CENDANT CORPORATION
(A DELAWARE CORPORATION)
$
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DEBT SECURITIES
UNDERWRITING AGREEMENT
DATED:
CENDANT CORPORATION
(a Delaware corporation)
$
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Debt Securities
UNDERWRITING AGREEMENT
[Date]
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 principal amount of
certain of its debt securities specified in Schedule II (the "Initial Debt
Securities") on the terms and conditions stated herein and in Schedule II. The
Company also grants to the Underwriters, severally and not jointly, the option
described in Section 2 to purchase all or any part of the additional principal
amount of debt securities as set forth in Schedule II to cover
over-allotments(the "Option Debt Securities") on the terms and conditions stated
herein and in Schedule II. The Option Debt Securities together with the Initial
Debt Securities are herein called the "Debt Securities". The Debt Securities
will be issued pursuant to an indenture dated as of , 2001 (the
"Indenture") between the Company and , trustee (the "Trustee"). As
used herein, unless the context otherwise requires, the term "Underwriters"
shall mean the firm or firms named as Underwriter underwriting syndicate is
purchasing the Offered Securities (as defined below), or the representative or
representatives of the Underwriters, if an underwriting syndicate is purchasing
the Offered Securities, as indicated in Schedule I.
[The Initial Debt Securities and the Option Debt Securities are convertible
into shares of CD common stock, par value $0.01 per share, of the Company (the
"Common Stock"), as specified in Schedule II. The shares of Common Stock
issuable upon conversion of any Initial Debt Securities are referred to herein
as the "Firm Shares". The shares of Common Stock issuable upon conversion of any
Option Debt Securities are referred to herein as the "Additional Shares", which,
together with the Firm Shares, are collectively herein called the "Shares".] The
Debt Securities and the Shares, if any, are collectively referred to as the
"Offered Securities". The Offered Securities may be sold pursuant to delayed
delivery contracts, a form of which is attached as Schedule III (the "Delayed
Delivery Contracts"), as specified in Schedule II.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-
)including a prospectus, relating to certain of its debt securities (including
the Offered 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
has been declared effective by the Commission. As provided in Section 3(a), a
prospectus supplement reflecting the terms of the Offered Securities, the terms
of the offering thereof and the other matters set forth therein has been
prepared and 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 the Rule
462(b)Registration Statement under the 1933 Act, including the exhibits thereto
and the documents incorporated by reference therein, is herein called the
"Registration Statement", and the basic 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 basic 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 basic 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 Initial Debt Securities and that you
have been authorized by the other Underwriters to execute this Underwriting
Agreement ("this 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, on the date of the filing of any Rule 462(b) Registration Statement,
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, at the Closing Time (as defined
below) and at each Delivery Date (as defined below), if any, 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,
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however, that the Company makes no representations or warranties as to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter, directly or through you, expressly for use in the Registration
Statement or the Prospectus. At the Closing Time and at each Delivery Date,
if any, the Designated Indenture (as defined below) will comply in all
material respects with the requirements of the 1939 Act and the 1939 Act
Regulations.
(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 Securities Exchange Act of 1934, as amended
(the "1934 Act"), 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, at the Closing Time and at each Delivery Date, if any, 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 present fairly the consolidated
financial position and stockholders' equity and the consolidated results of
operations and consolidated statements of cash flows of the entities
purported to be shown thereby at the indicated dates and for the periods
specified. Such financial statements have been prepared in conformity with
generally accepted accounting principles 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 the information required to be stated therein. The selected
financial data included or incorporated by reference in the Prospectus
present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited consolidated financial statements
incorporated by reference in the Registration Statement. The pro forma
financial statements and other pro forma financial information 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, have been
properly compiled on the pro forma bases described therein, and, in the
opinion of the Company, 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.
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(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 under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus. The Company 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 on the Company and its subsidiaries, considered as one
enterprise.
(vii) The Designated Indenture, each supplement thereto, if any, to the
date hereof and the supplement thereto or resolutions adopted by the Board
of Directors of the Company (the "Board") or by a special committee
designated by the Board setting forth the terms of the Offered Securities
(the Indenture, as so supplemented by such supplement or supplements or
resolutions adopted by the Board or by a special committee designated by
the Board, being herein referred to as the "Designated Indenture"), have
been duly authorized by the Company. The Designated Indenture as executed
is or will be substantially in the form filed as an exhibit to the
Registration Statement. The Designated Indenture, when duly executed and
delivered (to the extent required by the Indenture) by the Company and the
Trustee, will constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by 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).
(viii) The sale and issuance of the Offered Securities have been duly
authorized by requisite corporate action on the part of the Company. When
executed, authenticated, issued and delivered in the manner provided for in
the Designated Indenture and sold and paid for as provided herein and in
any Delayed Delivery Contracts, the Debt Securities will constitute valid
and binding obligations of the Company entitled to the benefits of the
Designated Indenture and enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof may be limited
by 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);
the Offered Securities conform to the description thereof in the Prospectus
and such description conforms to the rights set forth in the instruments
defining the same.
[(ix) The Debt Securities will be convertible into Shares in accordance
with their terms as set forth in the Prospectus. The Shares issuable upon
conversion of such Debt Securities have been duly authorized and, when
issued in accordance with the terms of the Designated Indenture, such
Shares will be validly issued, fully paid and non-assessable. All corporate
action required to be taken for the authorization, issuance and delivery of
such Shares has been validly taken. The issuance of the Debt Securities is
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not, and the issuance of such Shares upon conversion thereof will not be,
subject to any preemptive rights of any stockholder of the Company.]
(x) In the event that any of the Offered Securities are purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been duly authorized by the Company and, when executed and
delivered on behalf of the Company and duly authorized, executed and
delivered on behalf of the purchaser thereunder, will constitute a valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
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).
(xi) All of the outstanding shares of capital stock of the Company have
been duly 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; and none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive rights of any stockholder of the Company.
(xii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, there has not been (A) any material
adverse change in the financial condition, earnings or business affairs of
the Company and its Subsidiaries, considered as one enterprise, whether or
not arising in the ordinary course of business, (B) any transaction entered
into by the Company or any Subsidiary, other than in the ordinary course of
business, that is material to the Company and its Subsidiaries, considered
as one enterprise, or (C) any dividend or distribution of any kind
declared, paid or made by the Company on its capital stock.
(xiii) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a material adverse effect on
the financial condition, earnings or business affairs of the Company and
its Subsidiaries, considered as one enterprise. The execution and delivery
by the Company of this Agreement, the Designated Indenture and any Delayed
Delivery Contracts, the issuance and delivery of the Offered Securities,
the consummation by the Company of the transactions concerning the Offered
Securities contemplated herein and in the Registration Statement and
compliance by the Company with the terms of this Agreement, the Designated
Indenture and any Delayed Delivery Contracts, 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
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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 on the financial condition,
earnings or business affairs of the Company and its Subsidiaries,
considered as one enterprise) 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 on
the financial condition, earnings or business affairs of the Company and
its Subsidiaries, considered as one enterprise).
(xiv) No authorization, approval, consent or license of any government,
governmental instrumentality or court, domestic or foreign (other than
under the 1933 Act, the 1934 Act, the 1939 Act and the securities or Blue
Sky laws of the various states and foreign securities laws), is required
for the valid authorization, issuance, sale and delivery of the Debt
Securities, [the reservation and issuance of the Common Stock] or for the
execution, delivery or performance of the Designated Indenture by the
Company and for the compliance with the other transactions contemplated in
this Agreement.
(xv) Except as 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 Subsidiary that
is required to be disclosed in the Prospectus or that could reasonably be
expected to result in any material adverse change in the financial
condition, earnings or business affairs of the Company and its
Subsidiaries, considered as one enterprise, or that could reasonably be
expected to materially and adversely affect the properties or assets of the
Company and its Subsidiaries, considered as one enterprise, or that could
reasonably be expected to adversely affect the consummation of the
transactions contemplated in this Agreement.
(xvi) Neither the Company nor any of its 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 Offered Securities.
(xvii) 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.
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Section 2. Purchase and Sale.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 Initial Debt Securities set forth
opposite the name of such Underwriter in Schedule I.
(b) In addition, on the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and not jointly, to
purchase up to the additional principal amount of Option Debt Securities as set
forth in Schedule II at the same purchase price as shall be applicable to the
Initial Debt Securities. The option hereby granted will expire 30 days after the
date hereof, and may be exercised, in whole or from time to time in part (but
not more than twice), only for the purpose of covering over-allotments that may
be made in connection with the offering and distribution of the Initial Debt
Securities upon notice by you to the Company setting forth the principal amount
of Option Debt Securities as to which the several Underwriters are exercising
this option, and the time and date of payment and delivery thereof. Such time
and date of delivery (each, a "Delivery Date") shall be determined by you but
shall not be later than seven full business days after the exercise of such
option, nor in any event prior to the Closing Time. If the option is exercised
as to all or any portion of the Option Debt Securities, each of the
Underwriters, acting severally and not jointly, will purchase from the Company
that portion of the aggregate number of Option Debt Securities being purchased
which the number of Initial Debt Securities set forth opposite the name of such
Underwriter bears to the total number of Initial Debt Securities (such
proportion is hereinafter referred to as such Underwriter's "underwriting
obligation proportion").
(c) Payment of the purchase price for, and delivery of, the Initial Debt
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 you, 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 Initial Debt Securities. Such Initial Debt 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
Initial Debt 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. In addition, in the event that
any or all of the Option Debt Securities are purchased by the Underwriters,
payment of the purchase price for, and delivery of, such Option Debt Securities
shall be made at the same location as set forth above, or at such other place as
the Company and you shall determine, on each Delivery Date as specified in the
notice from you to the Company. Payment for the Option Debt Securities shall be
made by wire or bank transfer of same day funds.
(d) If specified in Schedule II, the Underwriters may solicit offers to
purchase Offered Securities from the Company pursuant to Delayed Delivery
Contracts substantially in the form of Schedule III with such changes therein as
the Company may approve. Any Delayed
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Delivery Contracts are to be with institutional investors of the types set forth
in the Prospectus. If Delayed Delivery Contracts are specified in Schedule II,
at the Closing Time, the Company will enter into Delayed Delivery Contracts (for
the minimum principal amount of Offered Securities per Delayed Delivery Contract
specified in Schedule II) with all purchasers proposed by the Underwriters and
previously approved by the Company as provided below, but not for an aggregate
principal amount of Offered Securities less than or greater than the minimum and
maximum aggregate principal amounts specified in Schedule II. The Underwriters
will not have any responsibility for the validity or performance of Delayed
Delivery Contracts.
(e) You are to submit to the Company, at least three business days prior to
the Closing Time, the names of any institutional investors with which it is
proposed that the Company enter into Delayed Delivery Contracts, the principal
amount of Offered Securities to be purchased by each of them and the date of
delivery thereof, and the Company will advise you, at least two business days
prior to the Closing Time, of the names of the institutions with which the
making of Delayed Delivery Contracts is approved by the Company and the
principal amount of Convertible Debt Securities to be covered by each such
Delayed Delivery Contract.
(f) As compensation for arranging Delayed Delivery Contracts, the Company
will pay (by wire or bank transfer of same day funds) to you at the Closing
Time, for the accounts of the Underwriters, a fee equal to that percentage of
the principal amount of Offered Securities for which Delayed Delivery Contracts
are made at the Closing Time as is specified in Schedule II or the amount of
such fee may be deducted from the payment delivered pursuant to Section 2(c).
(g) The principal amount of Debt Securities agreed to be purchased by each
Underwriter shall be reduced by the principal amount of Debt Securities covered
by Delayed Delivery Contracts as to such Underwriter, as set forth in a notice
delivered by you to the Company; provided, however, that the total principal
amount of Debt Securities to be purchased by all Underwriters shall be the
principal amount of Debt Securities covered by this Agreement, less the
principal amount of Debt Securities covered by all Delayed Delivery Contracts.
(h) 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 Debt 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 Debt Securities to be purchased by any Underwriter
whose payments shall not have been received by the Closing Time or each Delivery
Date, if any, as the case may be.
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
Offered Securities, the Company will prepare a preliminary prospectus supplement
containing such information as you and the Company deem appropriate and,
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 Offered 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
Offered Securities that
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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 Offered 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 Offered 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 as many copies of any
preliminary prospectus supplement and 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 Offered 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 Offered Securities, the Company will,
subject to Section 3(f), file promptly all documents required to be filed with
the Commission pursuant to Section 13, Section 14 or Section 15(d) of the 1934
Act.
(d) During the period when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities, the Company will
inform you of its intention to file any amendment to the Registration Statement,
any supplement to the Prospectus or any document that would as a result thereof
be incorporated by reference in the Prospectus; and the Company will furnish you
with copies of any such amendment, supplement or other document at a reasonable
time in advance of filing, except any current report on Form 8-K filed with the
Commission with respect to a press release issued by the Company that is not
reasonably expected to have a material effect on the Company or the price of the
Common Stock; provided, however, that the Company shall inform you of its
intention to file documents pursuant to Section 14(d) of the 1934 Act and shall
furnish you with copies of such documents immediately upon the filing thereof;
and provided further that you or your counsel shall not be entitled to object
thereto other than pursuant to Section 3(b).
(e) During the period when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities, the Company will
notify you immediately, and confirm the notice in writing, (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of the
mailing or the delivery to the Commission for filing of any supplement to the
Prospectus or any document that would as a result thereof be incorporated by
reference in the
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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 Offered 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 obtain the lifting thereof at the earliest
possible moment.
(f) The Company has furnished or will furnish to you 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, copies of all exhibits and documents
filed therewith or 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 Offered Securities) and signed copies of all
consents and certificates of experts, as you may reasonably request, and has
furnished or will furnish to you, for each of the Underwriters, ten conformed
copies of the Registration Statement (as originally filed), of any Rule 462(b)
Registration Statement and of each amendment thereto (including documents
incorporated by reference into the Prospectus but without exhibits).
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Offered Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as you may
designate and to maintain such qualifications in effect for a period of not less
than one year from the date hereof; 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 Offered Securities have been qualified as above
pro vided. The Company will also supply you with such information as is
necessary for the determination of the legality of the Offered Securities for
investment under the laws of such jurisdictions as you may request.
(h) The Company will make generally available to its security holders as
soon as practicable, but not later than 45 days 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 (i) a period
of 12 months beginning after the effective date of the Registration Statement
(or, if applicable, any Rule 462(b) Registration Statement) and covering a
period of 12 months beginning after the effective date of any post-effective
amendment to the Registration Statement but not later than the first day of the
Company's fiscal quarter next following such respective effective dates and (ii)
a period of 12 months beginning after the date of this Agreement but not later
than the first day of the Company's fiscal quarter next following the date of
this Agreement.
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(i) If and to the extent specified in Schedule II hereto, the Company will
use its best efforts to cause the Offered Securities to be duly authorized for
listing on the New York Stock Exchange and to be registered under the 1934 Act.
(j) For a period of two years after the Closing Time, the Company will
furnish to you and, upon request, to each Underwriter, copies of all annual
reports, quarterly reports and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission, and such other documents, reports and information as shall be
furnished by the Company to its stockholders or security holders generally.
(k) Between the date hereof and the Closing Time or such other date as may
be specified in Schedule II, the Company will not, without your prior consent,
offer or sell, or enter into any agreement to sell, any debt securities issued
or guaranteed by the Company with a maturity of more than one year in any public
offering (other than the Offered Securities). This limitation is not applicable
to the public offering of tax exempt securities guaranteed by the Company or to
such other public offering of long-term debt as may be specified in Schedule II.
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 preparation, 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 preparation, printing and
distribution of this Agreement, the Designated Indenture, the Offered
Securities, any Delayed Delivery Contracts, the Blue Sky Survey, (c) the
delivery of the Debt Securities to the Underwriters, (d) the fees and
disbursements of the Company's counsel and accountants and the fees and
disbursements of the Company's counsel (including, without limitation, local
counsel upon whom such counsel may rely in rendering their opinion required by
Section 5 and 6 hereof), (e) the qualification of the Offered Securities under
the applicable securities laws, (f) any fees charged by rating agencies for
rating the Debt Securities, (g) the reasonable fees and disbursements of counsel
in connection with the Blue Sky Survey, (h) any applicable fees for listing the
Offered Securities on an exchange and (i) the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee, in connection
with the Designated Indenture and the Offered 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 Offered 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 Debt Securities that they have respectively agreed to
purchase hereunder, including any Option Debt Securities as to which the option
granted in Section 2 has been exercised and the Delivery Date determined by you
is the same as the Closing Time, 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
11
Company of its obligations hereunder, (iii) the delivery to the Underwriters at
the Closing Time by the Company of all of the Initial Debt Securities, and (iv)
the following further conditions:
(a) The Registration Statement shall have become effective prior to the
date hereof or, with your consent, at a later time and date no later, however,
than the first business day following the date hereof, or at such later date as
you may agree to in writing with the approval of a majority in interest of the
several underwriters; 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
Counsel for the Company and a signed opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, in New York, in its capacity as special counsel for the Company, each
dated as of the Closing Time, together with signed or reproduced copies of such
opinions for each of the other Underwriters, in form and substance reasonably
satisfactory to counsel for the Underwriters.
The opinions referred to above shall be to such further effect with respect
to other legal matters relating to this Agreement and the sale of the Offered
Securities pursuant to this Agreement as counsel for the Underwriters may
reasonably request. 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
________, counsel for the Underwriters, dated as of the Closing Time, together
with signed or reproduced copies of such opinion for each of the other
Underwriters.
(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
12
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 financial condition, earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, (iii) no action, suit
or proceeding shall be pending or, to the knowledge of the Company, threatened
against the Company or any 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 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 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 Chairman of the Board or the President and
the Chief Financial Officer of the Company, dated as of the Closing Time, to
such effect, it being understood that such certificate shall not constitute
personal representations and warranties of the signing individual.
(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 downgrading, nor any notice
given of intended or potential downgrading or of a possible change that does not
indicate the direction of the possible change, in the rating accorded any of the
Company's securities, including the Offered Securities, by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the ▇▇▇▇ ▇▇▇.
(g) The Company shall have complied with the provisions of Section 3(a)
hereof with respect to the furnishing of Prospectuses and Supplemental
Prospectuses on the business day next succeeding the date of this Agreement, in
such quantities as you reasonably request.
(h) 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 Offered 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 Offered Securities as herein
contemplated shall be reasonably satisfactory in form and substance to you and
to counsel for the Underwriters.
13
(i) The Debt Securities shall have been duly authorized for listing by the
New York Stock Exchange subject to official notice of issuance thereof and
notice of a satisfactory distribution of the Debt Securities. 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. Conditions to Purchase of Option Debt Securities. In the event that
the Underwriters exercise their option granted in Section 2 to purchase all or
any of the Option Debt Securities, and each Delivery Date determined by you
pursuant to Section 2 is later than the Closing Time, the obligations of the
several Underwriters to purchase and pay for the Option Debt Securities that
they shall have respectively agreed to purchase pursuant to this Agreement
(collectively, the "purchased Option Debt Securities") are subject to the
accuracy of the representations and warranties of the Company herein contained,
to the performance by the Company of its obligations hereunder, the delivery to
the Underwriters at the Delivery Date by the Company of such Option Debt
Securities and to the following further conditions:
(a) The Registration Statement shall remain effective at each Delivery
Date, and, at each Delivery Date, 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 threatened 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 each Delivery Date, the provisions of Sections 5(d)(i) through
5(d)(v) shall have been complied with at and as of each Delivery Date and, at
each Delivery Date, you shall have received a certificate of the Chairman of the
Board or the President and the Chief Financial Officer of the Company, dated as
of each Delivery Date, to such effect, it being understood that such certificate
shall not constitute personal representations and warranties of the signing
individual.
(c) At each Delivery Date, you shall have received the favorable opinion of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, in its role as special counsel for the
Company, ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., General Counsel for the Company, together with
signed or reproduced copies of such opinions for each of the other Underwriters,
respectively, dated as of each Delivery Date, relating to the purchased Option
Debt Securities and otherwise to the same effect required by Section 5(b), and
each such counsel shall have been furnished with all such documents,
certificates and opinions as such counsel may reasonably request for the purpose
of enabling such counsel to deliver such opinion or opinions.
The opinions referred to above shall be to such further effect with respect
to other legal matters relating to this Agreement and the sale of the Offered
Securities pursuant to this Agreement as counsel for the Underwriters may
reasonably request. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
14
proper, upon certificates of officers of the Company, and certificates of public
officials; provided that such certificates have been delivered to the
Underwriters.
In giving the opinions referred to above, each 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.
(d) At each Delivery Date, you shall have received the favorable opinion of
_______, counsel for the Underwriters, dated as of each Delivery Date, relating
to the purchased Option Debt Securities and otherwise to the same effect as the
opinion required by Section 5(c).
(e) At each Delivery Date, you shall have received a separate letter from
the Accountants, in form and substance satisfactory to you and dated as of each
Delivery Date, to the effect that they reaffirm the statements made in their
respective letter furnished pursuant to Section 5(e), except that the specified
date referred to shall be a date not more than five days prior to each Delivery
Date.
(f) At each Delivery Date, 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 purchased Option Debt Securities as contemplated in the
Underwriting Agreement and the matters referred to in Section 6(d) 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 each Delivery Date in
connection with the authorization, issuance and sale of the purchased Option
Debt Securities as contemplated in the Underwriting Agreement shall be
reasonably satisfactory in form and substance to you and to counsel for the
Underwriters.
Section 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter 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;
15
(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;
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 Offered 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 law, at or
prior to the written confirmation of the sale of such Offered 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.
(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 7(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
16
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 ______________. 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 8. Contribution. If the indemnification provided for in Sections 7(a)
and 7(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 7
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 Offered Securities shall be deemed to be in
the same respective proportions as the net proceeds from the offering of the
Offered 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 Offered Securities. The
relative fault of the Company on the one hand and of the Underwriters on the
other hand shall be determined by
17
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 8 are several in proportion
to the respective number of Offered 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 8 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 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered 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 ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this Section 8
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.
Section 9. 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 Offered Securities.
Section 10. 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 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
Offered Securities or enforce contracts for the sale of the Offered 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
18
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 7, 8 and 9 shall remain in effect.
Section 11. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Offered
Securities that it or they are obligated to purchase (the "Defaulted Offered
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 Offered
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 Offered Securities does
not exceed 10% of the aggregate principal amount of the Offered 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 Offered Securities
exceeds 10% of the aggregate principal amount of the Offered 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 11 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 11.
Section 12. 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 ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., General Counsel.
Section 13. 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
19
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 Offered
Securities. If there are two or more Underwriters, all of their obligations
hereunder are several and not joint.
Section 14. 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 15. 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 16. 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.
20
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:
--------------------------------
Name:
Title:
Confirmed and Accepted, as of the date first above written:
[UNDERWRITERS]
By:
By:
--------------------------------
Name:
Title:
21
SCHEDULE I
to Underwriting
Agreement dated
[ ]
-------------
CENDANT CORPORATION
Debt Securities
Principal Amount
Underwriter Purchased
----------- ---------
Total.................................. $
SCHEDULE II
to Underwriting
Agreement
dated [ ]
--------
CENDANT CORPORATION
Debt Securities
Principal amount to be issued: $
Over-allotment option: $
Current ratings: [ ]
Interest rate: ____% per annum, payable semiannually
Interest accrues from:
Date of maturity:
Initial Conversion Price: $______ per share (___________shares of
CD Common Stock for every $1,000
principal amount of Convertible Debt
Securities)
Redemption provisions:
Sinking fund requirements:
Initial public offering price: ____% of the principal amount plus
accrued interest from the date of
issuance of the Initial Debt Securities.
Purchase price: ____% of the principal amount plus
accrued interest from the date of
issuance of the Initial Debt Securities
to the date of delivery (payable in same
day funds).
Closing date, time and location:
Delayed delivery contracts:
Listing requirement:
Other terms and conditions:
SCHEDULE III
to Underwriting Agreement
dated [ ]
---------------
CENDANT CORPORATION
Debt Securities
DELAYED DELIVERY CONTRACT
CENDANT CORPORATION
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned hereby agrees to purchase from Cendant Corporation, a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned on _______, 20__ (the "Delivery Date"),
________________________principal amount of the Company's [Title of Offered
Securities] (the "Offered Securities"), offered by the Company's Prospectus
dated _______, 2001, as supplemented by its Prospectus Supplement dated _______,
20__ , receipt of which is hereby acknowledged, at a purchase price of % of the
principal amount thereof, plus interest accrued on the amount thereof, principal
amount at the rate borne by the Offered Securities from _______, 20__ to the
Delivery Date, and on the further terms and conditions set forth in this
contract.
Payment for the Offered Securities shall be made to the Company or its
order by certified or official bank check in New York Clearing House funds, at
the offices of _______________, _____________, New York, New York, at A.M., New
York City time, on the Delivery Date (or in such other funds and/or at such
other place as the Company and the undersigned may agree upon in writing), upon
delivery of the Offered Securities to the undersigned, in such authorized
denominations and registered in such names as the undersigned may request in
writing addressed to the Company not less than five business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Offered Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of the Offered Securities by the undersigned
shall not, on the Delivery Date, be prohibited under the laws of any
jurisdiction to which the undersigned is subject and that govern such
investment, and (2) the Company, on or before , 20 , shall have sold
to the Underwriters of the Offered Securities (the "Underwriters") such
principal amount of the Offered Securities as is to be sold to them pursuant to
the Underwriting Agreement dated the date hereof between the Company and the
Underwriters. The obligation of the undersigned to take delivery of and make
payment for the Offered Securities shall not be affected by the failure of any
Underwriter or other purchaser to take delivery of and make payment for the
Offered Securities pursuant to other contracts similar to this contract.
Promptly after completion of the sale to the Underwriters, the Company will
mail or deliver to the undersigned, at its address set forth below, a notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that (1) its investment in the Offered Securities is not, as of the date
hereof, prohibited under the laws of any jurisdiction to which the undersigned
is subject and that govern such investment, (2) all necessary corporate action
for the due execution and delivery of this contract and the payment for and
purchase of the Offered Securities has been taken by it and no further
authorization or approval of any governmental or other regulatory authority is
required for such execution, delivery, payment or purchase and (3)upon the
acceptance by the Company and the mailing or delivery of a copy as provided
below, this contract will constitute a valid and binding agreement of the
undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of the Offered Securities in excess
of $ and that the acceptance of any Delayed Delivery Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance on a copy hereof
and mail or deliver a signed copy to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
This contract shall be governed by the laws of the State of New York.
Yours very truly,
--------------------
(Name of Purchaser)
By:
-----------------
Title:
--------------------
--------------------
(Address)
Schedule III-2
Accepted as of the date first above written:
CENDANT CORPORATION
By:
--------------------------
Name:
Title:
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed is as follows:
(Please print.)
Telephone No.
Name (including Area Code)
---- ---------------------
Schedule III-3