Exhibit 1.1
CENDANT CORPORATION
(A DELAWARE CORPORATION)
6.250% SENIOR NOTES DUE 2010
7.125% SENIOR NOTES DUE 2015
UNDERWRITING AGREEMENT
MARCH 6, 2003
CENDANT CORPORATION
(a Delaware corporation)
6.250% Senior Notes due 2010
7.125% Senior Notes due 2015
UNDERWRITING AGREEMENT
March 6, 2003
To the Underwriters named in Schedule I
Ladies and Gentlemen:
Cendant Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell to the underwriters named in Schedule I (the "Underwriters")
the principal amount of certain of its debt securities specified in Schedule II
(the "Securities") on the terms and conditions stated herein and in Schedule
II. The Securities will be issued pursuant to an indenture dated as of January
13, 2003 (the "Indenture") between the Company and The Bank of Nova Scotia
Trust Company of New York, as trustee (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No.
333-65858), including a prospectus, relating to certain of its debt securities
(including the Securities), preferred stock, CD common stock, stock purchase
contracts, stock purchase units and warrants and the offering thereof from time
to time in accordance with Rule 415 under the Securities Act of 1933, as
amended (the "1933 Act"). Such registration statement was declared effective by
the Commission on August 16, 2001. As provided in Section 3(a), a prospectus
supplement reflecting the terms of the Securities, the terms of the offering
thereof and the other matters set forth therein will be filed pursuant to Rule
424 under the 1933 Act. Such prospectus supplement, in the form first filed
after the date hereof pursuant to Rule 424, is herein referred to as the
"Prospectus Supplement". Such registration statement, as amended at the date
hereof, together with any registration statements filed by the Company pursuant
to Rule 462(b) under the 1933 Act, including the exhibits thereto and the
documents incorporated by reference therein, is herein called the "Registration
Statement", and the base prospectus included therein relating to all offerings
of debt securities, preferred stock, CD common stock, stock purchase contracts,
stock purchase units and warrants under the Registration Statement, as
supplemented by the Prospectus Supplement, is herein called the "Prospectus",
except that, if such base prospectus is amended or supplemented on or prior to
the date on which the Prospectus Supplement is first filed pursuant to Rule
424, the term "Prospectus" shall refer to the base prospectus, as so amended or
supplemented and as supplemented by the Prospectus Supplement, in either case
including the documents filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), that are
incorporated by reference therein.
You have advised us that you and the other Underwriters, acting
severally and not jointly, desire to purchase the Securities and that you have
been authorized by the other Underwriters to execute this Underwriting
Agreement (the "Agreement") on their behalf.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to and agrees with each
Underwriter that:
(i) On the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, and on the date of the filing by the
Company of any annual report on Form 10-K after the original filing of
the Registration Statement, the Registration Statement complied in all
material respects with the requirements of the 1933 Act and the rules
and regulations of the Commission there under (the "1933 Act
Regulations"), the Trust Indenture Act of 1939, as amended (the "1939
Act"), and the rules and regulations of the Commission under the 1939
Act (the "1939 Act Regulations") and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; on the date hereof and at the Closing Time (as defined
below), the Registration Statement, and any amendments thereof, and
the Prospectus, and any amendments thereof and supplements thereto,
comply and will comply in all material respects with the requirements
of the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939
Act Regulations, and neither the Registration Statement nor any
amendments thereof include or will include an untrue statement of a
material fact or omit or will omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and neither the Prospectus, nor any amendments thereof and
supplements thereto, include or will include an untrue statement of a
material fact or omit or will omit to state any material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to statements or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated by reference in the
Prospectus, at the time they were filed with the Commission, complied
in all material respects with the requirements of the 1934, and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in
the Prospectus, do not and will not, on the date hereof and at the
Closing Time, include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(iii) The accountants (individually an "Accountant" and
together the "Accountants"), who have reported upon the audited
financial statements and schedules included or incorporated by
reference in the Registration Statement, are each independent public
accountants as required by the 1933 Act and the 1933 Act Regulations
with respect to (i) the Company and (ii) each corporation whose
financial statements have been included in the Registration Statement
for each of the years reported on by the Accountants.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The consolidated financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus, together with the related schedules and notes, present
fairly the consolidated financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of
their operations for the periods specified. Except as otherwise stated
therein, such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The financial
statement schedules, if any, included or incorporated by reference in
the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements incorporated by reference in the
Registration Statement. The pro forma financial statements and related
notes thereto included or incorporated by reference in the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
pro forma bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions or circumstances
referred to therein.
(vi) The Company is duly organized and is validly existing in
good standing as a corporation under the laws of the State of
Delaware, with corporate power and corporate authority to own, lease
and operate its properties and conduct its business as presently
conducted and as described in the Prospectus. The Company is qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
consolidated subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse
Effect").
(vii) Each significant subsidiary (as such term is defined in
clauses (1) and (2) of Rule 1-02(w) of Regulation S-X promulgated
under the Securities Act), if any, of the Company (each, a
"Significant Subsidiary") is duly organized and is validly existing
and in good standing under the laws of the jurisdiction of its
incorporation with corporate power and corporate authority under such
laws to own, lease and operate its properties and conduct its
business. Each Significant Subsidiary is duly qualified to transact
business as a foreign corporation and is in good standing in each
other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be
in good standing would not have a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and Prospectus, all of
the outstanding shares of capital stock of each Significant Subsidiary
have been duly authorized and validly issued and are fully paid and
nonassessable and are owned by the Company, directly or through one or
more Significant Subsidiaries, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind
(each, a "Lien"), except for such Liens as are not, individually or in
the aggregate, material to the Company and its Significant
Subsidiaries, considered as one enterprise.
(viii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
obligation of the Company enforceable in accordance with its terms,
except to the extent that enforcement thereof may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity), and will conform in all material
respects to the description thereof in the Prospectus. The Indenture
as executed will be substantially in the form filed as an exhibit to
the Registration Statement. At the Closing Time, the Indenture will
comply in all material respects with the requirements of the 1939 Act
and the 1939 Act Regulations.
(ix) The sale and issuance of the Securities have been duly
authorized by the Company. When executed, authenticated, issued and
delivered in the manner provided for in the Indenture and sold and
paid for as provided herein, the Securities will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law); the Securities will conform in all
material respects to the description thereof in the Prospectus.
(x) All of the outstanding shares of capital stock of the
Company have been authorized and validly issued and are fully paid and
non-assessable; no holder thereof is or will be subject to personal
liability by reason of being such a holder;
(xi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus and except as
otherwise stated therein, (A) there has been no material adverse
change and no development with respect to the Company that would
result in a Material Adverse Effect, (B) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those arising in the ordinary course of business, that are
material with respect to the Company and its subsidiaries, considered
as one enterprise, and (C) except for regular dividends on the common
stock in amounts per share that are consistent with past practice or
the applicable charter document or supplement thereto, respectively,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(xii) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or by-laws. None of the
Company or any of its Significant Subsidiaries is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, note, lease,
loan or credit agreement or any other agreement or instrument (the
"Agreements and Instruments") to which the Company or any of its
Significant Subsidiaries is a party or by which any of them may be
bound, or to which any of the property or assets of the Company or any
Significant Subsidiary is subject, or in violation of any applicable
law, rule or regulation or any judgment, order or decree of any
government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their respective properties or
assets, which violation or default would, singly or in the aggregate,
have a Material Adverse Effect.
(xiii) The execution and delivery by the Company of this
Agreement and the Indenture, the issuance and delivery of the
Securities, the consummation by the Company of the transactions
concerning the Securities contemplated herein and in the Registration
Statement and compliance by the Company with the terms of this
Agreement and the Indenture, have, in each case, been duly authorized
by all necessary corporate action on the part of the Company and do
not and will not result in any violation of the certificate of
incorporation or by-laws of the Company, and do not and will not
conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary under (A) any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any subsidiary is a party or by
which it may be bound or to which any of its properties may be subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect) or (B) any
existing applicable law, rule, regulation (other than state
securities, foreign securities or Blue Sky laws, rules and
regulations), judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their
respective properties (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a Material
Adverse Effect). (xiv) Except (i) as may be required under the 1933
Act, the 1939 Act and the rules and regulations promulgated thereunder
and (ii) as required by the state or foreign securities or "blue sky"
laws, no authorization, approval, consent, order, registration or
qualification of or with any court or governmental authority or agency
is required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement, or for the due execution, delivery or
performance of the Indenture by the Company, except such as have been
obtained and made under the federal securities laws.
(xv) There are no contracts or documents which are required
to be described in the Registration Statement or the Prospectus which
have not been so described and filed as required.
(xvi) Except as otherwise disclosed in the Prospectus, there
is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Significant Subsidiaries that is
required to be disclosed in the Prospectus or that might reasonably be
expected to result in a Material Adverse Effect, or that might
reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement.
(xvii) Subject to each of the franchise and license
agreements entered into by the Company or any of its Significant
Subsidiaries, the Company and each of the Significant Subsidiaries own
or have the unrestricted right to use such patents, patent licenses,
trademarks, trademark licenses, service marks, service mark licenses
and trade names and registrations thereof (collectively, "Intellectual
Property") as are necessary to carry on their respective businesses as
presently conducted, except where the failure to own or possess any of
the Marks (as defined below), Days Inn Marks (as defined below) or
Ramada Marks (as defined below) would not have a Material Adverse
Effect. In addition to, and not in limitation of, anything else
contained in this paragraph (xvii), the Company or a Significant
Subsidiary (y) is the exclusive owner of all rights, title and
interest (subject to all existing franchise and license agreements
referred to above) in and to the Marks within the United States and
outside the United States is the owner of the registrations and
applications as are necessary to carry on its business as such
description is incorporated by reference in the Prospectus and as
currently conducted, except where the failure to be such owner would
not have a Material Adverse Effect and (z) is the exclusive licensee
(i) in the United States and Canada of the Ramada Marks and (ii) in
the United States of the Days Inn Marks. The Intellectual Property
with respect to the Company's ERA Franchise Systems, Inc., Century 21
Real Estate Corporation, Coldwell Banker Corporation, Cendant Mobility
Services Corporation, Cendant Mortgage Corporation, NRT Incorporated,
Trendwest Resorts, Inc., Days Inns Worldwide, Inc. (outside the United
States), Super 8 Motels, Inc., Villager Franchise Systems, Inc.,
Knights Franchise Systems, Inc., Howard Johnson International, Inc.,
Travelodge Hotels, Inc., Wingate Inns International, Inc., AmeriHost
Franchise System, Inc., Fairfield Resorts, Inc., Resort Condominiums
International, LLC, Avis Rent-A-Car System, Inc. Wright Express LLC,
PHH Vehicle Management Services Inc., Budget Rent-A-Car System, Inc.,
Galileo International, Inc., Cheap Tickets, Inc., WizCom
International, Ltd. and Jackson Hewitts, Inc. businesses (as such
description is incorporated by reference in the Prospectus and as
currently conducted) is referred to herein as the "Marks" and the
Intellectual Property with respect to the Company's Ramada Franchise
Systems, Inc. and Days Inns Worldwide, Inc. (in the United States)
businesses (as such descriptions are incorporated by reference in the
Registration Statement and Prospectus and as currently conducted) are
referred to herein as the "Ramada Marks" and the "Days Inn Marks",
respectively.
(xviii) To the best knowledge of the Company without having
made any inquiry or independent investigation, no labor problem exists
with the employees of any party that licenses a franchise, directly or
indirectly, from a Significant Subsidiary (a "Franchisee") or is
imminent that could reasonably be expected to have a Material Adverse
Effect.
(xix) To the best knowledge of the Company, no dispute exists
or is imminent with any Franchisee that could reasonably be expected
to have a Material Adverse Effect.
(xx) Each Franchisee is such by virtue of being a party to a
franchise contract with either the Company or a Significant Subsidiary
and assuming each such contract has been duly authorized, executed and
delivered by the parties thereto, other than the Company or a
Significant Subsidiary, each such contract constitutes a valid, legal
and binding obligation of each party thereto, enforceable against the
Company or a Significant Subsidiary in accordance with its terms,
except (A) for any one or more of such franchise contracts as would
not have a Material Adverse Effect, and (B) to the extent that
enforcement thereof may be limited by applicable bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xxi) The Company and each Significant Subsidiary have
complied and are currently complying in all material respects with the
rules and regulations of the United States Federal Trade Commission
and the comparable laws, rules and regulations of each state or state
agency applicable to the franchising business of the Company and such
Significant Subsidiary in each state in which the Company or such
Significant Subsidiary is doing business. The Company and each
Significant Subsidiary have complied and are currently complying in
all material respects with the Federal Real Estate Settlement
Procedures Act and the real estate brokerage laws, rules and
regulations of each state or state agency applicable to the real
estate franchising business of the Company and such Significant
Subsidiary in each state in which the Company or such Significant
Subsidiary is doing business.
(xxii) Neither the Company nor any of its Significant
Subsidiaries has taken or will take, directly or indirectly, any
action designed to, or that might be reasonably expected to, cause or
result in stabilization or manipulation of the price of the
Securities.
(xxiii) The Company is not an "investment company" or an
entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
(b) Any certificate signed by any officer of the Company or any
subsidiary and delivered to you or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company or by a Subsidiary, as
applicable, to each Underwriter as to the matters covered thereby.
Section 2. Purchase and Sale. (a) On the basis of the representations and
warranties herein contained (except as may be otherwise specified in Schedule
II) and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price to the
Underwriters set forth in Schedule II, the principal amount of Securities set
forth opposite the name of such Underwriter in Schedule I.
(b) Payment of the purchase price for, and delivery of, the Securities
shall be made at the date, time and location specified in Schedule II, or at
such other date, time or location as shall be agreed upon by the Company and
the Underwriters, or as shall otherwise be provided in Section 11 (such date
and time of payment and delivery being herein called the "Closing Time").
Unless otherwise specified in Schedule II, payment shall be made to the Company
by you by wire or bank transfer of same day funds payable to the account of the
Company, against delivery to you for the respective accounts of the several
Underwriters of the Securities. Such Securities shall be in such authorized
denominations and registered in such names as you may request in writing at
least two full business days before the Closing Time. Such Securities, which
may be in temporary form, will be made available in New York City for
examination and packaging by you not later than 10:00 A.M. on the business day
prior to the Closing Time.
(c) It is understood that each Underwriter has authorized you, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Securities that it has agreed to purchase. You, individually and
not as Representatives, may (but shall not be obligated to) make payment of the
purchase price for the Securities to be purchased by any Underwriter whose
payments shall not have been received by the Closing Time.
Section 3. Certain Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) If reasonably requested by you in connection with the offering of
the Securities, the Company will prepare a preliminary prospectus supplement
containing such information as you and the Company deem appropriate immediately
following the execution of this Agreement, the Company will prepare a
Prospectus Supplement that complies with the 1933 Act and the 1933 Act
Regulations and that sets forth the principal amount of the Securities and
their terms not otherwise specified in the Indenture, the name of each
Underwriter participating in the offering and the principal amount of the
Securities that each severally has agreed to purchase, the name of each
Underwriter, if any, acting as representative of the Underwriters in connection
with the offering, the price at which the Securities are to be purchased by the
Underwriters from the Company, any initial public offering price, any selling
concession and reallowance any delayed delivery arrangements and such other
information as you and the Company deem appropriate in connection with the
offering of the Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424 under
the 1933 Act and will furnish to the Underwriters an electronic copy of the
preliminary prospectus supplement and as many copies of the Prospectus as you
shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities any event shall occur
or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(f), such amendment or supplement as
may be necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, the Company will,
subject to Section 3(f), file all documents required to be filed with the
Commission pursuant to Section 13, Section 14 or Section 15(d) of the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(d) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, the Company will
inform you of its intention to file any amendment to the Registration Statement
or any supplement or revision to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise; and the Company will furnish you with copies of
any such amendment or supplement at a reasonable time in advance of filing; and
will not file any such documents to which the Underwriters or their counsel
shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, the Company will
notify you immediately, and confirm the notice in writing, (i) of the
effectiveness of any post-effective amendment to the Registration Statement,
(ii) of the filing of any supplement to the Prospectus, (iii) of the receipt of
any comments from the Commission with respect to the Registration Statement,
the Prospectus or the Prospectus Supplement, (iv) of any request by the
Commission for any amendment to the Registration Statement or any supplement to
the Prospectus or for additional information relating thereto or to any
document incorporated by reference in the Prospectus and (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the institution or
threatening of any proceeding for any of such purposes. The Company will use
every reasonable effort to prevent the issuance of any such stop order or of
any order suspending such qualification and, if any such order is issued, to
promptly obtain the lifting thereof.
(f) The Company has furnished or will, upon request, furnish to you,
without charge, one signed copy of the Registration Statement (as originally
filed), of any Rule 462(b) Registration Statement, and of all amendments
thereto, whether filed before or after the Registration Statement became
effective (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference
therein) (through the end of the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities) and
conformed copies of all consents and certificates of experts, as you may
reasonably request.
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as you may
designate; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject. The Company will file
such statements and reports as may be required by the laws of each jurisdiction
in which the Securities have been qualified as above provided.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days (or 90 days, in the case of
a period that is also the Company's fiscal year) after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations), covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(i) During the period beginning on the date hereof and continuing to
and including the Closing Time, the Company will not, directly or indirectly,
offer for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result in
the disposition by any person at any time in the future of) any debt securities
of or guaranteed by the Company which are substantially similar to the
Securities without the prior consent of the Underwriters.
Section 4. Payment of Expenses. The Company will pay and bear all costs and
expenses incident to the performance of its obligations under this Agreement,
including, without limitation, (a) the printing and filing of the Registration
Statement (including financial statements and exhibits), as originally filed
and as amended, any preliminary prospectus supplements and the Prospectus and
any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriters, (b) the printing and distribution of this
Agreement, any agreement among Underwriters, the Indenture, and such other
documents as may be required in connection with the offering purchase, sale and
delivery of the Securities, (c) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, (d) the fees and
disbursements of the Company's counsel and accountants, (e) the qualification
of the Securities under the applicable securities laws, (f) any fees charged by
rating agencies for rating the Securities, (g) the reasonable fees and
disbursements of counsel in connection with the Blue Sky survey and (h) the
fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee, in connection with the Indenture and the Securities.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 10(a)(i), the Company shall reimburse the
Underwriters for all of their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters, incurred by
them in connection with the public offering of the Securities.
Section 5. Conditions of the Underwriters' Obligations. Except as otherwise
provided in Schedule II hereto, the obligations of the several Underwriters to
purchase and pay for the Securities that they have respectively agreed to
purchase hereunder are subject to (i) the accuracy of the representations and
warranties of the Company contained herein or in certificates of the Company's
officers delivered pursuant to the provisions hereof, (ii) the performance by
the Company of its obligations hereunder, (iii) the delivery to the
Underwriters at the Closing Time by the Company of all of the Securities and
(iv) the following further conditions:
(a) The Registration Statement has become effective, including any
Rule 462(b) Registration Statement, and at the Closing Time, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or, to your knowledge or the knowledge of the
Company, shall be contemplated by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel for the Underwriters.
(b) At the Closing Time, you shall have received a signed opinion of
Eric J. Bock, Executive Vice President, Law and Corporate Secretary of the
Company, and a signed opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
special counsel for the Company, each dated as of the Closing Time, in form and
substance reasonably satisfactory to counsel for the Underwriters as set forth
on Exhibits A and B attached hereto.
Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company, as the case may be, and certificates
of public officials; provided that such certificates have been delivered to the
Underwriters.
In giving the opinions referred to in above, such counsel may rely, as
to all matters governed by the laws of jurisdictions other than those in which
they are expert, upon opinions of other counsel who shall be counsel reasonably
satisfactory to counsel for the Underwriters, in which case the opinion shall
state that they believe you and they are justified and entitled to so rely.
(c) At the Closing Time, you shall have received the favorable opinion
of Shearman & Sterling, counsel for the Underwriters, dated as of the Closing
Time.
(d) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and the
1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and
the 1939 Act Regulations, the Company shall have complied in all material
respects with Rule 430A (if it shall have elected to rely thereon) and (A) the
Registration Statement, as it may then be amended or supplemented, shall not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (B) the Prospectus, as it may be amended or supplemented, will
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (ii) there shall not
have been, since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, earnings, business affairs or business prospects of the Company
and its Significant Subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, financial or otherwise, (iii) no
action, suit or proceeding shall be pending or, to the knowledge of the
Company, threatened against the Company or any Significant Subsidiary that
would be required to be set forth in the Prospectus other than as set forth
therein and no proceedings shall be pending or, to the knowledge of the
Company, threatened against the Company or any Significant Subsidiary before or
by any federal, state or other commission, board or administrative agency
wherein an unfavorable decision, ruling or finding would materially adversely
affect the financial condition, earnings, business affairs or business
prospects of the Company and its Significant Subsidiaries, considered as one
enterprise, other than as set forth in the Prospectus, (iv) the Company shall
have complied in all material respects with all agreements and satisfied in all
material respects all conditions included herein on its part to be performed
and satisfied at or prior to the Closing Time and (v) the other representations
and warranties of the Company set forth in Section 1(a) shall be accurate as
though expressly made at and as of the Closing Time. At the Closing Time, you
shall have received a certificate of the President or an Executive Vice
President and the Chief Financial Officer of the Company, dated as of the
Closing Time, to such effect.
(e) You shall have received a letter or letters from the Accountants
at the date hereof in form and substance reasonably satisfactory to the
Underwriters, and a letter or letters to be delivered at the Closing Time
reaffirming the statements made in each such letter or letters, except that the
inquiries and procedures specified therein shall have been carried out to a
specified date not more than five days prior to the Closing Time.
(f) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Time, there shall not have been any decrease in rating
accorded any of the Company's securities, including the Securities, by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the 1933 Act Regulations, and no
such organization shall have publicly announced that it has under surveillance
or review, without indicating an improvement, in its rating of the Securities
or any securities of the Company.
(g) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated and the matters referred to
in Section 5(c) and in order to evidence the accuracy and completeness of any
of the representations, warranties or statements of the Company, the
performance of any of the covenants of the Company, or the fulfillment of any
of the conditions herein contained; and all proceedings taken by the Company at
or prior to the Closing Time in connection with the authorization, issuance and
sale of the Securities as herein contemplated shall be reasonably satisfactory
in form and substance to you and to counsel for the Underwriters.
(h) If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled,
this Agreement may be terminated by you on notice to the Company at any time at
or prior to the Closing Time, and such termination shall be without liability
of any party to any other party, except as provided in Section 4 herein.
Notwithstanding any such termination, the provisions of Sections 7, 8 and 9
shall remain in effect.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its officers and directors and each person, if any, who controls
any Underwriter, as the case may be, within the meaning of Section 15 of the
1933 Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including all
documents incorporated therein by reference, 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
arising out of an untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus supplement 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;
(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 investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred,
including fees and disbursements of counsel chosen by you, reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
(iv) provided, however, that this indemnity agreement does
not apply to any loss, liability, claim, damage or expense to the
extent arising out of an untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto); and provided,
further, however, that the foregoing indemnification with respect to
any preliminary prospectus supplement shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or
liabilities purchased any of the Securities if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given
by or on behalf of such Underwriter to such person, if such is
required by the 1933 Act, at or prior to the written confirmation of
the sale of such Securities to such person and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to
such loss, claim, damage or liability. The Company and the
Underwriters acknowledge that the following statements set forth in
the Prospectus Supplement constitute the only information furnished in
writing by or on behalf of the Underwriters for inclusion in the
Prospectus Supplement: (a) the statements set forth in the second
sentence of the first paragraph on page i with respect to the
Underwriters only, and (b) under the heading "Underwriting" (x) the
sentences related to concessions and reallowances and (y) the
paragraph related to stabilization, syndicate covering transactions
and penalty bids.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, and of Section 20 of the 1934 Act, from and
against any and all loss, liability, claim, damage and expense described in the
indemnity agreement in Section 6(a), as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto) or any preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party 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 indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and 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 indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the 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. In the case of any such separate firm for the Underwriters
and such control persons of Underwriters, such firm shall be designated in
writing by the Underwriters. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
Section 7. Contribution. If the indemnification provided for in Sections 6(a)
and 6(b) is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, then each indemnifying party
under such paragraph (it being understood that an indemnifying party is one who
would have had an obligation to provide indemnification pursuant to Section 6
had such indemnification been enforceable), in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect (A) the
relative benefits received by the Underwriters, and (B) that the Company is
responsible for the balance or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the allocation referred to in clause (i)above but also the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and of the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Securities they have purchased hereunder, and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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. The remedies provided for in this Section 7
are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity. For
purposes of this Section 7, each director and officer of each Underwriter, and
each person, if any, who controls each Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contributions as each Underwriter, and each director and officer of
the Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution at the
Company.
Section 8. Representations, Warranties and Agreements to Survive Delivery. The
representations, warranties, indemnities, agreements and other statements of
the Company or its officers set forth in or made pursuant to this Agreement
will remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company, any Underwriter or any
person who controls the Company or any Underwriter within the meaning of
Section 15 of the 1933 Act and will survive delivery of and payment for the
Securities.
Section 9. Termination of Agreement
(a) You may terminate this Agreement, by notice to the Company, at any
time at or prior to the Closing Time (i) if there has been, since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the financial condition, earnings,
business affairs or business prospects of the Company and its Significant
Subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
your judgment, impracticable to market the Securities or enforce contracts for
the sale of the Securities or (iii) if trading in any securities of the Company
has been suspended by the Commission, the New York Stock Exchange or any other
exchange or quotation system on which securities of the Company are listed, or
if trading generally on either the American Stock Exchange or the New York
Stock Exchange or in the over-the-counter market has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by such exchange or by order of the Commission
or any other governmental authority, or (iv) if a banking moratorium has been
declared by either federal, New Jersey or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4 herein. Notwithstanding any such
termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time to purchase the Securities that it
or they are obligated to purchase (the "Defaulted Securities"), you shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, you have not
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be purchased
pursuant to this Agreement, the non-defaulting Underwriters shall be obligated
to purchase the full amount thereof in the proportions that their respective
underwriting obligation proportions bear to the underwriting obligation
proportions (as defined below) of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
pursuant to this Agreement, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination
of this Agreement, either you or the Company shall have the right to postpone
the Closing Time or the Delivery Date, as applicable for a period not exceeding
seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
Section 11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered, mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed as set forth in Schedule I. Notices to the
Company shall be directed to it at 9 West 57th Street, New York, NY 10019,
attention of Eric J. Bock, Executive Vice President, Law and Corporate
Secretary.
Section 12. Parties. This Agreement is made solely for the benefit of the
several Underwriters, the Company and, to the extent expressed, any person who
controls the Company or any of the Underwriters within the meaning of Section
15 of the 1933 Act, and the directors of the Company, its officers who have
signed the Registration Statement, and their respective executors,
administrators, successors and assigns and, subject to the provisions of
Section 11, no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser, as such purchaser, from any Underwriter of the Securities. If there
are two or more Underwriters, all of their obligations hereunder are several
and not joint.
Section 13. Governing Law and Time. This Agreement shall be governed by the
laws of the State of New York. Specified times of the day refer to New York
City time.
Section 14. Counterparts. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
Section 15. Headings. All headings of the sections and subparts thereof
of this Agreement are for convenience of reference only and shall not be deemed
a part of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
CENDANT CORPORATION
By: /s/Eric J. Bock
___________________
Name: Eric J. Bock
Title: Executive Vice President,
Law and Corporate Secretary
Confirmed and Accepted, as of the date first above written:
SALOMON SMITH BARNEY INC.
By: /s/Scott R. White
_____________________
Name: Scott R. White
Title: Director
UBS WARBURG LLC
By: /s/Chris Furshner
_____________________
Name: Chris Furshner
Title: Executive Director
By: /s/Ryan Donovan
_____________________
Name: Ryan Donovan
Title: Associate Director
For themselves and the other Underwriters
named in Schedule I hereto
SCHEDULE I
to Underwriting
Agreement dated
MARCH 6, 2003
CENDANT CORPORATION
UNDERWRITER PRINCIPAL AMOUNT OF 6.250% PRINCIPAL AMOUNT OF 7.125%
SENIOR NOTES PURCHASED SENIOR NOTES PURCHASED
Salomon Smith Barney Inc. $122,500,000 $87,500,000
UBS Warburg LLC $122,500,000 $87,500,000
Banc of America Securities LLC $26,250,000 $18,750,000
Credit Suisse First Boston Corporation $26,250,000 $18,750,000
J.P. Morgan Securities Inc. $26,250,000 $18,750,000
Wachovia Securities, Inc. $26,250,000 $18,750,000
Total $350,000,000 $250,000,000
SCHEDULE II
to Underwriting
Agreement
dated March 6, 2003
CENDANT CORPORATION
6.250% SENIOR NOTES DUE 2010
Principal amount to be issued: $350,000,000
Interest rate: 6.250% per annum, payable semiannually
Interest accrues from: March 11, 2003
Date of maturity: March 15, 2010
Redemption provisions: Make-whole of T + 45bps
Sinking fund requirements: None
Initial public offering price: 99.468% of the principal amount plus accrued interest from the
date of issuance of the Securities.
Purchase price: 98.843% of the principal amount plus accrued interest from the
date of issuance of the Securities to the date of delivery
(payable in same day funds)
Closing date, time and location: March 11, 2003, 9:00 a.m., New York City time, Shearman &
Sterling, 599 Lexington Avenue, New York NY 10022
7.125% SENIOR NOTES DUE 2015
Principal amount to be issued: $250,000,000
Interest rate: 7.125% per annum, payable semiannually
Interest accrues from: March 11, 2003
Date of maturity: March 15, 2015
Redemption provisions: Make-whole of T + 50bps
Sinking fund requirements: None
Initial public offering price: 99.855% of the principal amount plus accrued interest from the
date of issuance of the Securities.
Purchase price: 99.18% of the principal
amount plus accrued interest
from the date of issuance of
the Securities to the date of
delivery (payable in same day
funds).
Closing date, time and location: March 11, 2003, 9:00 a.m., New York City time, Shearman &
Sterling, 599 Lexington Avenue, New York NY 10022
EXHIBIT A
FORM OF OPINION OF ERIC BOCK, SENIOR EXECUTIVE PRESIDENT, LAW AND
CORPORATE SECRETARY OF THE COMPANY
Based upon and subject to the limitations, qualifications, exceptions and
assumptions set forth above, I am of the opinion that:
(i) The Company has been incorporated and is validly existing
as a corporation under the laws of the State of Delaware.
(ii) The Company has corporate power and authority (i) to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus and (ii) to
enter into this Agreement and the Indenture and to perform its
obligations under, or as contemplated under, each thereof.
(iii) The Company is qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, except where the failure to so
qualify or be in good standing would not result in a Material Adverse
Effect.
(iv) The Company has authorized capital stock as set forth in
the Prospectus (except for subsequent issuances, if any, pursuant to
incentive compensation plan, employee benefit plan or dividend
reinvestment and stock purchase plan transactions), and all of the
issued and outstanding shares of common stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable; no holder thereof is or will be subject to personal
liability by reason of being such a holder.
(v) Each Significant Subsidiary (as such term is defined in
clauses (1) and (2) of Rule 1-02(w) of Regulation S-X promulgated
under the 1933 Act) is duly organized and is validly existing and in
good standing under the laws of the jurisdiction of its incorporation
with corporate power and corporate authority under such laws to own,
lease and operate its properties and conduct its business. Each
Significant Subsidiary is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a Material Adverse Effect. Except as otherwise stated in the
Prospectus, all of the outstanding shares of capital stock of each
Significant Subsidiary have been duly authorized and validly issued
and are fully paid and non-assessable and are owned by the Company,
directly or through one or more Significant Subsidiaries, free and
clear of any lien, except for such liens as are not, individually or
in the aggregate, material to the Company and its Significant
Subsidiaries, considered as one enterprise.
(vi) Each of the documents incorporated by reference in the
Registration Statement and the Prospectus at the time they were filed
or last amended (other than the financial statements and the notes
thereto, the financial schedules, and any other financial data
included or incorporated by reference therein, as to which I need
express no belief), complied as to form in all material respects with
the requirements of the 1934 Act and the 1934 Act Rules and
Regulations, as applicable.
(vii) The Securities have been authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when issued
and delivered by the Company pursuant to this Agreement, will be
validly issued and fully paid and non-assessable.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
(ix) The offer of the Securities as contemplated herein and
in the Registration Statement and the Prospectus, the execution,
delivery and performance of this Agreement, the Indenture and the
Securities, and the consummation of the transactions contemplated
herein, therein and in the Registration Statement and Prospectus
(including the issuance and sale of the Securities and the use of
proceeds from the sale of the Securities as described in the
Registration Statement and Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations
hereunder and thereunder, have been authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of any of the terms or provisions of, or
constitute a default or Repayment Event under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Significant Subsidiary
pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Significant Subsidiary or any of
their assets, properties, or operations (except for such violations
that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or
by-laws of the Company or any Significant Subsidiary.
(x) There are no statutes required to be described in or
incorporated by reference in the Registration Statement and the
Prospectus that are not described or incorporated by reference; and
there are no legal or governmental proceedings pending or, to my
knowledge, threatened that are required to be disclosed or
incorporated by reference in the Registration Statement and
Prospectus, other than those disclosed or incorporated by reference
therein.
(xi) There are no contracts, indentures, mortgages,
agreements, notes, leases or other instruments required to be
described or referred to or incorporated by reference in the
Registration Statement and the Prospectus other than those described
or referred to or incorporated by reference therein; and the
descriptions thereof or references thereto are true and correct in all
material respects.
Moreover, nothing has come to my attention that causes me to believe that the
Registration Statement, on the original effective date of the Registration
Statement, on the date of the filing of any annual report on Form 10-K or Form
10-K/A after the filing of the Registration Statement, or on the date of this
Agreement, contained or contains an untrue statement of a material fact or
omitted or omits to state material fact necessary, in light of the
circumstances under which they were made, to make the statements therein not
misleading, or that the Prospectus, or any amendment or supplement thereto, at
the time the Prospectus Supplement was issued or at the date hereof, contained
or contains an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, except that I
express no opinion or belief with respect to the financial statements,
schedules and other financial or statistical data included or incorporated by
reference therein or excluded therefrom.
Exhibit B
FORM OF OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Based upon and subject to the limitations, qualifications, exceptions and
assumptions set forth above, we are of the opinion that:
(i) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except to the extent enforcement thereof might be limited by
(i) applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is sought
in equity or at law);
(ii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iii) The Securities have been duly authorized and executed
by the Company and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms and will be entitled to the benefits of
the Indenture, except to the extent enforcement thereof might be
limited by (i) applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered sought in equity or at law);
(iv) The statements included in the Registration Statement
and the Prospectus under the captions "Description of Notes," insofar
as such statements purport to summarize certain provisions of the
Indenture and the Securities, fairly summarize such provisions in all
material respects;
(v) The statements set forth in the Base Prospectus under the
captions "Description of the Debt Securities" and "General Description
of Capital Stock," insofar as such statements purport to summarize
certain provisions of the Indenture and the Securities fairly
summarize such provisions in all material respects.
(vi) The Registration Statement, as of the date of filing of
the Company's Annual Report on Form 10-K for the year ended December
31, 2002, and the Prospectus, as of the date of the Prospectus
Supplement, appeared on their face to be appropriately responsive in
all material respects to the requirements of the 1933 Act and the
Rules and Regulations, except that in each case we do not express any
opinion as to the financial statements and schedules and other
financial data included or incorporated by reference therein or
excluded therefrom, or the exhibits to the Registration Statement,
including the Statement of Eligibility on Form T-1, and, except to the
extent expressly stated in paragraphs (iv) and (v) above, we do not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus.
(vii) The execution, delivery and performance of this
Agreement, the Securities or the Indenture does not require any
authorization, approval, consent, order, registration or qualification
of any court or governmental authority or agency to be made or
obtained by the Company.
(viii) The Company is not and, solely after giving effect to
the offering and the sale of the Securities and the application of the
proceeds thereof described in the Registration Statement and
Prospectus, will not be subject to registration and regulation as an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
In addition, in connection with the preparation of the Registration Statement
and the Prospectus, we have participated in conferences with officers and
representatives of the Company, in-house counsel for the Company,
representatives of the independent accountants of the Company, and you and your
counsel at which conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed. We did not participate in the
preparation of the documents filed by the Company pursuant to the 1934 Act and
incorporated by reference into the Prospectus as of the Closing Time but have,
however, reviewed such documents and discussed the business and affairs of the
Company with officers and other representatives of the Company. Although we are
not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Prospectus and we
have made no independent check or verification thereof, other than to the
extent specified in paragraph (iv) above, on the basis of the foregoing, no
facts have come to our attention that have led us to believe that the
Registration Statement, as of the date of the Company's Annual Report on Form
10-K for the year ended December 31, 2002, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus Supplement and as of the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made not
misleading, except that we express no opinion or belief with respect to the
financial statements, schedules and other financial data included or
incorporated by reference therein or excluded therefrom or the exhibits to the
Registration Statement.
Very truly yours,