EXECUTION COPY
--------------
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of July 27, 2001 (the "Agreement") by
and between Cendant Corporation, a Delaware corporation (the "Company"), Bank
One Trust Company, National Association, not individually but solely as Forward
Purchase Contract Agent (the "Forward Purchase Contract Agent") and as
attorney-in-fact of the holders of Forward Purchase Contracts (as defined in the
Forward Purchase Contract Agreement (as defined herein)), and Salomon Smith
Barney, Inc. (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue $750,000,000 (or up to $862,000,000 if
the underwriter's over-allotment option is exercised in full) aggregate Stated
Amount of its Upper DECS (the "Upper DECS") under the Forward Purchase Contract
Agreement, dated as of July 27, 2001, by and between the Forward Purchase
Contract Agent and the Company (the "Forward Purchase Contract Agreement"); and
WHEREAS, the Company will issue concurrently in connection with the
issuance of the Upper DECS $750,000,000 (or up to $862,000,000 if the
underwriter's over-allotment option is exercised in full) aggregate principal
amount of Senior Notes due August 17, 2006 (the "Senior Notes") of the Company;
and
WHEREAS, the Senior Notes forming a part of the Upper DECS will be
pledged pursuant to the Pledge Agreement (the "Pledge Agreement"), dated as of
July 27, 2001, by and among the Company, the Chase Manhattan Bank, a New York
banking corporation, as collateral agent (the "Collateral Agent"), and the
Forward Purchase Contract Agent, to secure an Upper DECS holder's obligations
under the related Forward Purchase Contract on the Forward Purchase Contract
Settlement Date; and
WHEREAS, the Senior Notes of holders electing to have their Senior
Notes remarketed and of the Upper DECS holders who have not elected to settle
the Forward Purchase Contracts related to their Upper DECS by Cash Settlement
and who have not settled their Forward Purchase Contracts early will be
remarketed by the Remarketing Agent on the fifth Business Day immediately
preceding May 17, 2004 (the "Initial Remarketing Date"); and
WHEREAS, in the event of a Failed Initial Remarketing, the Senior Notes
of holders electing to have their Senior Notes remarketed and of the Upper DECS
holders who have not elected to settle the Forward Purchase Contracts related to
their Upper DECS by Cash Settlement and who have not settled their Forward
Purchase Contracts early will be remarketed by the Remarketing Agent on the
fifth Business Day immediately preceding the Forward Purchase Contract
Settlement Date; and
WHEREAS, in the event of a Successful Initial Remarketing, the
applicable interest rate on the Senior Notes will be reset on the Initial
Remarketing Date, to the Reset Rate to be determined by the Reset Agent (defined
below) as the rate that such Senior Notes should bear in order for the
Applicable Principal Amount of the Senior Notes to have an approximate
aggregate market value of 100.5% of the Treasury Portfolio Purchase Price on the
Initial Remarketing Date, provided that in the determination of such Reset Rate,
the Company shall, if applicable, limit the Reset Rate to the maximum rate
permitted by applicable law; and
WHEREAS, in the event of a Failed Initial Remarketing, the applicable
interest rate on the Senior Notes that remain outstanding on and after the
Forward Purchase Contract Settlement Date will be reset on the fifth Business
Day immediately preceding the Forward Purchase Contract Settlement Date, to the
Reset Rate to be determined by the Reset Agent as the rate that such Senior
Notes should bear in order to have an approximate market value of 100.5% of the
aggregate principal amount of the Senior Notes on the fifth Business Day
immediately preceding the Forward Purchase Contract Settlement Date, provided
that in the determination of such Reset Rate, the Company shall, if applicable,
limit the Reset Rate to the maximum rate permitted by applicable law; and
WHEREAS, the Company has requested Salomon Smith Barney Inc. ("Salomon
Smith Barney") to act as the Reset Agent and as the Remarketing Agent, and as
such to perform the services described herein; and
WHEREAS, Salomon Smith Barney is willing to act as Reset Agent and
Remarketing Agent and as such to perform such duties on the terms and conditions
expressly set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. Definitions.
Capitalized terms used and not defined in this Agreement, in the
recitals hereto or in the paragraph preceding such recitals shall have the
meanings assigned to them in the Forward Purchase Contract Agreement or, if not
therein defined, the Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent.
(a) The Company hereby appoints Salomon Smith Barney and Salomon Smith
Barney hereby accepts such appointment, (i) as the Reset Agent to determine, in
consultation with the Company, in the manner provided for herein and in the
Indenture (as in effect on the date of this Remarketing Agreement) with respect
to the Senior Notes, (1) the Reset Rate that, in the opinion of the Reset Agent,
will, when applied to the Senior Notes, enable the Applicable Principal Amount
of the Senior Notes to have an approximate aggregate market value of 100.5% of
the Treasury Portfolio Purchase Price as of the Initial Remarketing Date, and
(2) in the event of a Failed Initial Remarketing, the Reset Rate that, in the
opinion of the Reset Agent, will, when applied to the Senior Notes, enable a
Senior Note to have an approximate market value of 100.5% of its principal
amount as of the fifth Business Day preceding the Forward Purchase Contract
Settlement Date, provided, in each case, that the Company, by notice to the
Reset Agent prior to the tenth Business Day preceding May 17, 2004, in the case
of the Initial Remarketing (as defined below), or the Forward Purchase Contract
Settlement Date, in the case of the Secondary Remarketing (as defined below),
shall, if applicable, limit the Reset Rate so that it does not exceed the
maximum rate permitted by applicable law and (ii) as the exclusive
2
Remarketing Agent (subject to the right of Salomon Smith Barney to appoint
additional remarketing agents hereunder as described below) to (1) remarket the
Senior Notes of the holders electing to have their Senior Notes remarketed and
of the Upper DECS holders who have not elected to settle the Forward Purchase
Contracts related to their Upper DECS by Cash Settlement and who have not
settled their Forward Purchase Contracts early on the Initial Remarketing Date,
for settlement on May 17, 2004 and (2) in the case of a Failed Initial
Remarketing, remarket the Senior Notes of the holders electing to have their
Senior Notes remarketed or of the Upper DECS holders who have not early settled
the related Forward Purchase Contracts and have failed to notify the Forward
Purchase Contract Agent, on or prior to the seventh Business Day immediately
preceding the Forward Purchase Contract Settlement Date, of their intention to
settle the related Forward Purchase Contracts through Cash Settlement. In
connection with the remarketing contemplated hereby, the Remarketing Agent will
enter into a Supplemental Remarketing Agreement (the "Supplemental Remarketing
Agreement") with the Company and the Forward Purchase Contract Agent, which
shall either be (i) substantially in the form attached hereto as Exhibit A (with
such changes as the Company and the Remarketing Agent may agree upon, it being
understood that changes may be necessary in the representations, warranties,
covenants and other provisions of the Supplemental Remarketing Agreement due to
changes in law or facts and circumstances or in the event that Salomon Smith
Barney is not the sole remarketing agent, and with such further changes therein
as the Remarketing Agent may reasonably request, or (ii) in such other form as
the Remarketing Agent may reasonably request, subject to the approval of the
Company (such approval not to be unreasonably withheld). Anything herein to the
contrary notwithstanding, Salomon Smith Barney shall not be obligated to act as
Remarketing Agent or Reset Agent hereunder unless the Supplemental Remarketing
Agreement is in form and substance reasonably satisfactory to Salomon Smith
Barney. The Company agrees that Salomon Smith Barney shall have the right, on 15
Business Days notice to the Company, to appoint one or more additional
remarketing agents so long as any such additional remarketing agents shall be
reasonably acceptable to the Company. Upon any such appointment, the parties
shall enter into an appropriate amendment to this Agreement to reflect the
addition of any such remarketing agent.
(b) Pursuant to the Supplemental Remarketing Agreement, the Remarketing
Agent, either as sole remarketing agent or as representative of a group of
remarketing agents appointed as aforesaid, will agree, subject to the terms and
conditions set forth herein and therein, to use its reasonable efforts to (i)
remarket, on the Initial Remarketing Date, the Senior Notes that the Trustee (as
such term is defined in the Indenture) shall have notified the Remarketing Agent
have been tendered for, or otherwise are to be included in, the Initial
Remarketing, at a price per Note such that the aggregate price for the
Applicable Principal Amount of the Senior Notes is approximately 100.5% of the
Treasury Portfolio Purchase Price and (ii) in the event of a Failed Initial
Remarketing, remarket, on the fifth Business Day immediately preceding the
Forward Purchase Contract Settlement Date, the Senior Notes that the Trustee
shall have notified the Remarketing Agent have been tendered for, or otherwise
are to be included in, the Secondary Remarketing, at a price of approximately
100.5% of the aggregate principal amount of such Senior Notes. Notwithstanding
the preceding sentence, the Remarketing Agent shall not remarket any Senior
Notes for a price less than the price necessary for the Applicable Principal
Amount of the Senior Notes to have an aggregate price equal to 100% of the
Treasury Portfolio Purchase Price (the "Minimum Initial Remarketing Price"), in
the case of the Initial Remarketing, or 100% of the aggregate principal amount
of such Senior Notes,
3
in the case of the Secondary Remarketing. After deducting the fee specified in
Section 3 below, the proceeds of such Initial Remarketing or Secondary
Remarketing, as the case may be, shall be paid to the Collateral Agent in
accordance with Section 4.6 or 6.3 of the Pledge Agreement and Section 5.4 or
5.5 of the Forward Purchase Contract Agreement (each of which Sections are
incorporated herein by reference). The right of each holder of Senior Notes or
Upper DECS to have Senior Notes tendered for the Initial Remarketing or the
Secondary Remarketing, as the case may be, shall be limited to the extent that
(i) the Remarketing Agent conducts an Initial Remarketing and, in the event of a
Failed Initial Remarketing, a Secondary Remarketing pursuant to the terms of
this Agreement, (ii) Senior Notes tendered have not been called for redemption,
(iii) the Remarketing Agent is able to find a purchaser or purchasers for
tendered Senior Notes at a price of not less than the Minimum Initial
Remarketing Price, in the case of the Initial Remarketing, and 100% of the
principal amount thereof, in the case of the Secondary Remarketing and (iv) such
purchaser or purchasers deliver the purchase price therefor to the Remarketing
Agent as and when required.
(c) It is understood and agreed that neither the Remarketing Agent nor
the Reset Agent shall have any obligation whatsoever to purchase any Senior
Notes, whether in the Initial Remarketing, Secondary Remarketing or otherwise,
and shall in no way be obligated to provide funds to make payment upon tender of
Senior Notes for remarketing or to otherwise expend or risk their own funds or
incur or be exposed to financial liability in the performance of their
respective duties under this Agreement or the Supplemental Remarketing
Agreement. The Company shall not be obligated in any case to provide funds to
make payment upon tender of Senior Notes for remarketing.
Section 3. Fees.
In the event of a Successful Initial Remarketing, the Remarketing Agent
shall retain as a remarketing fee (the "Remarketing Fee") an amount not
exceeding 25 basis points (0.25%) of the Minimum Initial Remarketing Price from
any amount received in connection with such Initial Remarketing in excess of the
Minimum Initial Remarketing Price. In the event of a Successful Secondary
Remarketing, the Remarketing Agent shall retain as the Remarketing Fee an amount
not exceeding 25 basis points (0.25%), of the principal amount of the remarketed
Senior Notes from any amount received in connection with such Secondary
Remarketing in excess of the aggregate principal amount of such remarketed
Senior Notes. In addition, the Reset Agent shall, in either case, receive from
the Company a reasonable and customary fee (the "Reset Agent Fee"); provided,
however, that if the Remarketing Agent shall also act as the Reset Agent, then
the Reset Agent shall not be entitled to receive any such Reset Agent Fee.
Payment of such Reset Agent Fee shall be made by the Company on the Initial
Remarketing Date, in the case of a Successful Initial Remarketing, or on the
fifth Business Day immediately preceding the Forward Purchase Contract
Settlement Date, in the case of a Successful Secondary Remarketing, in
immediately available funds or, upon the instructions of the Reset Agent, by
certified or official bank check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent.
(a) The Company may in its absolute discretion replace Salomon Smith
Barney as the Remarketing Agent and as the Reset Agent hereunder by giving
notice prior to
4
3:00 p.m., New York City time (i) on the eleventh Business Day immediately prior
to May 17, 2004, or (ii) in the event of a Failed Initial Remarketing, prior to
3:00 p.m., New York City time on the eleventh Business Day immediately prior to
the Forward Purchase Contract Settlement Date, provided, in either case, that
the Company must replace Salomon Smith Barney both as Remarketing Agent and as
Reset Agent unless Salomon Smith Barney shall otherwise agree. Any such
replacement shall become effective upon the Company's appointment of a successor
to perform the services that would otherwise be performed hereunder by the
Remarketing Agent and the Reset Agent. Upon providing such notice, the Company
shall use all reasonable efforts to appoint such a successor and to enter into a
remarketing agreement with such successor as soon as reasonably practicable.
(b) Salomon Smith Barney may resign at any time and be discharged from
its duties and obligations hereunder as the Remarketing Agent and/or as the
Reset Agent by giving notice prior to 3:00 p.m., New York City time (i) on the
eleventh Business Day immediately prior to May 17, 2004, or (ii) in the event of
a Failed Initial Remarketing, on the eleventh Business Day immediately prior to
the Forward Purchase Contract Settlement Date. Any such resignation shall become
effective upon the Company's appointment of a successor to perform the services
that would otherwise be performed hereunder by the Remarketing Agent and/or the
Reset Agent. Upon receiving notice from the Remarketing Agent and/or the Reset
Agent that it wishes to resign hereunder, the Company shall appoint such a
successor and enter into a remarketing agreement with it as soon as reasonably
practicable.
Section 5. Dealing in the Securities.
Each of the Remarketing Agent and the Reset Agent, when acting
hereunder or, in the case of the Remarketing Agent, under the Supplemental
Remarketing Agreement, or when acting in its individual or any other capacity,
may, to the extent permitted by law, buy, sell, hold or deal in any of the
Senior Notes, Stripped DECS, Upper DECS or any other securities of the Company.
With respect to any Senior Notes, Stripped DECS , Upper DECS or any other
securities of the Company owned by it, each of the Remarketing Agent and the
Reset Agent may exercise any vote or join in any action with like effect as if
it did not act in any capacity hereunder. Each of the Remarketing Agent and the
Reset Agent, in its individual capacity, either as principal or agent, may also
engage in or have an interest in any financial or other transaction with the
Company as freely as if it did not act in any capacity hereunder.
The Company or its affiliates may, to the extent permitted by law,
purchase any Senior Notes that are remarketed by any Remarketing Agent.
Section 6. Registration Statement and Prospectus.
(a) In connection with the Initial Remarketing, if and to the extent
required in the view of counsel (which need not be an opinion) for each of the
Remarketing Agent and the Company by applicable law, regulations or
interpretations in effect at the time of such Initial Remarketing, the Company
(i) shall use its reasonable efforts to have a registration statement relating
to the Senior Notes effective under the Securities Act of 1933 prior to the
fifth Business Day immediately preceding May 17, 2004, (ii) if requested by the
Remarketing Agent shall furnish a current preliminary prospectus and, if
applicable, a current preliminary prospectus
5
supplement to be used by the Remarketing Agent in the Initial Remarketing not
later than seven Business Days prior to May 17, 2004 (or such earlier date as
the Remarketing Agent may reasonably request) and in such quantities as the
Remarketing Agent may reasonably request, and (iii) shall furnish a current
final prospectus and, if applicable, a final prospectus supplement to be used by
the Remarketing Agent in the Initial Remarketing not later than the fifth
Business Day immediately preceding May 17, 2004 in such quantities as the
Remarketing Agent may reasonably request, and shall pay all expenses relating
thereto.
(b) In the event of a Failed Initial Remarketing and in connection with
the Secondary Remarketing, if and to the extent required in the view of counsel
(which need not be an opinion) for either the Remarketing Agent or the Company
by applicable law, regulations or interpretations in effect at the time of such
Secondary Remarketing, the Company (i) shall use its reasonable efforts to have
a registration statement relating to the Senior Notes effective under the
Securities Act of 1933 prior to the fifth Business Day immediately preceding the
Forward Purchase Contract Settlement Date, (ii) if requested by the Remarketing
Agent, shall furnish a current preliminary prospectus and, if applicable, a
current preliminary prospectus supplement to be used by the Remarketing Agent in
the Secondary Remarketing not later than seven Business Days prior to the
Forward Purchase Contract Settlement Date (or such earlier date as the
Remarketing Agent may reasonably request) and in such quantities as the
Remarketing Agent may reasonably request, and (iii) shall furnish a current
final prospectus and, if applicable, a final prospectus supplement to be used by
the Remarketing Agent in the Secondary Remarketing not later than the fifth
Business Day immediately preceding the Forward Purchase Contract Settlement Date
in such quantities as the Remarketing Agent may reasonably request, and shall
pay all expenses relating thereto.
(c) If in connection with the Initial Remarketing or, in the event of a
Failed Initial Remarketing, the Secondary Remarketing it shall not be possible,
in the view of counsel (which need not be an opinion) for each of the
Remarketing Agent and the Company, under applicable law, regulations or
interpretations in effect at the time of such Initial Remarketing or such
Secondary Remarketing to register the offer and sale by the Company of the
Senior Notes under the Securities Act of 1933 as otherwise contemplated by this
Section 6, the Company (i) shall use its reasonable efforts to take, or cause to
be taken, all action and to do, or cause to be done, all things necessary,
proper and advisable to permit and effectuate the offer and sale of the Senior
Notes in connection with the Initial Remarketing or the Secondary Remarketing,
as the case may be, without registration under the Securities Act of 1933
pursuant to an exemption therefrom, if available, including the exemption
afforded by Rule 144A under the rules and regulations promulgated under the
Securities Act of 1933 by the Securities and Exchange Commission, (ii) if
requested by the Remarketing Agent shall furnish a current preliminary
remarketing memorandum to be used by the Remarketing Agent in the Initial
Remarketing or the Secondary Remarketing, as the case may be, not later than
seven Business Days prior to May 17, 2004, in the case of the Initial
Remarketing, or the Forward Purchase Contract Settlement Date, in the case of
the Secondary Remarketing (or in either case such earlier date as the
Remarketing Agent may reasonably request) and in such quantities as the
Remarketing Agent may reasonably request and (iii) shall furnish a current final
remarketing memorandum to be used by the Remarketing Agent in the Initial
Remarketing or the Secondary Remarketing, as the case may be, not later than the
fifth Business Day immediately preceding May 17, 2004, in the case of the
Initial Remarketing, or the Forward Purchase Contract Settlement Date, in the
case of the
6
Secondary Remarketing, in such quantities as the Remarketing Agent may
reasonably request, and shall pay all expenses relating thereto.
(d) The Company shall also take all such actions as may (upon advice of
counsel to the Company or the Remarketing Agent) be necessary or desirable under
state securities or blue sky laws in connection with the Initial Remarketing and
the Secondary Remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations.
(a) The obligations of the Remarketing Agent and the Reset Agent under
this Agreement and, in the case of the Remarketing Agent, the Supplemental
Remarketing Agreement shall be subject to the terms and conditions of this
Agreement and the Supplemental Remarketing Agreement, including, without
limitation, the following conditions: (i) the Senior Notes tendered for, or
otherwise to be included in the Initial Remarketing or Secondary Remarketing, as
the case may be, have not been called for redemption, (ii) the Remarketing Agent
is able to find a purchaser or purchasers for tendered Senior Notes (1) in the
case of the Initial Remarketing, at a price not less than the Minimum Initial
Remarketing Price, and (2) in the case of the Secondary Remarketing, at a price
not less than 100% of the principal amount thereof, (iii) the Forward Purchase
Contract Agent, the Collateral Agent, the Custodial Agent, the Securities
Intermediary, the Company and the Trustee shall have performed their respective
obligations in connection with the Initial Remarketing and, in the event of a
Failed Initial Remarketing, in connection with the Secondary Remarketing, in
each case pursuant to the Forward Purchase Contract Agreement, the Pledge
Agreement, the Indenture, this Agreement and the Supplemental Remarketing
Agreement (including, without limitation, giving the Remarketing Agent notice of
the Treasury Portfolio Purchase Price no later than 10:00 a.m., New York City
time, on the sixth Business Day prior to May 17, 2004, in the case of the
Initial Remarketing, and giving the Remarketing Agent notice of the aggregate
principal amount, as the case may be, of Senior Notes to be remarketed, no later
than 10:00 a.m., New York City time, on the sixth Business Day prior to the
Forward Purchase Contract Settlement Date, in the case of the Secondary
Remarketing, and, in each case, concurrently delivering the Senior Notes to be
remarketed to the Remarketing Agent), (iv) no Event of Default (as defined in
the Indenture) shall have occurred and be continuing, (v) the accuracy of the
representations and warranties of the Company included and incorporated by
reference in this Agreement and the Supplemental Remarketing Agreement or in
certificates of any officer of the Company or any of its subsidiaries delivered
pursuant to the provisions included or incorporated by reference in this
Agreement or the Supplemental Remarketing Agreement, (vi) the performance by the
Company of its covenants and other obligations included and incorporated by
reference in this Agreement and the Supplemental Remarketing Agreement, and
(vii) the satisfaction of the other conditions set forth and incorporated by
reference in this Agreement and the Supplemental Remarketing Agreement.
(b) If at any time during the term of this Agreement, any Indenture
Event of Default or event that with the passage of time or the giving of notice
or both would become an Indenture Event of Default has occurred and is
continuing under the Indenture, then the obligations and duties of the
Remarketing Agent and the Reset Agent under this Agreement and the Supplemental
Remarketing Agreement shall be suspended until such default or event has
7
been cured. The Company will promptly give the Remarketing Agent notice of all
such defaults and events of which the Company is aware.
Section 8. Termination of Remarketing Agreement.
This Agreement shall terminate as to any Remarketing Agent or Reset
Agent which is replaced on the effective date of its replacement pursuant to
Section 4(a) hereof or pursuant to Section 4(b) hereof. Notwithstanding the
foregoing, the obligations set forth in Section 3 hereof shall survive and
remain in full force and effect until all amounts payable under said Section 3
shall have been paid in full; provided, however, that if any Reset Agent
resigns, then the obligations set forth in Section 3 hereof shall not survive
the termination of this Agreement and no fee shall be payable to such Reset
Agent in such capacity. In addition, each former Remarketing Agent and Reset
Agent shall be entitled to the rights and benefits under Section 10 of this
Agreement notwithstanding the replacement or resignation of such Remarketing
Agent or Reset Agent.
Section 9. Remarketing Agent's Performance; Duty of Care.
The duties and obligations of the Remarketing Agent and the Reset Agent
shall be determined solely by the express provisions of this Agreement and, in
the case of the Remarketing Agent, the Supplemental Remarketing Agreement. No
implied covenants or obligations of or against the Remarketing Agent or the
Reset Agent shall be read into this Agreement or the Supplemental Remarketing
Agreement. In the absence of a final judicial determination of willful
misconduct, bad faith or gross negligence on the part of the Remarketing Agent
or the Reset Agent, as the case may be, the Remarketing Agent and the Reset
Agent each may conclusively rely upon any document furnished to it which
purports to conform to the requirements of this Agreement or the Supplemental
Remarketing Agreement, as the case may be, as to the truth of the statements
expressed therein. Each of the Remarketing Agent and the Reset Agent shall be
protected in acting upon any document or communication reasonably believed by it
to be signed, presented or made by the proper party or parties. Neither the
Remarketing Agent nor the Reset Agent shall have any obligation to determine
whether there is any limitation under applicable law on the Reset Rate on the
Senior Notes or, if there is any such limitation, the maximum permissible Reset
Rate on the Senior Notes, and they shall rely solely upon written notice from
the Company (which the Company agrees to provide prior to the tenth Business Day
before May 17, 2004, in the case of the Initial Remarketing, and prior to the
tenth Business Day before Forward Purchase Contract Settlement Date, in the case
of the Secondary Remarketing) as to whether or not there is any such limitation
and, if so, the maximum permissible Reset Rate. Neither the Remarketing Agent
nor the Reset Agent shall incur any liability under this Agreement or the
Supplemental Remarketing Agreement to any beneficial owner or holder of Senior
Notes, or other securities, either in its individual capacity or as Remarketing
Agent or Reset Agent, as the case may be, for any action or failure to act in
connection with the Remarketing or otherwise in connection with the transactions
contemplated by this Agreement or the Supplemental Remarketing Agreement, except
to the extent that such liability has, by final judicial determination, resulted
from the willful misconduct, bad faith or gross negligence of the Remarketing
Agent or the Reset Agent or by their failure to fulfill their express
obligations hereunder or, in the case of the Remarketing Agent, under the
Supplemental Remarketing Agreement. The provisions of this Section 9 shall
survive any termination of this
8
Agreement and shall also continue to apply to every Remarketing Agent and Reset
Agent notwithstanding their resignation or removal.
Section 10. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Remarketing
Agent, the Reset Agent and their respective directors, officers, employees,
agents, affiliates and each person, if any, who controls the Remarketing Agent
or the Reset Agent within the meaning of either Section 15 of the Securities Act
of 1933, as amended (the "1933 Act"), or Section 20 of the Securities Exchange
Act of 1934, as amended (the "1934 Act") (the Remarketing Agent, the Reset Agent
and each such person or entity being an "Indemnified Party"), as follows:
(i) from and against any and all losses, claims, damages, liabilities
and expenses whatsoever, joint or several, as incurred, to which such
Indemnified Party may become subject under any applicable federal or state law,
or otherwise, and related to, arising out of, or based on (A) the failure to
have an effective Registration Statement (as defined in the Supplemental
Remarketing Agreement) under the 1933 Act relating to the Senior Notes, as the
case may be, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company failed to provide the
Remarketing Agent with a Prospectus (as defined in the Supplemental Remarketing
Agreement) for delivery, or (B) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereto (including any information deemed to be a part of the Registration
Statement at the time it became effective pursuant to paragraph (b) of Rule 430A
under the 1933 Act, if applicable), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (C) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus, or any amendment or supplement thereto, or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (D) any untrue statement or alleged untrue statement of
a material fact contained in any preliminary remarketing memorandum or any final
remarketing memorandum, or any amendment or supplement thereto, or the omission
or alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light or the circumstances under which they were
made, not misleading, or (E) any untrue statement or alleged untrue statement of
a material fact contained in any other documents (including, without limitation,
any documents incorporated or deemed to be incorporated by reference in any such
documents) provided by the Company for use in connection with the remarketing of
the Senior Notes or any of the transactions related thereto, or (F) any breach
by the Company of any of the representations, warranties or agreements included
or incorporated by reference in this Agreement or the Supplemental Remarketing
Agreement, or (G) any failure by the Company to make or consummate the
remarketing of the Senior Notes (including, without limitation, any Failed
Initial Remarketing or Failed Secondary Remarketing) or the withdrawal,
recession, termination, amendment or extension of the terms of such remarketing,
or (H) any failure on the part of the Company to comply, or any breach by the
Company of, any of the provisions included or incorporated by reference in this
Agreement, the Supplemental Remarketing Agreement, the Forward Purchase Contract
Agreement, the Upper DECS, the Stripped DECS, the Pledge Agreement, the
Indenture or the Senior Notes (collectively, the "Operative Documents") or (I)
the remarketing of the Senior Notes, as the case
9
may be, or any other transaction contemplated by any of the Operative Documents,
or the engagement of the Remarketing Agent or the Reset Agent pursuant to, or
the performance by the Remarketing Agent or the Reset Agent of the respective
services contemplated by, this Agreement or the Supplemental Remarketing
Agreement, whether or not the Initial Remarketing or the Secondary Remarketing
or the reset of the interest rate on the Senior Notes as contemplated herein
actually occur;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
related to, arising out of or based on any matter described in (i) above; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Salomon Smith Barney, reasonably
incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever related to, arising out or based on any
matter described in (i) above to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that the Company shall not be liable under clause (i)(B),
(i)(C), (i)(D) or (i)(E) to the extent any such loss, claim, damage, liability
or expense arises out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and conformity with written
information furnished to the Company by the Remarketing Agent or the Reset Agent
expressly for use in the Registration Statement (or any amendment thereto), any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or any preliminary or final remarketing memorandum (or any amendment or
supplement thereto) or any other documents used in connection with remarketing
of the Senior Notes, as the case may be; provided, further, that with respect to
any untrue statement or omission of a material fact made in any preliminary
prospectus, the indemnity agreement contained in this Section 10(a) shall not
inure to the benefit of the Remarketing Agent to the extent that any such loss,
claim, damage or liability of the Remarketing Agent occurs under the
circumstance where it shall be that (w) the Company had previously furnished
copies of the Prospectus to Salomon Smith Barney Inc. (x) delivery of the
Prospectus was required to be made to such person, (y) the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact contained in the preliminary prospectus was corrected in the
Prospectus, and (z) there was not sent or given to such person, at or prior to
the written confirmation of the sale of Securities to such person, a copy of the
Prospectus and the delivery thereof would have constituted a complete defense to
such person's claim in respect of such untrue statement or omission or alleged
untrue statement or omission; provided, further, that the Company shall not be
liable under clause (i)(G) or (i)(I) to the extent that such loss, claim,
damage, liability or expense has, by final judicial determination, resulted from
the willful misconduct, bad faith or gross negligence of the Remarketing Agent
or the Reset Agent or by their failure to fulfill their express obligations
hereunder or, in the case of the Remarketing Agent, under the Supplemental
Remarketing Agreement.
10
The Company agrees that no Indemnified Party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company or
its respective security holders or creditors relating to or arising out of the
engagement of the Remarketing Agent or the Reset Agent pursuant to, or the
performance by the Remarketing Agent or the Reset Agent of their respective
services contemplated by, this Agreement or the Supplemental Remarketing
Agreement except to the extent that any loss, claim, damage, liability or
expense resulted from the willful misconduct, gross negligence or bad faith of
the Remarketing Agent or the Reset Agent, as the case may be.
The Company agrees that, without Salomon Smith Barney's prior written
consent, it will not settle, compromise or consent to the entry of any judgment
with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any action or claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 10 (whether or not Salomon Smith Barney or any other
Indemnified Party is an actual or potential party to such claim, action or
proceeding), unless such settlement, compromise or consent (i) includes an
unconditional release of each Indemnified Party from all liability arising out
of such litigation, investigation, proceeding, action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of an Indemnified Party.
(b) If the indemnification provided for in Section 10(a) hereof is for
any reason unavailable to or insufficient to hold harmless an Indemnified Party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then the Company shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such Indemnified
Party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Remarketing
Agent and the Reset Agent on the other hand from the remarketing of the Senior
Notes contemplated hereby or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Remarketing Agent and
the Reset Agent on the other hand in connection with the statements, omissions
or other matters which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Remarketing Agent and
the Reset Agent on the other hand in connection with the remarketing of the
Senior Notes contemplated hereby shall be deemed to be in the same respective
proportions as the aggregate principal amount of the Senior Notes which are or
are to be remarketed bears to the aggregate fees actually received by the
Remarketing Agent and the Reset Agent under Section 3 hereof. The relative fault
of the Company on the one hand and the Remarketing Agent and the Reset Agent on
the other hand (i) in the case of an untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, shall be
determined by reference to, among other things, whether such untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
by the Remarketing Agent or the Reset Agent on the other hand and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission and (ii) in the case of any other action or
omission shall be determined by reference to, among other things, whether such
action or omission was taken or omitted to be taken by the Company on the one
hand, or by the
11
Remarketing Agent or the Reset Agent, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to prevent or
correct such action or omission. The Company, the Remarketing Agent and the
Reset Agent agree that it would not be just and equitable if contribution
pursuant to this Section 10(b) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 10(b). The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an Indemnified
Party and referred to above in this Section 10(b) shall be deemed to include any
legal or other expenses incurred by such Indemnified Party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or any
such omission or alleged omission or any other such action or omission;
provided, however, that to the extent permitted by applicable law, in no event
shall the Remarketing Agent or the Reset Agent be required to contribute any
amount which, in the aggregate, exceeds the aggregate principal amount of Notes
to be remarketed pursuant to this Agreement. No investigation or failure to
investigate by any Indemnified Party shall impair the foregoing indemnification
and contribution agreement or any rights an Indemnified Party may have. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(c) In the event an Indemnified Party is requested or required to
appear as a witness in any action brought by or on behalf of or against the
Company, the Company agrees to reimburse the Remarketing Agent or the Reset
Agent, as the case may be, for all reasonable expenses, as incurred, which are
incurred by the Remarketing Agent or the Reset Agent, as the case may be, in
connection with such Indemnified Party's appearing and preparing to appear as
such a witness, including, without limitation, the reasonable fees and
disbursements of its legal counsel, and to compensate the Remarketing Agent or
the Reset Agent, as the case may be, in an amount to be mutually agreed upon.
(d) Promptly after receipt by an Indemnified Party of written notice of
any claim or commencement of an action or proceeding with respect to which
indemnification may be sought hereunder, such Indemnified Party will notify the
Company in writing of such claim or of the commencement of such action or
proceeding, but failure to so notify the Company will not relieve the Company
from any liability which it may have to such Indemnified Party under this
indemnification and contribution agreement except to the extent the Company was
materially prejudiced by such failure to notify, and in any event will not
relieve the Company from any other liability that it may have to such
Indemnified Party. The Company, upon request of the Indemnified Party, shall
retain counsel reasonably satisfactory to the Indemnified Party to represent the
Indemnified Party and any others the Company may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any Indemnified Party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Company shall have agreed
in writing to pay such fees and expenses, (ii) the Company shall have failed to
take reasonable steps necessary to defend any claim within ten calendar days
after receiving written notice from the Indemnified Party that that Indemnified
Party believes the Company has failed to take such steps or (iii) the named
parties to any such proceeding (including any impleaded parties) include both
the Company and the Indemnified Party and
12
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
Company shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm (in addition to any local counsel) for all such
Indemnified Parties, and that all such fees and expenses shall be reimbursed as
they are incurred after receipt of adequate documentation thereof.
(e) Anything herein or in the Supplemental Remarketing Agreement to the
contrary notwithstanding, the provisions of this Section 10, and the rights of
the Remarketing Agent, the Reset Agent and the other Indemnified Parties
hereunder, shall be in addition to, and not in limitation of, any rights or
benefits (including, without limitation, rights to indemnification or
contribution) which the Remarketing Agent, the Reset Agent or any other
Indemnified Party may have under any other instrument or agreement.
Section 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of laws.
Section 12. Term of Agreement. (a) Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided herein,
this Agreement shall remain in full force and effect from the date hereof until
the first day thereafter on which no Senior Notes are outstanding, or, if
earlier, the Business Day immediately following May 17, 2004, in the case of a
Successful Initial Remarketing, or the Business Day immediately following the
Forward Purchase Contract Settlement Date, in the case of a Successful Secondary
Remarketing. Anything herein to the contrary notwithstanding, the provisions of
the last section of Section 8 hereof and the provisions of Sections 3, 9, 10 and
12(b) hereof shall survive any termination of this Agreement and remain in full
force and effect; provided, however, that if any Reset Agent resigns, then the
obligations set forth in Section 3 hereof shall not survive the termination of
this Agreement and no fee shall be payable to such Reset Agent in such capacity.
(b) All representations and warranties included or incorporated by
reference in this Agreement, or the Supplemental Remarketing Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto
or thereto, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Remarketing Agent, the Reset Agent
or any of their controlling persons, or by or on behalf of the Company or the
Forward Purchase Contract Agent, and shall survive the remarketing of the Senior
Notes.
Section 13. Successors and Assigns. The rights and obligations of the
Company and the Forward Purchase Contract Agent (both in its capacity as Forward
Purchase Contract Agent and as attorney-in-fact) hereunder may not be assigned
or delegated to any other person without the prior written consent of the
Remarketing Agent and the Reset Agent, which consent shall not be unreasonably
withheld. The rights and obligations of the Remarketing Agent and the Reset
Agent hereunder may not be assigned or delegated to any other person without the
prior written consent of the Company, except that the Remarketing Agent shall
have the right to appoint additional remarketing agents as provided herein. This
Agreement shall inure to the benefit of and be binding upon the Company, the
Forward Purchase Contract Agent, the Remarketing Agent and the Reset Agent and
their respective successors and assigns and the
13
other Indemnified Parties (as defined in Section 10 hereof) and the successors,
assigns, heirs and legal representatives of the Indemnified Parties. The terms
"successors" and "assigns" shall not include any purchaser of Securities or
Senior Notes merely because of such purchase.
Section 14. Headings. Section headings have been inserted in this
Agreement and the Supplemental Remarketing Agreement as a matter of convenience
of reference only, and it is agreed that such section headings are not a part of
this Agreement or the Supplemental Remarketing Agreement and will not be used in
the interpretation of any provision of this Agreement or the Supplemental
Remarketing Agreement.
Section 15. Severability. If any provision of this Agreement or the
Supplemental Remarketing Agreement shall be held or deemed to be or shall, in
fact, be invalid, inoperative or unenforceable as applied in any particular case
in any or all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule or public policy or for any other reason, then, to
the extent permitted by law, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering any other provision
or provisions of this Agreement or the Supplemental Remarketing Agreement, as
the case may be, invalid, inoperative or unenforceable to any extent whatsoever.
Section 16. Counterparts. This Agreement and the Supplemental
Remarketing Agreement may be executed in counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same
document.
Section 17. Amendments. This Agreement and the Supplemental Remarketing
Agreement may be amended by any instrument in writing signed by the parties
hereto. The Company and the Forward Purchase Contract Agent agree that they will
not enter into, cause or permit any amendment or modification of the Forward
Purchase Contract Agreement, the Indenture, the Pledge Agreement, the Senior
Notes, the Upper DECS or any other instruments or agreements relating to the
Senior Notes or the Upper DECS which would adversely affect the rights, duties
or obligations of the Remarketing Agent or the Reset Agent without the prior
written consent of the Remarketing Agent or the Reset Agent, as the case may be.
Section 18. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone or telecopy, and confirmed in writing.
All written notices and confirmations of notices by telecommunication shall be
deemed to have been validly given or made when delivered or mailed, registered
or certified mail, return receipt requested and postage prepaid. All such
notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to Cendant Corporation, 9 West 57th Street, New
York, NY 10019, Attention: Eric J. Bock, Esq.; Vice President - Legal; if to the
Remarketing Agent or Reset Agent, to Salomon Smith Barney Inc. at 388 Greenwich
Street, New York, New York 10013, Attention: Caesar Sweitzer, Managing Director,
with a copy to Shearman & Sterling, 599 Lexington Avenue, New York, New York
10022, Attention: Robert Evans III; and if to the Forward Purchase Contract
Agent, to Bank One Trust Company, National Association, 153 West 51st Street,
New York, NY 10019, Attention:
14
Sandra Becker Whalen, or to such other address as any of the above shall specify
to the other in writing.
Section 19. Information. The Company agrees to furnish the Remarketing
Agent and the Reset Agent with such information and documents as the Remarketing
Agent or the Reset Agent may reasonably request in connection with the
transactions contemplated by this Remarketing Agreement and the Supplemental
Remarketing Agreement, and make reasonably available to the Remarketing Agent,
the Reset Agent and any accountant, attorney or other advisor retained by the
Remarketing Agent or the Reset Agent such information that parties would
customarily require in connection with a due diligence investigation conducted
in accordance with applicable securities laws and cause the Company's officers,
directors, employees and accountants to participate in all such discussions and
to supply all such information reasonably requested by any such person in
connection with such investigation.
15
IN WITNESS WHEREOF, each of the Company, the Forward Purchase Contract
Agent and the Remarketing Agent has caused this Agreement to be executed in its
name and on its behalf by one of its duly authorized signatories as of the date
first above written.
CENDANT CORPORATION
By:
----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
SALOMON SMITH BARNEY INC.
By:
----------------------------
Authorized Signatory
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
not individually but solely as Forward Purchase Contract
Agent and as attorney-in-fact for the holders of
the Forward Purchase Contracts
By:
----------------------------
Name:
Title:
16
Exhibit A to
Remarketing Agreement
Form of Supplemental Remarketing Agreement
Supplemental Remarketing Agreement dated _____________, ____ among
Cendant Corporation, a Delaware corporation (the "Company"), Salomon Smith
Barney Inc. (the "Remarketing Agent"), and Bank One Trust Company, National
Association, as Forward Purchase Contract Agent and attorney-in-fact for the
Holders of the Forward Purchase Contracts (as such terms are defined in the
Forward Purchase Contract Agreement referred to in Schedule I hereto).
NOW, THEREFORE, for and in consideration of the covenants herein made,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Remarketing Agreement
dated as of July 27, 2001 (the "Remarketing Agreement") among the Company, the
Forward Purchase Contract Agent and Salomon Smith Barney Inc. or, if not defined
in the Remarketing Agreement, the meanings assigned to them in the Forward
Purchase Contract Agreement (as defined in Schedule I hereto).
2. Registration Statement and Prospectus. The Company has filed with
the Securities and Exchange Commission, and there has become effective, a
registration statement on Form S-3, including a prospectus, relating to the
Securities (as such term is defined on Schedule I hereto). Such Registration
Statement, as amended, and including the information deemed to be a part thereof
pursuant to Rule 430A under the Securities Act of 1933, as amended (the "1933
Act"), and the documents incorporated or deemed to be incorporated by reference
therein, are hereinafter called, collectively, the "Registration Statement";
(the related preliminary prospectus dated ___________, including the documents
incorporated or deemed to be incorporated by reference therein, [and preliminary
prospectus supplemented dated __________] are hereinafter called, [collectively]
the "preliminary prospectus";] and the related prospectus dated , including the
documents incorporated or deemed to be incorporated by reference therein, [and
prospectus supplement dated ________] are hereinafter called, [collectively,]
the "Prospectus." The Company has provided copies of the Registration Statement
[, the preliminary prospectus] and the Prospectus to the Remarketing Agent, and
hereby consents to the use of the [preliminary prospectus] and the Prospectus in
connection with the remarketing of the Securities. [IN THE EVENT THAT A
REGISTRATION STATEMENT IS NOT POSSIBLE OR NOT REQUIRED, INSERT THE FOLLOWING:
The Company has provided to the Remarketing Agent, for use in connection with
remarketing of the Securities (as such term is defined on Schedule I hereto), a
[preliminary remarketing memorandum and] remarketing memorandum and [describe
other materials, if any]. Such remarketing memorandum (including the documents
incorporated or deemed to be incorporated by reference therein, [and] [describe
other materials] are hereinafter called, collectively, the "Prospectus," [and
such preliminary marketing memorandum (including the documents incorporated or
deemed to be incorporated by reference therein) is hereinafter called a
"preliminary prospectus")]. The Company hereby consents to the use of the
Prospectus [and the preliminary prospectus] in connection with the remarketing
of the Securities]. All references in this Agreement to amendments or
supplements to the Registration
17
Statement [, the preliminary prospectus] or the Prospectus shall be deemed to
mean and include the filing of any document under the Securities Exchange Act of
1934, as amended (the "1934 Act"), which is incorporated or deemed to be
incorporated by reference in the Registration Statement [, the preliminary
prospectus] or the Prospectus, as the case may be.
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of the Underwriting
Agreement (other than Section 2, Section 3, Section 5, Section 8 and Section 9
thereof) are incorporated herein by reference, mutatis mutandis, and the Company
hereby makes the representations and warranties, and agrees to comply with the
covenants and obligations, set forth in the provisions of the Underwriting
Agreement incorporated by reference herein, as modified by the provisions of
Section 3(b) hereof.
(b) With respect to the provisions of the Underwriting Agreement
incorporated herein, for the purposes hereof, (i) all references therein to the
"Underwriter" shall be deemed to refer to the Remarketing Agent ; (ii) all
references therein to the "Securities" or "Initial Securities" shall be deemed
to refer to the Securities as defined herein; (iii) all references therein to
the "Closing Date" shall be deemed to refer to the Remarketing Closing Date
specified in Schedule I hereto; (iv) all references therein to the "Registration
Statement" [, the "preliminary prospectus"] or the "Final Prospectus" shall be
deemed to refer to the Registration Statement[, the preliminary prospectus] and
the Prospectus, respectively, as defined herein; (v) all references therein to
this "Agreement," the "Underwriting Agreement," "hereof," "herein" and all
references of similar import, shall be deemed to mean and refer to this
Supplemental Remarketing Agreement; (vi) all references therein to "the date
hereof," "the date of this Agreement" and all similar references shall be deemed
to refer to the date of this Supplemental Remarketing Agreement; (vii) all
references therein to any "settlement date" shall be disregarded; and (viii)
[Indicate any other changes, including changes relating to the offer and sale of
the Securities in connection with the Remarketing without registration under the
Securities Act of 1933 in reliance upon an exemption therefrom (including the
exemption afforded by Rule 144A)].]
4. Remarketing. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth or incorporated by
reference herein and in the Remarketing Agreement, the Remarketing Agent agrees
to use its reasonable efforts to remarket, in the manner set forth in Section
2(b) of the Remarketing Agreement, the aggregate principal amount, as the case
may be, of Securities set forth in Schedule I hereto at a purchase price not
less than 100% of the [Minimum Initial Remarketing Price] [aggregate principal
amount of the Securities]. In connection therewith, the registered holder or
holders thereof agree, in the manner specified in Section 5 hereof, to pay to
the Remarketing Agent a Remarketing Fee equal to an amount not exceeding 25
basis points (0.25%) of [the Minimum Initial Remarketing Price] [such aggregate
principal amount,] payable by deduction from any amount received in connection
from such [Initial][Secondary] Remarketing in excess of 100% of the [Minimum
Initial Remarketing Price] [aggregate principal amount of the Securities]. The
right of each holder of Securities to have Securities tendered for purchase
shall be limited to the extent set forth in the last sentence of Section 2(b) of
the Remarketing Agreement (which is incorporated by reference herein). As more
fully provided in Section 2(c) of the Remarketing Agreement (which is
incorporated by reference herein), the Remarketing Agent is not obligated to
purchase
18
any Securities in the remarketing or otherwise, and neither the Company nor the
Remarketing Agent shall be obligated in any case to provide funds to make
payment upon tender of Securities for remarketing.
5. Delivery and Payment. Delivery of payment for the remarketed
Securities by the purchasers thereof identified by the Remarketing Agent and
payment of the Remarketing Fee shall be made on the Remarketing Closing Date at
the location and time specified in Schedule I hereto (or such later date not
later than five Business Days after such date as the Remarketing Agent shall
designate), which date and time may be postponed by agreement between the
Remarketing Agent and the Company. Delivery of the remarketed Securities and
payment of the Remarketing Fee shall be made to the Remarketing Agent against
payment by the respective purchasers of the remarketed Securities of the
consideration therefor as specified herein, which consideration shall be paid to
the Collateral Agent for the account of the persons entitled thereto by
certified or official bank check or checks drawn on or by a New York Clearing
House bank and payable in immediately available funds or in immediately
available funds by wire transfer to an account or accounts designated by the
Collateral Agent.
If the Securities are not represented by a Global Security held by or
on behalf of The Depository Trust Company, certificates for the Securities shall
be registered in such names and denominations as the Remarketing Agent may
request not less than three full Business Days in advance of the Remarketing
Closing Date, and the Company, the Collateral Agent and the registered holder or
holders thereof agree to have such certificates available for inspection,
packaging and checking by the Remarketing Agent in New York, New York not later
than 1:00 p.m. on the Business Day prior to the Remarketing Closing Date.
6. Notices. Unless otherwise specified, any notices, requests, consents
or other communications given or made hereunder or pursuant hereto shall be made
in writing or transmitted by any standard form of telecommunication, including
telephone or telecopy, and confirmed in writing. All written notices and
confirmations of notices by telecommunication shall be deemed to have been
validly given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid. All such notices, requests,
consents or other communications shall be addressed as follows: if to the
Company, to Cendant Corporation, 9 West 57th Street, New York, NY 10019,
Attention: Eric J. Bock, Esq.; Vice President - Legal; if to the Remarketing
Agent or Reset Agent, to Salomon Smith Barney Inc. at 388 Greenwich Street, New
York, New York 10013, Attention: Caesar Sweitzer, Managing Director, with a copy
to Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022,
Attention: Robert Evans III; and if to the Forward Purchase Contract Agent, to
Bank One Trust Company, National Association, 153 West 51st Street, New York, NY
10019, Attention: Sandra Becker Whalen, or to such other address as any of the
above shall specify to the other in writing.
7. Conditions to Obligations of Remarketing Agent. Anything herein to
the contrary notwithstanding, the parties hereto agree (and the holders and
beneficial owners of the Securities will be deemed to agree) that the
obligations of the Remarketing Agent under this Agreement and the Remarketing
Agreement are subject to the satisfaction of the conditions set forth in Section
7 of the Remarketing Agreement (which are incorporated herein by reference), and
to the satisfaction, on the Remarketing Closing Date, of the conditions
incorporated by
19
reference herein from Section 5 of the Underwriting Agreement as modified by
Section 3(b) hereof (including, without limitation, the delivery of opinions of
counsel, officers' certificates and accountants' comfort letters in form and
substance satisfactory to the Remarketing Agent, the accuracy as of the
Remarketing Closing Date of the representations and warranties of the Company
included and incorporated by reference herein and the performance by the Company
of its obligations under the Remarketing Agreement and this Agreement as and
when required hereby and thereby). In addition, anything herein or in the
Remarketing Agreement to the contrary notwithstanding, the Remarketing Agreement
and this Agreement may be terminated by the Remarketing Agent, by notice to the
Company at any time prior to the time of settlement on the Remarketing Closing
Date, if any of the events or conditions set forth in Section 9 of the
Underwriting Agreement, as modified by Section 3(b) hereof, shall have occurred
or shall exist.
8. Indemnity and Contribution. Anything herein to the contrary
notwithstanding, the Remarketing Agent shall be entitled to indemnity and
contribution on the terms and conditions set forth in the Remarketing Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the Remarketing Agent.
Very truly yours,
CENDANT CORPORATION
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
SALOMON SMITH BARNEY INC.
By:
------------------------------
Authorized Signatory
[Add other Remarketing Agents, if any]
20
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
not individually but solely as Forward Purchase Contract
Agent and as attorney-in-fact for the holders of
the Forward Purchase Contracts
By:
------------------------------
Name:
Title:
21
SCHEDULE I
Securities subject to the remarketing: Senior Notes due August 17, 2006 of the
Company (the "Securities")
Forward Purchase Contract Agreement, dated as of July 27, 2001 (the "Forward
Purchase Contract Agreement") by and between Cendant Corporation, a
Delaware corporation, and Bank One Trust Company, National Association
Pledge Agreement dated as of July 27, 2001 (the "Pledge Agreement") by and
between Cendant Corporation, a Delaware corporation, The Chase Manhattan
Bank, as Collateral Agent, and Bank One Trust Company, National Association
Indenturedated as of February 24, 1998 (the "Base Indenture") by and between
Cendant Corporation, a Delaware corporation, and Bank of Nova Scotia Trust
Company of New York, as Trustee
Fourth Supplemental Indenture, dated as of July 27, 2001 (the "Supplemental
Indenture" and, together with the Base Indenture, the "Indenture") by and
Cendant Corporation, a Delaware corporation, and Bank of Nova Scotia Trust
Company of New York, as Trustee
[Minimum Initial Remarketing Price]
[Aggregate Principal Amount of Securities: $ ____________]
Underwriting Agreement, dated July 20, 2001 (the "Underwriting Agreement")
between Cendant Corporation and Salomon Smith Barney Inc.
Remarketing Closing Date, Time and Location:
22