumption Closing Date Prepayment, the Extended FL Term Loans shall have no scheduled amortization prior to the Incremental Term Facility Maturity Date.

(d)Optional Prepayments. Notwithstanding anything to the contrary in Section 2.11(a) of the Credit Agreement, the Borrower shall not have the right to make any optional prepayment of the Extended FL Term Loans unless the Non-Extended FL Term Loans are prepaid on at least apro rata basis.

(e)Mandatory Prepayments. (i) Other than as set forth in clause (ii) of this Section 2(e) or as otherwise provided in Section 2.11(f) or Section 2.11(g) of the Credit Agreement, mandatory prepayments of First Lien Term Loans shall be made on apro rata basis among the Extended FL Term Loans and Non-Extended FL Term Loans.

(ii) The Incremental Assumption Closing Date Prepayment shall be applied to prepay the Extended FL Term Loans of the Extended First Lien Term Lenders (but excluding for this purpose the Converted Term Loans) at par on apro rata basis among such Lenders;provided that each such Lender may, by notifying the Administrative Agent in writing on or before the second Business Day prior to the Incremental Assumption Closing Date, elect to decline its share of the Incremental Assumption Closing Date Prepayment with respect to all (but not a portion) of its Extended FL Term Loans. If any Extended First Lien Term Lender makes such an election, then such Lender’s Extended FL Term Loans may nevertheless be prepaid, but only to the extent provided in Section 2.11(g) of the Credit Agreement.

SECTION 3.Terms of the Converted Term Loans.

(a)Credit Agreement Governs. Except as set forth in this Incremental Assumption Agreement, the Converted Term Loans shall have the same terms as the Extended FL Term Loans and the Converted Term Loans shall be subject to the provisions of the Credit Agreement and the other Loan Documents as modified hereby.

(b)Converted Term Loans. Each Specified Extended RF Lender agrees that 16.67% of its Extended RF Commitments (except for certain Extended RF Commitments, to be agreed solely between the Specified Extended RF Lender with respect to any such Extended RF Commitment and the Borrower, which are held in trading accounts by such Specified Extended RF Lenders) shall be converted to Converted Term Loans and each other Extended RF Lender agrees that 27.5% of its Extended RF Commitments shall be converted to Converted Term Loans on the Incremental Assumption Closing Date.

(c)Prepayments. After the Incremental Assumption Closing Date, as Extended FL Term Loans, the Converted Term Loans shall be entitled to share on apro rata basis in all optional and mandatory prepayments as provided in Section 2(d) and (e) above other than with respect to the Incremental Assumption Closing Date Prepayment.

SECTION 4.Terms of the Extended RF Commitments.

(a)Credit Agreement Governs. Except as set forth in this Incremental Assumption Agreement, the Extended RF Commitments shall (i) have the same terms as the Revolving Facility Commitments, (ii) shall be deemed to be Revolving Facility Commitments for all purposes under the Credit Agreement and (iii) shall be subject to the provisions of the Credit Agreement and the other Loan Documents as modified hereby.

(b)Availability. For all purposes of the Loan Documents the “Availability Period” with respect to the Extended RF Commitments shall mean the “Extended RF Availability Period”.

(c)Maturity. For all purposes of the Loan Documents , the “Revolving Facility Maturity Date” solely with respect to the Extended RF Commitments and the Extended RF Loans shall be April 10, 2016. To the extent not previously paid, outstanding Extended RF Loans shall be due and payable on the Extended RF Maturity Date.

(d)Applicable Rate. The Applicable Margin with respect to Extended RF Loans shall be 3.25% per annum in the case of any Eurocurrency Loan and 2.25% per annum in the case of any ABR Loan;provided that if at any time any Revolving Facility Commitments that are not Extended RF Commitments become Extended Revolving Facility Commitments (“Newly Extended Revolving Facility Commitments”) and the Loans made pursuant to such Newly Extended Revolving Facility Commitments (“Newly Extended Revolving Loans”) have an effective yield higher than the effective yield of the Extended RF Loans, the Applicable Margin with respect to the Extended RF Loans shall automatically be increased such that the effective yield of the Extended RF Loans is equal to the effective yield of the Newly Extended Revolving Loans.

(e)Fees. The L/C Participation Fee payable by the Borrower to the Administrative

Agent for the account of each Extended RF Lender from time to time with respect to the participations in Revolving Letters of Credit acquired by each such Lender in respect of its Extended RF Commitment shall be the Applicable Margin applicable to any Extended RF Loan that is a Eurocurrency Loan. The Applicable Commitment Fee payable to the Administrative Agent for the account of each Extended RF Lender from time to time in respect of its unused Extended RF Commitment shall be as set forth in the Credit Agreement.

(f)Revolving Letter of Credit Sublimit. The Revolving Letter of Credit Sublimit will not be modified after the Revolving Facility Maturity Date occurs with respect to the Non-Extended RF Commitments.

SECTION 5.Terms of the Extended Synthetic Commitments.

(b)Credit Agreement Governs. Except as set forth in this Incremental Assumption Agreement, the Extended Synthetic Commitments shall have the same terms as the Synthetic L/C Commitments and the Extended Synthetic Commitments shall be subject to the provisions of the Credit Agreement and the other Loan Documents as modified hereby.

(c)Maturity Date. For all purposes of the Loan Documents the “Synthetic L/C Maturity Date” solely with respect to the Extended Synthetic Commitments and the Credit-Linked Deposits of Extended Synthetic Lenders shall be October 10, 2016.

(d)Participation Fee. The participation fee payable by the Borrower to the Administrative Agent for the account of each Extended Synthetic Lender with respect to participations in Synthetic Letters of Credit acquired by each such Lender in respect of its Extended RF Commitment shall accrue at 4.25% per annum on the average daily amount of such Extended Synthetic Lender’s Credit-Linked Deposit related to its Extended Synthetic Commitments;provided that if at any time any Synthetic L/C Commitments that are not Extended Synthetic Commitments become Extended Synthetic L/C Commitments (“Newly Extended Synthetic Commitments”) and the participation fee payable in respect of such Newly Extended Synthetic Commitments is higher than the participation fee payable in respect of the Extended Synthetic Commitments, the participation fee applicable to the Extended Synthetic Commitments shall be increased such that it is equal to the participation fee applicable to the Newly Extended Synthetic Commitments.

SECTION 6.Extension Offer; Extended FL Term Loans and Converted Term Loans as One Facility and Tranche. (a) The terms of this Incremental Assumption Agreement shall be deemed the Extension Offers required pursuant to Section 2.20 of the Credit Agreement.

(b) With respect to the Extension Offers with respect to the Extended FL Term Loans, Extended RF Commitments and Extended Synthetic Commitments, each Lender may extend all or a portion of its First Lien Term Loans, Revolving Facility Commitments and Synthetic L/C Commitments, or any combination thereof, as specified on the signature page hereof with respect to each such Lender.

Term B Loans and Delayed Draw Term B Loans) and Converted Term Loans shall constitute one Facility and one Tranche after giving effect to such extensions, conversions and the Incremental Assumption Closing Date Prepayment contemplated hereby.

(d) In accordance with Section 2.11(g)(z) of the Credit Agreement, each First Lien Lender party hereto agrees that the aggregate amount of First Lien Net Proceeds received by the Borrower after the Incremental Assumption Closing Date may be applied to prepay Term Loans or permanently reduce Non-Extended RF Commitments.

SECTION 7.Representations. To induce the First Lien Lenders and the Administrative Agent to enter into this Incremental Assumption Agreement, the Borrower hereby represents and warrants to them that:

(a) The representations and warranties set forth in the Loan Documents are true and correct in all material respects as of the Incremental Assumption Closing Date, with the same effect as though made on and as of the Incremental Assumption Closing Date, except to the extent any such representation or warranty expressly relates to an earlier date (in which case such representation or warranty was true and correct in all material respects as of such earlier date).

(b) The Borrower’s consolidated balance sheet as at September 30, 2010 and its consolidated statements of income, stockholders equity and cash flows for the fiscal quarter and the portion of the fiscal year ended September 30, 2010, which were contained in the Borrower’s Form 10-Q, dated November 9, 2010, present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of such date and for such period in accordance with GAAP, subject to year-end audit adjustments.

SECTION 8.Conditions to Effectiveness of Incremental Assumption Agreement.

(a) This Incremental Assumption Agreement shall become effective on the Incremental Assumption Closing Date subject to the satisfaction of each of the following conditions or the waiver thereof by the Administrative Agent:

(i) The Administrative Agent shall have received counterparts of this Incremental Assumption Agreement, duly executed and delivered by Holdings, the Borrower, the Administrative Agent and the applicable First Lien Lenders.

(ii) The First Amendment Effective Date shall have occurred (or shall occur simultaneously with the Incremental Assumption Closing Date).

(iii) The Administrative Agent shall have received the Acknowledgement and Confirmation, substantially in the form of Annex I hereto, duly executed and delivered by each of the Loan Parties.

(iv) The Administrative Agent shall have received all fees payable

thereto on or prior to the Incremental Assumption Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Incremental Assumption Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of Simpson Thacher & Bartlett LLP) required to be reimbursed or paid by the Loan Parties under any Loan Document.

(b) The changes to the Applicable Margins and to the participation fees payable with respect to the Extended FL Term Loans (including the Converted Term Loans), Extended RF Commitments and the Extended Synthetic Commitments shall commence accruing as of the Incremental Assumption Closing Date.

SECTION 9.Expenses. The Borrower hereby agrees to pay or reimburse the Administrative Agent for all its reasonable documented out-of-pocket costs and expenses incurred in connection with this Incremental Assumption Agreement, and any other documents prepared in connection herewith and the transactions contemplated hereby (including, without limitation, reasonable fees, charges and disbursements of Simpson Thacher & Bartlett LLP), in each case to the extent required by Section 10.05 of the Credit Agreement.

SECTION 10.Administrative Agent Consent. The Administrative Agent hereby agrees, for purposes of Section 2.20 of the Credit Agreement and without prejudice to or affecting Section 11, that any of the terms of the Extended FL Term Loans and Converted Term Loans provided in this Incremental Assumption Agreement, to the extent such terms differ from those provided for Term B Loans in the Loan Documents, are reasonably satisfactory to the Administrative Agent.

SECTION 11.Amendments; Execution in Counterparts. (a) This Incremental Assumption Agreement may not be amended nor may any provision hereof be waived on or prior to the Incremental Assumption Closing Date except pursuant to a writing signed by Holdings, the Borrower, the Administrative Agent and the First Lien Lenders party hereto and thereafter except as provided for in Section 10.08 of the Credit Agreement.

(b) This Incremental Assumption Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, including by means of facsimile or electronic transmission, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument.

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IN WITNESS WHEREOF, the parties hereto have caused this Incremental Assumption Agreement to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.


DOMUS INTERMEDIATE HOLDINGS CORP.

By:	/s/ Anthony E. Hull
	Name:	Anthony E. Hull
	Title:	Chief Financial Officer