REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of March 2, 1998 (the
"Remarketing Agreement") by and between Cendant Corporation, a Delaware
corporation ("Cendant" or the "Company"), Cendant Capital I, a Delaware
statutory business trust (the "Trust"),The First National Bank of Chicago, a
national banking association, not individually but solely as Purchase Contract
Agent and as attorney-in-fact of the holders of Purchase Contracts (each as
defined in the Purchase Contract Agreement (as defined herein)), and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue an aggregate Stated Amount
$1.495 billion of its FELINE PRIDES (the "FELINE PRIDES") under the Purchase
Contract Agreement, dated as of March 2, 1998, by and between the Purchase
Contract Agent and the Company (the "Purchase Contract Agreement"); and
WHEREAS, the Trust will issue concurrently in connection with
the issuance of the FELINE PRIDES 6.45% Trust Originated Preferred Securities
(the "Preferred Securities") in an aggregate stated liquidation amount of
$1,495,000,000, under the Amended and Restated Declaration of Trust, dated as
of February 24, 1998, by and among the Company, the Regular Trustees, the
Delaware Trustee and the Institutional Trustee (the "Declaration"); and
WHEREAS, the FELINE PRIDES will initially consist of
27,600,000 units referred to as "Income PRIDES" and 2,300,000 units referred to
as "Growth PRIDES."
WHEREAS, the sole assets of the Trust, $1,541,237,150
aggregate principal amount of 6.45% Debentures due February 16, 2003 (the
"Debentures") of the Company will be purchased by the Trust from the Company
with the proceeds of the sale of the Preferred Securities and the proceeds of
the sale of the common securities of the Trust (the "Common Securities" and,
together with the Preferred Securities, the "Trust Securities"); and
WHEREAS, the Pledged Preferred Securities (or upon a
dissolution of the Trust and the distribution of the Debentures as described in
the Declaration, such Debentures as are distributed to holders of Income PRIDES
in an aggregate principal amount equal to the aggregate stated liquidation
amount of the Pledged Preferred Securities held by such holders of Income
PRIDES) will be pledged pursuant to the Pledge Agreement (the "Pledge
Agreement"), dated as of March 2, 1998, by and between the Company, The Chase
Manhattan Bank, as collateral agent (the "Collateral Agent") and the Purchase
Contract Agent, to secure an Income PRIDES holder's obligations under the
related Purchase Contract on the Purchase Contract Settlement Date; and
WHEREAS, the Preferred Securities or the Debentures, as the
case may be, of such Preferred Security or Debenture holders electing to have
their Preferred Securities or Debentures remarketed, or of such Income PRIDES
holders who have elected not to settle the
Purchase Contracts related to their Income PRIDES from the proceeds of a Cash
Settlement and who have not early settled their Purchase Contracts, will be
remarketed by the Remarketing Agent on the third Business Day immediately
preceding the Purchase Contract Settlement Date; and
WHEREAS, the applicable distribution rate on the Preferred
Securities (and, thus, the interest rate on the Debentures) that remain
outstanding on and after the Purchase Contract Settlement Date will be reset on
the third Business Day immediately preceding the Purchase Contract Settlement
Date, to the Reset Rate to be determined by the Reset Agent as the rate that
such Preferred Securities (and, thus the Debentures) should bear in order to
have an approximate market value of 100.5% of the aggregate stated liquidation
amount of the Preferred Securities or the aggregate principal amount of the
Debentures on the third Business Day immediately preceding the Purchase
Contract Settlement Date, provided that in the determination of such Reset
Rate, the Company may limit the Reset Spread (a component of the Reset Rate) to
be no higher than 200 basis points (2%); and
WHEREAS, the Company has requested Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") to act as
the Reset Agent and as the Remarketing Agent, and as such to perform the
services described herein; and
WHEREAS, Merrill Lynch 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 shall have the meanings assigned to them in the
Purchase Contract Agreement or, if not therein stated, the Declaration or the
Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent.
The Company hereby appoints Merrill Lynch and Merrill Lynch hereby accepts such
appointment, (i) as the Reset Agent to determine in consultation with the
Company, in the manner provided for in the Declaration with respect to the
Trust Securities and the Indenture with respect to the Debentures, the Reset
Rate, that in the opinion of the Reset Agent, will, when applied to the Trust
Securities (and, thus, the Debentures), enable a Trust Security (and, thus, a
Debenture), to have an approximate market value of approximately 100.5% of the
aggregate stated liquidation amount in the case of such Trust Security and the
aggregate principal amount in the case of such Debenture, and (ii) as the
exclusive Remarketing Agent to remarket the Preferred Securities, or the
Debentures, as the case may be, provided that the Company may limit such Reset
Rate to be no higher than the rate on the Two-Year Benchmark Treasury plus 200
basis points (2%), as the case may be, of such Preferred Security or Debenture
holders electing to have their Preferred Securities or Debentures remarketed,
or of such Income PRIDES holders who have not early settled the related
Purchase Contracts and have failed to notify the Purchase Contract Agent, on or
prior to the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, of their intention to settle the related Purchase Contracts
through Cash Settlement, for settlement on the Purchase Contract Settlement
Date, pursuant to the Remarketing Underwriting Agreement with the Company, the
Trust and the Purchase Contract Agent, substantially in the form attached
hereto as Exhibit A (with such changes as the Company,
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the Purchase Contract Agent 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 Remarketing Underwriting Agreement due to
changes in law or facts and circumstances). Pursuant to the Remarketing
Underwriting Agreement, the Remarketing Agent, either as the sole remarketing
underwriter or as the representative of a syndicate including the Remarketing
Agent and one or more other remarketing underwriters designated by the
Remarketing Agent, will agree, subject to the terms and conditions set forth
therein, that the Remarketing Agent and any such other remarketing underwriters
will purchase severally the Preferred Securities or the Debentures, as the case
may be, to be sold by the holder or holders of Preferred Securities or Income
PRIDES on the third Business Day immediately preceding the Purchase Contract
Settlement Date and use their reasonable efforts to remarket such Preferred
Securities or the Debentures, as the case may be, (such purchase and
remarketing being hereinafter referred to as the "Remarketing"), at a price of
approximately 100.5% of such Preferred Securities aggregate stated liquidation
amount plus any accrued and unpaid distributions (including any deferred
distributions) and in the case of Debentures, at a price of approximately
100.5% of such Debentures aggregate principal amount plus any accrued and
unpaid interest (including any deferred interest). Notwithstanding the
preceding sentence, the Remarketing Agent shall not remarket any Preferred
Securities or Debentures, as the case may be, for a price less than 100% of the
aggregate stated liquidation amount or aggregate principal amount of such
Preferred Securities or Debentures, respectively, plus accumulated and unpaid
distributions or accrued and unpaid interest, as the case may be. The proceeds
of such remarketing shall be paid to the Collateral Agent in accordance with
Section 4.6 of the Pledge Agreement and Section 5.4 of the Purchase Contract
Agreement (each of which Sections are incorporated herein by reference).
Section 3. Fees. With respect to the Remarketing, the
Remarketing Agent shall retain as Remarketing Fee an amount not exceeding 25
basis points (.25%), of the aggregate stated liquidation amount of the
remarketed securities from any amount received in connection with such
Remarketing in excess of the aggregate stated liquidation amount or aggregate
principal amount of such remarketed Preferred Securities or Debentures plus any
accrued and unpaid (including deferred) distributions or any accrued and unpaid
interest (including any deferred interest), as the case may be. In addition,
the Reset Agent shall receive from the Company a reasonable and customary fee
as the Reset Agent 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 third Business Day immediately
preceding the Purchase Contract Settlement Date 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 Merrill Lynch as the
Remarketing Agent and/or as the Reset Agent in its capacity hereunder by giving
notice prior to 3:00 p.m., New York City time, on the eleventh Business Day
immediately prior to the Purchase Contract Settlement Date. 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/or 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.
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(b) Merrill Lynch 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, on the
eleventh Business Day immediately prior to the 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. The Remarketing Agent,
when acting hereunder or under the Remarketing Underwriting Agreement or acting
in its individual or any other capacity, may, to the extent permitted by law,
buy, sell, hold or deal in any of the Preferred Securities or Debentures, as
the case may be. With respect to any Preferred Securities or Debentures, as
the case may be, owned by it, the Remarketing Agent may exercise any vote or
join in any action with like effect as if it did not act in any capacity
hereunder. The Remarketing 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.
Section 6. Registration Statement and Prospectus. In
connection with the Remarketing, if and to the extent required (in the opinion
of counsel for either the Remarketing Agent or the Company) by applicable law,
regulations or interpretations in effect at the time of such Remarketing, the
Company shall use its reasonable efforts to have a registration statement
relating to the Preferred Securities effective under the Securities Act of 1933
by the third Business Day immediately preceding the Purchase Contract
Settlement Date, shall furnish a current prospectus and/or prospectus
supplement to be used in such Remarketing by the remarketing underwriter or
underwriters under the Remarketing Underwriting Agreement, and shall pay all
expenses relating thereto.
Section 7. Conditions to the Remarketing Agent's Obligations.
(a) The obligations of the Remarketing Agent and any other remarketing
underwriters to purchase and remarket the Preferred Securities or the
Debentures, as the case may be, shall be subject to the terms and conditions of
the Remarketing Underwriting Agreement.
(b) If at any time during the term of this Agreement, any
Indenture Event of Default or Declaration 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 or Declaration Event of Default, has occurred and is
continuing under the Indenture or the Declaration, then the obligations and
duties of the Remarketing Agent under this Agreement shall be suspended until
such default or event has been cured. The Company will cause the Indenture
Trustee and the Institutional Trustee to give the Remarketing Agent notice of
all such defaults and events of which the Trustee is aware.
Section 8. Termination of Remarketing Agreement. This
Agreement shall terminate as to the Remarketing Agent on the effective date of
its replacement pursuant to Section 4(a) hereof or pursuant to Section 4(b)
hereof. Notwithstanding any such termination, 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.
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Section 9. Remarketing Agent's Performance; Duty of Care. The
duties and obligations of the Remarketing Agent hereunder shall be determined
solely by the express provisions of this Agreement and the Remarketing
Underwriting Agreement.
Section 10. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
Section 11. Term of Agreement. 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 Preferred Securities are outstanding.
Section 12. Successors and Assigns. The rights and
obligations of the Company hereunder may not be assigned or delegated to any
other person without the prior written consent of Merrill Lynch as the
Remarketing Agent and/or as the Reset Agent. The rights and obligations of
Merrill Lynch as the Remarketing Agent and/or as the Reset Agent hereunder may
not be assigned or delegated to any other person without the prior written
consent of the Company. This Agreement shall inure to the benefit of and be
binding upon the Company and Merrill Lynch as the Remarketing Agent and/or as
the Reset Agent and their respective successors and assigns. The terms
"successors" and "assigns" shall not include any purchaser of Securities merely
because of such purchase.
Section 13. Headings. Section headings have been inserted in
this Agreement as a matter of convenience of reference only, and it is agreed
that such section headings are not a part of this Agreement and will not be
used in the interpretation of any provision of this Agreement.
Section 14. Severability. If any provision of this 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, 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 invalid,
inoperative or unenforceable to any extent whatsoever.
Section 15. Counterparts. This 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 16. Amendments. This Agreement may be amended by any
instrument in writing signed by the parties hereto.
Section 17. 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, telegraph 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
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other communications shall be addressed as follows: if to the Company, to
Cendant Corporation, 6 Sylvan Way, Parsippany, New Jersey 07054, Attention:
Eric J Bock, Vice President-Legal; if to the Remarketing Agent or Reset Agent
(if Merrill Lynch & Co. is the Remarketing Agent or the Reset Agent), to c/o
Merrill Lynch & Co. at Merrill Lynch World Headquarters, World Financial
Center, North Tower, New York, New York 10281, Attention: David Johnson,
Managing Director, with a copy to Shearman & Sterling, 399 Lexington Avenue,
New York, NY 10022, Attention: Robert Evans III, and if to the Purchase
Contract Agent, to The First National Bank of Chicago, Corporate Trust Services
Division, One First National Plaza, Suite 0126, Chicago, IL 60670-0126, or to
such other address as any of the above shall specify to the other in writing.
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IN WITNESS WHEREOF, each of the Company and the Remarketing
Agent has caused this Agreement to be executed in its name and on its behalf by
one of its duly authorized officers as of the date first above written.
CENDANT CORPORATION
By: /s/ James E. Buckman
-----------------------------------
Name: James E. Buckman
Title: Senior Executive Vice President
and General Counsel
CENDANT CAPITAL I
By: /s/ James E. Buckman
-----------------------------------
Name: James E. Buckman
Title: Regular Trustee
CONFIRMED AND ACCEPTED:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: MERRILL LYNCH, PIERCE FENNER & SMITH
INCORPORATED
By: /s/ David Johnson
------------------------------------
Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO, not
individually but solely as Purchase
Contract Agent and as attorney-in-fact for
the holders of the Purchase Contracts
By: /s/ Steve M. Husbands
-----------------------------------
Name: Steve M. Husbands
Title: Assistant Vice President
Exhibit A to
Remarketing Agreement
FORM OF REMARKETING UNDERWRITING AGREEMENT
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner, & Smith
Incorporated (the "Remarketing Underwriter") hereby agrees to purchase the
securities (the "Securities") as set forth in Schedule I hereto, that have been
tendered by the holders of the Income PRIDES for sale on February ____, 2001.
1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the purchase contract
agreement (the "Purchase Contract Agreement"), the pledge agreement (the
"Pledge Agreement"), the underwriting agreement (the "Underwriting Agreement"),
the amended and restated declaration of trust (the "Declaration") and the
indenture (the "Indenture"), each as identified in Schedule I hereto.
2. Registration Statement and Prospectus. If required (in the
opinion of counsel to either the Remarketing Underwriter or the Company) by
applicable law, the Company and the Trust have filed with the Securities and
Exchange Commission, and there has become effective, a registration statement
on Form S-3 (No. 333-45227), including a prospectus, relating to the
Securities. Such registration statement, as amended to the date of this
Agreement, is hereinafter referred to as the "Registration Statement", the
prospectus included in the Registration Statement is hereinafter referred to as
the "Basic Prospectus" and the Basic Prospectus, as amended or supplemented to
the date of this Agreement to relate to the Securities and to the remarketing
of the Securities, is hereinafter referred to as the "Final Prospectus"
(including in each case all documents incorporated by reference).
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of the following
sections of the Underwriting Agreement shall be incorporated in their entirety
into this Agreement and made applicable to the obligations of the Remarketing
Underwriter, except as explicitly amended hereby:
Sections 1, 3, 4, 5, 6 and 7.
(b) With respect to the provisions of the Underwriting
Agreement incorporated herein, for the purposes hereof, (i) all references
therein to the "Underwriter" or "Underwriters" or the "Representative" or
"Representatives", as the case may be, shall be deemed to refer to the
Remarketing Underwriter; (ii) all references therein to the "Securities" which
are the subject thereof shall be deemed to refer to the Securities as defined
herein; (iii) all references therein to the "date hereof" shall be deemed to
refer to the date of this Remarketing Underwriting Agreement and all references
therein to the "Closing Date" shall be deemed to refer to the Remarketing
Closing Date specified in Schedule I hereto (the "Remarketing Closing Date");
(iv) all references therein to the "Registration Statement" the "Basic
Prospectus" and the "Final Prospectus" shall be deemed to refer to the
Registration Statement, the Basic Prospectus and the Final Prospectus,
respectively, as defined herein; (v) reference to "Securities" and "Shares" in
Section 3(m) thereof is stricken and replaced with either the words "Preferred
Securities" or "Debentures", as applicable; (vi) Sections 3(a) and 3(i)
thereof are stricken in their entirety; (vii) Section 5(b)(5) is stricken in
its entirety; and (viii) Section 5(j) thereof is stricken in its entirety.
4. Purchase and Sale; Remarketing Underwriting Fee. Subject to
the terms and conditions and in reliance upon the representations and
warranties herein set forth or incorporated herein, the Remarketing Underwriter
agrees to purchase from the registered holder or holders thereof in the manner
specified in Section 5 hereof, the principal amount of Securities set forth in
Schedule I hereto at a purchase price not less than 100% of such Securities,
aggregate stated liquidation amount or aggregate principal amount, as the case
may be, plus any accrued and unpaid distributions or interest, as applicable,
thereon. In connection therewith, the registered holder or holders thereof
agree, in the manner specified in Section 5 hereof, to pay to the Remarketing
Underwriter a Remarketing underwriting Fee equal to an amount not exceeding 25
basis points (.25%), from any amount received in connection from such
Remarketing in excess of the aggregate stated liquidation amount or aggregate
principal amount, as the case may be, of the Securities.
5. Delivery and Payment. Delivery of payment for the remarketed
Securities and payment of the Remarketing Underwriting 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 representatives shall designate), which date and time may be
postponed by agreement between the Remarketing Underwriter, the Company, the
Trust and the [registered holder or holders thereof]. Delivery of the
remarketed Securities and payment of the Remarketing [Underwriting] Fee shall
be made to the Remarketing Underwriter [to or upon the order of the [registered
holder or holders of the Remarketed Securities] by certified or official bank
check or checks drawn on or by a New York Clearing House bank and payable in
immediately available funds] [in immediately available funds by wire transfer
to an account or accounts designated by the [Company] [Trustee] [registered
holder or holders of the remarketed Securities]] or, if the remarketed
Securities are represented by a Global Security, by any method of transfer
agreed upon by the Remarketing Underwriter and the Depositary for the
Securities under the Declaration or Indenture, as applicable.
[It is understood that any registered holder or, if the Securities are
represented by a Global Security, any beneficial owner, that has an account at
the Remarketing Underwriter and tenders its Securities through such account
will not be required to pay any fee or commission to the Remarketing
Underwriter.]
If the Securities are not represented by a Global Security,
certificates for the Securities shall be registered in such names and
denominations as the Remarking Representatives may request not less than three
full business days in advance of the Remarketing Closing Date, and the Company,
the Trust and the [registered holder or holders thereof] agree to have such
certificates available for inspection, packaging and checking by the
Remarketing Underwriter 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, telegraph 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
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requested and postage prepaid. All such notices, requests, consents or other
communications shall be addressed as follows: if to the Company, to Cendant
Corporation, 6 Sylvan Way, Parsippany, New Jersey, 07054; if to the Remarketing
Agent or Reset Agent, to c/o Merrill Lynch & Co. at Merrill Lynch World
Headquarters, World Financial Center, North Tower, New York, New York 10281,
Attention: David Johnson, Managing Director, with a copy to Shearman &
Sterling, 399 Lexington Avenue, New York, New York 10022, Attention: Robert
Evans III; and if to the Purchase Contract Agent, to The First National Bank of
Chicago, Corporate Trust Services Division, One First National Plaza, Suite
0126, Chicago, IL 60670-0126, or to such other address as any of the above
shall specify to the other in writing.
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