As filed with the Securities and Exchange Commission on October 13, 1999
Registration No 333-86469
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NUMBER 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CENDANT CORPORATION DELAWARE 06-0918165
CENDANT CAPITAL III DELAWARE 22-3565321
CENDANT CAPITAL IV DELAWARE 30-90790
CENDANT CAPITAL V DELAWARE 30-91188
(exact name of the (State or other (I.R.S.
registrants Jurisdiction of Employer
as specified in Incorporation or Identification
their respective Organization) No.)
charters)
9 WEST 57TH STREET
NEW YORK, NY 10019
(212) 413-1800
FAX: (212) 413-1922
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
JAMES E. BUCKMAN, ESQ.
VICE CHAIRMAN AND GENERAL COUNSEL
CENDANT CORPORATION
9 WEST 57TH STREET
NEW YORK, NY 10019
(212) 413-1800
FAX: (212) 413-1923
(Name, address, including zip code, and telephone number
including area code, of agent for service)
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Copies to:
VINCENT J. PISANO, ESQ. ERIC J. BOCK, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP VICE PRESIDENT-LEGAL
919 THIRD AVENUE CENDANT CORPORATION
NEW YORK, NEW YORK 10022 9 WEST 57TH STREET
(212) 735-3000 NEW YORK, NY 10019
FAX: (212) 735-2000 (212) 413-1800
FAX: (212) 413-1922
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement as
determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, as amended other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, as amended please
check the following box and list the Securities Act Registration Statement
Number of the earlier Effective Registration Statement for the same
offering. [ ]
If this Form is a Post-Effective Amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, as amended, check the following box and
list the Securities Act Registration Statement Number of the earlier
Effective Registration Statement for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
==============================================================================================
PROPOSED
MAXIMUM
PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TITLE OF AMOUNT TO OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PER SECURITY(1) PRICE(1) FEE
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Debentures(2)
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Common Stock, $.01 par value(3)
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Stock Purchase Contracts(4)
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Stock Purchase Units(5)
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Trust Preferred Securities of
Cendant Capital III, IV and V(6)
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Guarantees and Backup Undertakings
of Cendant Corporation in
connection with Preferred
Securities of Cendant Capital
III, IV and V(7)
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Total 100%(9) $ -8 $332,324(9)(10)
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(2) Subject to note (8) below, there are being registered hereunder an
indeterminate principal amount of debt securities which will be issued
and sold by Cendant to the Cendant trusts, which may later be
distributed to the holders of Trust Preferred Securities upon a
dissolution of a Cendant trust and a distribution of the assets
thereof.
(3) Subject to note (8) below, there are being registered hereunder an
indeterminate number of shares of Common Stock as shall be issuable
upon settlement of the Stock Purchase Contracts.
(4) Subject to note (8) below, there are being registered hereunder an
indeterminate number of Stock Purchase Contracts.
(5) Subject to note (8) below, there are being registered hereunder an
indeterminate number of Stock Purchase Units.
(6) Subject to note (8) below, there are being registered hereunder an
indeterminate amount of Trust Preferred Securities.
() Includes the rights of holders of the Trust Preferred Securities under
the Guarantees and back-up undertakings, consisting of obligations by
Cendant to provide various indemnities in respect of, and pay and be
responsible for various expenses, costs, liabilities, and debts of,
Cendant Capital III, Cendant Capital IV and Cendant Capital V as set
forth in the applicable Amended and Restated Declaration of Trust, the
Indenture and as further described in the Registration Statement. No
separate consideration will be received for the Guarantees or any
back-up undertakings.
(8) In no event will the aggregate initial offering price of all
securities issued pursuant to this Registration Statement exceed
$1,195,410,000. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder.
(9) The registration fee is based on the consideration to be paid for the
Stock Purchase Units. The consideration per Stock Purchase Unit, for
purposes of calculating the registration fee, is equal to 105% of the
theoretical value of the current FELINE PRIDES, which, if issued as of
the close of business on September 1, 1999 would have been $28.28.
(10) $247,648 of such amount was previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
Information contained herein is subject to completion or amendment. This
Preliminary prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these
securities in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities laws of any such jurisdiction.
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SUBJECT TO COMPLETION DATED October 13, 1999
PROSPECTUS
$1,195,410,000
CENDANT CORPORATION
DEBT SECURITIES, COMMON STOCK,
STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
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CENDANT CAPITAL III
CENDANT CAPITAL IV
CENDANT CAPITAL V
TRUST PREFERRED SECURITIES
GUARANTEED AS PROVIDED HEREIN BY
CENDANT CORPORATION
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Cendant Corporation may offer debt securities, stock purchase
contracts, stock purchase units and common stock.
Cendant Capital III, Cendant Capital IV and Cendant Capital V may
offer trust preferred securities that will be guaranteed by Cendant
Corporation to the extent described in this prospectus.
These securities may be offered from time to time, in amounts, on
terms and at prices that will be determined at the time they are offered
for sale. These terms and prices will be described in more detail in one or
more supplements to this prospectus, which will be distributed at the time
the securities are offered.
This offering is made pursuant to a court approved settlement,
entered into by Cendant Corporation on March 17, 1999.
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This prospectus may not be used to sell any of the securities unless
it is accompanied by a prospectus supplement.
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The common stock is listed on the New York Stock Exchange under the
trading symbol "CD." Each prospectus supplement offering any other
securities will state whether those securities are listed or will be listed
on any national securities exchange.
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The securities may be sold to or through underwriters, through
dealers or agents, directly to purchasers or through a combination of these
methods. If an offering of securities involves any underwriters, dealers or
agents, then the applicable prospectus supplement will name the
underwriters, dealers or agents and will provide information regarding any
fee, commission or discount arrangements made with those underwriters,
dealers or agents.
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Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these securities or
determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
The date of this prospectus is , 1999.
TABLE OF CONTENTS
PROSPECTUS SUMMARY........................................................S - 6
THE COMPANY...............................................................S - 7
THE SECURITIES............................................................S - 8
FORWARD-LOOKING INFORMATION...............................................S - 9
THE COMPANY..............................................................S - 11
MATTERS RELATING TO THE ACCOUNTING IRREGULARITIES
AND ACCOUNTING POLICY CHANGE.......................................S - 11
THE CENDANT TRUSTS.......................................................S - 13
RATIO OF EARNINGS TO FIXED CHARGES.......................................S - 14
USE OF PROCEEDS..........................................................S - 15
DESCRIPTION OF THE DEBT SECURITIES.......................................S - 15
DESCRIPTION OF COMMON STOCK..............................................S - 30
DESCRIPTION OF TRUST PREFERRED SECURITIES OF THE CENDANT TRUSTS..........S - 33
DESCRIPTION OF TRUST GUARANTEES..........................................S - 35
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS.........S - 39
PLAN OF DISTRIBUTION.....................................................S - 39
LEGAL OPINIONS...........................................................S - 40
EXPERTS..................................................................S - 40
WHERE YOU CAN FIND MORE INFORMATION......................................S - 41
PROSPECTUS SUMMARY
Four related companies will be offering the securities described in
this prospectus. These companies are Cendant Corporation, or Cendant, and
its wholly-owned subsidiaries, Cendant Capital III, Cendant Capital IV and
Cendant Capital V. The following table lists the securities to be offered
by each company:
Cendant Capital III, Cendant Capital IV...Trust preferred securities
and Cendant Capital V (each
a "Cendant trust")(guaranteed as
provided here by Cendant)
Cendant Corporation ("Cendant")...........Stock purchase contracts Stock
purchase units Common stock Debt
securities
THE COMPANY
CENDANT
Cendant is one of the foremost consumer and business services
companies in the world. Cendant was created through the merger of HFS
Incorporated into CUC International in December 1997 with the resultant
corporation being renamed Cendant Corporation. Cendant provides the
fee-based services formerly provided by each of CUC and HFS, including
travel services, real estate services and membership-based consumer
services, to its customers throughout the world.
Cendant operates in four principal divisions: travel related
services, real estate related services, direct marketing related services
and other consumer and business services. Cendant's businesses provide a
wide range of complementary consumer and business services, which together
represent eight business segments.
o The travel related service businesses facilitate vacation
timeshare exchanges, and franchise car rental and hotel
businesses.
o The real estate related service businesses franchise real
estate brokerage businesses, provide home buyers with mortgages
and assist in employee relocation.
o The direct marketing related service businesses provide an
array of value driven products and services.
o The other consumer and business services include Cendant's tax
preparation services franchise, information technology
services, car parks and vehicle emergency support and rescue
services in the United Kingdom, financial products and other
consumer-related services.
As a franchisor of hotels, residential real estate brokerage offices,
car rental operations and tax preparation services, Cendant licenses the
owners and operators of independent businesses to use its brand names.
Cendant does not own or operate hotels, real estate brokerage offices, car
rental operations or tax preparation offices. Instead, Cendant provides its
franchisee customers with services designed to increase their revenue and
profitability. Cendant's principal executive offices are located at 9 West
57th Street, New York, New York 10019 and its telephone number is (212)
413-1800.
THE CENDANT TRUSTS
Each of the Cendant trusts is a business trust that was created under
the laws of the State of Delaware. Cendant is the sponsor of each Cendant
trust and owns all of the common securities of each Cendant trust. Each
Cendant trust is managed by three trustees. Cendant may dissolve any
Cendant trust at any time. Each Cendant trust's address is in care of
Cendant. Each Cendant trust's telephone number is (212) 413-1800.
THE SECURITIES
The securities that may be sold under this prospectus are: Cendant's
debt securities, common stock, stock purchase contracts relating to the
common stock; each trusts' trust preferred securities, which will be
guaranteed by Cendant; and stock purchase units consisting of stock
purchase contracts and trust preferred securities. The aggregate initial
offering price of all of the securities to be sold will not exceed
$1,195,410,000. At the time any of these securities are offered, a
prospectus supplement will be distributed that will describe in more detail
the specific terms and price of the securities being sold and whether those
securities will be sold to or through underwriters or by another means of
distribution.
STOCK PURCHASE CONTRACTS AND COMMON STOCK
Cendant may offer stock purchase contracts for the purchase of its
common stock, without stated value. The common stock is listed on the
NewYork Stock Exchange. The price and terms of the stock purchase contracts
will be determined at the time or times of offering. If Cendant offers its
stock purchase contracts, a prospectus supplement will provide information
about the terms of the offering, including the amount of common stock to be
sold, the purchase price of the common stock, the date or dates on which
the common stock will be purchased and any amounts that Cendant may be
required to pay to the holders of the stock purchase contracts.
TRUST PREFERRED SECURITIES
Each Cendant trust may offer its trust preferred securities, each of
which will represent an undivided beneficial ownership interest in the
assets of each Cendant trust. The price and terms of the trust preferred
securities will be determined at the time of offering. If a Cendant trust
offers its trust preferred securities, a prospectus supplement will provide
information about the terms of the offering, including the specific title
of the trust preferred securities, the aggregate number of trust preferred
securities to be sold, the stated liquidation amount and information
regarding the rights of holders of trust preferred securities to receive
cumulative cash distributions. This will include information regarding the
rate of payment, whether distributions can be extended or deferred, and
whether the trust preferred securities can be redeemed. Payments with
respect to the trust preferred securities will be fully and unconditionally
guaranteed by Cendant to the extent described in the prospectus supplement.
In connection with any sale of the trust preferred securities, each
Cendant trust will sell common securities to Cendant, each of which will
represent an undivided beneficial ownership interest in the assets of a
Cendant trust. Each Cendant trust expects to use the proceeds from the sale
of any trust preferred securities and common securities (collectively, the
"trust securities") to purchase debt securities from Cendant. The debt
securities may give Cendant the right to defer payments of interest on the
debt securities. If Cendant decides to defer interest payments on the debt
securities, then any distributions on the trust preferred securities would
be similarly deferred. At any time interest payments are being deferred,
Cendant would not be able to declare or pay any cash distributions with
respect to its respective capital stock or any debt securities ranking
junior to the debt securities. Holders of trust preferred securities would
not lose their cash distributions; rather, interest would continue to
accrue on the debt securities, and, as a result, distributions would
continue to accumulate on the trust preferred securities until paid. The
prospectus supplement will provide more detailed information about
Cendant's right to defer interest payments on the debt securities and the
impact of deferral upon the holders of trust preferred securities.
STOCK PURCHASE UNITS
Cendant may offer stock purchase units, each of which will consist of
o a stock purchase contract and
o a trust preferred security, debt security or U.S. treasury
security. The trust preferred security, debt security or U.S.
treasury security will be pledged as collateral to secure the
holder's obligation to purchase common shares under the stock
purchase contract. If Cendant offers stock purchase units, a
prospectus supplement will provide information about the terms
of the offering, including the specific terms of the stock
purchase contracts and information about the security or
obligation that will secure the holder's obligation to purchase
common shares.
DEBT SECURITIES
Cendant may offer and sell to each Cendant trust a series of debt
securities, which each Cendant trust would purchase with the proceeds from
the sale of its trust preferred securities to the public and the sale of
its common securities to Cendant. The debt securities would be the sole
assets of each Cendant trust. If Cendant sells debt securities to any
Cendant trust, a prospectus supplement will provide specific information
about the debt securities, including their specific designation, aggregate
principal amount, denominations, date of maturity, interest rate which may
be fixed or variable, the dates upon which interest will be paid and
whether payments of interest may be deferred. The prospectus supplement
also will indicate whether the debt securities are redeemable or
convertible or exchangeable into other securities, and whether the debt
securities contain any sinking fund provisions or any other special terms.
As described above under "-trust preferred securities," the debt
securities may give Cendant the right to defer payments of interest on the
debt securities. If so, the prospectus supplement will provide more
detailed information about this right.
FORWARD-LOOKING INFORMATION
Some of the matters discussed in this prospectus, in any accompanying
prospectus supplement and in the documents incorporated by reference in
this prospectus or accompanying prospectus supplement contain
forward-looking statements within the meaning of the securities laws.
Forward- looking statements include terms such as "may," "will," "expect,"
"believe," "plan" and other similar terms. Cendant and the Cendant trusts
each cautions that, while each of them believes those statements to be
based on reasonable assumptions and makes those statements in good faith,
there can be no assurance that the actual results will not differ
materially from these assumptions or that the expectations provided in the
forward-looking statements derived from these assumptions will be realized.
Cendant should be aware of important factors that could have a
material impact on future results. These factors include, but are not
limited to:
o the resolution or outcome of the pending litigation and government
investigations relating to the previously announced accounting
irregularities;
o uncertainty as to Cendant's future profitability and Cendant's
ability to integrate and operate successfully acquired
businesses and the risks associated with those businesses,
including the merger that created Cendant and the NPC
acquisition;
o Cendant's ability to successfully divest non-strategic assets and
implement its new Internet strategy;
o Cendant's ability to develop and implement operational and
financial systems to manage rapidly growing operations;
o competition in Cendant's existing and potential future lines of
business;
o Cendant's ability to obtain financing on acceptable terms to
finance its growth strategy and to operate within the limitations
imposed by financing arrangements; and
o Cendant's ability and its vendors', franchisees' and customers'
ability to complete the necessary actions to achieve a Year
2000 conversion for computer systems and applications.
THE COMPANY
OVERVIEW
Cendant is one of the foremost consumer and business services
companies in the world. Cendant was created through the merger of HFS into
CUC in December 1997 with the resultant corporation being renamed Cendant
Corporation. Cendant provides the fee-based services formerly provided by
each of CUC and HFS, including travel services, real estate services and
membership-based consumer services, to its customers throughout the world.
Cendant operates in four principal divisions: travel related
services, real estate related services, direct marketing related services
and other consumer and business services. Cendant's businesses provide a
wide range of complementary consumer and business services, which together
represent eight business segments.
o The travel related service businesses facilitate vacation
timeshare exchanges, and franchise car rental and hotel
businesses.
o The real estate related service businesses franchise real
estate brokerage businesses, provide home buyers with mortgages
and assist in employee relocation.
o The direct marketing related service businesses provide an
array of value driven products and services.
o Cendant's other consumer and business services include its tax
preparation services franchise, information technology
services, car parks and vehicle emergency support and rescue
services in the United Kingdom, financial products and other
consumer-related services.
As a franchisor of hotels, residential real estate brokerage offices,
car rental operations and tax preparation services, Cendant licenses the
owners and operators of independent businesses to use its brand names.
Cendant does not own or operate hotels, real estate brokerage offices, car
rental operations or tax preparation offices. Instead, Cendant provides its
franchisee customers with services designed to increase their revenue and
profitability.
MATTERS RELATING TO THE ACCOUNTING IRREGULARITIES
AND ACCOUNTING POLICY CHANGE
ACCOUNTING IRREGULARITIES
On April 15, 1998, Cendant announced that in the course of
transferring responsibility for its accounting functions from Cendant
personnel associated with CUC prior to the merger to Cendant personnel
associated with HFS before the merger and preparing for the reporting of
first quarter 1998 financial results, it discovered accounting
irregularities in some of the CUC business units. As a result, Cendant,
together with its counsel and assisted by auditors, immediately began an
intensive investigation. In addition, Cendant's audit committee engaged
Willkie Farr & Gallagher as special legal counsel and Wilkie Farr engaged
Arthur Andersen LLP to perform an independent investigation into these
accounting irregularities.
On July 14, 1998, Cendant announced that the accounting
irregularities were greater than those initially discovered in April and
that the irregularities affected the accounting records of the majority of
the CUC business units. On August 13, 1998, Cendant announced that its
investigation was complete. On August 27, 1998, Cendant announced that its
audit committee had submitted its report to the board of directors on the
audit committee investigation into the accounting irregularities and its
conclusions regarding responsibility for those actions. A copy of the
report has been filed as an exhibit to Cendant's current report on Form 8-K
dated August 28, 1998.
As a result of the findings of the investigations, Cendant restated
its previously reported financial results for 1997, 1996 and 1995 and the
six months ended June 30, 1998 and 1997. The 1997 restated amounts also
included adjustments related to the former HFS businesses which are
substantially comprised of $47.8 million in reductions to merger-related
costs and other unusual charges ("Unusual Charges") and a $14.5 million
decrease in pre-tax income excluding Unusual Charges, which on a net basis
increased 1997 net income from continuing operations. The 1997 annual and
six months results have also been restated for a change in accounting,
effective January 1, 1997, related to revenue and expense recognition for
memberships with a full refund offer.
CLASS ACTION LITIGATION AND GOVERNMENT INVESTIGATION
Since the April 15, 1998 announcement of the discovery of accounting
irregularities in the former CUC business units, and prior to October 13,
1999, 70 lawsuits claiming to be class actions, two lawsuits claiming to be
brought derivatively on behalf of Cendant and several individual lawsuits
and arbitration proceedings have been filed against Cendant and, among
others, its predecessor, HFS, and several current and former officers and
directors of Cendant and HFS. These lawsuits assert, among other things,
various claims under the federal securities laws including claims under
sections 11, 12 and 15 of the Securities Act of 1933 and sections 10(b),
14(a) and 20(a) of and Rules 10b-5 and 14a-9 under the Securities Exchange
Act of 1934 and state statutory and common laws, including claims that
financial statements previously issued by Cendant were false and misleading
and that these statements allegedly caused the price of Cendant's
securities to be artificially inflated.
In addition, the staff of the Securities and Exchange Commission, the
SEC, and the United States Attorney for the District of New Jersey are
conducting investigations relating to the accounting irregularities. The
SEC staff has advised Cendant that its inquiry should not be construed as
an indication by the SEC or its staff that any violations of law have
occurred. As a result of the findings from the investigations, Cendant made
all adjustments considered necessary which are reflected in its restated
financial statements. Although Cendant can provide no assurances that
additional adjustments will not be necessary as a result of these
government investigations, Cendant does not expect that additional
adjustments will be necessary.
Other than with respect to the portion of the PRIDES litigation which
is discussed below, Cendant does not believe that it is feasible to predict
the final outcome or resolution of these proceedings and investigations or
to estimate the amount or potential range of loss with respect to the
resolution of these proceedings and investigations. In addition, the timing
of the final resolution of these proceedings and investigations is
uncertain. The possible outcomes or resolutions of these proceedings and
investigations could include judgments against Cendant or settlements and
could require substantial payments by Cendant. Cendant's management
believes that adverse outcomes in the proceedings and investigations or any
other resolutions, including settlements could have a material impact on
its financial condition, results of operations or cash flows.
SETTLEMENT OF PRIDES CLASS ACTION LITIGATION
On March 17, 1999, Cendant entered into a stipulation of settlement
in the PRIDES action and the court subsequently granted the settlement its
approval. Under the settlement stipulation, in return for the release of
all claims arising from any purchase of current FELINE PRIDES on or before
April 15, 1998, Cendant is obligated to issue up to 29,161,474 rights with
a stated theoretical value of $11.71 each. Each class member who does not
opt out and who submits a timely and valid proof of claim will be entitled
to one right for each current FELINE PRIDES held at the close of business
on April 15, 1998. Under the settlement stipulation, until February 14,
2001, Cendant will issue two new FELINE PRIDES to every person who delivers
to Cendant three rights and two current FELINE PRIDES. The terms of the new
FELINE PRIDES will be the same as the currently outstanding PRIDES, except
that the conversion rate will be revised so that, at the time the rights
are distributed, each of the new PRIDES will have a value equal to $17.57
more than each original PRIDES, based upon a generally accepted valuation
model. The settlement does not resolve claims based upon purchases of
current FELINE PRIDES after April 16, 1998.
Based on the settlement agreement, Cendant recorded an after tax
charge of approximately $228 million, or $0.26 per diluted share, which is
$351 million pre-tax, in the fourth quarter of 1998. Cendant recorded an
increase in additional paid-in capital of $350 million offset by a decrease
in retained earnings of $228 million, resulting in a net increase in
stockholders' equity of $122 million as a result of the prospective
issuance of the common stock. As a result, the settlement should not reduce
net book value. In addition, the settlement is not expected to reduce 1999
earnings per share unless Cendant's common stock price materially
appreciates.
THE CENDANT TRUSTS
Each of the Cendant trusts is a statutory business trust formed under
Delaware law pursuant to
o a declaration of trust executed by Cendant as sponsor for
each trust and the Cendant trustees of each trust and
o the filing of a certificate of trust with the Secretary of
State of the State of Delaware.
Each Cendant trust exists for the exclusive purposes of
o issuing and selling the trust preferred securities and common
securities representing common undivided beneficial ownership
interests in its assets,
o using the gross proceeds from the sale of its trust securities to
acquire the debt securities and
o engaging in only those other activities necessary, appropriate,
convenient or incidental to these purposes.
All of the common securities will be directly or indirectly owned by
Cendant. The common securities will rank equably, and payments on them will
be made proportionately, with the trust preferred securities. However, if
an event of default under the declaration has occurred and is continuing,
the rights of the holders of the common securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will
be subordinated to the rights of the holders of the trust preferred
securities. Cendant will directly or indirectly acquire common securities
in an aggregate liquidation amount equal to at least 3% of the total capital
of each Cendant trust.
Unless otherwise specified in the applicable prospectus supplement,
each Cendant trust has a term of up to 55 years but may terminate earlier,
as provided in the Declaration. Each Cendant trust's business and affairs
will be conducted by the trustees (the "Cendant trustees") appointed by
Cendant as the direct or indirect holder of all of the common securities.
The holder of the common securities will be entitled to appoint, remove or
replace any of, or increase or reduce the number of, the Cendant trustees
of each Cendant trust. The duties and obligations of the Cendant trustees
shall be governed by the declaration of that Cendant trust. A majority of
the Cendant trustees (the "regular trustees") of each Cendant trust will be
persons who are employees or officers of or who are affiliated with
Cendant. One Cendant trustee of each Cendant trust will be a financial
institution (the "institutional trustee") that is not affiliated with
Cendant and has a minimum amount of combined capital and surplus of not
less than $50,000,000, which shall act as property trustee and as indenture
trustee for the purposes of compliance with the provisions of Trust
Indenture Act of 1939, under the terms provided in the applicable
prospectus supplement. In addition, unless the institutional trustee
maintains a principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law, one Cendant trustee of
each Cendant trust will be an entity having a principal place of business
in, or a natural person resident of, the State of Delaware (the "Delaware
Trustee"). Cendant will pay all fees and expenses related to the Cendant
trust and the offering of the trust securities.
Unless otherwise specified in the applicable prospectus supplement,
the institutional trustee and Delaware trustee for each Cendant trust shall
be Wilmington Trust Company, and its address in the State of Delaware is
Rodney Square, North, 1100 North Market Street, Wilmington, Delaware 19890.
The principal place of business of each Cendant trust shall be c/o Cendant
Corporation, 6 Sylvan Way, Parsippany, New Jersey 07054, telephone (973)
428-9700.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
of Cendant for the fiscal years ended December 31, 1995, 1996, 1997 and
1998 and for the six months ended June 30, 1999. For the purpose of
calculating this ratio, "earnings" consist of income from continuing
operations before income taxes plus fixed charges, and "fixed charges"
consist of interest on all indebtedness, amortization of debt expense, the
portion of rental expenses on operating leases deemed to be representative
of the interest factor, and preferred stock dividend requirements of
consolidated subsidiaries.
HISTORICAL
-------------------------------------------
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED ---------------------------
JUNE 30, 1999 1998 1997 1996 1995
-------------------------------------------
Ratio of 4.56x 1.29x 1.44x 2.60x 2.08x
Earnings
to Fixed
Charges(1).....
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(1) For the six months ended June 30, 1999, income from the continuing
operations before income taxes and minority interest includes
non-recurring charges of ($36,900,000) and a net gain on disposition
of businesses of $749,500,000. Excluding such items, the ratio of
earnings to fixed charges for the six months ended June 30, 1999 is
2.59x.
USE OF PROCEEDS
Unless otherwise provided in a prospectus supplement, the net
proceeds from the offering of the securities will be used for general
corporate purposes, which may include acquisitions, repayment of other
debt, acquisition of Cendant's common stock, working capital and capital
expenditures. When a particular series of securities is offered, the
applicable prospectus supplement will describe Cendant's intended use for
the net proceeds received for the sale of securities. Pending application
for specific purposes, the net proceeds may be invested in short-term
marketable securities.
DESCRIPTION OF THE DEBT SECURITIES
The debt securities may be offered from time to time by Cendant as
senior debt securities and/or as subordinated debt securities. The senior
debt securities will be issued under the senior indenture, as it may be
supplemented from time to time, between Cendant and The Bank of Nova Scotia
Trust Company of New York, as senior trustee. The subordinated debt
securities will be issued under the subordinated indenture, as it may be
supplemented from time to time, between Cendant and The Bank of Nova Scotia
Trust Company of New York, as the subordinated trustee. The term "trustee",
as used here, refers to either the senior trustee or the subordinated
trustee, as appropriate. The forms of the senior indenture and the
subordinated indenture, which are sometimes referred to here collectively
as the "indentures" and individually as an "indenture", have been filed as
exhibits to the registration statement. The terms of the indentures are
also governed by the applicable provisions of the Trust indenture Act of
1939. The following summary of material provisions of the debt securities
does not purport to be complete and is qualified in its entirety by
reference to the indentures.
GENERAL
The indentures will provide for the issuance of debt securities in
series up to the aggregate amount from time to time authorized by Cendant
for each series. A prospectus supplement will provide the following terms,
to the extent these terms are applicable to the debt securities, and
information relating to the debt securities in respect of which this
prospectus is delivered:
o the designation of the debt securities;
o classification as senior or subordinated debt securities;
o the aggregate principal amount of the debt securities;
o the percentage of the principal amount at which the debt securities
will be issued;
o the date or dates on which the debt securities will mature;
o the rate or rates, if any, per year, at which the debt securities
will bear interest, or the method of determination of that rate
or rates;
o the times and places at which the interest, if any, will be
payable;
o provisions for sinking, purchase or other analogous fund, if any;
o the date or dates, if any, after which the debt securities may be
redeemed at the option of Cendant or of the holder and the
redemption price or prices;
o the date or the dates, if any, after which the debt securities
may be converted or exchanged at the option of the holder into
or for shares of common stock or preferred stock of Cendant and
the terms for any conversion or exchange; and
o any other specific terms of the debt securities.
Principal, premium, if any, and interest, if any, will be payable and
the debt securities offered here will be transferable, at the corporate
trust office of the trustee's agent in the borough of Manhattan, City of
New York, provided that payment of interest, if any, may be made at the
option of Cendant by check mailed to the address of the person entitled to
it as it appears in the security register. (Section 301 of each indenture)
If a prospectus supplement specifies that a series of debt securities
is denominated in a currency or currency unit other than United States
dollars, that prospectus supplement shall also specify the denomination in
which the debt securities will be issued and the coin or currency in which
the principal, premium, if any, and interest, if any, on the debt
securities will be payable, which may be United States dollars based upon
the exchange rate for the other currency or currency unit existing on or
about the time a payment is due. Special United States federal income tax
considerations applicable to any debt securities so denominated shall also
be described in the applicable prospectus supplement.
The debt securities may be issued in registered or bearer form and,
unless otherwise specified in a prospectus supplement, in denominations of
$1,000 and integral multiples. Debt securities may be issued in book-entry
form, without certificates. Any issue will be described in the prospectus
supplement relating to the debt securities. No service charge will be made
for any transfer or exchange of the debt securities, but Cendant or the
trustee may require payment of a sum sufficient to cover any tax or other
government charge payable in connection with it.
Debt securities may be issued under the indentures as original issue
discount securities to be sold at a substantial discount from their stated
principal amount. United States federal income tax consequences and other
applicable considerations applicable will be described in the applicable
prospectus supplement.
MERGER, CONSOLIDATION AND SALE OF ASSETS
The indentures will provide that Cendant shall not consolidate with
or merge into any other corporation or convey, transfer or lease its
properties and assets substantially as an entirety to any person, unless:
(1) the corporation formed by the consolidation or into which
Cendant is merged or the person which acquires by conveyance or
transfer, or which leases the properties and assets of Cendant
substantially as an entirety
(A) shall be a corporation, partnership, limited liability
company or trust organized and validly existing under the
laws of the United States of America, any of its states
or the District of Columbia and
(B) shall expressly assume, by an indenture supplemental to it,
executed and delivered to the trustee, in form
satisfactory to the trustee, Cendant's obligation for the
due and punctual payment of the principal, premium, if
any, and interest on all the debt securities and the
performance and observance of every covenant of the
indentures on the part of Cendant to be performed or
observed;
(2) immediately after giving effect to the transaction, no default
or event of default shall have occurred and be continuing; and
(3) Cendant or that person shall have delivered to the trustee an
officers' certificate and an opinion of counsel, each stating
that the consolidation, merger, conveyance, transfer or lease
and supplemental indenture comply with this "Merger,
Consolidation and Sale of Assets" section and that all
conditions precedent here provided for relating to the
transaction have been complied with. This paragraph shall apply
only to a merger or consolidation in which Cendant is not the
surviving corporation and to conveyances, leases and transfers
by Cendant as transferor or lessor. (Section 801 of each
indenture)
The indentures will further provide that upon any consolidation by
Cendant with or merger by Cendant into any other corporation or any
conveyance, transfer or lease of the properties and assets of Cendant
substantially as an entirety to any person in accordance with the preceding
paragraph, the successor person formed by the consolidation or into which
Cendant is merged or to which the conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, Cendant under the indentures with the same effect as if the
successor person had been named as Cendant, and in the event of a
conveyance or transfer, Cendant, which term shall for this purpose mean
Cendant Corporation or any successor person which shall become such in the
manner described in the preceding paragraph, except in the case of a lease,
shall be discharged of all obligations and covenants under the indentures
and the debt securities and the coupons and may be dissolved and
liquidated. (Section 802 of each indenture)
EVENTS OF DEFAULT
The following will be "events of default" under the indentures with
respect to debt securities of any series:
(1) default in the payment of any interest on any debt securities
of that series or any related coupon, when the interest or
coupon becomes due and payable, and continuance of the default
for a period of 30 days;
(2) default in the payment of the principal or premium, if any, on
any debt securities of that series at its maturity;
(3) default in the deposit of any sinking fund payment when and as
due under the terms of the debt securities of that series and
the indentures;
(4) default in the performance, or breach, of any covenant or
warranty of Cendant in the indentures, other than a default in
the performance, or breach, of a covenant or warranty which is
specifically dealt with elsewhere under this "Events of
Default" section, and continuance of the default or breach for
a period of 90 days after there has been given, by registered
or certified mail, to Cendant by the trustee or to Cendant and
the trustee by the holders of at least 25% in principal amount
of all outstanding debt securities, a written notice specifying
such default or breach and requiring it to be remedied and
stating that the notice is a "notice of default thereunder;"
(5) the entry of a decree or order by a court having jurisdiction
in the premises adjudging Cendant bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of
Cendant under the Federal Bankruptcy Code or any other
applicable federal or state law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of Cendant or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in
effect for a period of 90 consecutive days;
(6) the institution by Cendant of proceedings to be adjudicated
bankrupt or insolvent, the consent by it to the institution of
bankruptcy or insolvency proceedings against it, the filing by
it of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other
applicable federal or state law, the consent by it to the
filing of any petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of Cendant or of any substantial part of its property,
the making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its
debts generally as they become due;
(7) (A) there shall have occurred one or more defaults by Cendant
in the payment of the principal or premium, if any, on
debt aggregating $50 million or more, when the same
becomes due and payable at its stated maturity, and the
default or defaults shall have continued after any
applicable grace period and shall not have been cured or
waived,
(B) debt of Cendant aggregating $50 million or more shall
have been accelerated or otherwise declared due and
payable, or required to be prepaid or repurchased, other
than by regularly scheduled required prepayment, prior to
its stated maturity; or
(8) any other event of default provided with respect to debt
securities of that series.
If an event of default described in clause (1), (2), (3), (4), (7) or
(8) above with respect to debt securities of any series at the time
outstanding occurs and is continuing, then in every such case the
trustee or the holders of not less than 25% in principal amount of the
outstanding debt securities of that series may declare the principal amount
or, if the debt securities of that series are original issue discount
securities or indexed securities, the portion of the principal amount as
may be specified in the terms of that series of all of the debt securities
of that series to be due and payable immediately. The declaration shall be
made by a notice in writing to Cendant and to the trustee if given by
holders, and upon that declaration the principal amount or specified
portion of it, shall become immediately due and payable. If an event of
default described in clause (5) or (6) above occurs and is continuing, then
the principal amount of all the debt securities shall become and be
immediately due and payable without any declaration or other act on the
part of the trustee or any holder, subject, however, to all rights, powers
and limitations provided for by the Federal Bankruptcy Code or any other
applicable federal or state law.
At any time after a declaration of acceleration with respect to debt
securities of any series or of all series, has been made and before a
judgment or decree for payment of the money due has been obtained by the
trustee as provided in article five of the indentures, the holders of a
majority in principal amount of the outstanding debt securities of that
series or of all series, by written notice to Cendant and the trustee, may
rescind and annul the declaration and its consequences if:
(1) Cendant has paid or deposited with the trustee a sum sufficient
to pay in the currency in which the debt securities of the
series are payable, except as otherwise specified under section
301 of the indentures for the debt securities of that series
and except, if applicable, as provided in various provisions of
section 312 of the indentures:
(A) All overdue interest on all outstanding debt securities
of that series or of all series and any related coupons;
(B) all unpaid principal of and premium, if any, on any
outstanding debt securities of that series or of all
series which has become due otherwise than by the
declaration of acceleration, and interest on the unpaid
principal at the rate or rates prescribed in the debt
securities;
(C) to the extent that payment of the interest is lawful,
interest on overdue interest at the rate or rates
prescribed in the debt securities; and
(D) all sums paid or advanced by the trustee and the
reasonable compensation, expenses, disbursements and
advances of the trustee, its agents and counsel; and
(2) all events of default with respect to debt securities of that
series or of all series other than the non-payment of amounts
of principal of or premium if any, or interest on debt
securities of that series or of all series, which have become
due solely by the declaration of acceleration, have been cured
or waived as provided in Section 513 of the indentures.
No rescission shall affect any subsequent default or impair any
consequent right consequent.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the debt securities because of an
event of default specified in clause (7) of the first paragraph of this
section shall have occurred and be continuing, the declaration of
acceleration shall be automatically annulled if the debt that is the
subject of the event of default has been discharged or the debt holders
have rescinded their declaration of acceleration in respect of that debt,
and written notice of the discharge or rescission shall have been given to
the trustee by Cendant and countersigned by the holders of the debt or a
trustee, fiduciary or agent for the holders, within 30 days after the
declaration of acceleration in respect of the debt securities, and no other
event of default has occurred during the 30- day period which has not been
cured or waived during that period. (Section 502 of each indenture)
Subject to section 502 of each indenture, the holders of not less
than a majority in principal amount of the outstanding debt securities of
any series may on behalf of the holders of all the debt securities of that
series waive any past default described in clause (1), (2), (3), (4), (7),
or (8) of the first paragraph of this section or, in the case of a default
described in clause (5) or (6) of the first paragraph of this section, the
holders of not less than a majority in principal amount of all outstanding
debt securities may waive that past default, and its consequences, except a
default
o in respect of the payment of the principal, premium, if any or
interest on any debt security or any related coupon, or
o in respect of a covenant or provision which under the indentures
cannot be modified or amended without the consent of the
holder of each outstanding debt security of such series
affected. (Section 513 of each indenture)
Upon any such waiver, the default shall cease to exist, and any event
of default arising from it shall be deemed to have been cured, for every
purpose of the indentures. However, no waiver shall extend to any
subsequent or other default or event of default or impair any consequent
right. (Section 513 of each indenture)
No holder of any debt security of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise,
with respect to the indentures, or for the appointment of a receiver or
trustee, or for any other remedy, unless
(1) the holder has previously given written notice to the trustee
of a continuing event of default with respect to the debt
securities of that series;
(2) the holders of not less than 25% in principal amount of the
outstanding debt securities of that series in the case of any
event of default under clause (1), (2), (3), (4), (7) or (8) of
the first paragraph of this section, or, in the case of any
event of default described in clause (5) or (6) of the first
paragraph of this section, the holders of not less than 25% in
principal amount of all outstanding debt securities, shall have
made written request to the trustee to institute proceedings in
respect of that event of default in its own name as trustee
under each of the indentures;
(3) the holder or holders have offered to the trustee reasonable
indemnity against the costs, expenses and liabilities to be
incurred in compliance with that request;
(4) the trustee for 60 days after its receipt of the notice,
request and offer of indemnity has failed to institute any
proceeding; and
(5) no direction inconsistent with the written request has been
given to the trustee during the 60-day period by the holders of
a majority or more in principal amount of the outstanding debt
securities of that series in the case of any event of default
described in clause (1), (2), (3), (4), (7) or (8) of the first
paragraph of this section, or, in the case of any event of
default described in clause (5) or (6) of the first paragraph
of this section, by the holders of a majority or more in
principal amount of all outstanding debt securities. (Section
507 of each indenture)
During the existence of an event of default, the trustee is required
to exercise the rights and powers vested in it under either indenture in
good faith. Subject to the provisions of the indentures relating to the
duties of the trustee, in case an event of default shall occur and be
continuing, the trustee under the indentures is not under any obligation to
exercise any of its rights or powers under the indentures at the request or
direction of any of the holders unless the holders shall have offered to
the trustee reasonable security or indemnity. Subject to the provisions
concerning the rights of the trustee, with respect to the debt securities
of any series, the holders of not less than a majority in principal amount
of the outstanding debt securities of that series shall have the right to
direct the time, method and place of conducting any proceeding for any
remedy available to the trustee, or exercising any trust or power conferred
on the trustee under the indentures.
Within 90 days after the occurrence of any default with respect to
debt securities of any series, the trustee shall transmit in the manner and
to the extent provided in the Trust Indenture Act section 313(c), notice of
the default known to the trustee, unless the default shall have been cured
or waived. However, in the case of a default in the payment of the
principal, premium, if any, or interest on any debt securities of that
series, or in the payment of any sinking fund installment with respect to
debt securities of that series, the trustee shall be protected in
withholding the notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or responsible
officers of the trustee in good faith determines that the withholding of
the notice is in the interest of the holders of debt securities of that
series and any related coupons. Furthermore, in the case of any default of
the character specified in clause (7) of the first paragraph of this
section with respect to debt securities of that series, no notice to
holders shall be given until at least 30 days after its occurrence.
Cendant is required to deliver to the trustee, within 120 days after
the end of each fiscal year, a brief certificate of Cendant's compliance
with all of the conditions and covenants under the indentures.
DEFEASANCE OR COVENANT DEFEASANCE OF THE INDENTURES
The indentures will provide that Cendant may, at its option and at
any time, terminate its obligations with respect to the outstanding debt
securities of any series ("defeasance"). Defeasance means that Cendant
shall be deemed to have paid and discharged the entire indebtedness
represented by the outstanding debt securities and any related coupons,
except for the following which shall survive until otherwise terminated or
discharged under the indentures:
(A) the rights of holders of outstanding debt securities and any
related coupons
(1) to receive, solely from the Cendant trust fund described
in the indentures, payments in respect of the principal,
premium if any and interest on the debt securities and
any related coupons when these payments are due, and
(2) to receive shares of common stock or other securities
from Cendant upon conversion of any convertible debt
securities issued under it,
(B) Cendant's obligations to issue temporary debt securities, register
the transfer or exchange of any debt securities, replace
mutilated, destroyed, lost or stolen debt securities, maintain
an office or agency for payments in respect of the debt
securities and, if Cendant acts as its own paying agent, hold
in trust, money to be paid to the persons entitled to payment,
and with respect to additional amounts, if any, on such debt
securities as contemplated in the indentures,
(C) the rights, powers, trusts, duties and immunities of the
trustee under the indentures and
(D) the defeasance provisions of the indentures.
With respect to subordinated debt securities, money and securities
held in trust under the defeasance and covenant defeasance provisions
described here, shall not be subject to the subordination provisions of the
subordinated indenture. In addition, Cendant may, at its option and at any
time, elect to terminate its obligations with respect to the covenants that
are provided in the indentures, some of which are described in the "Certain
Covenants" section above, and any omission to comply with these obligations
shall not constitute a default or an event of default with respect to the
debt securities ("covenant defeasance"). (Section 1403 of each indenture)
In order to exercise either defeasance or covenant defeasance:
(1) Cendant shall irrevocably have deposited or caused to be
deposited with the trustee, in trust, for the purpose of making
the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of the debt
securities and any related coupons,
(A) money in an amount and in the currency in which the debt
securities and any related coupons are then specified as
payable at stated maturity,
(B) government obligations applicable to the debt securities,
determined on the basis of the currency in which the debt
securities are then specified as payable at stated
maturity, which through the scheduled payment of
principal and interest in accordance with their terms
will provide, not later than one day before the due date
of any payment of principal, including any premium and
interest if any, under the debt securities and any
related coupons, money in an amount or
(C) a combination of (A) and (B), sufficient, in the opinion
of a nationally recognized firm of independent public
accountants to pay and discharge
o the principal, premium if any and interest on the outstanding
debt securities and any related coupons on the stated maturity
or redemption date, if applicable, of the principal and
premium, if any, installment or interest and
o any mandatory sinking fund payments or analogous payments
applicable to the outstanding debt securities and any related
coupons on the day on which the payments are due and payable in
accordance with the terms of the indentures and of the debt
securities and any related coupons.
However, the trustee shall have been irrevocably instructed to apply
the money or the proceeds of the government obligations to said payments
with respect to the debt securities and any related coupons. Before the
deposit, Cendant may give to the trustee, in accordance with the redemption
provisions in the indentures, a notice of its election to redeem all or any
portion of the outstanding debt securities at a future date in accordance
with the terms of the debt securities of that series and the redemption
provisions of the indentures. The notice shall be irrevocable and if given,
shall be given effect in applying the above; and
(2) no default or event of default with respect to the debt
securities and any related coupons shall have occurred and be
continuing on the date of this deposit. Insofar as the event of
default described in clauses (5) and (6) of the events of
default section above are concerned, at any time during the
period ending on the 91st day after the date of this deposit,
it being understood that this condition shall not be deemed
satisfied until the expiration of this period;
(3) a defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, the
indentures or any other material agreement or instrument to
which Cendant is a party or by which it is bound;
(4) in the case of a defeasance, Cendant shall have delivered to
the trustee an opinion of counsel stating that Cendant has
received from, or there has been published by, the Internal
Revenue Service a ruling or
since the issue date, there has been a change in the applicable
United States federal income tax law,
in either case to the effect that, and based on the above the
opinion shall confirm that, the holders of the outstanding debt
securities and any related coupons will not recognize income,
gain or loss for United States federal income tax purposes as a
result of the defeasance and will be subject to United States
federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if the defeasance
had not occurred;
(5) in the case of a covenant defeasance, Cendant shall have
delivered to the trustee an opinion of counsel to the effect
that the holders of the outstanding debt securities and any
related coupons will not recognize income, gain or loss for
United States federal income tax purposes as a result of the
covenant defeasance and will be subject to United States
federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if the covenant
defeasance had not occurred;
(6) notwithstanding any other provisions of the defeasance and
covenant defeasance provisions of the indentures, the
defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions
or limitations under Section 301 of the indentures; and
(7) Cendant shall have delivered to the trustee an officers'
certificate and an opinion of counsel, each stating that all
conditions precedent under the indentures to either defeasance
or covenant defeasance, as the case may be, have been complied
with. (Section 1404 of each indenture)
SATISFACTION AND DISCHARGE
The indentures shall upon Cendant's request cease to be of further
effect with respect to any series of debt securities, except as to any
surviving rights of registration of transfer or exchange of debt securities
of that series expressly provided for in this prospectus and Cendant's
obligation to pay any additional amounts as contemplated by Section 1005 of
each indenture. The trustee, at Cendant's expense, shall execute proper
instruments acknowledging satisfaction and discharge of the indenture as to
that series when
(1) either
(A) all theretofore authenticated and delivered debt
securities of that series and delivered and all
appertaining coupons, if any, other than
(1) coupons appertaining to bearer securities
surrendered for exchange for registered securities
and maturing after the exchange, whose surrender is
not required or has been waived as provided in
Section 305 of the indentures,
(2) debt securities and coupons of the series which
have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 of
the indentures,
(3) coupons appertaining to debt securities called for
redemption and maturing after the relevant
redemption date, whose surrender has been waived as
provided in Section 1106 of the indentures, and
(4) debt securities and coupons of the series for whose
payment money has theretofore been deposited in
trust with the trustee or any paying agent or
segregated and held in trust by Cendant and
thereafter repaid to Cendant, as provided in
Section 1003 of the indentures, have been delivered
to the trustee for cancellation; or
(B) all debt securities of that series and, in the case of
(1) or (2) below, any appertaining coupons appertaining
not theretofore delivered to the trustee for cancellation
(1) have become due and payable,
(2) will become due and payable at their stated
maturity within one year, or
(3) if redeemable at Cendant's option, are to be called
for redemption within one year under arrangements
satisfactory to the trustee for the giving of
notice of redemption by the trustee in Cendant's
name at its expense, and Cendant, in the case of
(1), (2) or (3) above, has irrevocably deposited or
caused to be deposited with the trustee as trust
funds in trust for the purpose an amount, in the
currency in which the debt securities of that
series are payable. The amount shall be sufficient
to pay and discharge the entire indebtedness on the
debt securities not theretofore delivered to the
trustee for cancellation, for principal, premium if
any and interest to the date of the deposit, in the
case of debt securities which have become due and
payable, or to the stated maturity or redemption
date;
(2) Cendant has paid or caused to be paid all other sums payable by it
under this prospectus; and
(3) Cendant has delivered to the trustee an officers' certificate
and an opinion of counsel, each stating that all conditions
precedent provided here for relating to the satisfaction and
discharge of the indentures as to that series have been
complied with. (Section 401 of each indenture)
AMENDMENTS AND WAIVERS
The indentures will provide that at any time and from time to time,
Cendant and the trustee may, without the consent of any holder of debt
securities, enter into one or more supplemental indentures for specified
purposes, including, among other things,
o to cure ambiguities, defects or inconsistencies, or to make any
other provisions with respect to questions or matters arising
under the indentures, provided that this action shall not
adversely affect the interests of the holders in any material
respect,
o to effect or maintain the qualification of the indentures under
the Trust indenture Act, or
o to evidence the succession of another person to Cendant and the
assumption by any successor of Cendant's obligations in
accordance with the indentures and the debt securities.
(Section 901 of each indenture)
Other amendments and modifications of the indentures or the debt
securities may be made by Cendant and the trustee with the consent of the
holders of not less than a majority of the aggregate principal amount of
all of the then outstanding debt securities of any series.
However,
(1) no modification or amendment may, without the consent of the
holder of each affected outstanding debt security do the
following:
o change the stated maturity of the principal or any
installment of interest on any debt security,
o reduce the principal amount, the rate of interest or any
premium payable upon redemption,
o change any of Cendant's obligations to pay additional amounts
contemplated by Section 1005 of each indenture except as
contemplated and permitted by the provisions of the
indentures,
o reduce the amount of the principal of an original issue
discount security that would be due and payable upon a
declaration of acceleration of its maturity under section
502 of the indentures of the amount provable in
bankruptcy under section 504 of the indentures,
o adversely affect any right of repayment at the option of any
holder of any debt security,
o change any place of payment where any debt security, premium
or the interest is payable,
o change the currency in which any debt security, premium or
the interest is payable,
o impair the right to institute suit for the enforcement of
any payment on the debt security on or after the stated
maturity or, in the case of redemption or repayment at
the option of the holder, on or after the redemption date
or repayment date, or
o adversely affect any right to convert or manage any debt
securities as may be provided under section 301 of the
indentures, or
(2) no modification or amendment may, without the consent of the
holder of each affected outstanding debt security
o reduce the percent in principal amount of the outstanding
debt securities of any series, the consent of whose
holders is required for any supplemental indenture, for
any waiver of compliance with the provisions of the
indentures or defaults under the indentures and their
consequences provided for in the indentures, or
o reduce the requirements for quorum or voting.
GOVERNING LAW
The indentures and the debt securities will be governed by and
construed in accordance with the laws of the State of New York. The
indentures are subject to the provisions of the Trust indenture Act that
are required to be a part of the indentures and shall, to the extent
applicable, be governed by these provisions.
CERTAIN DEFINITIONS
Provided below is a summary of some of the defined terms used in the
indentures.
"Affiliate" of any specified person means any other person directly
or indirectly controlling or controlled by or under direct or indirect
common control with the specified person. For the purposes of this
definition, "control" when used with respect to any specified person means
the power to direct the management and policies of that person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise. The terms "controlling" and "controlled" have meanings
correlative to the above.
"Capital Stock" means any and all shares, interests, participations,
rights or equivalents, however designated, of Cendant's corporate stock or
any principal subsidiary.
"Company Request" or "Company Order" means a written request or order
signed in the name of Cendant by its chairman, its president, any vice
president, its treasurer or an assistant treasurer, and delivered to the
trustee.
"Debt" means notes, bonds, debt securities or other similar evidences
of indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of
time or both would be, an event of default.
"Fair Market Value" means the fair market value of the item in
question as determined by the board of directors acting in good faith and
in exercise of its fiduciary duties.
"Holder" means a person in whose name a debt security is registered
in the security register.
"Interest Payment Date" means the stated maturity of an installment
of interest on the debt securities.
"Issue Date" means the date of first issuance of the debt securities
under either indenture.
"Maturity", when used with respect to any debt securities, means the
date on which the principal of that debt security or an installment of
principal becomes due and payable, whether at the stated maturity or by
declaration of acceleration, notice of redemption, notice of option to
elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the chairman,
the president or a vice president, and by the treasurer, an assistant
treasurer, the secretary or an assistant secretary of Cendant, and
delivered to the trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for Cendant, including an employee of Cendant, and who shall be
acceptable to the trustee.
"Original Issue Discount security" means any debt security which
provides for an amount less than the principal amount to be due and payable
upon a declaration of acceleration of the maturity under Section 502 of the
indentures.
"Outstanding", when used with respect to debt securities, means, as
of the date of determination, all debt securities theretofore authenticated
and delivered under the indentures, except:
o debt securities theretofore cancelled by the trustee or delivered
to the trustee for cancellation;
o debt securities, or portions of the debt securities, for whose
payment, money in the necessary amount has been theretofore
deposited with the trustee or any paying agent other than
Cendant, in trust or set aside and segregated in trust by
Cendant if Cendant shall act as its own paying agent, for the
holders of these debt securities;
o debt securities, except to the extent provided in the
"Defeasance or Covenant Defeasance of the Indentures" section,
with respect to which Cendant has effected defeasance and/or
covenant defeasance as provided in the indenture; and
o mutilated, destroyed, lost or stolen debt securities which have
become or are about to become due and payable which have been
paid under section 306 of the indentures or in exchange for or
in lieu of which other debt securities have been authenticated
and delivered under the indenture, other than any debt
securities in respect of which there shall have been presented
to the trustee proof satisfactory to it that these debt
securities are held by a bona fide purchaser in whose hands the
debt securities are valid obligations of Cendant.
However, in determining whether the holders of the requisite
principal amount of outstanding debt securities have given any request,
demand, authorization, direction, notice, consent or waiver under the
indentures, and for the purpose of making the calculations required by the
Trust Indenture Act Section 313, debt securities owned by Cendant, any
other obligor upon the debt securities, any affiliate of Cendant or such
other obligor shall be disregarded and deemed not to be outstanding. Except
that, in determining whether the trustee shall be protected in making this
calculation or in relying upon any request, demand, authorization,
direction, notice, consent or waiver, only debt securities which the
trustee knows to be so owned shall be so disregarded. Debt securities so
owned which have been pledged in good faith may be regarded as outstanding
if the pledgee establishes to the satisfaction of the trustee the pledgee's
right so to act with respect to these debt securities and that the pledgee
is not Cendant, any other obligor upon the debt securities, any affiliate
of Cendant or such other obligor.
"Paying Agent" means any person, including Cendant acting as paying
agent, authorized by Cendant to pay the principal, premium if any, or
interest on any debt securities on behalf of Cendant.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Responsible Officer", when used with respect to the trustee, means:
o the chairman or any vice-chairman of the board of directors, the
chairman or any vice- chairman of the executive committee of
the board of directors, the chairman of the trust committee,
the president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier,
any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller,
o any other officer of the trustee customarily performing functions
similar to those performed by any of the above-designated
officers, and
o with respect to a particular corporate trust matter, any other
officer to whom that matter is referred because of his
knowledge of and familiarity with the particular subject.
"Rolling Period" shall mean with respect to any fiscal quarter, such
fiscal quarter and the three immediately preceding fiscal quarters
considered as a single accounting period.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305 of the indenture.
"Stated Maturity", when used with respect to any debt security, any
installment of principal or interest, means the date specified in this debt
security as the fixed date on which the principal of this debt security or
the installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at the time of
determination Cendant, directly and/or indirectly through one or more
subsidiaries, owns more than 50% of the voting stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which the indentures were executed, except
that any supplemental indenture executed under the indentures shall conform
to the requirements of the Trust Indenture Act as in effect on the date of
its execution.
"Trustee" means The Bank of Nova Scotia Trust Company of New York
until a successor trustee shall have become trustee under the applicable
provisions of the indentures. After that "trustee" shall mean that
successor trustee.
"Vice President", when used with respect to Cendant or the trustee,
means any vice president, whether or not designated by a number or a word
or words added before or after the title "vice president".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of
the board of directors, managers or trustees of a corporation. This is
irrespective of whether or not at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of
any contingency.
DESCRIPTION OF COMMON STOCK
The following description of Cendant 's common stock does not purport
to be complete and is subject to, and qualified in its entirety by
reference to, the more complete descriptions provided in Cendant's amended
and restated certificate of incorporation, and amended and restated
by-laws. The certificate of incorporation and by-laws are exhibits to this
registration statement.
The Company is authorized to issue up to 2,000,000,000 shares of
common stock, par value $.01 per share. As of August 6, 1999, there were
approximately 720,331,470 shares of common stock outstanding.
GENERAL
Subject to the rights of the holders of any shares of Cendant's
preferred stock which may at the time be outstanding, holders of common
stock are entitled to the dividends the board of directors may declare out
of its legally available funds. The holders of common stock will possess
exclusive voting rights in Cendant, except to the extent the board of
directors specifies voting power with respect to any preferred stock
issued. Except as hereinafter described, holders of common stock are
entitled to one vote for each share of common stock, but will not have any
right to cumulate votes in the election of directors. In the event of
liquidation, dissolution or winding up of Cendant, the holders of common
stock are entitled to receive, after payment of all of Cendant 's debts and
liabilities and of all sums to which holders of any preferred stock may be
entitled, the distribution of any remaining assets of Cendant . Holders of
the common stock will not be entitled to preemptive rights with respect to
any shares which may be issued. Any shares of common stock sold under this
prospectus will be fully paid and non-assessable upon issuance against full
payment of their purchase price. The common stock is listed on the New York
Stock Exchange under the symbol "CD."
CERTAIN PROVISIONS
The provisions of Cendant's certificate and by-laws which are
summarized below may be deemed to have an anti-takeover effect and may
delay, defer or prevent a tender offer or takeover attempt that a
stockholder might consider in its stockholder's best interest, including
those attempts that might result in a premium over the market price for the
shares held by stockholders.
CLASSIFIED BOARD
The board of directors is divided into three classes that are elected
for staggered three-year terms. A director may be removed by the
stockholders without cause only by the affirmative vote of the holders,
voting as a single class of 80% or more of the total number of votes
entitled to be cast by all holders of the voting stock, which shall include
all capital stock of Cendant which by its terms may vote on all matters
submitted to stockholders of Cendant generally. In additon, under the
by-laws
o an affirmative vote of 80% of the entire board of directors
will be required to change the number of directors, and
o a quorum, at any meeting of the board of directors, shall
consist of a majority of the entire board of directors.
SPECIAL MEETINGS OF STOCKHOLDERS
A special meeting of stockholders may be called only by the chairman
of the board of directors, the president or the board of directors under a
resolution approved by a majority of the entire board of directors.
QUORUM AT STOCKHOLDER MEETINGS
The holders of one-third of the shares entitled to vote at any
meeting of the stockholders, present in person or by proxy, shall
constitute a quorum at all stockholder meetings.
STOCKHOLDER ACTION BY WRITTEN CONSENT
Stockholder action by written consent instead of a meeting is
prohibited under the certificate. As a result, stockholder action can be
taken only at an annual or special meeting of stockholders. This prevents
the holders of a majority of the outstanding voting stock of Cendant from
using the written consent procedure to take stockholder action without
giving all the stockholders of Cendant entitled to vote on a proposed
action the opportunity to participate in determining the proposed action.
ADVANCE NOTICE OF STOCKHOLDER -- PROPOSED BUSINESS AT ANNUAL MEETINGS
The by-laws provide that for business to be properly brought before
an annual meeting by a stockholder, the stockholder must have given timely
notice in writing to Cendant's secretary. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal
executive offices of Cendant not less than 60 days nor more than 90 days
prior to the meeting. However, if there is a less than 70 days' notice or
prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received
not later than the close of business on the tenth day following the date on
which the notice of the date of the annual meeting was mailed or such
public disclosure was made. A stockholder's notice to the secretary must
provide as to each matter the stockholder proposes to bring before the
annual meeting:
o a brief description of the business desired to be brought
before the annual meeting,
o the name and address, as they appear on Cendant's books, of the
stockholder proposing that business,
o the class and number of shares of Cendant which are beneficially
owned by the stockholder, and
o any material interest of the stockholder in that business.
In addition, the by-laws provide that for a stockholder to properly
nominate a director at a meeting of stockholders, the stockholder must have
given timely notice in writing to the secretary of Cendant. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of Cendant:
o in the case of an annual meeting, at least 90 days prior to the
date of the last annual meeting of Cendant stockholders and
o with respect to a special meeting of stockholders, the close of
business on the 10th day following the date on which notice of
that meeting is first given to stockholders.
The stockholder's notice to the secretary must contain:
o the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated,
o a representation that the stockholder is holder of record of
common stock and intends to appear in person or by proxy at the
meeting to nominate each nominee,
o a description of all arrangements between the stockholder and each
nominee,
o any other information with respect to each nominee as would be
required to be included in a proxy statement filed under the
proxy rules of the commission, and
o the consent of each nominee to serve as director of Cendant if so
elected.
AMENDMENT OF GOVERNING DOCUMENTS
The certificate requires a super-majority of stockholders to approve
amendments to the certificate and the by-laws.
FAIR PRICE PROVISIONS
Under the Delaware General Corporation Law and the certificate, an
agreement of merger, sale, lease or exchange of all or substantially all of
Cendant's assets must be approved by the board of directors and adopted by
the holders of a majority of the outstanding shares of stock entitled to
vote. However, the certificate includes what generally is referred to as a
"fair price provision," which requires the affirmative vote of the holders
of at least 80% of the outstanding shares of capital stock entitled to vote
generally in the election of Cendant's directors, voting together as a
single class, to approve various business combination transactions,
including mergers, recapitalization and the issuance or transfer of
securities. This applies to business combination transactions of Cendant or
a subsidiary having an aggregate fair market value of $10 million or more,
involving Cendant or a subsidiary and an owner or any affiliate of an owner
of 5% or more of the outstanding shares of capital stock entitled to vote,
unless either
o the business combination is approved by a majority of disinterested
directors, or
o the shareholders receive a "fair price" for their securities and
various other procedural requirements are met. The certificate
provides that this provision may not be repealed or amended in
any respect except by the affirmative vote of the holders of
not less than 80% of the outstanding shares of capital stock
entitled to vote generally in the election of directors.
DESCRIPTION OF TRUST PREFERRED SECURITIES OF THE CENDANT TRUSTS
GENERAL
Each Cendant trust may issue, from time to time, only one series of
trust preferred securities having terms described in the prospectus
supplement relating to it. The declaration of each Cendant trust authorizes
the regular trustees of the Cendant trust to issue on behalf of that
Cendant trust one series of trust preferred securities. Each declaration
will be qualified as an indenture under the Trust Indenture Act. The
institutional trustee, an independent trustee, will act as indenture
trustee for the trust preferred securities for purposes of compliance with
the provisions of the Trust Indenture Act. The trust preferred securities
will have terms, including distributions, redemption, voting, liquidation
rights and other preferred, deferred or other special rights or
restrictions as shall be established by the regular trustees in accordance
with the applicable declaration or as shall be provided in the declaration
or made part of the declaration by the Trust Indenture Act. Reference is
made to any prospectus supplement relating to the trust preferred
securities of a Cendant trust for specific terms of the trust preferred
securities, including, to the extent applicable:
o the distinctive designation of the trust preferred securities,
o the number of trust preferred securities issued by the Cendant
trust,
o the annual distribution rate or method of determining that rate
for trust preferred securities issued by the Cendant trust and
the date or dates upon which the distributions shall be
payable; provided, however, that distributions on the trust
preferred securities shall, subject to any deferral provisions,
and any provisions for payment of defaulted distributions, be
payable on a quarterly basis to holders of the trust preferred
securities as of a record date in each quarter during which the
trust preferred securities are outstanding,
o any right of the Cendant trust to defer quarterly distributions
on the trust preferred securities as a result of an interest
deferral right exercised by Cendant on the subordinated debt
securities held by the Cendant trust,
o whether distributions on trust preferred securities shall be
cumulative, and, in the case of trust preferred securities
having cumulative distribution rights, the date or dates or
method of determining the date or dates from which
distributions on trust preferred securities shall be
cumulative,
o the amount or amounts which shall be paid out of the assets of
the Cendant trust to the holders of trust preferred securities
upon voluntary or involuntary dissolution, winding-up or
termination of such Cendant trust,
o the obligation or option, if any, of the Cendant trust to
purchase or redeem trust preferred securities and the price or
prices at which, the period or periods within which and the
terms and conditions upon which trust preferred securities
shall be purchased or redeemed, in whole or in part, under the
obligation or option with the redemption price to be specified
in the applicable prospectus supplement,
o the voting rights, if any, of trust preferred securities in
addition to those required by law, including the number of
votes per preferred security and any requirement for the
approval by the holders of trust preferred securities as a
condition to specified action or amendments to the declaration,
o the terms and conditions, if any, upon which subordinated debt
securities held by the Cendant trust may be distributed to
holders of trust preferred securities, and
o any other relevant rights, preferences, privileges, limitations
or restrictions of trust preferred securities consistent with
the declaration or with applicable law.
All trust preferred securities offered here will be guaranteed by
Cendant to the extent provided below under "Description of Trust
Guarantees." The trust guarantee issued to each Cendant trust, when taken
together with Cendant's back-up undertakings, consisting of its obligations
under each declaration including the obligation to pay expenses of each
Cendant trust, the applicable indenture and any applicable supplemental
indentures and the debt securities issued to any Cendant trust will provide
a full and unconditional guarantee by Cendant of amounts due on the trust
preferred securities issued by each Cendant trust. The payment terms of the
trust preferred securities will be the same as the debt securities issued
to the applicable Cendant trust by Cendant.
Each declaration authorizes the regular trustees to issue on behalf
of the applicable trust one series of common securities having terms
including distributions, redemption, voting, liquidation rights or
restrictions as shall be established by the regular trustees in accordance
with the declaration or as shall otherwise be provided in it. The terms of
the common securities issued by each Cendant trust will be substantially
identical to the terms of the trust preferred securities issued by the
Cendant trust, and the common securities will rank equably, and payments
will be made on them proportionately, with the trust preferred securities.
However, if an event of default under the declaration has occurred and is
continuing, the rights of the holders of the common securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of the trust
preferred securities. The common securities will also carry the right to
vote and to appoint, remove or replace any of the Cendant trustees of the
Cendant trust. All of the common securities of each Cendant trust will be
directly or indirectly owned by Cendant.
The financial statements of any Cendant trust that issues trust
preferred securities will be reflected in Cendant's consolidated financial
statements with the trust preferred securities shown as company-obligated
mandatorily-redeemable trust preferred securities of a subsidiary trust
under minority interest in consolidated subsidiaries. In a footnote to
Cendant's audited financial statements there will be included statements
that the applicable Cendant trust is wholly-owned by Cendant and that the
sole asset of such Cendant trust is the debt securities, indicating the
principal amount, interest rate and the maturity date.
DESCRIPTION OF TRUST GUARANTEES
Provided below is a summary of information concerning the trust
guarantees that will be executed and delivered by Cendant for the benefit
of the holders, from time to time, of trust preferred securities. Each
trust guarantee will be qualified as an indenture under the Trust Indenture
Act. Unless otherwise specified in the applicable prospectus supplement,
Wilmington Trust Company will act as independent indenture trustee for
Trust Indenture Act purposes under each trust guarantee (the "trust
preferred securities guarantee trustee"). The terms of each trust guarantee
will be those provided in the trust guarantee and those made part of the
trust guarantee by the Trust Indenture Act. The following summary does not
purport to be complete and is subject to and qualified in its entirety by
reference to the provisions of the form of trust guarantee and the Trust
Indenture Act. A copy of the form of trust guarantee has been filed as an
exhibit to the registration statement of which this prospectus is a part.
Each trust guarantee will be held by the trust preferred securities
guarantee trustee for the benefit of the holders of the trust preferred
securities of the applicable Cendant trust.
GENERAL
Unless otherwise specified in the applicable prospectus supplement,
under each trust guarantee, Cendant will agree, to the extent provided, to
pay in full to the holders of the trust preferred securities, the guarantee
payments, except to the extent paid by the Cendant trust, as and when due,
regardless of any defense, right of set-off or counterclaim which the
Cendant trust may have or assert. The following payments or distributions
with respect to the trust preferred securities are the guarantee payments,
and to the extent not paid by the Cendant trust, will be subject to the
trust guarantee (without duplication):
(1) any accrued and unpaid distributions that are required to be
paid on the trust preferred securities, to the extent the
Cendant trust shall have the requisite funds available,
(2) the redemption price, including all accrued and unpaid
distributions to the date of redemption, to the extent the
Cendant trust has the requisite funds available, with respect
to any trust preferred securities called for redemption by the
Cendant trust and
(3) upon a voluntary or involuntary dissolution, winding-up or
termination of the Cendant trust, other than in connection with
the distribution of debt securities to the holders of trust
preferred securities or the redemption of all of the trust
preferred securities upon maturity or redemption of the
subordinated debt securities, the lesser of
(a) the aggregate of the liquidation amount and all accrued
and unpaid distributions on the trust preferred
securities to the date of payment, to the extent the
Cendant trust has the requisite funds available or
(b) the amount of assets of the Cendant trust remaining for
distribution to holders of the trust preferred securities
in liquidation of the Cendant trust.
Cendant's obligation to make a guarantee payment may be satisfied by
direct payment of the required amounts by Cendant to the holders of trust
preferred securities or by causing the applicable Cendant trust to pay
these amounts to the holders.
Each trust guarantee will not apply to any payment of distributions
except to the extent the applicable Cendant trust shall have the requisite
funds available. If Cendant does not make interest or principal payments on
the subordinated debt securities purchased by the Cendant trust, the
Cendant trust will not pay distributions on the trust preferred securities
issued by the Cendant trust and will not have the requisite funds
available.
Cendant has also agreed to guarantee the obligations of each Cendant
trust with respect to the common securities (the "common guarantee") issued
by these Cendant trusts to the same extent as the trust guarantee. However,
if an event of default under the subordinated indenture has occurred and is
continuing, holders of trust preferred securities under the trust guarantee
shall have priority over holders of the common securities under the common
guarantee with respect to distributions and payments on liquidation,
redemption or otherwise.
CERTAIN COVENANTS OF CENDANT
Unless otherwise specified in the applicable prospectus supplement,
in each trust guarantee, Cendant will covenant that, so long as any trust
preferred securities issued by the applicable Cendant trust remain
outstanding, if there shall have occurred any event of default under the
trust guarantee or under the declaration of the Cendant trust, then:
(A) Cendant will not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its capital
stock, other than
(1) purchases or acquisitions of Cendant's capital stock in
connection with the satisfaction by Cendant of its
obligations under any employee or agent benefit plans or
the satisfaction by Cendant of its obligations under any
contract or security outstanding on the date of the event
requiring Cendant to purchase its capital stock,
(2) as a result of a reclassification of Cendant's capital
stock, other than into cash or other property, or the
exchange or conversion of one class or series of
Cendant's capital stock for another class or series of
Cendant's capital stock,
(3) the purchase of fractional interests in shares of
Cendant's capital stock under the conversion or exchange
provisions of that capital stock or the security being
converted or exchanged,
(4) dividends or distributions in Cendant's capital stock,
rights to acquire capital stock or repurchases or
redemptions of capital stock solely from the issuance or
exchange of capital stock or
(5) redemptions or repurchases of any rights outstanding
under a shareholder rights plan;
(B) Cendant shall not make any payment of interest, principal or
premium if any, on or repay, repurchase or redeem any debt
securities issued by Cendant which rank junior to the
debt securities issued to the applicable Cendant trust; and
(C) Cendant shall not make any guarantee payments with respect to
the above, other than under a trust guarantee.
MODIFICATION OF THE TRUST GUARANTEES; ASSIGNMENT
Except with respect to any changes that do not adversely affect the
rights of holders of trust preferred securities, in which case no consent
of the holders will be required, each trust guarantee may be amended only
with the prior approval of the holders of not less than a majority in
liquidation amount of the outstanding trust preferred securities of the
Cendant trust. The manner of obtaining the approval of holders of the trust
preferred securities will be provided in accompanying prospectus
supplement. All guarantees and agreements contained in a trust guarantee
shall bind the successors, assigns, receivers, trustees and representatives
of Cendant and shall inure to the benefit of the holders of the trust
preferred securities of the applicable Cendant trust then outstanding.
EVENTS OF DEFAULT
An event of default under a trust guarantee will occur upon Cendant's
failure to perform any of its payment or other obligations under the trust
guarantee. The holders of a majority in liquidation amount of the trust
preferred securities to which the trust guarantee relates have the right to
direct the time, method and place of conducting any proceeding for any
remedy available to the trust preferred securities guarantee trustee in
respect of the trust guarantee or to direct the exercise of any trust or
power conferred upon the trust preferred securities guarantee trustee under
the trust guarantee.
If the trust preferred securities guarantee trustee fails to enforce
the trust guarantee, any record holder of trust preferred securities to
which the trust guarantee relates may institute a legal proceeding directly
against Cendant to enforce the trust preferred securities guarantee
trustee's rights under the trust guarantee without first instituting a
legal proceeding against the applicable Cendant trust, the trust preferred
securities guarantee trustee or any other person or entity. Notwithstanding
the above, if Cendant has failed to make a guarantee payment under a trust
guarantee, a record holder of trust preferred securities to which that
trust guarantee relates may directly institute a proceeding against Cendant
for enforcement of such trust guarantee for the payment to the record
holder of the trust preferred securities to which that trust guarantee
relates of the principal of or interest on the applicable debt securities
on or after the respective due dates specified in the debt securities, and
the amount of the payment will be based on the holder's proportional share
of the amount due and owing on all of the trust preferred securities to
which that trust guarantee relates. Cendant has waived any right or remedy
to require that any action be brought first against the applicable Cendant
trust or any other person or entity before proceeding directly against
Cendant. The record holder in the case of the issuance of one or more
global trust preferred securities certificates will be The Depository Trust
Company acting at the direction of the beneficial owners of the trust
preferred securities.
Cendant will be required to provide annually to the trust preferred
securities guarantee trustee a statement as to the performance by Cendant
of some of its obligations under each outstanding trust guarantee and as to
any default in that performance.
INFORMATION CONCERNING THE TRUST PREFERRED SECURITIES GUARANTEE TRUSTEE
The trust preferred securities guarantee trustee, prior to the
occurrence of a default to a trust guarantee, undertakes to perform only
those duties as are specifically provided in that trust guarantee and,
after default with respect to that trust guarantee, shall exercise the same
degree of care as a prudent individual would exercise in the conduct of his
or her own affairs. Subject to this provision, the trust preferred
securities guarantee trustee is under no obligation to exercise any of the
powers vested in it by a trust guarantee at the request of any holder of
trust preferred securities to which that trust guarantee relates unless it
is offered reasonable indemnity against the costs, expenses and liabilities
that it might incur.
TERMINATION
Each trust guarantee will terminate as to the trust preferred
securities issued by the applicable Cendant trust upon full payment of the
redemption price of all trust preferred securities of that Cendant trust,
upon distribution of the debt securities held by that Cendant trust to the
holders of all of the trust preferred securities of the Cendant trust or
upon full payment of the amounts payable in accordance with the declaration
of the Cendant trust upon liquidation of that Cendant trust. Each trust
guarantee will continue to be effective or will be reinstated, if at any
time any holder of trust preferred securities issued by the applicable
Cendant trust must restore payment of any sums paid under the trust
preferred securities or the trust guarantee.
STATUS OF THE TRUST GUARANTEES
The trust guarantees will constitute senior unsecured obligations of
Cendant and will rank on a parity with all of Cendant's other senior
unsecured obligations.
Each trust guarantee will constitute a guarantee of payment and not
of collection. The guaranteed party may institute a legal proceeding
directly against Cendant to enforce its rights under that trust guarantee
without instituting a legal proceeding against any other person or entity.
GOVERNING LAW
The trust guarantees will be governed by and construed in accordance
with the law of the State of New York.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
Cendant may issue stock purchase contracts, including contracts
obligating holders to purchase from Cendant, and Cendant to sell to the
holders, a specified number of shares of common stock at a future date or
dates. The consideration per share of common stock or preferred stock may
be fixed at the time the stock purchase contracts are issued or may be
determined by reference to a specific formula provided in the stockpurchase
contracts. The stock purchase contracts may be issued separately or as a
part of units consisting of a stock purchase contract and debt securities,
trust preferred securities or debt obligations of third parties, including
U.S. treasury securities, securing the holders' obligations to purchase the
common stock under the stock purchase contracts. The stock purchase
contracts may require Cendant to make periodic payments to the holders of
the stock purchase units or vice versa, and these payments may be unsecured
or prefunded on some basis. The stock purchase contracts may require
holders to secure their obligations under the contracts in a specified
manner.
The applicable prospectus supplement will describe the terms of any
stock purchase contracts or stock purchase units. The description in the
prospectus supplement will not necessarily be complete, and reference will
be made to the stock purchase contracts, and, if applicable, collateral
arrangements and depositary arrangements, relating to these stock purchase
contracts or stock purchase units.
PLAN OF DISTRIBUTION
Cendant may sell the securities and the Cendant trusts may sell trust
preferred securities being offered here in any of, or any combination of,
the following ways:
o directly to purchasers;
o through agents;
o through underwriters; and/or
o through dealers.
Offers to purchase securities may be solicited directly by Cendant
and/or a Cendant trust or by agents designated by Cendant and/or a Cendant
trust from time to time. Any agent, who may be deemed to be an underwriter
as that term is defined in the Securities Act, involved in the offer or
sale of securities, will be named, and any commissions payable by Cendant
and/or a Cendant trust to that agent will be provided, in the prospectus
supplement. Unless otherwise indicated in a prospectus supplement, any
agent will be acting on a best efforts basis for the period of its
appointment, which is ordinarily five business days or less.
If an underwriter or underwriters are utilized in the offer or sale
of securities, Cendant and/or the applicable Cendant trust will execute an
underwriting agreement with the underwriters at the time of sale of the
securities to the underwriters and the names of the underwriters and the
principal terms of Cendant's and/or the applicable Cendant trust's
agreement with the underwriters will be provided in the appropriate
prospectus supplement.
If a dealer is utilized in the offer or sale of securities, Cendant
and/or the applicable Cendant trust will sell the securities to the dealer,
as principal. The dealer may then resell the securities to the public at
varying prices to be determined by the dealer at the time of resale. The
name of the dealer and the principal terms of Cendant's and/or the
applicable Cendant trust's agreement with the dealer will be provided in
the appropriate prospectus supplement.
Agents, underwriters, and dealers may be entitled under agreements
with Cendant and/or a Cendant trust to indemnification by Cendant and/or a
Cendant trust against specified liabilities, including liabilities under
the Securities Act. Agents, dealers and underwriters may also be customers
of, engage in transactions with, or perform services for Cendant in the
ordinary course of their business.
Underwriters, agents or their controlling persons may engage in
transactions with and perform services for Cendant in the ordinary course
of business.
The place and time of delivery for securities will be provided in the
accompanying prospectus supplement for these securities.
LEGAL OPINIONS
Certain matters of Delaware law relating to the validity of the trust
preferred securities will be passed upon on behalf of the Cendant trusts by
Skadden, Arps, Slate, Meagher & Flom LPP. The validity of the securities
offered here by Cendant will be passed on for Cendant by Eric J. Bock,
Esq., Vice President--Legal of Cendant. Mr. Bock holds shares of common
stock and options to acquire shares of common stock.
EXPERTS
The consolidated financial statements of Cendant and its consolidated
subsidiaries, except PHH Corporation ("PHH"), as of December 31, 1996 and
for the year ended December 31, 1996, incorporated in this prospectus by
reference from our annual report on Form 10-K/A for the year ended December
31, 1998 have been audited by Deloitte & Touche LLP, as stated in their
report, (which expresses an unqualified opinion and includes explanatory
paragraphs relating to the litigation as described in Note 18, and the
change in the method of recognizing revenue and membership solicitation
costs as described in Note 2) which is incorporated herein by reference.
The consolidated financial statements of PHH have been audited by KPMG LLP,
as stated in their report incorporated herein by reference. Such
consolidated financial statements of Cendant and its consolidated
subsidiaries are incorporated by reference herein in reliance upon the
respective reports of such firms given upon their authority as experts in
accounting and auditing. All of the foregoing firms are independent
auditors.
The financial statements of PHH Corporation for the year ended
December 31, 1996, are consolidated with those of Cendant. With respect to
the financial statements of PHH Corporation for the year ended December 31,
1996, the Cendant financial statements which are incorporated by reference
in this prospectus, have been incorporated by reference in reliance upon
the report of KPMG LLP, independent auditors, incorporated herein by
reference and upon the authority of such firm as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
Cendant files reports, proxy statements and other information with
the Securities and Exchange Commission. Cendant's filings with the
commission are available to the public over the Internet at the
commission's web site at http:www.sec.gov. You may also read and copy any
document Cendant files at the commission at the public reference rooms of
the commission in Washington, D.C., New York, New York and Chicago,
Illinois. Please call the commission at 1-800-SEC-0330 for further
information on the public reference rooms.
The commission allows Cendant to "incorporate by reference" the
information Cendant files with them, which means that Cendant can disclose
important information to you by referring you to those documents. The
information incorporated by reference is an important part of this
prospectus and information that Cendant files later with the commission
will automatically update and supersede this information. Cendant
incorporates by reference the documents listed below and any future filings
made with the commission under sections 13(a), 13(c), 14 or 15(d) of the
Exchange until we sell all of the securities.
o Annual Report on Form 10-K/A for the year ended December 31, 1998,
filed on October 13, 1999 with the SEC
o Quarterly Report on Form 10-Q/A for the quarter ended March 31,
1999, filed on October 13, 1999 with the SEC
o Quarterly Report on Form 10-Q/A for the quarter ended June 30,
1999, filed on October 13, 1999 with the SEC
o Current Report on Form 8-K dated April 22, 1999
o Current Report on Form 8-K dated May 25, 1999
o Current Report on Form 8-K dated June 2, 1999
o Current Report on Form 8-K dated June 22, 1999
o Current Report on Form 8-K dated July 9, 1999
o Current Report on Form 8-K dated July 16, 1999
o Current Report on Form 8-K dated July 23, 1999
o Current Report on Form 8-K dated September 16, 1999
o Current Report on Form 8-K dated October 5, 1999
o The description of our common stock contained in the registration
statements on Form 8-A dated July 27, 1984 and August 15, 1989
You may request a copy of these filings at no cost, by writing or
telephoning us at the following:
Investor Relations
Cendant Corporation
9 West 57th Street
New York, NY 10019
Telephone: (212) 413-1800
------------
You should rely only on the information contained or incorporated by
reference in this prospectus. Neither Cendant nor any underwriter has
authorized anyone to provide you with different information. Neither
Cendant nor any underwriter is making an offer to sell these securities in
any jurisdiction where the offer or sale is not permitted. Cendant should
not assume that the information contained or incorporated by reference in
this prospectus is accurate as of any date other than the date on the front
cover of this prospectus.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission
Registration Fee.......................... $247,648
*Trustee's Expenses....................... $10,000
*Accounting Fees and Expenses............. $100,000
*Legal Fees and Expenses.................. $100,000
*Miscellaneous............................ $200,000
Total Expenses............................ $657,648
- -------------
* Estimated for purposes of completing the information required pursuant
to this Item 14.
The Company will pay all fees and expenses associated with filing the
Registration Statement.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation)
by reason of the fact that such person is or was a director, officer,
employee or agent of such corporation or is or was serving at the request
of such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. The
indemnity may include expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding, provided
that such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interest of the corporation
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe such person's conduct was unlawful. A Delaware corporation
may indemnify directors, officers, employees and other agents of such
corporation in an action by or in the right of a corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the person to be indemnified has been adjudged to be liable to
the corporation. Where a director, officer, employee or agent of the
corporation is successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to above or in defense of any claim,
issue or matter therein, the corporation must indemnify such person against
the expenses (including attorneys' fees) which he or she actually and
reasonably incurred in connection therewith.
The Registrant's By-Laws contain provisions that provide for
indemnification of officers and directors and their heirs and distributees
to full extent permitted by, and in the manner permissible under, the
General Corporation Law of the State of Delaware.
As permitted by Section 102(b)(7) of the General Corporation Law of
the State of Delaware, registrant's Amended and Restated Certificate of
Incorporation contains a provision eliminating the personal liability of a
director to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director, subject to some exceptions.
The Company maintains, at its expense, a policy of insurance which
insures its directors and officers, subject to exclusions and deductions as
are usual in these kinds of insurance policies, against specified
liabilities which may be incurred in those capacities.
Article IV of the Declaration of Trust for the Trust limits the
liability to the Trust and designated other persons and provides for the
indemnification by the Trust or the Company of Trustees, the
Officers, other employees and designated other persons.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
EXHIBIT NO. DESCRIPTION PAGE NO.
1.1 Form of Underwriting Agreement (Standard
Provisions) for Debt Securities.
(Incorporated by reference to Exhibit 1.1
to the Company's Form S-3 Registration
Statement No. 333-45227)
1.2 Form of Underwriting Agreement (Standard
Provisions) for Common Stock. (Incorporated
by reference to Exhibit 1.2 to the
Company's Form S-3 Registration Statement
No. 333-45227)
1.3 Form of Underwriting Agreement (Standard
Provisions) for Preferred Stock.
(Incorporated by reference to Exhibit 1.3
to the Company's Form S-3 Registration
Statement No. 333-45227)
3.1 Amended and Restated Certificate of
Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1
to the Registrant's Form 10-Q for the
period ended April 30, 1996).
3.2 Form of Amended and Restated Certificate
of Incorporation of the Registrant as
proposed to be amended (incorporated by
reference to Appendix B to the Joint Proxy
Statement/Prospectus included as part of
the Registration Statement on Form S-4
of the Registrant, Registration No.
333-34517).
3.3 Amended and Restated By-Laws of the
Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration
Statement, No. 33-44453, on Form S-4 dated
December 19, 1991).
3.4 Form of Amended and Restated By-Laws of the
Registrant as proposed to be amended
(incorporated by reference to Appendix C of
the Registrant's Proxy Statement/Prospectus
included as part of the Registration
Statement of the Registrant, Registration
No. 333-34517).
4.1 Form of Certificate for the Company's
Common Stock, par value $.01 per share.
(Incorporated by reference to Exhibit 4.1
to the Company's Form S- 3 Registration
Statement No. 333-45227)
4.2 Senior Indenture between the Company and
The Bank of Nova Scotia Trust Company of
New York, as Trustee. (Incorporated by
reference to Exhibit 4.2 to the Company's
Form S-3 Registration Statement No. 333-
45227)
4.3 Form of Subordinated Indenture to be entered
into by the Company and The Bank of Nova
Scotia Trust Company of New York, as
Trustee. (Incorporated by reference to
Exhibit 4.3 to the Company's Form S-3
Registration Statement No. 333-45227)
4.4 Certificate of Trust of Cendant Capital III.
(Incorporated by reference to Exhibit 4.6
to the Company's Form S-3 Registration
Statement No. 333- 45227)
4.5 Declaration of Trust of Cendant Capital III.
(Incorporated by reference to Exhibit 4.9
to the Company's Form S-3 Registration
Statement No. 333- 45227)
4.6 Certificate of Trust of Cendant Capital IV.*
4.7 Declaration of Trust of Cendant Capital IV.*
4.8 Certificate of Trust of Cendant Capital V.*
4.9 Declaration of Trust of Cendant Capital V.*
4.10 Form of Amended and Restated Declaration of
Trust of Cendant Capital III, IV and V.
4.11 Form of Preferred Securities Guarantee
Agreement by Cendant Corporation with
respect to Cendant Capital III, Cendant
Capital IV, and Cendant Capital V.
4.12 Form of Purchase Contract Agreement between
Cendant Corporation and Bank One Trust Company,
N.A., as Purchase Contract Agent.
4.13 Form of Pledge Agreement among Cendant
Corporation, The Chase Manhattan Bank, as
Collateral Agent, and Bank One Trust Company, N.A.,
as Purchase Contract Agent.
4.14 Form of First Supplemental Indenture among
Cendant Corporation, The Chase Manhattan
Bank, as Collateral Agent, and Bank One, as
Purchase Contract Agent.
4.15 Form of Senior Debenture (included as part
of Exhibit 4.14).
4.16 Form of Preferred Security Certificate
(included as part of Exhibit 4.10).
4.17 Form of Income PRIDES certificate
(included as part of Exhibit 4.12).
4.18 Form of Growth PRIDES certificate
(included as part of Exhibit 4.12).
5.1 Opinion of Eric J. Bock, Esq. regarding
the legality of the Securities being
registered by the Company hereby.
5.2 Opinion of Skadden, Arps, Slate,
Meagher & Flom LLP regarding the legality
of the Securities being registered by the
Cendant Trusts hereby.
12.1 Statement re: Computation of Consolidated
Ratio of Earnings to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP related
to the financial statements of Cendant
Corporation.
23.2 Consent of KPMG LLP related to the
financial statements of PHH Corporation.
24.1 Power of Attorney (included on signature
page).*
25.1 Form T-1 Statement of Eligibility under
the Trust Indenture Act of 1939 of The Bank
of Nova Scotia Trust Company of New York,
as Trustee for the Debentures.
25.2 Form T-1 Statement of Eligibility under
the Trust Indenture Act of 1939 of
Wilmington Trust Company, as Trustee under
the Preferred Securities of Cendant Capital
III.
25.3 Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the Trust
Preferred Securities Guarantee of Cendant
Capital III.
25.4 Form T-1 Statement of Eligibility under
the Trust Indenture Act of 1939 of
Wilmington Trust Company, as Trustee under
the Preferred Securities of Cendant Capital
IV.
25.5 Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the Trust
Preferred Securities Guarantee of Cendant
Capital IV.
25.6 Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the
Preferred Securities of Cendant Capital V.
the Declaration of Trust of Cendant Capital
IV and the Declaration of Trust of Cendant
Capital V.
25.7 Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the Trust
Preferred Securities Guarantee of Cendant
Capital V.
99.1 Form of Rights Agreement among Cendant
Corporation and Bank One Trust Company, N.A.
* Previously filed.
ITEM 17. UNDERTAKINGS.
Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effect amendment to this registration statement:
(i) To include any prospectus required by Section 10(a) (3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment will
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time will be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
Each of the undersigned registrants hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of such registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement will be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time will be deemed to be the initial
bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cendant
Corporation certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement, to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on
October 13, 1999.
CENDANT CORPORATION
By:/s/James E. Buckman
-----------------------------------------
James E. Buckman
Vice Chairman
General Counsel and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
* Chairman of the Board,
____________________________ President, Chief October 13, 1999
(Henry R. Silverman) Executive Officer and
Director
*
____________________________ Vice Chairman, General October 13, 1999
(James E. Buckman) Counsel and Director
*
____________________________ Vice Chairman and Director October 13, 1999
(Stephen P. Holmes)
*
____________________________ Vice Chairman and Director October 13, 1999
(Michael P. Monaco)
* Senior Executive Vice
____________________________ President and Chief October 13, 1999
(David M. Johnson) Financial Officer
(Principal Financial
Officer)
/s/ Jon F. Danski Executive Vice President
____________________________ and Chief Accounting
(Jon F. Danski) Officer (Principal October 13, 1999
Accounting Officer)
* Director October 13, 1999
____________________________
(Robert D. Kunisch)
* Director
____________________________ October 13, 1999
(John D. Snodgrass)
* Director
____________________________ October 13, 1999
(Leonard S. Coleman)
*
____________________________ Director October 13, 1999
(Martin L. Edelman)
*
____________________________ Director October 13, 1999
(Dr. Carole G. Hankin)
*
____________________________ Director October 13, 1999
(The Rt. Hon. Brian Mulroney,
P.C., LL.D.)
*
____________________________ Director October 13, 1999
(Robert W. Pittman)
*
____________________________ Director October 13, 1999
(Leonard Schutzman)
*
____________________________ Director October 13, 1999
(Robert F. Smith)
*
____________________________ Director October 13, 1999
(Robert E. Nederlander)
*By:/s/ Eric J. Bock
________________________
(Eric J. Bock)
attorney-in-fact
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cendant
Capital III certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and that it has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of
New York on October 13, 1999.
CENDANT CAPITAL III
By:/s/Michael P. Monaco
_____________________________________
Michael P. Monaco,
Trustee
By:/s/James E. Buckman
_____________________________________
James E. Buckman,
Trustee
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cendant
Capital IV certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and that it has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of
New York on October 13, 1999.
CENDANT CAPITAL IV
By:/s/Michael P. Monaco
_____________________________________
Michael P. Monaco,
Trustee
By:/s/James E. Buckman
_____________________________________
James E. Buckman,
Trustee
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cendant
Capital V certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and that it has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York on
October 13, 1999.
CENDANT CAPITAL V
By:/s/Michael P. Monaco
_____________________________________
Michael P. Monaco,
Trustee
By:/s/James E. Buckman
_____________________________________
James E. Buckman,
Trustee
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE NO.
1.1 Form of Underwriting Agreement (Standard
Provisions) for Debt Securities.
(Incorporated by reference to Exhibit 1.1
to the Company's Form S-3 Registration
Statement No. 333-45227)
1.2 Form of Underwriting Agreement (Standard
Provisions) for Common Stock. (Incorporated
by reference to Exhibit 1.2 to the
Company's Form S- 3 Registration Statement
No. 333-45227)
1.3 Form of Underwriting Agreement (Standard
Provisions) for Preferred Stock.
(Incorporated by reference to Exhibit 1.3
to the Company's Form S- 3 Registration
Statement No. 333-45227)
3.1 Amended and Restated Certificate of
Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1
to the Registrant's Form 10-Q for the
period ended April 30, 1996).
3.2 Form of Amended and Restated Certificate
of Incorporation of the Registrant as
proposed to be amended (incorporated by
reference to Appendix B to the Joint
Proxy Statement/Prospectus included as
part of the Registration Statement on
Form S-4 of the Registrant, Registration
No. 333-34517).
3.3 Amended and Restated By-Laws of the
Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration
Statement, No. 33-44453, on Form S-4 dated
December 19, 1991).
3.4 Form of Amended and Restated By-Laws of the
Registrant as proposed to be amended
(incorporated by reference to Appendix C of
the Registrant's Proxy Statement/Prospectus
included as part of the Registration
Statement of the Registrant, Registration
No. 333-34517).
4.1 Form of Certificate for the Company's
Common Stock, par value $.01 per share.
(Incorporated by reference to Exhibit 4.1
to the Company's Form S- 3 Registration
Statement No. 333-45227)
4.2 Senior Indenture between the Company and
The Bank of Nova Scotia Trust Company of
New York, as Trustee. (Incorporated by
reference to Exhibit 4.2 to the Company's
Form S-3 Registration Statement No. 333-
45227)
4.3 Form of Subordinated Indenture to be
entered into by the Company and The Bank of
Nova Scotia Trust Company of New York, as
Trustee. (Incorporated by reference to
Exhibit 4.3 to the Company's Form S-3
Registration Statement No. 333-45227)
4.4 Certificate of Trust of Cendant Capital
III. (Incorporated by reference to Exhibit
4.6 to the Company's Form S-3 Registration
Statement No. 333- 45227)
4.5 Declaration of Trust of Cendant Capital III.
(Incorporated by reference to Exhibit 4.9
to the Company's Form S-3 Registration
Statement No. 333- 45227)
4.6 Certificate of Trust of Cendant Capital IV.*
4.7 Declaration of Trust of Cendant Capital IV.*
4.8 Certificate of Trust of Cendant Capital V.*
4.9 Declaration of Trust of Cendant Capital V.*
4.10 Form of Amended and Restated Declaration of
Trust of Cendant Capital III, IV and V.
4.11 Form of Preferred Securities Guarantee Agreement
by Cendant Corporation with respect to
Cendant Capital III, Cendant Capital IV,
and Cendant Capital V.
4.12 Form of Purchase Contract Agreement between
Cendant Corporation and Bank One Trust Company, N.A.,
as Purchase Contract Agent.
4.13 Form of Pledge Agreement among Cendant
Corporation, The Chase Manhattan Bank, as
Collateral Agent, and Bank One Trust Company, N.A.,
as Purchase Contract Agent.
4.14 Form of First Supplemental Indenture among
Cendant Corporation, The Chase Manhattan
Bank, as Collateral Agent, and Bank One, as
Purchase Contract Agent.
4.15 Form of Senior Debenture (included as part
of Exhibit 4.14).
4.16 Form of Preferred Security Certificate
(included as part of Exhibit 4.10).
4.17 Form of Income PRIDES certificate (included as
part of Exhibit 4.12).
4.18 Form of Growth PRIDES certificate (included
as part of Exhibit 4.12).
5.1 Opinion of Eric J. Bock, Esq. regarding the
legality of the Securities being registered
by the Company hereby.
5.2 Opinion of Skadden, Arps, Slate, Meagher &
Flom LLP regarding the legality of the
Securities being registered by the Cendant
Trusts hereby.
12.1 Statement re: Computation of Consolidated
Ratio of Earnings to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP related to
the financial statements of Cendant
Corporation.
23.2 Consent of KPMG LLP related to the financial
statements of PHH Corporation.
24.1 Power of Attorney (included on signature page).*
25.1 Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939 of The Bank of
Nova Scotia Trust Company of New York, as
Trustee for the Debentures.
25.2 Form T-1 Statement of Eligibility under
the Trust Indenture Act of 1939 of
Wilmington Trust Company, as Trustee under
the Preferred Securities of Cendant Capital
III.
25.3 Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the Trust
Preferred Securities Guarantee of Cendant
Capital III.
25.4 Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the
Preferred Securities of Cendant Capital IV.
25.5 Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the Trust
Preferred Securities Guarantee of Cendant
Capital IV.
25.6 Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the
Preferred Securities of Cendant Capital V.
the Declaration of Trust of Cendant Capital
IV and the Declaration of Trust of Cendant
Capital V.
25.7 Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the Trust
Preferred Securities Guarantee of Cendant
Capital V.
99.1 Form of Rights Agreement among Cendant
Corporation and Bank One Trust Company, N.A..
* Previously filed.
Exhibit 4.10
FORM OF
AMENDED AND RESTATED DECLARATION
OF TRUST
Cendant Capital III, Cendant Capital IV and Cendant Capital V
Dated as of [ ]
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 DEFINITIONS...............................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION..........................9
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES............................9
SECTION 2.3 REPORTS BY THE INSTITUTIONAL TRUSTEE.....................10
SECTION 2.4 PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE................10
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.........10
SECTION 2.6 EVENTS OF DEFAULT; WAIVER................................10
SECTION 2.7 EVENT OF DEFAULT; NOTICE.................................12
ARTICLE III
ORGANIZATION
SECTION 3.1 NAME.....................................................12
SECTION 3.2 OFFICE...................................................12
SECTION 3.3 PURPOSE..................................................12
SECTION 3.4 AUTHORITY................................................13
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST...........................13
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES................13
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE
TRUSTEES...............................................16
SECTION 3.8 POWERS AND DUTIES OF THE INSTITUTIONAL TRUSTEE...........16
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE
INSTITUTIONAL TRUSTEE..................................18
SECTION 3.10 CERTAIN RIGHTS OF INSTITUTIONAL TRUSTEE..................20
SECTION 3.11 DELAWARE TRUSTEE.........................................22
SECTION 3.12 EXECUTION OF DOCUMENTS...................................22
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.............................................22
SECTION 3.14 DURATION OF TRUST........................................22
SECTION 3.15 MERGERS..................................................22
ARTICLE IV
SPONSOR
SECTION 4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES..................24
SECTION 4.2 RIGHTS AND RESPONSIBILITIES OF THE SPONSOR...............24
SECTION 4.3 RIGHT TO PROCEED.........................................24
SECTION 4.4 EXPENSES.................................................25
ARTICLE V
TRUSTEES
SECTION 5.1 NUMBER OF TRUSTEES.......................................25
SECTION 5.2 DELAWARE TRUSTEE.........................................26
SECTION 5.3 INSTITUTIONAL TRUSTEE; ELIGIBILITY.......................26
SECTION 5.4 CERTAIN QUALIFICATIONS OF REGULAR TRUSTEES AND
DELAWARE TRUSTEE GENERALLY.............................27
SECTION 5.5 REGULAR TRUSTEES.........................................27
SECTION 5.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.........28
SECTION 5.7 VACANCIES AMONG TRUSTEES.................................29
SECTION 5.8 EFFECT OF VACANCIES......................................29
SECTION 5.9 MEETINGS.................................................29
SECTION 5.10 DELEGATION OF POWER......................................30
SECTION 5.11 MERGER, CONVERSION. CONSOLIDATION OR SUCCESSION
TO BUSINESS............................................30
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS............................................30
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 GENERAL PROVISIONS REGARDING SECURITIES..................31
SECTION 7.2 PAYING AGENT.............................................31
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 TERMINATION OF TRUST.....................................32
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 TRANSFER OF SECURITIES...................................33
SECTION 9.2 TRANSFER OF CERTIFICATES.................................33
SECTION 9.3 DEEMED SECURITY HOLDERS..................................33
SECTION 9.4 BOOK ENTRY INTERESTS.....................................34
SECTION 9.5 NOTICES TO CLEARING AGENCY...............................34
SECTION 9.6 APPOINTMENT OF SUCCESSOR CLEARING AGENCY.................35
SECTION 9.7 DEFINITIVE PREFERRED SECURITY CERTIFICATES...............35
SECTION 9.8 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES........35
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS
OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 LIABILITY................................................36
SECTION 10.2 EXCULPATION..............................................36
SECTION 10.3 FIDUCIARY DUTY...........................................37
SECTION 10.4 INDEMNIFICATION..........................................37
SECTION 10.5 OUTSIDE BUSINESSES.......................................40
ARTICLE XI
ACCOUNTING
SECTION 11.1 FISCAL YEAR..............................................40
SECTION 11.2 CERTAIN ACCOUNTING MATTERS...............................40
SECTION 11.3 BANKING..................................................41
SECTION 11.4 WITHHOLDING..............................................41
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 AMENDMENTS...............................................41
SECTION 12.2 MEETINGS OF THE HOLDERS OF SECURITIES;
ACTION BY WRITTEN CONSENT..............................43
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL
TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL
TRUSTEE................................................44
SECTION 13.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE.......45
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 NOTICES..................................................46
SECTION 14.2 GOVERNING LAW............................................47
SECTION 14.3 INTENTION OF THE PARTIES.................................47
SECTION 14.4 HEADINGS.................................................47
SECTION 14.5 SUCCESSORS AND ASSIGNS...................................47
SECTION 14.6 PARTIAL ENFORCEABILITY...................................47
SECTION 14.7 COUNTERPARTS.............................................47
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
Cendant Capital III, Cendant Capital IV and Cendant Capital V
[ DATE ]
AMENDED AND RESTATED DECLARATION OF TRUST (the "Declaration")
dated and effective as of [ ] by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the Holders (as defined herein), from
time to time, of the securities representing undivided beneficial interests
in the assets of the Trust to be issued pursuant to this Declaration;
WHEREAS, [ ] (the "Original Delaware Trustee"), [ ], as
trustees, and the Sponsor established Cendant Capital III, Cendant Capital
IV and Cendant Capital V (the "Trust"), a trust under the Business Trust
Act (as defined herein) pursuant to a Declaration of Trust dated as of
[DATE] (the "Original Declaration") and a Certificate of Trust filed with
the Secretary of State of the State of Delaware on [DATE] for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust have
been issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original
Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and
that this Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will
be held in trust for the benefit of the Trust and Holders, from time to
time, of the securities representing undivided beneficial interests in the
assets of the Trust issued hereunder, subject to the provisions of this
Declaration.
ARTICLE II
INTERPRETATION AND DEFINITIONS
SECTION 2.1 DEFINITIONS
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration" are
to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections
and Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration
or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in
Rule 405 of the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Applicable Ownership Interest" has the meaning set forth
in Annex I hereto.
"Applicable Principal Amount" has the meaning set forth
in Annex I hereto.
"Authorized Newspaper" means a daily newspaper, in the
English language, customarily published on each day that is a Business Day
in The City of New York, whether or not published on days that are Legal
Holidays, and of general circulation in The City of New York. The
Authorized Newspaper for the Purposes of the Reset Spread Announcement
Date, is currently anticipated to be The Wall Street Journal.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Book Entry Interest" means a beneficial interest in a
Global Certificate, ownership and transfers of which shall be maintained
and made through book entries by a Clearing Agency as described in Section
9.4.
"Business Day" means any day other than Saturday, Sunday
or any day on which banking institutions in New York City, in the State of
New York, are permitted or required by any applicable law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq., as it may be amended from
time to time, or any successor legislation.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is
acting as depositary for the Preferred Securities and in whose name or in
the name of a nominee of that organization shall be registered a Global
Certificate and which shall undertake to effect book entry transfers and
pledges of the Preferred Securities.
"Clearing Agency Participant" means a broker, dealer,
bank, other financial institution or other Person for whom from time to
time the Clearing Agency effects book entry transfers and pledges of
securities deposited with the Clearing Agency.
"Closing Date" means the "Closing Time" and each "Date of
Delivery" under the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation.
"Commission" means the Securities and Exchange
Commission.
"Common Security" has the meaning specified in Section
7.1.
"Common Securities Guarantee" means the guarantee
agreement to be dated as of [ ] of the Sponsor in respect of the Common
Securities.
"Common Security Certificate" means a definitive
certificate in fully registered form representing a Common Security
substantially in the form of Exhibit A-2.
"Company Indemnified Person" means (a) any Regular
Trustee; (b) any Affiliate of any Regular Trustee; (c) any officers,
directors, shareholders, members, partners, employees, representatives or
agents of any Regular Trustee; or (d) any officer, employee or agent of the
Trust or its Affiliates.
"Corporate Trust Office" means the office of the
Institutional Trustee at which the corporate trust business of the
Institutional Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Declaration is
located at
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the
Trust or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Cendant Corporation, a Delaware
corporation, in its capacity as issuer of the Debentures under the
Indenture.
"Debenture Trustee" means [ ], as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means
such successor trustee.
"Debentures" means the series of ____% Subordinated
Debentures to be issued by the Debenture Issuer under the Indenture, a
specimen certificate for such series of Debentures being Exhibit B.
"Debenture Repayment Price" means, with respect to any
Debentures put to the Sponsor on [ ], an amount per Debenture equal to
$[ ], plus accumulated and unpaid interest (including deferred interest, if
any).
"Definitive Preferred Security Certificates" has the
meaning set forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section
5.2.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person;
or
(b) in any other case, in the name of such Person by one
or more Authorized Officers of that Person.
"Direct Action" has the meaning specified in Section
3.8(e).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial
Clearing Agency.
"Event of Default" in respect of the Securities means an
Event of Default (as defined in the Indenture) has occurred and is
continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time, or any successor legislation.
"Failed Remarketing" has the meaning specified in Section
5.4(b) of the Purchase Contract Agreement.
"Fiduciary Indemnified Person" has the meaning set forth
in Section 10.4(b).
"Global Certificate" has the meaning set forth in Section
9.4.
"Holder" or "holder" means a Person in whose name a
Certificate representing a Security is registered, such Person being a
beneficial owner within the meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person
or a Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of [DATE], among
the Debenture Issuer and the Debenture Trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the
eligibility requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth
in Section 3.8(c).
"Investment Company" means an investment company as
defined in the Investment Company Act.
"Investment Company Act" means the Investment Company Act
of 1940, as amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in
Annex I hereto.
"Legal Action" has the meaning set forth in Section
3.6(g).
"Majority in liquidation amount of the Securities" means,
except as provided in the terms and conditions of the Preferred Securities
set forth in Annex I hereto or by the Trust Indenture Act, Holder(s) of
outstanding Securities voting together as a single class or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the
record owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation
or otherwise, plus accrued and unpaid Distributions to the date upon which
the voting percentages are determined) of all outstanding Securities of the
relevant class.
"Ministerial Action" has the meaning set forth in the
terms of the Securities as set forth in Annex I.
"Officers' Certificate" means, with respect to any
Person, a certificate signed by two Authorized Officers of such Person. Any
Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Declaration shall include:
(a) a statement that the officers signing the Officers'
Certificate have read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by the officer in rendering the Officers'
Certificate;
(c) a statement that such officers have made such examination or
investigation as, in such officers' opinion, is necessary to enable such
officers to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officers,
such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 7.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Pledge Agreement" means the Pledge Agreement dated as of
[ ] among the Sponsor, [ ], as collateral agent (the "Collateral Agent"),
and Wilmington Trust Company, as purchase contract agent (the "Purchase
Contract Agent").
"Preferred Securities Guarantee" means the guarantee
agreement to be dated as of [DATE] of the Sponsor in respect of the
Preferred Securities.
"Preferred Security" has the meaning specified in Section
7.1.
"Preferred Security Beneficial Owner" means, with respect
to a Book Entry Interest, a Person who is the beneficial owner of such Book
Entry Interest, as reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing Agency
(directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate
representing a Preferred Security substantially in the form of Exhibit A-1.
"Pricing Agreement" means the pricing agreement between
the Trust, the Debenture Issuer, and the underwriters designated by the
Regular Trustees with respect to the offer and sale of the Preferred
Securities.
"Primary Treasury Dealer" has the meaning set forth in
Annex I hereto.
"Purchase Contract Agreement" means the Purchase Contract
Agreement dated as of [ ] among Wilmington Trust Company, as Purchase
Contract Agent, and the Sponsor.
"Purchase Contract Settlement Date" means [ ].
"Put Option" has the meaning set forth in Annex I hereto.
"Quorum" means a majority of the Regular Trustees or, if
there are only two Regular Trustees, both of them.
"Quotation Agent" has the meaning set forth in Annex I
hereto.
"Redemption Amount" has the meaning set forth in Annex I
hereto.
"Redemption Price" has the meaning set forth in Annex I
hereto.
"Regular Trustee" has the meaning set forth in Section
5.1.
"Related Party" means, with respect to the Sponsor, any
direct or indirect wholly owned subsidiary of the Sponsor or any other
Person that owns, directly or indirectly, 100% of the outstanding voting
securities of the Sponsor.
"Reset Agent" means a nationally recognized investment
banking firm chosen by the Sponsor to determine the Reset Rate. It is
currently anticipated that Merrill Lynch & Co. will act in such capacity.
"Reset Announcement Date" means the tenth (10) Business
Day immediately preceding the Purchase Contract Settlement Date.
"Reset Rate" means the distribution rate per annum (to be
determined by the Reset Agent), equal to the sum of (X) the Reset Spread
and (Y) the rate of interest on the Two-Year Benchmark Treasury in effect
on the third Business Day immediately preceding Purchase Contract
Settlement Date, that the Preferred Securities should bear in order for the
Preferred Securities to have an approximate market value of [ %] of their
aggregate liquidation amount on the third Business Day immediately
preceding the Purchase Contract Settlement Date; provided, that the Sponsor
may limit such Reset Spread to be no higher than [ ] basis points [ %].
"Reset Spread" means a spread amount to be determined by
the Reset Agent on the tenth (10) Business Day immediately preceding the
Purchase Contract Settlement Date.
"Responsible Officer" means, with respect to the
Institutional Trustee, any officer within the Corporate Trust Office of the
Institutional Trustee, including, without limitation, any vice-president,
any assistant vice-president, any assistant secretary, the treasurer, any
assistant treasurer or other officer of the Corporate Trust Office of the
Institutional Trustee assigned by the Institutional Trustee to administer
its corporate trust matters and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company
Act.
"Securities" means the Common Securities and the
Preferred Securities.
"Securities Guarantees" means the Common Securities
Guarantee and the Preferred Securities Guarantee.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
"Sponsor" means Cendant Corporation, a Delaware
corporation, or any successor entity in a merger or consolidation, in its
capacity as sponsor of the Trust.
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
"Tax Event" has the meaning set forth in Annex I hereto.
"Tax Event Redemption" has the meaning set forth in Annex
I hereto.
"Tax Event Redemption Date" has the meaning set forth in
Annex I hereto.
" [ ]% in liquidation amount of the Securities" means,
except as provided in the terms of the Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding
Preferred Securities or Holders of outstanding Common Securities voting
separately as a class, who are the record owners of [ ]% or more of the
aggregate liquidation amount (including the stated amount that would be
paid on repayment, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined)
of all outstanding Securities of the relevant class.
"Termination Event" has the meaning set forth in Section
1 of the Purchase Contract Agreement.
"Treasury Portfolio" has the meaning set forth in Annex I
hereto.
"Treasury Portfolio Purchase Price" has the meaning set
forth in Annex I hereto.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by
the United States Treasury, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).
"Treasury Securities" has the meaning set forth in
Section 1 of the Purchase Contract Agreement.
"Trustee" or "Trustees" means each Person who has signed
this Declaration as a trustee, so long as such Person shall continue in
office in accordance with the terms hereof, and all other Persons who may
from time to time be duly appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and references herein to a Trustee
or the Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended from time to time, or any successor legislation.
"Two-Year Benchmark Treasury" means direct obligations of
the United States (which may be obligations traded on a when-issued basis
only) having a maturity comparable to the remaining term to maturity of the
Preferred Securities, as agreed upon by the Sponsor and the Reset Agent.
The rate for the Two-Year Benchmark Treasury will be the bid side rate
displayed at 10:00 A.M., New York City time, on the third Business Day
immediately preceding the Purchase Contract Settlement Date in the Telerate
system (or if the Telerate system is (a) no longer available on the third
Business Day immediately preceding the Purchase Contract Settlement Date or
(b) in the opinion of the Reset Agent (after consultation with the Sponsor)
no longer an appropriate system from which to obtain such rate, such other
nationally recognized quotation system as, in the opinion of the Reset
Agent (after consultation with the Sponsor) is appropriate). If such rate
is not so displayed, the rate for the Two-Year Benchmark Treasury shall be,
as calculated by the Reset Agent, the yield to maturity for the Two-Year
Benchmark Treasury, expressed as a bond equivalent on the basis of a year
of 365 or 366 days, as applicable, and applied on a daily basis, and
computed by taking the arithmetic mean of the secondary market bid rates,
as of 10:30 A.M., New York City time, on the third Business Day immediately
preceding the Purchase Contract Settlement Date of three leading United
States government securities dealers selected by the Reset Agent (after
consultation with the Sponsor) (which may include the Reset Agent or an
Affiliate thereof).
"Underwriting Agreement" means the Underwriting Agreement
for the offering and sale of Preferred Securities.
ARTICLE III
TRUST INDENTURE ACT
SECTION 3.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall,
to the extent applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by ss.ss. 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(d) Any application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 3.2 LISTS OF HOLDERS OF SECURITIES.
(b) Each of the Sponsor and the Regular Trustees, on behalf of the
Trust, shall provide the Institutional Trustee (i) within 14 days after
each record date for payment of Distributions, a list, in such form as the
Institutional Trustee may reasonably require, of the names and addresses of
the Holders of the Securities ("List of Holders") as of such record date,
provided that neither the Sponsor nor the Regular Trustees, on behalf of
the Trust, shall be obligated to provide such List of Holders at any time
the List of Holders does not differ from the most recent List of Holders
given to the Institutional Trustee by the Sponsor and the Regular Trustees
on behalf of the Trust, and (ii) at any other time, within 30 days of
receipt by the Trust of a written request by the Institutional Trustee for
a List of Holders as of a date no more than 14 days before such List of
Holders is given to the Institutional Trustee. The Institutional Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in the Lists of Holders given to it or which it
receives in the capacity as Paying Agent (if acting in such capacity),
provided that the Institutional Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(d) The Institutional Trustee shall comply with its obligations
under ss.ss. 311(a), 310(b) and 312(b) of the Trust Indenture Act.
SECTION 3.3 REPORTS BY THE INSTITUTIONAL TRUSTEE.
Within 60 days after [ ] of each year, commencing [ ], the
Institutional Trustee shall provide to the Holders of the Preferred
Securities such reports as are required by ss.313 of the Trust Indenture
Act, if any, in the form and in the manner provided by ss.313 of the Trust
Indenture Act. The Institutional Trustee shall also comply with the
requirements of ss.313(d) of the Trust Indenture Act.
SECTION 3.4 PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE.
Each of the Sponsor and the Regular Trustees, on behalf of the
Trust, shall provide to the Institutional Trustee such documents, reports
and information as required by ss.314 (if any) and the compliance
certificate required by ss.314 of the Trust Indenture Act in the form, in
the manner and at the times required by ss.314 of the Trust Indenture Act.
SECTION 3.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees, on behalf of the
Trust, shall provide to the Institutional Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Declaration that relate to any of the matters set forth in ss. 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given by
an officer pursuant to ss. 314(c) (1) may be given in the form of an
Officers' Certificate.
SECTION 3.6 EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the Debentures
(a "Super Majority") to be waived under the Indenture, the Event
of Default under this Declaration may only be waived by the vote
of the Holders of at least the proportion in liquidation amount
of the Preferred Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of ss.
316(a) (1)(B) of the Trust Indenture Act and such ss. 316(a) (1) (B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and
the Preferred Securities, as permitted by the Trust Indenture Act. Upon
such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Preferred Securities arising therefrom shall be
deemed to have been cured, for every purpose of this Declaration, but no
such waiver shall extend to any subsequent or other default or an Event of
Default with respect to the Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Preferred Securities
of an Event of Default with respect to the Preferred Securities shall also
be deemed to constitute a waiver by the Holders of the Common Securities of
any such Event of Default with respect to the Common Securities for all
purposes of this Declaration without any further act, vote, or consent of
the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such
Event of Default under this Declaration as provided below in this
Section 2.6(b), the Event of Default under this Declaration shall
also not be waivable; or
(ii) requires the consent or vote of a Super Majority to
be waived, except where the Holders of the Common Securities are
deemed to have waived such Event of Default under this Declaration
as provided below in this Section 2.6(b), the Event of Default
under this Declaration may only be waived by the vote of the
Holders of at least the proportion in liquidation amount of the
Common Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to
the Common Securities and its consequences until all Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured, waived or
otherwise eliminated, the Institutional Trustee will be deemed to be acting
solely on behalf of the Holders of the Preferred Securities and only the
Holders of the Preferred Securities will have the right to direct the
Institutional Trustee in accordance with the terms of the Securities. The
foregoing provisions of this Section 2.6(b) shall be in lieu of ss.ss.
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such ss.ss.
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions of this
Section 2.6(b), upon such waiver, any such default shall cease to exist and
any Event of Default with respect to the Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other
default or Event of Default with respect to the Common Securities or impair
any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default with
respect to the Preferred Securities under this Declaration. Any waiver of
an Event of Default under the Indenture by the Institutional Trustee at the
direction of the Holders of the Preferred Securities shall also be deemed
to constitute a waiver by the Holders of the Common Securities of the
corresponding Event of Default under this Declaration with respect to the
Common Securities for all purposes of this Declaration without further act,
vote or consent of the Holders of the Common Securities. The foregoing
provisions of this Section 2.6(c) shall be in lieu of ss. 316(a)(1)(B) of
the Trust Indenture Act and such ss. 316(a)(1)(B) of the Trust Indenture
Act is hereby expressly excluded from this Declaration and the Securities,
as permitted by the Trust Indenture Act.
SECTION 3.7 EVENT OF DEFAULT; NOTICE.
(a) The Institutional Trustee shall, within 90 days after the
occurrence of an Event of Default, actually known to a Responsible Officer
of the Institutional Trustee, transmit by mail, first class postage
prepaid, to the Holders of the Securities, notices of all such defaults
with respect to the Securities, unless such defaults have been cured before
the giving of such notice (the term "defaults" for the purposes of this
Section 2.7(a) being hereby defined to be an Event of Default as defined in
the Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Debentures, the Institutional Trustee shall be
protected in withholding such notice if and so long as a Responsible
Officer of the Institutional Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the
Securities.
(b) The Institutional Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections 5.1 and 5.3 of the
Indenture; or
(ii) any default as to which the Institutional Trustee
shall have received written notice or of which a Responsible
Officer of the Institutional Trustee charged with the
administration of this Declaration shall have actual knowledge.
ARTICLE V
ORGANIZATION
SECTION 5.1 NAME.
The Trust is named "Cendant Capital III, Cendant Capital IV and
Cendant Capital V," as such name may be modified from time to time by the
Regular Trustees following written notice to the Holders of the Securities.
The Trust's activities may be conducted under the name of the Trust or any
other name deemed advisable by the Regular Trustees.
SECTION 5.2 OFFICE.
The address of the principal office of the Trust is c/o Cendant
Corporation, 9 West 57th Street, New York, New York 10019. On ten Business
Days written notice to the Institutional Trustee and Holders of the
Securities, the Regular Trustees may designate another principal office.
SECTION 5.3 PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue
and sell the Securities and use the gross proceeds from such sale to
acquire the Debentures, and (b) except as otherwise set forth herein, to
engage in only those other activities necessary, appropriate, convenient or
incidental thereto. The Trust shall not borrow money, issue debt or
reinvest proceeds derived from investments, pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would
cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust. It is the intent of the parties to this
Declaration for the Trust to be classified as a grantor trust for United
States federal income tax purposes under Subpart E of Subchapter J of the
Code, pursuant to which the owners of the Preferred Securities and the
Common Securities will be the owners of the Trust for United States federal
income tax purposes, and such owners will include directly in their gross
income the income, gain, deduction or loss of the Trust as if the Trust did
not exist. By the acceptance of this Trust neither the Trustees, the
Sponsor nor the Holders of the Preferred Securities or Common Securities
will take any position for United States federal income tax purposes which
is contrary to the classification of the Trust as a grantor trust.
SECTION 5.4 AUTHORITY.
Subject to the limitations provided in this Declaration and to the
specific duties of the Institutional Trustee, the Regular Trustees shall
have exclusive and complete authority to carry out the purposes of the
Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an
action taken by the Institutional Trustee on behalf of the Trust in
accordance with its powers shall constitute the act of and serve to bind
the Trust. In dealing with the Trustees acting on behalf of the Trust, no
Person shall be required to inquire into the authority of the Trustees to
bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in
this Declaration.
SECTION 5.5 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the Debentures
and the Institutional Trustee Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. A Holder shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
SECTION 5.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there
shall be no interests in the Trust other than the Securities, and the
issuance of Securities shall be limited to a simultaneous issuance of both
Preferred Securities and Common Securities on each Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the
registration statement and the prospectus relating to the
registration statement on Form S-3 prepared by the Sponsor,
including any amendments or supplements, thereto, pertaining to
the Preferred Securities and any other securities of the Sponsor
which the Sponsor may desire to include in such registration
statement;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any state in which the Sponsor has
determined to qualify or register such Preferred Securities for
sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq Stock Market's National
Market for listing upon notice of issuance of any Preferred
Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared
by the Sponsor, relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act; and
(v) execute and enter into the Underwriting Agreement
and Pricing Agreement providing for the sale of the Preferred
Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of
record in the name of the Institutional Trustee for the benefit of the
Trust and the Holders of the Preferred Securities and the Holders of Common
Securities;
(d) to give the Sponsor and the Institutional Trustee prompt
written notice of the occurrence of a Tax Event or an Investment Company
Event; provided that the Regular Trustees shall consult with the Sponsor
before taking or refraining from taking any Ministerial Action in relation
to a Tax Event or Investment Company Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and
with respect to, for the purposes of ss.316(c) of the Trust Indenture Act,
Distributions, voting rights, repayments, redemptions and exchanges, and to
issue relevant notices to the Holders of Preferred Securities and Holders
of Common Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of the Securities and this
Declaration;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against
the Trust ("Legal Action"), unless pursuant to Section 3.8(e) the
Institutional Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate required by ss. 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary, appropriate, convenient
or incidental to carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities
of any notice received from the Debenture Issuer of its election to defer
payments of interest on the Debentures by extending the interest payment
period under the Debenture as authorized by the Indenture, or (ii) to
extend the maturity date of the Debentures if so authorized by the
Indenture, provided that any such extension of the maturity date will not
adversely affect the Federal income tax status of the Trust;
(n) to take all action that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the
laws of the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of
the Preferred Securities or to enable the Trust to effect the purposes for
which the Trust was created;
(o) to take any action, not inconsistent with this Declaration or
with applicable law, that the Regular Trustees determine in their
discretion to be necessary or desirable in carrying out the activities of
the Trust, including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the Investment
Company Act;
(ii) causing the Trust to be classified for United
States federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure
that the Debentures will be treated as indebtedness of the
Debenture Issuer for United States federal income tax purposes,
provided that such action relating to this clause (iii) does not
adversely affect the interests of Holders;
(p) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed by the Regular Trustees,
on behalf of the Trust;
(q) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary, appropriate, convenient or incidental to the foregoing; and
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Regular Trustees shall not
take any action that is inconsistent with the purposes and functions of the
Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none
of the powers or the authority of the Institutional Trustee set forth in
Section 3.8. No permissive power or authority available to the Regular
Trustees shall be construed to be a duty.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Sponsor.
SECTION 5.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
(a) The Trust shall not, and the Trustees (including the
Institutional Trustee) shall cause the Trust not to, engage in any activity
other than as required or authorized by this Declaration. In particular,
the Trust shall not and the Trustees (including the Institutional Trustee)
shall cause the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such proceeds to
Holders of Securities pursuant to the terms of this Declaration
and of the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness for
borrowed money, other than loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as
to vary the Trust assets or the terms of the Securities in any
way whatsoever (except to the extent expressly authorized in this
Declaration or by the terms of the Securities);
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the Trust
other than the Securities; or
(vii) other than as provided in this Declaration or
Annex I, (A) direct the time, method and place of exercising any
trust or power conferred upon the Debenture Trustee with respect
to the Debentures, (B) waive any past default that is waivable
under the Indenture, (C) exercise any right to rescind or annul
any declaration that the principal of all the Debentures shall be
due and payable, or (D) consent to any amendment, modification or
termination of the Indenture or the Debentures where such consent
shall be required unless the Trust shall have received an opinion
of counsel to the effect that such modification will not cause
more than an insubstantial risk that for United States federal
income tax purposes the Trust will not be classified as a grantor
trust.
SECTION 5.8 POWERS AND DUTIES OF THE INSTITUTIONAL TRUSTEE.
(a) The legal title to the Debentures shall be owned by and held
of record in the name of the Institutional Trustee in trust for the benefit
of the Trust and the Holders of the Securities. The right, title and
interest of the Institutional Trustee to the Debentures shall vest
automatically in each Person who may hereafter be appointed as
Institutional Trustee in accordance with Section 5.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Institutional Trustee does not also act as Delaware
Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Institutional Trustee Account") in
the name of and under the exclusive control of the Institutional
Trustee on behalf of the Trust and the Holders of the Securities
and, upon the receipt of payments of funds made in respect of the
Debentures held by the Institutional Trustee, deposit such funds
into the Institutional Trustee Account and make payments to the
Holders of the Preferred Securities and Holders of the Common
Securities from the Institutional Trustee Account in accordance
with Section 6.1. Funds in the Institutional Trustee Account
shall be held uninvested until disbursed in accordance with this
Declaration.
The Institutional Trustee Account shall be an account that is
maintained with a banking institution the rating on whose long-
term unsecured indebtedness is rated at least "A" or above by a
"nationally recognized statistical rating organization", as that
term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(ii) engage in such ministerial activities as shall be
necessary, appropriate, convenient or incidental to effect the
repayment of the Preferred Securities and the Common Securities
to the extent the Debentures mature or are redeemed or the Put
Option is exercised; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary,
appropriate, convenient or incidental to effect the distribution
of the Debentures to Holders of Securities upon the occurrence of
certain special events (as may be defined in the terms of the
Securities) arising from a change in law or a change in legal
interpretation or other specified circumstances pursuant to the
terms of the Securities.
(d) The Institutional Trustee shall take all actions and perform
such duties as may be specifically required of the Institutional Trustee
pursuant to the terms of the Securities and this Declaration.
(e) The Institutional Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default of which a
Responsible Officer of the Institutional Trustee has actual knowledge or
the Institutional Trustee's duties and obligations under this Declaration,
the Business Trust Act or the Trust Indenture Act; provided, however, that
if the Institutional Trustee fails to enforce its rights under the
Debentures after a Holder of Preferred Securities has made a written
request, such Holder of Preferred Securities may, to the fullest extent
permitted by applicable law, institute a legal proceeding against the
Debenture Issuer without first instituting any legal proceeding against the
Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Debenture Issuer to pay
interest on or principal of the Debentures on the date such interest or
principal is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of or interest on the Debentures having a principal amount equal
to the aggregate liquidation amount of the Preferred Securities of such
holder (a "Direct Action") on or after the respective due date specified in
the Debentures. In connection with such Direct Action, the rights of the
Holders of Common Securities will be subrogated to the rights of such
Holders of Preferred Securities. In connection with such Direct Action, the
Debenture Issuer shall be subrogated to the rights of such Holder of
Preferred Securities with respect to payments on the Preferred Securities
under this Declaration to the extent of any payment made by the Debenture
Issuer to such Holder of Preferred Securities in such Direct Action. Except
as provided in the preceding sentences, the Holders of Preferred Securities
will not be able to exercise directly any other remedy available to the
Holders of the Debentures.
(f) The Institutional Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of
Securities pursuant to the terms of the Securities; or
(ii) a Successor Institutional Trustee has been
appointed and has accepted that appointment in accordance with
Section 5.6.
(g) The Institutional Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default actually known to a
Responsible Officer of the Institutional Trustee occurs and is continuing,
the Institutional Trustee shall, for the benefit of Holders of the
Securities, enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of such Securities and this
Declaration.
(h) Subject to this Section 3.8, the Institutional Trustee shall
have none of the duties, liabilities, powers or the authority of the
Regular Trustees set forth in Section 3.6.
The Institutional Trustee must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Institutional
Trustee shall not take any action that is inconsistent with the purposes
and functions of the Trust set out in Section 3.3.
SECTION 5.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE INSTITUTIONAL
TRUSTEE.
(a) The Institutional Trustee, before the occurrence of any Event
of Default and after the curing or waiver of all Events of Default that may
have occurred, shall undertake to perform only such duties as are
specifically set forth in this Declaration and no implied covenants shall
be read into this Declaration against the Institutional Trustee. In case an
Event of Default has occurred (that has not been cured or waived pursuant
to Section 2.6) of which a Responsible Officer of the Institutional Trustee
has actual knowledge, the Institutional Trustee shall exercise such of the
rights and powers vested in it by this Declaration, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve
the Institutional Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the
Institutional Trustee shall be determined solely by the
express provisions of this Declaration and the
Institutional Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into
this Declaration against the Institutional Trustee; and
(B) in the absence of bad faith on the part
of the Institutional Trustee, the Institutional Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Institutional Trustee and conforming
to the requirements of this Declaration; but in the
case of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Institutional Trustee, the
Institutional Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer
of the Institutional Trustee, unless it shall be proved that the
Institutional Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Institutional Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less
than a Majority in liquidation amount of the Securities relating
to the time, method and place of conducting any proceeding for
any remedy available to the Institutional Trustee, or exercising
any trust or power conferred upon the Institutional Trustee under
this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
the repayment of such funds or liability is not reasonably
assured to it under the terms of this Declaration or indemnity
reasonably satisfactory to the Institutional Trustee against such
risk or liability is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect
to the custody, safe keeping and physical preservation of the
Debentures and the Institutional Trustee Account shall be to deal
with such property in a similar manner as the Institutional
Trustee deals with similar property for its fiduciary accounts
generally, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this
Declaration, the Business Trust Act and the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or
liability for or with respect to the value, genuineness,
existence or sufficiency of the Debentures or the payment of any
taxes or assessments levied thereon or in connection therewith;
(vii) the Institutional Trustee shall not be liable for
any interest on any money received by it except as it may
otherwise agree with the Sponsor. Money held by the Institutional
Trustee need not be segregated from other funds held by it except
in relation to the Institutional Trustee Account maintained by
the Institutional Trustee pursuant to Section 3.8(c)(i) and
except to the extent otherwise required by law; and
(viii) the Institutional Trustee shall not be
responsible for monitoring the compliance by the Regular Trustees
or the Sponsor with their respective duties under this
Declaration, nor shall the Institutional Trustee be liable for
any default or misconduct of the Regular Trustees or the Sponsor.
SECTION 5.10 CERTAIN RIGHTS OF INSTITUTIONAL TRUSTEE.
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be sufficiently
evidenced by a Direction or an Officer's Certificate;
(iii) whenever in the administration of this
Declaration, the Institutional Trustee shall deem it desirable
that a matter be proved or established before taking, suffering
or omitting any action hereunder, the Institutional Trustee
(unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively
rely upon an Officer's Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or the
Regular Trustees;
(iv) the Institutional Trustee shall have no duty to see
to any recording, filing or registration of any instrument
(including any financing or continuation statement or any filing
under tax or securities laws) or any rerecording, refiling or
registration thereof;
(v) the Institutional Trustee may consult with counsel
or other experts and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope
of such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be
counsel to the Sponsor or any of its Affiliates, and may include
any of its employees. The Institutional Trustee shall have the
right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(vi) the Institutional Trustee shall be under no
obligation to exercise any of the rights or powers vested in it
by this Declaration at the request or direction of any Holder,
unless such Holder shall have provided to the Institutional
Trustee security and indemnity, reasonably satisfactory to the
Institutional Trustee, against the costs, expenses (including
attorneys' fees and expenses and the expenses of the
Institutional Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may
be requested by the Institutional Trustee provided, that, nothing
contained in this Section 3.10(a)(vi) shall be taken to relieve
the Institutional Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
(vii) investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document, but the Institutional Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit;
(viii) the Institutional Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees or
attorneys and the Institutional Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or
its agents hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Institutional Trustee or its
agents alone shall be sufficient and effective to perform any
such action and no third party shall be required to inquire as to
the authority of the Institutional Trustee to so act or as to its
compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by the
Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration
the Institutional Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Institutional Trustee (i)
may request instructions from the Holders of the Securities which
instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be
entitled to direct the Institutional Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii)
may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii)
shall be protected in conclusively relying on or acting in or
accordance with such instructions; and
(xi) except as otherwise expressly provided by this
Declaration, the Institutional Trustee shall not be under any
obligation to take any action that is discretionary under the
provisions of this Declaration.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Institutional Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the
Institutional Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts, or to exercise any
such right, power, duty or obligation. No permissive power or authority
available to the Institutional Trustee shall be construed to be a duty.
SECTION 5.11 DELAWARE TRUSTEE.
[TO COME]
SECTION 5.12 EXECUTION OF DOCUMENTS.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, a majority of or, if there
are only two, any Regular Trustee or, if there is only one, such Regular
Trustee is authorized to execute on behalf of the Trust any documents that
the Regular Trustees have the power and authority to execute pursuant to
Section 3.6; provided that, the registration statement referred to in
Section 3.6(b)(i), including any amendments thereto, shall be signed by all
of the Regular Trustees.
SECTION 5.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part
thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration or the Securities.
SECTION 5.14 DURATION OF TRUST.
The Trust, unless terminated pursuant to the provisions of Article
VIII hereof, shall dissolve on [ ].
SECTION 5.15 MERGERS.
(a) The Trust may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees or, if
there are more than two, a majority of the Regular Trustees and without the
consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any State; provided
that if the Trust is not the surviving entity:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Preferred Securities other
securities having substantially the same terms as the
Preferred Securities (the "Successor Securities"), so
long as the Successor Securities rank the same as the
Preferred Securities rank with respect to Distributions
and payments upon liquidation, redemption, repayment and
otherwise and substitutes for the Common Securities
other securities having substantially the same terms as
the Common Securities (the "Successor Common
Securities"), so long as the Successor Common Securities
rank the same as the Common Securities rank with respect
to Distributions and payments upon liquidation,
redemption, repayment and otherwise;
(ii) the Debenture Issuer expressly acknowledges a
trustee of the Successor Entity that possesses the same powers
and duties as the Institutional Trustee as the holder of the
Debentures;
(iii) if necessary, the Preferred Securities or any
Successor Securities will be listed, or any Successor Securities
will be listed upon notification of issuance, on any national
securities exchange or with another organization on which the
Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Preferred Securities (including
any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any
Successor Securities and any Successor Common Securities) in any
material respect (other than with respect to any dilution of such
Holders' interests in the new entity);
(vi) such Successor Entity has a purpose identical to
that of the Trust;
(vii) prior to such merger, consolidation, amalgamation
or replacement, the Sponsor has received an opinion of a
nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights,
preferences and privileges of the Holders of the
Securities (including any Successor Securities) in any
material respect (other than with respect to any
dilution of the Holders' interest in the new entity);
(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor the
Successor Entity will be required to register as an
Investment Company; and
(C) following such merger, consolidation,
amalgamation or replacement, the Trust (or the Successor
Entity) will continue to be classified as a grantor
trust for United States federal income tax purposes; and
(viii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities at least to the
extent provided by the Securities Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by
any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation,
merger or replacement would cause the Trust or Successor Entity to be
classified as other than a grantor trust for United States federal income
tax purposes.
ARTICLE VII
SPONSOR
SECTION 7.1 SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date the Sponsor will purchase all of the Common
Securities issued by the Trust, in an amount at least equal to [ ]% of the
capital of the Trust, at the same time as the Preferred Securities are
sold.
SECTION 7.2 RIGHTS AND RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue, sale and, if necessary, the
remarketing of the Preferred Securities, the Sponsor shall have the
exclusive right and responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto (which registration statement may also
include other securities of the Sponsor);
(b) if necessary, to determine the States in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions
which must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any documents to be executed and
filed by the Trust, as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(c) if necessary, to prepare for filing by the Trust of an
application to the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon notice of issuance
of any Preferred Securities;
(d) if necessary, to prepare for filing by the Trust with the
Commission of a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of the Remarketing Agreement, the
Remarketing Underwriting Agreement, the Underwriting Agreement and the
Pricing Agreement providing for the sale of the Preferred Securities.
SECTION 7.3 RIGHT TO PROCEED.
The Sponsor acknowledges the rights of Holders to institute a
Direct Action as set forth in Section 3.8(e) hereto.
SECTION 7.4 EXPENSES.
In connection with the offering, sale and issuance of the
Debentures to the Institutional Trustee and in connection with the sale of
the Securities by the Trust, the Sponsor, in its capacity as borrower with
respect to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters
payable pursuant to the Underwriting Agreement and Pricing Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of the Indenture;
(b) be responsible for and shall pay all debts and obligations
(other than with respect to the Securities) and all costs and expenses of
the Trust (including, but not limited to, costs and expenses relating to
the organization, maintenance and dissolution of the Trust, the offering,
sale and issuance of the Securities (including commissions to the
underwriters in connection therewith), the fees and expenses (including
reasonable counsel fees and expenses) of the Institutional Trustee, the
Delaware Trustee and the Regular Trustees (including any amounts payable
under Article X of this Declaration), the costs and expenses relating to
the operation of the Trust, including, without limitation, costs and
expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating, travel and
telephone and other telecommunications expenses and costs and expenses
incurred in connection with the acquisition, financing, and disposition of
Trust assets and the enforcement by the Institutional Trustee of the rights
of the Holders of the Securities;
(c) be primarily liable for any indemnification obligations
arising under Section 10.4 with respect to this Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs
and expenses with respect to such taxes of the Trust.
The Sponsor's obligations under this Section 4.4 shall be for the
benefit of, and shall be enforceable by, any person to whom such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or
not such Creditor has received notice hereof. Any such Creditor may enforce
the Sponsor's obligations under this Section 4.4 directly against the
Sponsor and the Sponsor irrevocably waives any right or remedy to require
that any such Creditor take any action against the Trust or any other
Person before proceeding against the Sponsor. The Debenture Issuer agrees
to execute such additional agreements as may be necessary or desirable in
order to give full effect to the provisions of this Section 4.4.
ARTICLE IX
TRUSTEES
SECTION 9.1 NUMBER OF TRUSTEES.
The number of Trustees initially shall be three (3), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of Trustees
may be increased or decreased by vote of the holders of a majority in
liquidation amount of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities; provided, however, that, the
number of Trustees shall in no event be less than two (2); provided further
that (1) one Trustee, shall meet the requirements of Section 5.2 (a) and
(b); (2) there shall be at least one Trustee who is an employee or officer
of, or is affiliated with the Sponsor (a "Regular Trustee"); and (3) one
Trustee shall be the Institutional Trustee for so long as this Declaration
is required to qualify as an indenture under the Trust Indenture Act, and
such Institutional Trustee may also serve as Delaware Trustee if it meets
the applicable requirements.
SECTION 9.2 DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware;
or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the
requirements of applicable law, provided that, if the Institutional Trustee
has its principal place of business in the State of Delaware and otherwise
meets the requirements of applicable law, then the Institutional Trustee
shall also be the Delaware Trustee and Section 3.11 shall have no
application.
(c) The initial Delaware Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19801
SECTION 9.3 INSTITUTIONAL TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee for so long as this Declaration is required to
qualify as an Indenture under the Trust Indenture Act, which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 750 million U.S. dollars
($750,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then for
the purposes of this Section 5.3(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.6(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of ss. 310(b) of the Trust
Indenture Act, the Institutional Trustee and the Holder of the Common
Securities (as if it were the obligor referred to in ss. 310(b) of the
Trust Indenture Act) shall in all respects comply with the provisions of
ss. 310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee and the Indenture shall be
deemed to be specifically described in this Declaration and the Indenture
for purposes of clause (i) of the first proviso contained in Section 310(b)
of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be:
Wilmington Trust Company
6 Sylvan Way
Parsippany, New Jersey 07054
SECTION 9.4 CERTAIN QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE
TRUSTEE GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless the
Institutional Trustee also acts as Delaware Trustee) shall be either a
natural person who is at least 21 years of age or a legal entity that shall
act through one or more Authorized Officers.
SECTION 9.5 REGULAR TRUSTEES.
The initial Regular Trustees shall be:
[ ]
[ ]
[ ]
[ }
(a) Except as expressly set forth in this Declaration and except
if a meeting of the Regular Trustees is called with respect to any matter
over which the Regular Trustees have power to act, any power of the Regular
Trustees may be exercised by, or with the consent of, any one such Regular
Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act or applicable law, any
Regular Trustee is authorized to execute on behalf of the Trust any
documents which the Regular Trustees have the power and authority to cause
the Trust to execute pursuant to Section 3.6, provided, that, the
registration statement referred to in Section 3.6, including any amendments
thereto, shall be signed by all of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his
or her power for the purposes of signing any documents that the Regular
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
SECTION 9.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.6(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of
the Holders of a Majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holders of the
Common Securities.
(b) (i) The Trustee that acts as Institutional Trustee shall
not be removed in accordance with Section 5.6(a) until a
successor Institutional Trustee possessing the qualifications to
act as Institutional Trustee under Sections 5.2 and 5.3 (a
"Successor Institutional Trustee") has been appointed and has
accepted such appointment by written instrument executed by such
Successor Institutional Trustee and delivered to the Regular
Trustees and the Sponsor; and
(ii) The Trustee that acts as Delaware Trustee shall not
be removed in accordance with Section 5.6(a) until a successor
Trustee possessing the qualifications to act as Delaware Trustee
under Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has
been appointed and has accepted such appointment by written
instrument executed by such Successor Delaware Trustee and
delivered to the Regular Trustees and the Sponsor.
(e) A Trustee appointed to office shall hold office until such
Trustee's successor shall have been appointed or until such Trustee's
death, removal or resignation. Any Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing signed
by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as
is specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has
been appointed and has accepted such appointment by
instrument executed by such Successor Institutional
Trustee and delivered to the Trust, the Sponsor and the
resigning Institutional Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware
Trustee has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware
Trustee.
(d) The Holders of the Common Securities shall use all reasonable
efforts to promptly appoint a Successor Delaware Trustee or Successor
Institutional Trustee, as the case may be, if the Institutional Trustee or
the Delaware Trustee delivers an instrument of resignation in accordance
with this Section 5.6.
(e) If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in
this Section 5.6 within 60 days after delivery to the Sponsor and the Trust
of an instrument of resignation, the resigning Institutional Trustee or
Delaware Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Institutional Trustee or
Successor Delaware Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper and prescribe, appoint a
Successor Institutional Trustee or Successor Delaware Trustee, as the case
may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Institutional Trustee or
Successor Delaware Trustee, as the case may be.
SECTION 9.7 VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number
of Trustees is not reduced pursuant to Section 5.1, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Regular Trustees
or, if there are more than two Regular Trustees, a majority of the Regular
Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section
5.6.
SECTION 9.8 EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties
of a Trustee shall not operate to annul the Trust. Whenever a vacancy among
the Regular Trustees shall occur, until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 5.6, the
Regular Trustees in office, regardless of their number, shall have all the
powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Declaration.
SECTION 9.9 MEETINGS.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular
Trustee. Regular meetings of the Regular Trustees may be held at a time and
place fixed by resolution of the Regular Trustees. Notice of any in-person
meetings of the Regular Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Regular Trustees or any committee thereof shall
be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours
before a meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in
person or by telephone) of a Regular Trustee at a meeting shall constitute
a waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Declaration, any action of the
Regular Trustees may be taken at (i) a meeting by vote of a majority of the
Regular Trustees present (whether in person or by telephone) and eligible
to vote with respect to such matter, provided that a Quorum is present, or
(ii) without a meeting by the unanimous written consent of the Regular
Trustees. In the event there is only one Regular Trustee, any and all
action of such Regular Trustee shall be evidenced by a written consent of
such Regular Trustee.
SECTION 9.10 DELEGATION OF POWER.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in
Section 3.6, including any registration statement or amendment thereto
filed with the Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular
Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as
set forth herein.
SECTION 9.11 MERGER, CONVERSION. CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Institutional Trustee or the
Delaware Trustee, as the case may be, may be merged or converted or with
which either may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Institutional Trustee or the Delaware Trustee, as the case
may be, shall be the successor of the Institutional Trustee or the Delaware
Trustee, as the case may be, hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
ARTICLE XI
DISTRIBUTIONS
SECTION 11.1 DISTRIBUTIONS.
Holders shall receive Distributions (as defined herein) in
accordance with the applicable terms of the relevant Holder's Securities.
Distributions shall be made on the Preferred Securities and the Common
Securities in accordance with the preferences set forth in their respective
terms. If and to the extent that the Debenture Issuer makes a payment of
interest (including Compounded Interest (as defined in the Indenture) and
Additional Interest (as defined in the Indenture)), premium and/or
principal on the Debentures held by the Institutional Trustee (the amount
of any such payment being a "Payment Amount"), the Institutional Trustee
shall and is directed, to the extent funds are available for that purpose,
to make a distribution (a "Distribution") of the Payment Amount to Holders.
ARTICLE XIII
ISSUANCE OF SECURITIES
SECTION 13.1 GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall, on behalf of the Trust, issue one
class of preferred securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Annex I
(the "Preferred Securities") and one class of common securities
representing undivided beneficial interests in the assets of the Trust
having such terms as are set forth in Annex I (the "Common Securities").
The Trust shall issue no securities or other interests in the assets of the
Trust other than the Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature
of any present or any future Regular Trustee. In case any Regular Trustee
who shall have signed any of the Securities shall cease to be such Regular
Trustee before the Certificates so signed shall be delivered by the Trust,
such Certificates nevertheless may be delivered as though the person who
signed such Certificates had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at
the actual date of execution of such Certificate, shall be the Regular
Trustees of the Trust, although at the date of the execution and delivery
of the Declaration any such person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or
endorsements as the Regular Trustees may deem appropriate, or as may be
required to comply with any law or with any rule or regulation of any stock
exchange on which Securities may be listed, or to conform to usage.
(c) The consideration received by the Trust for the issuance of
the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by, this Declaration.
SECTION 13.2 PAYING AGENT.
In the event that the Preferred Securities are not in book-entry
only form, the Trust shall maintain in the borough of Manhattan, City of
New York, State of New York, an office or agency where the Preferred
Securities may be presented for payment ("Paying Agent"), and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act.
The Trust may appoint the Paying Agent and may appoint one or more
additional paying agents in such other locations as it shall determine. The
term "Paying Agent" includes any additional paying agent. The Trust may
change any Paying Agent without prior notice to any Holder. The Trust shall
notify the Institutional Trustee of the name and address of any Paying
Agent not a party to this Declaration. If the Trust fails to appoint or
maintain another entity as Paying Agent, the Institutional Trustee shall
act as such. The Trust or any of its Affiliates (including the Sponsor) may
act as Paying Agent. The Institutional Trustee shall initially act as
Paying Agent for the Preferred Securities and the Common Securities.
ARTICLE XV
TERMINATION OF TRUST
SECTION 15.1 TERMINATION OF TRUST.
(a) The Trust shall terminate:
(i) upon a Termination Event;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor; or the revocation of
the Sponsor's charter and the expiration of 90 days after the
date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution
of the Holder of the Common Securities, the Sponsor or the Trust;
(iv) upon the occurrence and continuation of an
Investment Company Event pursuant to which the Trust shall have
been dissolved in accordance with the terms of the Securities and
all of the Debentures endorsed thereon shall have been
distributed to the Holders of Securities in exchange for all of
the Securities;
(v) when all the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall
have been paid to the Holders in accordance with the terms of the
Securities; or
(vi) before the issuance of any Securities, with the
consent of all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding-up of the
Trust and its termination, the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 4.4 and Article X shall survive the
termination of the Trust.
ARTICLE XVII
TRANSFER OF INTERESTS
SECTION 17.1 TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and
in the terms of the Securities. Any transfer or purported transfer of any
Security not made in accordance with this Declaration shall be null and
void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party
may only transfer Common Securities to the Sponsor or a Related Party of
the Sponsor; provided that, any such transfer is subject to the condition
precedent that the transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters that such
transfer would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
SECTION 17.2 TRANSFER OF CERTIFICATES.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected
without charge but only upon payment (with such indemnity as the Regular
Trustees may require) in respect of any tax or other government charges
that may be imposed in relation to it. Upon surrender for registration of
transfer of any Certificate, the Regular Trustees shall cause one or more
new Certificates to be issued in the name of the designated transferee or
transferees. Every Certificate surrendered for registration of transfer
shall be accompanied by a written instrument of transfer in form
satisfactory to the Regular Trustees duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Certificate surrendered
for registration of transfer shall be canceled by the Regular Trustees. A
transferee of a Certificate shall be entitled to the rights and subject to
the obligations of a Holder hereunder upon the receipt by such transferee
of a Certificate. By acceptance of a Certificate, each transferee shall be
deemed to have agreed to be bound by this Declaration.
SECTION 17.3 DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole
holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions and for all other
purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any Person,
whether or not the Trust shall have actual or other notice thereof.
SECTION 17.4 BOOK ENTRY INTERESTS.
The Preferred Securities Certificates, on original issuance, in
addition to being issued in the form of one or more definitive, fully
registered Preferred Securities Certificate (each a "Definitive Preferred
Securities Certificate") registered initially in the books and records of
the Trust in the name of [NAME], as Purchase Contract Agent, will be issued
in the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the
initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificate(s) shall initially be registered on the books and records of
the Trust in the name of Cede & Co., the nominee of DTC, and no Preferred
Security Beneficial Owner will receive a definitive Preferred Security
Certificate representing such Preferred Security Beneficial Owner's
interests in such Global Certificate(s), except as provided in Section 9.7.
Except for the Definitive Preferred Security Certificates as specified
herein and the definitive, fully registered Preferred Securities
Certificates that have been issued to the Preferred Security Beneficial
Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Certificate(s) and receiving approvals,
votes or consents hereunder) as the Holder of the Preferred Securities and
the sole holder of the Global Certificate(s) and shall have no obligation
to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall
be exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants to receive and transmit payments of Distributions on the
Global Certificates to such Clearing Agency Participants. DTC will make
book entry transfers among the Clearing Agency Participants; provided,
that, solely for the purposes of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter provided
for in this Declaration, so long as Definitive Preferred Security
Certificates have not been issued, the Trustees may conclusively rely on,
and shall be protected in relying on, any written instrument (including a
proxy) delivered to the Trustees by the Clearing Agency setting forth the
Preferred Security Beneficial Owners' votes or assigning the right to vote
on any matter to any other Persons either in whole or in part.
SECTION 17.5 NOTICES TO CLEARING AGENCY.
Whenever a notice or other communication to the Preferred Security
Holders is required under this Declaration, unless and until definitive
fully registered Preferred Security Certificates shall have been issued to
the Preferred Security Beneficial Owners pursuant to Section 9.7 or
otherwise, the Regular Trustees shall give all such notices and
communications specified herein to be given to the Preferred Security
Holders to the Clearing Agency, and shall have no notice obligations to the
Preferred Security Beneficial Owners.
SECTION 17.6 APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency
with respect to such Preferred Securities.
SECTION 17.7 DEFINITIVE PREFERRED SECURITY CERTIFICATES.
If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor
to terminate the book entry system through the Clearing Agency with respect
to the Preferred Securities, then:
(c) definitive fully registered Preferred Security Certificates
shall be prepared by the Regular Trustees on behalf of the Trust with
respect to such Preferred Securities; and
(d) upon surrender of the Global Certificate(s) by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees
shall cause definitive fully registered Preferred Securities Certificates
to be delivered to Preferred Security Beneficial Owners in accordance with
the instructions of the Clearing Agency. Neither the Trustees nor the Trust
shall be liable for any delay in delivery of such instructions and each of
them may conclusively rely on and shall be protected in relying on, said
instructions of the Clearing Agency. The definitive fully registered
Preferred Security Certificates shall be printed, lithographed or engraved
or may be produced in any other manner as is reasonably acceptable to the
Regular Trustees, as evidenced by their execution thereof, and may have
such letters, numbers or other marks of identification or designation and
such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange
on which Preferred Securities may be listed, or to conform to usage.
SECTION 17.8 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
(a) any mutilated Certificate should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security
or indemnity as may be required by them to keep each of them and the Trust
harmless, then, in the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, any Regular Trustee on behalf of
the Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under
this Section 9.8, the Regular Trustees may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant
to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued, whether or
not the lost, stolen or destroyed Certificate shall be found at any time.
ARTICLE XIX
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 19.1 LIABILITY.
(a) Except as expressly set forth in this Declaration, the
Debentures, the Securities Guarantees and the terms of the Securities, the
Sponsor shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders
of the Securities, which shall be made solely from assets of the
Trust; or
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or
otherwise.
(b) The Holder of the Common Securities shall be liable for all of
the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to ss. 3803(a) of the Business Trust Act, the Holders
of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware.
SECTION 19.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by
this Declaration or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's gross negligence or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Securities
might properly be paid.
SECTION 19.3 FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to any other Covered Person, an Indemnified Person acting
under this Declaration shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on the
Institutional Trustee under the Trust Indenture Act), are agreed by the
parties hereto to replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that are,
fair and reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry practices, and any
applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution, action or
term so made, taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement contemplated
herein or of any duty or obligation of the Indemnified Person at law or in
equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider
such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
SECTION 19.4 INDEMNIFICATION.
(a) (i) The Sponsor shall indemnify, to the full extent permitted
by law, any Company Indemnified Person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the Trust) by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in
good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Trust to procure a judgment in its favor by reason of the fact
that he is or was a Company Indemnified Person against expenses
(including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in
respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the
Trust unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court
shall deem proper.
(iii) Any indemnification under paragraphs (i) and (ii)
of this Section 10.4(a) (unless ordered by a court) shall be made
by the Sponsor only as authorized in the specific case upon a
determination that indemnification of the Company Indemnified
Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and
(ii). Such determination shall be made (1) by the Regular
Trustees by a majority vote of a quorum consisting of such
Regular Trustees who were not parties to such action, suit or
proceeding, (2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion, or
(3) by the Common Security Holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a
Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a)
shall be paid by the Debenture Issuer in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to
repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Debenture Issuer
as authorized in this Section 10.4(a). Notwithstanding the
foregoing, no advance shall be made by the Debenture Issuer if a
determination is reasonably and promptly made (i) by the Regular
Trustees by a majority vote of a quorum of disinterested Regular
Trustees, (ii) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion or
(iii) the Common Security Holder of the Trust, that, based upon
the facts known to the Regular Trustees, independent legal
counsel or Common Security Holder at the time such determination
is made, such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event
shall any advance be made in instances where the Regular
Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached such person's
duty to the Trust or its Common or Preferred Security Holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 10.4(a) shall not be deemed exclusive of any other rights
to which those seeking indemnification and advancement of
expenses may be entitled under any agreement, vote of
shareholders or disinterested directors of the Sponsor or
Preferred Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office. All rights to indemnification
under this Section 10.4(a) shall be deemed to be provided by a
contract between the Sponsor and each Company Indemnified Person
who serves in such capacity at any time while this Section
10.4(a) is in effect. Any repeal or modification of this Section
10.4(a) shall not affect any rights or obligations then existing.
(vi) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company
Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his
status as such, whether or not the Sponsor would have the power
to indemnify him against such liability under the provisions of
this Section 10.4(a).
(vii) For purposes of this Section 10.4(a), references
to "the Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this Section
10.4(a) with respect to the resulting or surviving entity as such
person would have with respect to such constituent entity if its
separate existence had continued.
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a) shall,
unless otherwise provided when authorized or ratified, continue
as to a person who has ceased to be a Company Indemnified Person
and shall inure to the benefit of the successors, heirs,
executors and administrators of such a person.
(b) The Sponsor agrees to indemnify the (i) Institutional Trustee,
(ii) the Delaware Trustee, (iii) any Affiliate of the Institutional Trustee
or the Delaware Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or
agents of the Institutional Trustee or the Delaware Trustee (each of the
Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified
Person") for, and to hold each Fiduciary Indemnified Person harmless
against, any loss, liability or expense incurred without gross negligence
and, in the case of the Institutional Trustee, pursuant to Section 3.9,
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The provisions of this Section 10.4(b) shall
survive the satisfaction and discharge of this Declaration or the
resignation or removal of the Institutional Trustee or the Delaware
Trustee, as the case may be.
SECTION 19.5 OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other
business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust
and the Holders of Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive
with the business of the Trust, shall not be deemed wrongful or improper.
No Covered Person, the Sponsor, the Delaware Trustee or the Institutional
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered
Person, the Sponsor, the Delaware Trustee and the Institutional Trustee
shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person, the Delaware Trustee
and the Institutional Trustee may engage or be interested in any financial
or other transaction with the Sponsor or any Affiliate of the Sponsor, or
may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE XXI
ACCOUNTING
SECTION 21.1 FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 21.2 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Trust
shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied. The Trust shall use the
accrual method of accounting for United States federal income tax purposes.
The books of account and the records of the Trust shall be examined by and
reported upon as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Regular Trustees.
(b) The Trust shall cause to be duly prepared and delivered to
each of the Holders of Securities, any annual United States federal income
tax information statement required by the Code, containing such information
with regard to the Securities held by each Holder as is required by the
Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Trust shall endeavor to
deliver all such statements within 30 days after the end of each Fiscal
Year of the Trust.
(c) The Trust shall cause to be duly prepared and filed with the
appropriate taxing authority an annual United States federal income tax
return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be
filed by the Trust on behalf of the Trust with any state or local taxing
authority.
SECTION 21.3 BANKING.
The Trust shall maintain one or more bank accounts in the name and
for the sole benefit of the Trust; provided however, that all payments of
funds in respect of the Debentures held by the Institutional Trustee shall
be made directly to the Institutional Trustee Account and no other funds of
the Trust shall be deposited in the Institutional Trustee Account. The sole
signatories for such accounts shall be designated by the Regular Trustees;
provided, however, that the Institutional Trustee shall designate the
signatories for the Institutional Trustee Account.
SECTION 21.4 WITHHOLDING.
The Trust shall comply with all withholding requirements under
United States federal, state and local law. The Trust shall request, and
the Holders shall provide to the Trust, such forms or certificates as are
necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested
by the Trust to assist it in determining the extent of, and in fulfilling,
its withholding obligations. The Trust shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is
properly established by a Holder, shall remit amounts withheld with respect
to the Holder to applicable jurisdictions. To the extent that the Trust is
required to withhold and pay over any amounts to any authority with respect
to distributions or allocations to any Holder, the amount withheld shall be
deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed over withholding, Holders shall be limited to
an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such withholding.
ARTICLE XXIII
AMENDMENTS AND MEETINGS
SECTION 23.1 AMENDMENTS.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by
a written instrument approved and executed by the Regular Trustees (or, if
there are more than two Regular Trustees, a majority of the Regular
Trustees); and
(i) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, also by
the Institutional Trustee; and
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee, also
by the Delaware Trustee;
(b) no amendment shall be made:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an Officer's
Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of
the Institutional Trustee, the Institutional Trustee shall have
first received:
(A) an Officer's Certificate from each of the
Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities); and
(iii) to the extent the result of such amendment would
be to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States federal income
taxation as a grantor trust;
(B) reduce or otherwise adversely affect the
powers of the Institutional Trustee in contravention of
the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(c) at such time after the Trust has issued any Securities that
remain outstanding, any amendment that would materially and adversely
affect the rights, privileges or preferences of any
Holder of Securities may be effected only with such additional requirements
as may be set forth in the terms of such Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities;
(f) the rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other
provision of this Declaration;
(iii) add to the covenants, restrictions or obligations
of the Sponsor;
(iv) to conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material adverse effect
on the right, preferences or privileges of the Holders;
(v) to modify, eliminate and add to any provision of the
Declaration to such extent as may be necessary; and
(vi) cause the Trust to continue to be classified for
United States federal income tax purposes as a grantor trust.
SECTION 23.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN
CONSENT.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of
the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this
Declaration, the terms of the Securities or the rules of any stock exchange
on which the Preferred Securities are listed or admitted for trading. The
Regular Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10% in liquidation amount of
such class of Securities.
Such direction shall be given by delivering to the Regular Trustees one or
more calls in a writing stating that the signing Holders of Securities wish
to call a meeting and indicating the general or specific purpose for which
the meeting is to be called. Any Holders of Securities calling a meeting
shall specify in writing the Security Certificates held by the Holders of
Securities exercising the right to call a meeting and only those Securities
specified shall be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7
days and not more than 60 days before the date of such meeting.
Whenever a vote, consent or approval of the Holders of Securities
is permitted or required under this Declaration, the terms of the
Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading, such
vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a meeting
of the Holders of Securities may be taken without a meeting if a
consent in writing setting forth the action so taken is signed by
the Holders of Securities owning not less than the minimum amount
of Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all Holders
of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting
shall be given to the Holders of Securities entitled to vote who
have not consented in writing. The Regular Trustees may specify
that any written ballot submitted to the Security Holder for the
purpose of taking any action without a meeting shall be returned
to the Trust within the time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person
to act for it by proxy on all matters in which a Holder of
Securities is entitled to participate, including waiving notice
of any meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy. Every proxy shall
be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall be
governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as
if the Trust were a Delaware corporation and the Holders of the
Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities
shall be conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration,
the terms of the Securities, the Trust Indenture Act or the
listing rules of any stock exchange on which the Preferred
Securities are then listed or trading otherwise provides, the
Regular Trustees, in their sole discretion, shall establish all
other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at
which any matter is to be voted on by any Holders of Securities,
waiver of any such notice, action by consent without a meeting,
the establishment of a record date, quorum requirements, voting
in person or by proxy or any other matter with respect to the
exercise of any such right to vote.
ARTICLE XXV
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND
DELAWARE TRUSTEE
SECTION 25.1 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE.
The Trustee that acts as initial Institutional Trustee represents
and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Institutional Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor
Institutional Trustee's acceptance of its appointment as Institutional
Trustee, that:
(a) the Institutional Trustee is a national banking association
with trust powers, duly organized, validly existing and in good standing
under the laws of the United States of America, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Declaration;
(b) the Institutional Trustee satisfies the requirements set forth
in Section 5.3(a);
(c) the execution, delivery and performance by the Institutional
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. The Declaration
has been duly executed and delivered by the Institutional Trustee, and it
constitutes a legal, valid and binding obligation of the Institutional
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding in equity or
at law);
(d) the execution, delivery and performance of the Declaration by
the Institutional Trustee does not conflict with or constitute a breach of
the Articles of Organization or By-laws of the Institutional Trustee; and
(e) no consent, approval or authorization of, or registration with
or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Institutional Trustee, of the
Declaration.
SECTION 25.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Delaware Trustee represents and warrants to the Trust
and the Sponsor at the time of the Successor Delaware Trustee's acceptance
of its appointment as Delaware Trustee, that:
(a) The Delaware Trustee is a Delaware corporation, duly
organized, validly existing and in good standing under the laws of the
State of Delaware, with power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, the Declaration;
(b) the execution, delivery and performance by the Delaware
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee. The Declaration has
been duly executed and delivered by the Delaware Trustee, and it
constitutes a legal, valid and binding obligation of the Delaware Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law);
(c) No consent, approval or authorization of, or registration with
or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of the
Declaration; and
(d) the execution, delivery and performance of the Declaration by
the Delaware Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Delaware Trustee; and
(e) The Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
ARTICLE XXVII
MISCELLANEOUS
SECTION 27.1 NOTICES.
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the Securities):
Cendant Capital III, Cendant Capital IV and
Cendant Capital V
c/o Cendant Corporation
9 West 57th Street
New York, New York 10019
Attn:
(b) if given to the Institutional Trustee or Delaware Trustee, at
its Corporate Trust Office to the attention of Corporate Trust
Administration (or such other address as the Institutional Trustee may give
notice of to the Holders of the Securities):
The Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn:
(c) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as
the Holder of the Common Securities may give notice to the Trust):
Cendant Corporation
9 West 57th Street
New York, New York 10019
Attn:
(d) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
SECTION 27.2 GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 27.3 INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor
trust. The provisions of this Declaration shall be interpreted to further
this intention of the parties.
SECTION 27.4 HEADINGS.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 27.5 SUCCESSORS AND ASSIGNS.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed.
SECTION 27.6 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to
persons or circumstances other than those to which it is held invalid,
shall not be affected thereby.
SECTION 27.7 COUNTERPARTS.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature
pages. All of such counterpart signature pages shall be read as though one,
and they shall have the same force and effect as though all of the signers
had signed a single signature page.
IN WITNESS WHEREOF, the undersigned has caused these presents to
be executed as of the day and year first above written.
------------------------------------
, as Regular Trustee
------------------------------------
, as Regular Trustee
THE WILMINGTON TRUST COMPANY
as Institutional and Delaware Trustee
By
-----------------------------------
Name
---------------------------------
Title
--------------------------------
CENDANT CORPORATION
as Sponsor
By
----------------------------------
Name
--------------------------------
Title
-------------------------------
ANNEX I
ANNEX I
TERMS AND CONDITIONS OF
6.45% TRUST ORIGINATED PREFERRED SECURITIES
6.45% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities and
the Common Securities are set out below (each capitalized term used but not
defined herein has the meaning set forth in the Declaration or, if not
defined in the Declaration, as defined in the Prospectus referred to
below):
1. Designation and Number.
(a) Preferred Securities. Preferred Securities of
the Trust, with an aggregate liquidation amount with respect to the assets
of the Trust of and a liquidation amount with respect to the
assets of the Trust of $50 per preferred security, are hereby designated
for the purposes of identification only as "6.45% Trust Originated
Preferred Securities" (the "Preferred Securities"). The Preferred Security
Certificates evidencing the Preferred Securities shall be substantially in
the form of Exhibit A-1 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by applicable law or the
rules of any stock exchange on which the Preferred Securities are listed or
to conform to ordinary usage, custom or practice.
(b) Common Securities. Common Securities of the Trust,
with an aggregate liquidation amount with respect to the assets of the
Trust of [ ] Dollars ($__________) and a liquidation amount with respect to
the assets of the Trust of $50 per common security, are hereby designated
for the purposes of identification only as "6.45% Trust Originated Common
Securities" (the "Common Securities"). The Common Security Certificates
evidencing the Common Securities shall be substantially in the form of
Exhibit A-2 to the Declaration, with such changes and additions thereto or
deletions therefrom as may be required by applicable law or to conform to
ordinary usage, custom or practice.
2. Distributions.
(a) Distributions payable on each Security will be fixed
initially at a rate per annum of 6.45% (the "Coupon Rate") of the stated
liquidation amount of $50 per Security until February 15, 2001, and at the
Reset Rate thereafter, such rates being the rates of interest payable on
the Debentures to be held by the Institutional Trustee. Distributions in
arrears for more than one quarter will bear interest thereon compounded
quarterly at the rate of 7.5% until February 15, 2001, and at the Reset
Rate thereafter (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any
such interest payable unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held
by the Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions payable for any
period will be computed for any full quarterly Distribution period on the
basis of a 360-day year consisting of twelve 30-day months, and for any
period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed per 30-day month.
(b) Distributions on the Securities will be cumulative,
will accrue from , and will be payable quarterly in arrears, on
February 16, May 16, August 16 and November 16 of each year, commencing on
, except as otherwise described below. The Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debentures for a period
not extending, in the aggregate, beyond the maturity date of the Debentures
(each an "Extension Period"). During such Extension Period no interest
shall be due and payable on the Debentures. As a consequence of such
deferral, Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest thereon at
the rate of 7.5% until February 15, 2001, and at the Reset Rate thereafter,
compounded quarterly during any such Extension Period (to the extent
permitted by applicable law). Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on
the first record date after the end of the Extension Period. Upon the
termination of any Extension Period and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period; provided
that such Extension Period together with all such previous and further
extensions thereof may not exceed beyond the maturity date of the
Debentures.
(c) Distributions on the Securities will be payable to
the Holders thereof as they appear on the books and records of the Trust at
the close of business on the Business Day immediately preceding each of the
relevant payment dates on the Securities. Subject to any applicable laws
and regulations and the provisions of the Declaration, each such payment in
respect of the Preferred Securities will be made as described under the
heading "Description of the Trust Preferred Securities -- Book Entry Only
Issuance -The Depository Trust Company" in the Prospectus dated
, the "Prospectus") of the Trust relating to the Registration
Statement on Form S-3 (file no. 333-78447) of the Sponsor and the Trust.
The relevant record dates for the Common Securities shall be the same
record date as for the Preferred Securities. If the Preferred Securities
shall not continue to remain in book-entry only form or are not in book-
entry only form at issuance, the relevant record dates for the Preferred
Securities, shall conform to the rules of any securities exchange on which
the securities are listed and, if none, as shall be selected by the Regular
Trustees, which dates shall be at least more than one, but less than 60
Business Days before the relevant payment dates, which payment dates
correspond to the interest payment dates on the Debentures. Distributions
payable on any Securities that are not punctually paid on any Distribution
payment date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, will cease to be payable to the Person in
whose name such Securities are registered on the relevant record date, and
such defaulted Distribution will instead be payable to the Person in whose
name such Securities are registered on the special record date or other
specified date determined in accordance with the Indenture. If any date on
which Distributions are payable on the Securities is not a Business Day,
then payment of the Distribution payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with the same force
and effect as if made on such date. So long as the Holder of any Preferred
Securities is the Collateral Agent, the payment of Distributions on such
Preferred Securities held by the Collateral Agent will be made at such
place and to such account as may be designated by the Collateral Agent.
(d) The Coupon Rate on the Securities (as well as the
interest rate on the Debentures) will be reset on the third Business Day
immediately preceding the Purchase Contract Settlement Date to the Reset
Rate (which reset Rate will be in effect on and after the Purchase Contract
Settlement Date). On the Reset Announcement Date, the Reset Spread and the
Two-Year Benchmark Treasury to be used to determine the Reset Rate will be
announced by the Sponsor. On the Business Day immediately following the
Reset Announcement Date, the Holders of Securities will be notified of such
Reset Spread and Two-Year Benchmark Treasury by the Sponsor. Such notice
shall be sufficiently given to Holders of Securities if published in an
Authorized Newspaper.
(e) Not later than 10 calendar days nor more than 15
calendar days prior to the Reset Announcement Date, the Sponsor will notify
DTC (as defined herein) or its nominee (or any successor Clearing Agency or
its nominee) by first-class mail, postage prepaid, to notify the Preferred
Security Beneficial Owner or Clearing Agency Participants holding Preferred
Securities, Income PRIDES or Growth PRIDES, of such Reset Announcement Date
and the procedures to be followed by such Holders of Income PRIDES who
intend to settle their obligation under the Purchase Contract with separate
cash.
(f) In the event that there is any money or other
property held by or for the Trust that is not accounted for hereunder, such
property shall be distributed Pro Rata (as defined herein) among the
Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution of the
Trust (unless a Tax Event Redemption has occurred), the Holders of the
Securities on the date of the dissolution will be entitled to receive out
of the assets of the Trust, after satisfaction of liabilities to creditors,
Debentures in an aggregate principal amount equal to the aggregate stated
liquidation amount of such Securities, with an interest rate equal to the
rate of 6.45%, if on or prior to February 15, 2001, and the Reset Rate
thereafter, and bearing accrued and unpaid interest in an amount equal to
the accrued and unpaid Distributions on such Securities and which shall be
distributed on a Pro Rata basis to the Holders of the Securities in
exchange for such Securities (such amount being "Liquidation
Distribution").
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts
payable directly by the Trust on the Securities shall be paid on a Pro Rata
basis.
4. Redemption and Distribution.
(a) Upon the redemption of the Debentures in whole (but
not in part), at maturity, the proceeds from such redemption shall, after
satisfaction of liabilities to creditors, be simultaneously applied to
redeem Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so redeemed at a redemption
price of $50 per Security plus an amount equal to accrued and unpaid
Distributions thereon at the date of the repayment, payable in cash.
(b) If an Investment Company Event (as defined herein)
shall occur and be continuing the Regular Trustees shall dissolve the Trust
and, after satisfaction of liabilities to creditors, cause Debentures held
by the Institutional Trustee, having an aggregate principal amount equal to
the aggregate stated liquidation amount of, with an interest rate the rate
of 6.45%, if on or prior to February 15, 2001, and the Reset Rate
thereafter, and accrued and unpaid interest equal to accrued and unpaid
Distributions on, and having the same record date for payment as the
Securities, to be distributed to the Holders of the Securities in
liquidation of such Holders' interests in the Trust on a Pro Rata basis,
within 90 days following the occurrence of such Investment Company Event
(the "90 Day Period"); provided, however, that, if at the time there is
available to the Trust the opportunity to eliminate, within the 90 Day
Period, the Investment Company Event by taking some ministerial action,
such as filing a form or making an election, or pursuing some other similar
reasonable measure that will have no adverse effect on the Trust, the
Debenture Issuer, the Sponsor or the Holders of the Securities and will
involve no material cost ("Ministerial Action"), the Regular Trustees will
pursue such Ministerial Action in lieu of dissolution.
"Investment Company Event" means that the Regular Trustees shall
have received an opinion of independent counsel experienced in practice
under the Investment Company Act (an "Investment Company Event Opinion") to
the effect that, as a result of the occurrence of a change in law or
regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), which Change in 1940 Act
Law becomes effective on or after the date of the Prospectus, there is a
more than an insubstantial risk that the Trust is or will be considered an
Investment Company which is required to be registered under the Investment
Company Act.
(c) If a Tax Event shall occur and be continuing, the
Debentures are redeemable at the option of the Debenture Issuer, in whole
but not in part, on not less than 30 days nor more than 60 days notice
("Tax Event Redemption"). If the Debenture Issuer redeems the Debentures
upon the occurrence and continuance of a Tax Event, the proceeds from such
redemption shall simultaneously be applied by the Trust to redeem the
Securities having an aggregate stated liquidation amount equal to the
aggregate principal amount of the Debentures so redeemed at a redemption
price (the "Redemption Price"), per Security, equal to the Redemption
Amount plus any accumulated and unpaid distributions thereon to the date of
such redemption. If, following the occurrence of a Tax Event, the Debenture
Issuer exercises its option to redeem the Debentures, the Debenture Issuer
shall appoint the Quotation Agent to assemble the Treasury Portfolio in
consultation with the Company. To the extent the Redemption Price is
received by the Institutional Trustee, the Institutional Trustee will
distribute, to the record Holder of the Securities the Redemption Price
payable in liquidation of such Holder's interests in the Trust.
"Tax Event" means the receipt by the Regular Trustees of an
opinion of a nationally recognized independent tax counsel experienced in
such matters to the effect that, as a result of (a) any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein affecting taxation, (b) any
amendment to or change in an interpretation or application of such laws or
regulations by any legislative body, court, governmental agency or
regulatory authority or (c) any interpretation or pronouncement that
provides for a position with respect to such laws or regulations that
differs from the generally accepted position on the date the Securities are
issued, which amendment or change is effective or which interpretation or
pronouncement is announced on or after the date of issuance of the
Securities under the Declaration, there is more than an insubstantial risk
that (i) interest payable by the Debenture Issuer on the Debentures would
not be deductible, in whole or in part, by the Debenture Issuer for federal
income tax purposes or (ii) the Trust would be subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
"Treasury Portfolio" means, with respect to the Applicable
Principal Amount of Debentures (a) if the Tax Event Redemption Date occurs
prior to February 16, 2001, a portfolio of zero-coupon U.S. Treasury
Securities consisting of (i) U.S. Treasury Securities each in the amount of
$1,000 payable on February 15, 2001 in an aggregate amount equal to the
Applicable Principal Amount and (ii) with respect to each scheduled
interest payment date on the Debentures that occurs after the Tax Event
Redemption Date, principal or interest strips of U.S. Treasury Securities
which mature on or prior to such date in an aggregate amount equal to the
aggregate interest payment that would be due on the Applicable Principal
Amount of the Debentures on such date, and (b) if the Tax Event Redemption
Date occurs after February 16, 2001, a portfolio of zero-coupon U.S.
Treasury Securities consisting of (i) principal or interest strips of U.S.
Treasury Securities which mature on or prior to February 15, 2003 in an
aggregate amount equal to the Applicable Principal Amount and (ii) with
respect to each scheduled interest payment date on the Debentures that
occurs after the Tax Event Redemption Date, principal or interest strips of
such U.S. Treasury Securities which mature on or prior to such date in an
aggregate amount equal to the aggregate interest payment that would be due
on the Applicable Principal Amount of the Debentures on such date.
"Applicable Ownership Interest" means, with respect to an Income
PRIDES and the U.S. Treasury Securities in the Treasury Portfolio, (A) a
1/20, or 5%, undivided beneficial ownership interest in a U.S. Treasury
Security in the amount of $1,000 included in such Treasury Portfolio
payable on February 15, 2001 and (B) for each scheduled interest payment
date on the Debentures that occurs after the Tax Event Redemption Date, a
[5]% undivided beneficial ownership interest in a $1,000 face amount of
such U.S. Treasury Security which is a principal or interest strip maturing
on such date.
"Applicable Principal Amount" means either (i) if the Tax Event
Redemption Date occurs prior to February 16, 2001, the aggregate principal
amount of the Debentures corresponding to the aggregate stated liquidation
amount of the Preferred Securities which are components of Income PRIDES on
the Tax Event Redemption Date or (ii) if the Tax Event Redemption occurs on
or after February 16, 2001, the aggregate principal amount of the
Debentures corresponding to the aggregate stated liquidation amount of the
Preferred Securities outstanding on such Tax Event Redemption Date.
"Redemption Amount" means for each Debenture, the product of (i)
the principal amount of such Debenture and (ii) a fraction whose numerator
is the Treasury Portfolio Purchase Price and whose denominator is the
Applicable Principal Amount.
"Treasury Portfolio Purchase Price" means the lowest aggregate
price quoted by a primary U.S. government securities dealer in New York
City (a "Primary Treasury Dealer") to the Quotation Agent on the third
Business Day immediately preceding the Tax Event Redemption Date for the
purchase of the Treasury Portfolio for settlement on the Tax Event
Redemption Date.
"Quotation Agent" means (i) Merrill Lynch Government Securities,
Inc. and its respective successors, provided, however, that if the
foregoing shall cease to be a Primary Treasury Dealer, the Sponsor shall
substitute therefor another Primary Treasury Dealer and (ii) any other
Primary Treasury Dealer selected by the Sponsor.
On and from the date fixed by the Regular Trustees for a Tax Event
Redemption or any distribution of Debentures and dissolution of the Trust:
(i) the Securities will no longer be deemed to be outstanding, (ii) The
Depository Trust Company ("DTC") or its nominee (or any successor Clearing
Agency or its nominee) or the record Holder of the Preferred Securities,
will receive a registered global certificate or certificates representing
the Debentures to be delivered upon such distribution and any certificates
representing Securities, except for certificates representing Preferred
Securities held by DTC or its nominee (or any successor Clearing Agency or
its nominee), will be deemed to represent beneficial interests in the
Debentures having an aggregate principal amount equal to the aggregate
stated liquidation amount of $50, with an interest rate of 6.45% if on or
prior to February 15, 2001, and at the Reset Rate thereafter, and accrued
and unpaid interest equal to accrued and unpaid Distributions on such
Securities until such certificates are presented to the Debenture Issuer or
its agent for transfer or reissue.
5. Redemption or Distribution Procedures.
(a) Notice of any redemption (other then in connection
with the maturity of the Debentures) of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the Tax Event Redemption Date. For purposes of the
calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this Section 5(a), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first mailed
by first-class mail, postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of
Securities at the address of each such Holder appearing in the books and
records of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any
other Holder.
(b) If Securities are to be redeemed and the Trust gives
a Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 5 (such notice will be
irrevocable), then (A) while the Preferred Securities are in book-entry
only form, with respect to the Preferred Securities, by 12:00 noon, New
York City time, on the redemption date, provided that the Debenture Issuer
has paid the Institutional Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures by
10:00 a.m. New York City time on such Redemption Date, the Institutional
Trustee will deposit irrevocably with DTC or its nominee (or any successor
Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Preferred Securities and will give DTC
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities so called for redemption, and (B) with
respect to Preferred Securities issued in definitive form and Common
Securities, provided that the Debenture Issuer has paid the Institutional
Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee will
pay the relevant Redemption Price to the Holders of such Securities by
check mailed to the address of the relevant Holder appearing on the books
and records of the Trust. Notwithstanding the foregoing, so long as the
Holder of any Preferred Securities is the Collateral Agent or the Purchase
Contract Agent, the payment of the Redemption Price in respect of such
Preferred Securities held by the Collateral Agent or the Purchase Contract
Agent shall be made no later than 12:00 noon, New York City time, on the
Tax Event Redemption Date by check or wire transfer in immediately
available funds at such place and to such account as may be designated by
the Collateral Agent or the Purchase Contract Agent. If a
Redemption/Distribution Notice shall have been given and funds deposited as
required, if applicable, then immediately prior to the close of business on
the date of such deposit, or on the redemption date, as applicable,
distributions will cease to accrue on the Securities so redeemed and all
rights of Holders of such Securities so called for redemption will cease,
except the right of the Holders of such Securities to receive the
Redemption Price, but without interest on such Redemption Price. Neither
the Regular Trustees nor the Trust shall be required to register or cause
to be registered the transfer of any Securities that have been so called
for redemption. If any date fixed for redemption of Securities is not a
Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date fixed for repayment. If payment of
the Redemption Price in respect of any Securities is improperly withheld or
refused and not paid either by the Institutional Trustee or by the Sponsor
as guarantor pursuant to the relevant Securities Guarantee, Distributions
on such Securities will continue to accrue from the original redemption
date to the actual date of payment, in which case the actual payment date
will be considered the date fixed for repayment for purposes of calculating
the Redemption Price and such Securities shall cease to be outstanding.
(c) Redemption/Distribution Notices shall be sent by the
Trust to (A) in respect of the Preferred Securities, the DTC or its nominee
(or any successor Clearing Agency or its nominee) if the Global
Certificates have been issued or, if Definitive Preferred Security
Certificates have been issued, to the Holder thereof, and (B) in respect of
the Common Securities, to the Holder thereof.
(d) Subject to the foregoing and applicable law
(including, without limitation, United States federal securities laws) the
Sponsor or any of its subsidiaries may at any time and from time to time
purchase outstanding Preferred Securities by tender, in the open market or
by private agreement.
6. Repayment at Option of Holders.
(a) If a Failed Remarketing (as described in Section
5.4(b) of the Purchase Contract Agreement and incorporated herein by
reference) has occurred, each holder of Securities who holds such
Securities on the day immediately following the Purchase Contract
Settlement Date, shall have the right on or after the Business Day
immediately following February 16, 2001 to require the Trust to repay all
or a portion of such Securities owned by such holder (the "Put Option") on
March 2, 2001 (the "Put Option Exercise Date"), upon at least three
Business Days' prior notice, at a repayment price of $50 per Security plus
an amount equal to the accrued and unpaid Distributions (including deferred
distributions if any) thereon to the date of payment (the "Put Option
Repayment Price").
(b) The Trust shall obtain funds to pay the Put Option
Repayment Price of Securities being repaid under the Put Option through
presentation by the Institutional Trustee, on behalf of the Trust, to the
Debenture Issuer, pursuant to the right of the holder of the Debentures to
require the Debenture Issuer to repay all or a portion of the Debentures on
the Put Option Exercise Date, Debentures in an aggregate principal amount
equal to the aggregate stated liquidation amount of such Securities for
repayment on the Put Option Exercise Date at the Debenture Repayment Price.
(c) In order for the Securities to be repaid on the Put
Option Exercise Date, the Trust must receive on or prior to 4:00 p.m. on
the third Business Day immediately preceding the Put Option Exercise Date,
at the Corporate Trust Office of the Institutional Trustee, the Securities
to be repaid with the form entitled "Option to Elect Repayment" on the
reverse thereof or otherwise accompanying such Security duly completed. Any
such notice received by the Trust shall be irrevocable. All questions as to
the validity, eligibility (including time of receipt) and acceptance of the
Securities for repayment shall be determined by the Trust, whose
determination shall be final and binding.
(d) Payment of the Put Option Repayment Price to Holders
of Securities shall be made at the Corporate Trust Office of the
Institutional Trustee, provided that the Institutional Trustee has received
from the Debenture Issuer a sufficient amount of cash in connection with
the related repayment of the Debenture no later than 1:00 p.m., New York
City time, on the Put Option Exercise Date by check or wire transfer in
immediately available funds at such place and to such account as may be
designated by such Holders. If the Institutional Trustee holds immediately
available funds sufficient to pay the Put Option Repayment Price of such
Securities, then, immediately prior to the close of business on the Put
Option Exercise Date, such Securities will cease to be outstanding and
distributions thereon will cease to accrue, whether or not Securities are
delivered to the Institutional Trustee, and all other rights of the Holder
in respect of the Securities, including the Holder's right to require the
Trust to repay such Securities, shall terminate and lapse (other than the
right to receive the Put Option Repayment Price but without interest on
such Put Option Repayment Price). Neither the Regular Trustees nor the
Trust shall be required to register or cause to be registered the transfer
of any Securities for which repayment has been elected. If payment of the
Put Option Repayment Price in respect of Securities is (i) improperly
withheld or refused and not paid either by the Institutional Trustee or by
the Sponsor as guarantor pursuant to the Securities Guarantee, or (ii) not
paid by the Institutional Trustee as the result of an Event of Default with
respect to the Debentures presented for repayment as described in paragraph
6(b), Distributions on such Securities will continue to accrue, from the
original Put Option Exercise Date to the actual date of payment, in which
case the actual payment date will be considered the Put Option Exercise
Date for purposes of calculating the Put Option Repayment Price.
(e) The Debenture Issuer will request, not later than 10
nor more than 15 calendar days prior to February 13, 2001 (the date on
which some or all of the Preferred Securities could be remarketed in the
manner described in Section 5.4(b) of the Purchase Contract Agreement and
incorporated herein by reference) that DTC notify the Preferred Securities
Holders as well as the Income PRIDES and Growth PRIDES holders of such
remarketing and of the procedures that must be followed if a Holder of
Preferred Securities wishes to exercise such Holder's rights with respect
to the Put Option.
7. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 7(b) and 9 and as
otherwise required by law and the Declaration, the Holders of the Preferred
Securities will have no voting rights.
(b) Subject to the requirements set forth in this
paragraph, the Holders of a Majority in liquidation amount of the Preferred
Securities, voting separately as a class may direct the time, method, and
place of conducting any proceeding for any remedy available to the
Institutional Trustee, or the exercise of any trust or power conferred upon
the Institutional Trustee under the Declaration, including (i) directing
the time, method and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or power
conferred on the Debenture Trustee with respect to the Debentures, (ii)
waiving any past default and its consequences that is waivable under the
Indenture, (iii) exercising any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable, or (iv)
consenting to any amendment, modification or termination of the Indenture
or the Debentures where such consent shall be required, provided, however,
that, where a consent under the Indenture specifically would require the
consent or act of the Holders of greater than a majority of the Holders in
principal amount of Debentures affected thereby (a "Super Majority"), the
Institutional Trustee may only give such consent or take such action at the
written direction of the Holders of at least the proportion in liquidation
amount of the Preferred Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding.
The Institutional Trustee shall not revoke any action previously authorized
or approved by a vote of the Holders of the Preferred Securities. Other
than with respect to directing the time, method and place of conducting any
remedy available to the Institutional Trustee or the Debenture Trustee as
set forth above, the Institutional Trustee shall not take any action in
accordance with the directions of the Holders of the Preferred Securities
under this paragraph unless the Institutional Trustee has obtained an
opinion of tax counsel to the effect that for the purposes of United States
federal income tax the Trust will not be classified as other than a grantor
trust on account of such action. If the Institutional Trustee fails to
enforce its rights under the Debentures after a Holder of Preferred
Securities has made a written request, such Holder of Preferred Securities
may, to the fullest extent permitted by applicable law, institute a legal
proceeding directly against the Debenture Issuer to enforce the
Institutional Trustee's rights under the Debentures without first
instituting a legal proceeding against the Institutional Trustee or any
other Person. Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the failure of
the Debenture Issuer to pay interest or principal on the Debentures on the
date such interest or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to such
Holder of the principal of or interest on the Debentures having a principal
amount equal to the aggregate liquidation amount of the Preferred
Securities of such Holder on or after the respective due date specified in
the Debentures. Except as provided in the preceding sentence, the Holders
of Preferred Securities shall not exercise directly any other remedy
available to the holders of the Debentures.
Any approval or direction of Holders of Preferred Securities may
be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities in the
Trust or pursuant to written consent. The Regular Trustees will cause a
notice of any meeting at which Holders of Preferred Securities are entitled
to vote, or of any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record of Preferred
Securities. Each such notice will include a statement setting forth (i) the
date of such meeting or the date by which such action is to be taken, (ii)
a description of any resolution proposed for adoption at such meeting on
which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of
proxies or consents.
No vote or consent of the Holders of the Preferred Securities will
be required for the Trust to repay and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms
of the Securities. Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Preferred Securities that are owned by the Sponsor or any
Affiliate of the Sponsor shall not be entitled to vote or consent and
shall, for purposes of such vote or consent, be treated as if they were not
outstanding.
8. Voting Rights - Common Securities.
(a) Except as provided under Sections 7(b) and (c) and
Section 9 and as otherwise required by law and the Declaration, the Holders
of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled,
in accordance with Article V of the Declaration, to vote to appoint, remove
or replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only
after any Event of Default with respect to the Preferred Securities has
been cured, waived, or otherwise eliminated and subject to the requirements
of the second to last sentence of this paragraph, the Holders of a Majority
in liquidation amount of the Common Securities, voting separately as a
class, may direct the time, method, and place of conducting any proceeding
for any remedy available to the Institutional Trustee, or exercising any
trust or power conferred upon the Institutional Trustee under the
Declaration, including (i) directing the time, method, and place of
conducting any proceeding for any remedy available to the Debenture
Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under the Indenture, or (iii) exercise any
right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable, provided that, where a consent or
action under the Indenture specifically would require the consent or act of
the Holders of a Super Majority, the Institutional Trustee may only give
such consent or take such action at the written direction of the Holders of
at least the proportion in liquidation amount of the Common Securities
which the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding. Pursuant to this Section 7(c), the
Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other than
with respect to directing the time, method and place of conducting any
remedy available to the Institutional Trustee or the Debenture Trustee as
set forth above, the Institutional Trustee shall not take any action in
accordance with the directions of the Holders of the Common Securities
under this paragraph unless the Institutional Trustee has obtained an
opinion of tax counsel to the effect that for the purposes of United States
federal income tax the Trust will not be classified as other than a grantor
trust on account of such action. If the Institutional Trustee fails to
enforce its rights under the Declaration, any Holder of Common Securities
may institute a legal proceeding directly against any Person to enforce the
Institutional Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Institutional Trustee or any
other Person.
Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust
or pursuant to written consent. The Regular Trustees will cause a notice of
any meeting at which Holders of Common Securities are entitled to vote, or
of any matter upon which action by written consent of such Holders is to be
taken, to be mailed to each Holder of record of Common Securities. Each
such notice will include a statement setting forth (i) the date of such
meeting or the date by which such action is to be taken, (ii) a description
of any resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the terms
of the Securities.
9. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1
of the Declaration, if any proposed amendment to the Declaration provides
for, or the Regular Trustees otherwise propose to effect, (i) any action
that would materially adversely affect the powers, preferences or special
rights of the Securities, whether by way of amendment to the Declaration or
otherwise, or (ii) the dissolution of the Trust, other than as described in
Section 8.1 of the Declaration, then the Holders of outstanding Securities
as a class will be entitled to vote on such amendment or proposal (but not
on any other amendment or proposal) and such amendment or proposal shall
not be effective except with the approval of the Holders of at least a
Majority in liquidation amount of the Securities, voting together as a
single class; provided, however, if any amendment or proposal referred to
in clause (i) above would adversely affect only the Preferred Securities or
only the Common Securities, then only the affected class will be entitled
to vote on such amendment or proposal and such amendment or proposal shall
not be effective except with the approval of a Majority in liquidation
amount of such class of Securities.
(b) In the event the consent of the Institutional
Trustee as the holder of the Debentures is required under the Indenture
with respect to any amendment, modification or termination on the Indenture
or the Debentures, the Institutional Trustee shall request the written
direction of the Holders of the Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in liquidation amount
of the Securities voting together as a single class; provided, however,
that where a consent under the Indenture specifically would require a Super
Majority, the Institutional Trustee may only give such consent at the
direction of the Holders of at least the proportion in liquidation amount
of the Securities which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding; provided,
further, that the Institutional Trustee shall not take any action in
accordance with the directions of the Holders of the Securities under this
Section 8(b) unless (i) the Institutional Trustee has obtained an opinion
of tax counsel to the effect that for the purposes of United States federal
income tax the Trust will not be classified as other than a grantor trust
on account of such action or (ii) such action would not reduce or otherwise
adversely affect powers of the Institutional Trustee or cause the Trust to
be deemed an "investment company" which is required to be registered under
the Investment Company Act of 1940.
10. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each
Holder of Securities according to the aggregate liquidation amount of the
Securities held by the relevant Holder in relation to the aggregate
liquidation amount of all Securities outstanding unless, in relation to a
payment, an Event of Default under the Declaration has occurred and is
continuing, in which case any funds available to make such payment shall be
paid first to each Holder of the Preferred Securities pro rata according to
the aggregate liquidation amount of Preferred Securities held by the
relevant Holder relative to the aggregate liquidation amount of all
Preferred Securities outstanding, and only after satisfaction of all
amounts owed to the Holders of the Preferred Securities, to each Holder of
Common Securities pro rata according to the aggregate liquidation amount of
Common Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Common Securities outstanding.
11. Ranking.
The Preferred Securities rank pari passu and payment thereon shall
be made Pro Rata with the Common Securities except that, where an Event of
Default occurs and is continuing under the Indenture in respect of the
Debentures held by the Institutional Trustee, the rights of Holders of the
Common Securities to payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights to
payment of the Holders of the Preferred Securities.
12. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively.
13. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
14. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be
appropriate), and the Indenture to a Holder without charge on written
request to the Sponsor at its principal place of business.
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT -
This Preferred Security is a Global Certificate within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of the Depositary.
This Preferred Security is exchangeable for Preferred Securities registered
in the name of a person other than the Depositary or its nominee only in
the limited circumstances described in the Declaration and no transfer of
this Preferred Security (other than a transfer of this Preferred Security
as a whole by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary)
may be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the Trust or its agent for registration of transfer, exchange
or payment, and any Preferred Security issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative
of The Depository Trust Company and any payment hereon is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
Certificate Number Number of Preferred Securities
----------- ---------
CUSIP NO.
-------------
Certificate Evidencing Preferred Securities
of
Cendant Capital III, Cendant Capital IV and Cendant Capital V
6.45% Trust Originated Preferred Securities
(liquidation amount $50 per Preferred Security)
Cendant Capital III, Cendant Capital IV and Cendant Capital V, a
statutory business trust formed under the laws of the State of Delaware
(the "Trust"), hereby certifies that (the "Holder") is the
registered owner of preferred securities of the Trust representing
preferred undivided beneficial interests in the assets of the Trust
designated as the 6.45% Trust Originated Preferred Securities (liquidation
amount $50 per preferred security) (the "Preferred Securities"). The
Preferred Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and
Restated Agreement of Trust of the Trust dated as of as the same may
be amended from time to time (the "Declaration"), including the designation
of the terms of the Preferred Securities as set forth in Annex I to the
Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the
benefits of the Preferred Securities Guarantee to the extent provided
therein. The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the
Preferred Securities as evidence of indirect beneficial ownership in the
Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this day of
.
Cendant Capital III, Cendant Capital IV
and Cendant Capital V
By:
------------------------------------
Name:
----------------------------------
Title: Regular Trustee
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at
a rate per annum of 6.45% (the "Coupon Rate") of the stated liquidation
amount of $50 per Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee.
Distributions in arrears for more than one quarter will bear interest
thereon compounded quarterly at the rate of 6.45% until February 15, 2001,
and at the Reset Rate thereafter (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Institutional Trustee and to the
extent the Institutional Trustee has actually received and holds funds
available therefor. The amount of Distributions payable for any period will
be computed for any full quarterly Distribution period on the basis of a
360-day year consisting of twelve 30-day months, and for any period shorter
than a full quarterly Distribution period for which Distributions are
computed, Distributions will be computed on the basis of the actual number
of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the
Preferred Securities will be cumulative, will accrue from the date of
original issuance and will be payable quarterly in arrears, on February 16,
May 16, August 16 and November 16 of each year, commencing on , to
holders of record, if in book-entry only form, one Business Day prior to
such payment date, which payment dates shall correspond to the interest
payment dates on the Debentures. In the event that the Preferred Securities
are not in book-entry form, the Regular Trustees will have the right to
select relevant record dates, which will be more than one Business Day but
less than 60 Business Days prior to the relevant payment dates. The
Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding beyond the date of maturity of the
Debentures (each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest thereon at
the rate of % until February 15, 2001, and at the Reset Rate thereafter,
compounded quarterly during any such Extension Period (to the extent
permitted by applicable law). Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on
the first record date after the end of the Extension Period. Upon the
termination of any Extension Period and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period; provided
that such Extension Period together with all such previous and further
extensions thereof may not exceed beyond the maturity date of the
Debenture.
The Preferred Securities shall be redeemable as provided in the
Declaration.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Trust to repay $ stated liquidation amount of the within Preferred
Security, pursuant to its terms, on the "Put Option Exercise Date,"
together with distributions thereon accrued but unpaid to the date of
repayment, to the undersigned at:
-----------------------------------------------------------
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the Declaration,
a new Preferred Security or Preferred Securities representing the remaining
stated liquidation amount of this Preferred Security.
For this Option to Elect Repayment to be effective, the within Preferred
Security with this Option to Elect Repayment duly completed must be
received by the Trust at the Corporate Trust Office of the Institutional
Trustee at Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890, Attention: Corporate Trust
Administration.
Dated: Signature:
-------------------------------
Signature Guarantee:
---------------------
Note: The signature to this Option to Elect Repayment must correspond with
the name as written upon the face of the within Preferred Security in every
particular without alternation or enlargement or any change whatsoever.
----------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
-------------- agent to transfer this Preferred Security Certificate on the
books of the Trust. The agent may substitute another to act for him or her.
Date:
---------------------------
Signature:
------------------------------
Signature Guarantee:
--------------------
(Sign exactly as your name appears on the other side of this Preferred
Security Certificate)
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
The Common Securities may only be transferred by the
Debenture Issuer and any Related Party to the Debenture Issuer or a Related
Party of the Debenture Issuer; provided that, any such transfer is subject
to the condition precedent that the transferor obtain the written opinion
of nationally recognized independent counsel experienced in such matters
that such transfer would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor Trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
Certificate Number Number of Common Securities
------------- ------
Certificate Evidencing Common Securities
of
Cendant Capital III, Cendant Capital IV and Cendant Capital V
6.45% Trust Originated Common Securities
(liquidation amount $50 per Common Security)
Cendant Capital III, Cendant Capital IV and Cendant Capital V, a
statutory business trust formed under the laws of the State of Delaware
(the "Trust"), hereby certifies that Cendant Corporation (the "Holder") is
the registered owner of common securities of the Trust representing common
undivided beneficial interests in the assets of the Trust designated as the
6.45% Trust Originated Common Securities (liquidation amount $50 per common
security) (the "Common Securities"). The Common Securities are transferable
on the books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper
form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of , as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration. Capitalized terms
used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Common
Securities Guarantee to the extent provided therein. The Sponsor will
provide a copy of the Declaration, the Common Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Sponsor at
its principal place of business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of .
Cendant Capital III, Cendant Capital IV and
Cendant Capital V
By:
----------------------------------------
Name:
-------------------------------------
Title: Regular Trustee
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a
rate per annum of 6.45% (the "Coupon Rate") of the stated liquidation
amount of $50 per Common Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee.
Distributions in arrears for more than one quarter will bear interest
thereon compounded quarterly at the rate of 6.45% until February 15, 2001,
and at the Reset Rate thereafter (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Institutional Trustee and to the
extent the Institutional Trustee has actually received and holds funds
available therefor. The amount of Distributions payable for any period will
be computed for any full quarterly Distribution period on the basis of a
360-day year of twelve 30-day months, and for any period shorter than a
full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days
elapsed per 30-day month.
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accrue from the date of original
issuance and will be payable quarterly in arrears, on February 16, May 16,
August 16 and November 16 of each year, commencing on
, to Holders of record one Business Day prior to such payment dates, which
payment dates shall correspond to the interest payment dates on the
Debentures. The Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period from time to
time on the Debentures for a period not exceeding beyond the date of
maturity of the Debentures (each an "Extension Period") and, as a
consequence of such deferral, Distributions will also be deferred. Despite
such deferral, quarterly Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at the rate of
7.5% until February 15, 2001, and at the Reset Rate thereafter, compounded
quarterly during any such Extension Period. Payments of accrued
Distributions will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of the
Extension Period. Upon the termination of any Extension Period and the
payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period; provided, that such Extension Period together with all
such previous and further extensions thereof may not exceed beyond the
maturity date of the Debentures.
The Common Securities shall be redeemable as provided in the
Declaration.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Trust to repay $ stated liquidation amount of the within Common
Security, pursuant to its terms, on the "Put Option Exercise Date,"
together with distributions thereon accrued and unpaid to the date of
repayment, to the undersigned at:
---------------------------------------------------------
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the Declaration,
a new Common Security or Common Securities representing the remaining
stated liquidation amount of this Common Security.
For this Option to Elect Repayment to be effective, the within Common
Security with this Option to Elect Repayment duly completed must be
received by the Trust at the Corporate Trust Office of the Institutional
Trustee at Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890, Attention: Corporate Trust
Administration.
Dated: Signature:
--------------------------
Signature Guarantee:
----------------
Note: The signature to this Option to Elect Repayment must correspond with
the name as written upon the face of the within Common Security in every
particular without alternation or enlargement or any change whatsoever.
----------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
-------------- agent to transfer this Common Security Certificate on the
books of the Trust. The agent may substitute another to act for him or her.
Date:
--------------------------------
Signature:
------------------------------
Signature Guarantee:
--------------------
(Sign exactly as your name appears on the other side of this Common
Security Certificate)
Exhibit 4.11
-------------------------------------------
FORM OF
PREFERRED SECURITIES GUARANTEE AGREEMENT
CENDANT CAPITAL III, CENDANT CAPITAL IV, AND CENDANT CAPITAL V
Dated as of [ ]
-------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretation.....................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application...................4
SECTION 2.2 List of Holders of Securities......................4
SECTION 2.3 Reports by the Preferred Guarantee Trustee.........5
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee....5
SECTION 2.5 Evidence of Compliance with Conditions
Precedent..........................................5
SECTION 2.6 Events of Default; Waiver..........................5
SECTION 2.7 Event of Default; Notice...........................5
SECTION 2.8 Conflicting Interests..............................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee
Trustee............................................6
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee......7
SECTION 3.3 Not Responsible for Recitals or Issuance of
Guarantee..........................................9
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility...........9
SECTION 4.2 Appointment, Removal and Resignation of Preferred
Guarantee Trustees................................10
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.........................................10
SECTION 5.2 Waiver of Notice and Demand.......................10
SECTION 5.3 Obligations Not Affected..........................11
SECTION 5.4 Rights of Holders.................................11
SECTION 5.5 Guarantee of Payment..............................12
SECTION 5.6 Subrogation.......................................12
SECTION 5.7 Independent Obligations...........................12
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions........................12
SECTION 6.2 Ranking...........................................13
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.......................................13
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.......................................14
SECTION 8.2 Indemnification...................................14
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns............................15
SECTION 9.2 Amendments........................................15
SECTION 9.3 Notices...........................................15
SECTION 9.4 Benefit...........................................16
SECTION 9.5 Governing Law.....................................16
PREFERRED SECURITIES GUARANTEE AGREEMENT This GUARANTEE AGREEMENT
(the "Preferred Securities Guarantee"), dated as of [DATE], is executed
and delivered by CENDANT, Inc., a Delaware corporation (the "Guarantor"),
and The Wilmington Trust Company, as trustee (the "Preferred Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to
time of the Preferred Securities (as defined herein) of Cendant Capital
III, Cendant Capital IV and Cendant Capital V, each a Delaware statutory
business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of [ ], among the trustees of the Issuer
named therein, the Guarantor, as sponsor, and the holders from time to time
of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing on the date hereof [ ] preferred securities, liquidation amount
$[ ] per preferred security, having an aggregate liquidation amount of [ ]
designated the [ ] Trust Originated Preferred Securities (the "Preferred
Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Preferred Securities Guarantee, to pay to
the Holders of the Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set
forth herein; and
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") in substantially
identical terms to this Preferred Securities Guarantee for the benefit of
the holders of the Common Securities (as defined herein), except that if an
Event of Default (as defined in the Indenture), has occurred and is
continuing, the rights of holders of the Common Securities to receive
Guarantee Payments under the Common Securities Guarantee are subordinated
to the rights of Holders of Preferred Securities to receive Guarantee
Payments under this Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(c) all reference to "the Preferred Securities Guarantee" or
"this Preferred Securities Guarantee" are to this
Preferred Securities Guarantee as modified, supplemented
or amended from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of
this Preferred Securities Guarantee, unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Securities Guarantee,
unless otherwise defined in this Preferred Securities
Guarantee or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Business Day" means any day other than Saturday, Sunday or any
day on which banking institutions in the City of New York, New York are
authorized or required by any applicable law to close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred
Guarantee Trustee at which the corporate trust business of the Preferred
Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is
located at The Wilmington Trust Company, Rodney Square North, 1100 North
Market Street, Wilmington, Delaware, 19890.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of junior subordinated debt
securities of the Guarantor or designated the [ ] Junior Subordinated
Debentures due [ ] held by the Institutional Trustee (as defined in the
Declaration) of the Issuer.
"Direction" by a person means a written direction signed: (a) if
the Person is a natural person, by that Person; or (b) in any other case in
the name of such Person by one or more Authorized Officers of that Person.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by the Issuer: (i) any accrued
and unpaid Distributions (as defined in the Declaration) that are required
to be paid on such Preferred Securities to the extent the Issuer shall
have funds available therefor, (ii) the redemption price, including all
accrued and unpaid distributions to the date of redemption (the "Repayment
Price") with respect to Preferred Securities in respect of which the
related Debentures have been redeemed by the Company upon the occurrence
of a Tax Event Redemption, to the extent the Issuer has funds available
therefor, and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in connection with the
distribution of Debentures to the Holders in exchange for Preferred
Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Preferred Securities to the date of payment, to the
extent the Issuer shall have funds available therefor, and (b) the amount
of assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred
and is continuing, the rights of holders of the Common Securities to
receive payments under the Common Securities Guarantee Agreement are
subordinated to the rights of Holders of Preferred Securities to receive
Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Preferred Securities; provided, however,
that, in determining whether the holders of the requisite percentage of
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of
the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of [DATE], among the
Guarantor (the "Debenture Issuer") and The Wilmington Trust Company, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Debenture Issuer are to be issued to
the Institutional Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means, except
as provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than [ ]% of the
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are
determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any
Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Preferred Securities Guarantee
shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Preferred Guarantee Trustee" means The Wilmington Trust Company,
until a Successor Preferred Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Preferred
Securities Guarantee and thereafter means each such Successor Preferred
Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred
Guarantee Trustee, any officer within the Corporate Trust office of the
Preferred Guarantee Trustee, including any vice-president, any assistant
vice-president, any assistant secretary, the treasurer, any assistant
treasurer or other officer of the Corporate Trust Office of the Preferred
Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor
Preferred Guarantee Trustee possessing the qualifications to act as
Preferred Guarantee Trustee under Section 4.1.
"Tax Event Redemption" has the same meaning as defined in Annex I
to the Declaration.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be
governed by such provisions; and
(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Section 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
SECTION 2.2 List of Holders of Securities
(a) The Guarantor shall provide the Preferred Guarantee Trustee
with a list, in such form as the Preferred Guarantee Trustee may
reasonably require, of the names and addresses of the Holders of the
Preferred Securities ("List of Holders") as of such date, (i) within 1
Business Day after [DATE] and [DATE] of each year, and (ii) at any other
time within 30 days of receipt by the Guarantor of a written request for a
List of Holders as of a date no more than 14 days before such List of
Holders is given to the Preferred Guarantee Trustee provided, that the
Guarantor shall not be obligated to provide such List of Holders at any
time the List of Holders does not differ from the most recent List of
Holders given to the Preferred Guarantee Trustee by the Guarantor. The
Preferred Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Section 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee
Within 60 days after [DATE] of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any,
in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Preferred Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee
The Guarantor shall provide to the Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (if
any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any,
provided for in this Preferred Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon
such waiver, any such Event of Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Preferred Securities Guarantee, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Preferred Securities, notices of
all Events of Default actually known to a Responsible Officer of the
Preferred Guarantee Trustee, unless such defaults have been cured before
the giving of such notice, provided, that, the Preferred Guarantee Trustee
shall be protected in withholding such notice if and so long as a
Responsible Officer of the Preferred Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee
shall have received written notice, or of which a Responsible Officer of
the Preferred Guarantee Trustee charged with the administration of the
Declaration shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests
The Declaration and the Indenture shall be deemed to be
specifically described in this Preferred Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the
Preferred Securities, and the Preferred Guarantee Trustee shall not
transfer this Preferred Securities Guarantee to any Person except a Holder
of Preferred Securities exercising his or her rights pursuant to Section
5.4(b) or to a Successor Preferred Guarantee Trustee on acceptance by such
Successor Preferred Guarantee Trustee of its appointment to act as
Successor Preferred Guarantee Trustee. The right, title and interest of
the Preferred Guarantee Trustee shall automatically vest in any Successor
Preferred Guarantee Trustee, and such vesting and cessation of title shall
be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred
Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee has occurred and is continuing,
the Preferred Guarantee Trustee shall enforce this Preferred Securities
Guarantee for the benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing or waiver of all Events of Default
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Preferred Securities Guarantee, and no
implied covenants shall be read into this Preferred Securities Guarantee
against the Preferred Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and
is actually known to a Responsible Officer of the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall exercise such of the rights
and powers vested in it by this Preferred Securities Guarantee, and use
the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his
or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for
its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of such Events of Default that may
have occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the express
provisions of this Preferred Securities Guarantee, and the
Preferred Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Preferred Securities Guarantee, and no implied
covenants or obligations shall be read into this Preferred
Securities Guarantee against the Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Preferred Guarantee Trustee, the Preferred Guarantee Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Preferred Guarantee
Trustee and conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such certificates or
opinions that by any provision hereof are specifically required
to be furnished to the Preferred Guarantee Trustee, the Preferred
Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible
Officer of the Preferred Guarantee Trustee, unless it shall be
proved that the Preferred Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was
made;
(iii) the Preferred Guarantee Trustee shall not be
liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Holders
of not less than a Majority in liquidation amount of the
Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Preferred Guarantee Trustee, or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee
shall require the Preferred Guarantee Trustee to expend or risk
its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of
its rights or powers, if the Preferred Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the
terms of this Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee,
against such risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining from
acting upon, any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated
by this Preferred Securities Guarantee shall be sufficiently
evidenced by a Direction or an Officers' Certificate.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem
it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Preferred
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request
and conclusively rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the
Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty
to see to any recording, filing or registration of any instrument
(or any rerecording, refiling or reregistration thereof).
(v) The Preferred Guarantee Trustee may consult with
competent legal counsel, and the written advice or opinion of
such counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be
counsel to the Guarantor or any of its Affiliates and may include
any of its employees. The Preferred Guarantee Trustee shall have
the right at any time to seek instructions concerning the
administration of this Preferred Securities Guarantee from any
court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it
by this Preferred Securities Guarantee at the request or
direction of any Holder, unless such Holder shall have provided
to the Preferred Guarantee Trustee such Security and indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Preferred Guarantee Trustees,
agents, nominees or custodians) and liabilities that might be
incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the
Preferred Guarantee Trustee; provided that, nothing contained in
this Section 3.2 (a) (vi) shall be taken to relieve the Preferred
Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by
this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound
to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document,
but the Preferred Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters
as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any
of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, nominees, custodians or
attorneys, and the Preferred Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee
or its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Guarantee Trustee
or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as
to the authority of the Preferred Guarantee Trustee to so act or
as to its compliance with any of the terms and provisions of this
Preferred Securities Guarantee, both of which shall be
conclusively evidenced by the Preferred Guarantee Trustee's or
its agent's taking such action.
(x) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem
it desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the
Preferred Guarantee Trustee (i) may request instructions from the
Holders of a Majority in liquidation amount of the Preferred
Securities, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received,
and (iii) shall be protected in conclusively relying on or acting
in accordance with such instructions.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it
shall be illegal, or in which the Preferred Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform
any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Preferred
Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Preferred Guarantee Trustee does not
assume any responsibility for their correctness. The Preferred Guarantee
Trustee makes no representation as to the validity or sufficiency of this
Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility
(a)There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least [
] U.S. dollars ($[ ]), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for
the purposes of this Section 4.1 (a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to
be eligible to so act under Section 4.1(a), the Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set out
in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustees
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall
hold office until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Guarantee
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred
Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing
executed by such Successor Preferred Guarantee Trustee and delivered to
the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery to the Guarantor of an instrument of resignation,
the resigning Preferred Guarantee Trustee may petition any court of
competent jurisdiction for appointment of a Successor Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any,
as it may deem proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee
all amounts accrued to the date of such termination, removal or
resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to
the Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Preferred Securities Guarantee and of any liability to which it applies or
may apply, presentment, demand for payment, any right to require a
proceeding first against the Issuer or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Preferred Securities Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any
of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Repayment Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of Distributions,
Repayment Price, Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the
Debentures or any extension of the maturity date of the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of
the foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place
of conducting of any proceeding for any remedy available to the Preferred
Guarantee Trustee in respect of this Preferred Securities Guarantee or
exercising any trust or power conferred upon the Preferred Guarantee
Trustee under this Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce this
Preferred Securities Guarantee, any Holder of Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Preferred Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Preferred Guarantee
Trustee or any other Person. Notwithstanding the foregoing, if the
Guarantor has failed to make a Guarantee Payment, a holder of Preferred
Securities may directly institute a proceeding against the Guarantor for
enforcement of the Preferred Security Guarantee for such payment. The
Guarantor waives any right or remedy to require that any action on this
Preferred Securities Guarantee be brought first against the Issuer or any
other person or entity before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all rights, if any, of the
Holders of Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Preferred
Securities Guarantee; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled
to enforce or exercise any right that it may acquire by way of subrogation
or any indemnity, reimbursement or other agreement, in all cases as a
result of payment under this Preferred Securities Guarantee, if, at the
time of any such payment, any amounts are due and unpaid under this
Preferred Securities Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to
the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Preferred Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, if there
shall have occurred an Event of Default or an Event of Default under the
Declaration and written notice of such Event of Default has been given to
the Guarantor, then (a) the Guarantor shall not declare or pay dividends
or make any distribution with respect to, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its capital stock
(other than (i) purchases or acquisitions of capital stock of the
Guarantor in connection with the satisfaction by the Guarantor of its
obligations under any employee or agent benefit plans or the satisfaction
by the Guarantor of its obligations pursuant to any contract or security
outstanding on the date of such event requiring the Guarantor to purchase
capital stock of the Guarantor, (ii) as a result of a reclassification of
the Guarantor's capital stock or the exchange or conversion of one class
or series of the Guarantor's capital stock for another class or series of
the Guarantor's capital stock, (iii) the purchase of fractional interests
in shares of the Guarantor's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted
or exchanged, (iv) dividends or distributions in capital stock of the
Guarantor (or rights to acquire capital stock) or repurchases or
redemptions of capital stock solely from the issuance or exchange of
capital stock or (v) redemptions or purchases of any rights outstanding
under a shareholder rights plan), (b) the Guarantor shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Guarantor that rank junior to
the Debentures to the extent appropriate notice has been given to the
holders thereof effectively blocking such payment or to the extent the
failure to make any such payment is otherwise authorized under the
agreements governing such debt securities, and (c) the Guarantor shall not
make any guarantee payments with respect to the foregoing (other than
payments pursuant to the Guarantee or the Common Securities Guarantee) to
the extent appropriate notice has been given to the beneficiaries thereof
effectively blocking such payment or to the extent the failure to make any
such payment is otherwise authorized under the agreements governing such
guarantee payments.
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and, at all times when an Event of Default has
occurred and is continuing under the Declaration, will rank:
(i) subordinate and junior in right of payment to, and
shall not be paid until the prior payment in full of, all
liabilities of the Guarantor except those liabilities of the
Guarantor made pari passu herewith or subordinate hereto by their
terms;
(ii) pari passu with, and shall be paid ratably in any
bankruptcy, liquidation or dissolution of the Guarantor with, the
most senior preferred or preference stock now or hereafter issued
by the Guarantor and with any guarantee now or hereafter entered
into by the Guarantor in respect of any preferred or preference
stock of any Affiliate of the Guarantor, and
(iii) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate upon (i) full
payment of the Repayment Price of all Preferred Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Preferred
Securities or (iii) upon full payment of the amounts payable in accordance
with the Declaration upon liquidation of the Issuer. Notwithstanding the
foregoing, this Preferred Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any
Holder of Preferred Securities must restore payment of any sums paid under
the Preferred Securities or under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in
accordance with this Preferred Securities Guarantee and in a manner that
such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Preferred
Securities Guarantee or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person
as to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and who has been selected
with reasonable care by or on behalf of the Guarantor, including
information, opinions, reports or statements as to the value and amount of
the assets, liabilities, profits, losses, or any other facts pertinent to
the existence and amount of assets from which Distributions to Holders of
Preferred Securities might properly be paid. SECTION 8.2 Indemnification
(a) To the fullest extent permitted by applicable law, the
Guarantor shall indemnify and hold harmless each Indemnified Person from
and against any loss, damage or claim incurred by such Indemnified Person
by reason of any act or omission performed or omitted by such Indemnified
Person in good faith in accordance with this Guarantee Agreement and in a
manner such Indemnified Person reasonably believed to be within the scope
of authority conferred on such Indemnified Person by this Guarantee
Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with
respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, reasonable
out-of-pocket expenses (including legal fees) incurred by an Indemnified
Person in defending any claim, demand, action, suit or proceeding shall,
from time to time, be advanced by the Guarantor prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt
by the Guarantor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in Section 8.2(a).
(c) The provisions set forth in this Section 8.2 shall survive
the termination of the Preferred Securities Guarantee or the resignation
or removal of the Preferred Guarantee Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Preferred Securities then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect
the rights of Holders (in which case no consent of Holders will be
required), this Preferred Securities Guarantee may only be amended with
the prior approval of the Holders of at least a Majority in liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the
date upon which the voting percentages are determined) of all the
outstanding Preferred Securities. The provisions of Section 12.2 of the
Declaration with respect to meetings of Holders of the Securities apply to
the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by registered or certified mail,
as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address
as the Preferred Guarantee Trustee may give notice of to the Holders of
the Preferred Securities):
The Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of
to the Holders of the Preferred Securities):
CENDANT CORPORATION
9 West 57th Street
New York, New York 10019
(c) If given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit of
the Holders of the Preferred Securities and, subject to Section 3.1(a), is
not separately transferable from the Preferred Securities.
SECTION 9.5 Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
CENDANT CORPORATION, as Guarantor
By:
--------------------------------------------
Name:
Title:
THE WILMINGTON TRUST COMPANY, as Preferred
Guarantee Trustee
By:
------------------------------------------
Name:
Title:
Exhibit 4.12
CENDANT CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS PURCHASE CONTRACT AGENT
____________________
FORM OF PURCHASE CONTRACT AGREEMENT
____________________
DATED AS OF ________ ___,
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions and Other Provisions
of General Applications . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Compliance Certificates and Opinions. . . . . . . . 12
Section 1.3. Form of Documents Delivered to Agent. . . . . . . . 13
Section 1.4. Acts of Holders; Record Dates. . . . . . . . . . . 14
Section 1.5. Notices. . . . . . . . . . . . . . . . . . . . . . 16
Section 1.6. Notice to Holders; Waiver. . . . . . . . . . . . . 17
Section 1.7. Effect of Headings and Table of Contents. . . . . . 17
Section 1.8. Successors and Assigns. . . . . . . . . . . . . . . 18
Section 1.9. Separability Clause. . . . . . . . . . . . . . . . 18
Section 1.10. Benefits of Agreement. . . . . . . . . . . . . . . 18
Section 1.11. Governing Law. . . . . . . . . . . . . . . . . . . 18
Section 1.12. Legal Holidays. . . . . . . . . . . . . . . . . . . 18
Section 1.13. Counterparts. . . . . . . . . . . . . . . . . . . . 19
Section 1.14. Inspection of Agreement. . . . . . . . . . . . . . 19
ARTICLE II
Certificate Forms . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.1. Forms of Certificates Generally. . . . . . . . . . 19
Section 2.2. Form of Agent's Certificate of Authentication. . . 21
ARTICLE III
The Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.1. Title and Terms; Denominations. . . . . . . . . . . 21
Section 3.2. Rights and Obligations Evidenced by the Certificates.21
Section 3.3. Execution, Authentication, Delivery and Dating. . . 22
Section 3.4. Temporary Certificates. . . . . . . . . . . . . . . 23
Section 3.5. Registration; Registration of Transfer and Exchange. 24
Section 3.6. Book-Entry Interests. . . . . . . . . . . . . . . . 26
Section 3.7. Notices to Holders. . . . . . . . . . . . . . . . . 27
Section 3.8. Appointment of Successor Clearing Agency. . . . . . 27
Section 3.9. Definitive Certificates. . . . . . . . . . . . . . 27
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates. 27
Section 3.11. Persons Deemed Owners. . . . . . . . . . . . . . . 29
Section 3.12. Cancellation. . . . . . . . . . . . . . . . . . . . 29
Section 3.13. Establishment or Reestablishment of Growth PRIDES 30
Section 3.14. Establishment or Reestablishment of Income PRIDES. 32
Section 3.16. No Consent to Assumption. . . . . . . . . . . . . . 35
ARTICLE IV
The Preferred Securities . . . . . . . . . . . . . . . . . . . . . 35
Section 4.1. Payment of Distribution; Rights to Distributions
Preserved;
Distribution Rate Reset; Notice. . . . . . . . . . 35
Section 4.2. Notice and Voting. . . . . . . . . . . . . . . . . 37
Section 4.3. Distribution of Debentures; Tax Event Redemption . 37
ARTICLE V
The Purchase Contracts . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.1. Purchase of Shares of Common Stock. . . . . . . . . 39
Section 5.2. Contract Adjustment Payments. . . . . . . . . . . . 41
Section 5.3. Deferral of Payment Dates For Contract Adjustment
Payments. . . . . . . . . . . . . . . . . . . . . . 42
Section 5.4. Payment of Purchase Price. . . . . . . . . . . . . 43
Section 5.5. Issuance of Shares of Common Stock . . . . . . . . 48
Section 5.6. Adjustment of Settlement Rate . . . . . . . . . . . 49
Section 5.7. Notice of Adjustments and Certain Other Events . . 56
Section 5.8. Termination Event; Notice . . . . . . . . . . . . . 57
Section 5.9. Early Settlement . . . . . . . . . . . . . . . . . 57
Section 5.10. No Fractional Shares . . . . . . . . . . . . . . . 59
Section 5.11. Charges and Taxes . . . . . . . . . . . . . . . . . 60
ARTICLE VI
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 6.1. Unconditional Right of Holders to Receive Contract
Adjustment Payments and to Purchase Common Stock . . . 60
Section 6.2. Restoration of Rights and Remedies . . . . . . . . 61
Section 6.3. Rights and Remedies Cumulative . . . . . . . . . . 61
Section 6.4. Delay or Omission Not Waiver . . . . . . . . . . . 61
Section 6.5. Undertaking for Costs . . . . . . . . . . . . . . . 62
Section 6.6. Waiver of Stay or Extension Laws . . . . . . . . . 62
ARTICLE VII
The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 7.1. Certain Duties and Responsibilities . . . . . . . . 63
Section 7.2. Notice of Default . . . . . . . . . . . . . . . . . 64
Section 7.3. Certain Rights of Agent . . . . . . . . . . . . . . 64
Section 7.4. Not Responsible for Recitals or Issuance
of Securities 65
Section 7.5. May Hold Securities . . . . . . . . . . . . . . . . 65
Section 7.6. Money Held in Custody . . . . . . . . . . . . . . . 65
Section 7.7. Compensation and Reimbursement . . . . . . . . . . 66
Section 7.8. Corporate Agent Required; Eligibility . . . . . . . 66
Section 7.9. Resignation and Removal; Appointment of Successor . 67
Section 7.10. Acceptance of Appointment by Successor . . . . . . 68
Section 7.11. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . 69
Section 7.12. Preservation of Information; Communications
to Holders. . . . . . . . . . . . . . . . . . . . . 69
Section 7.13. No Obligations of Agent . . . . . . . . . . . . . . 70
Section 7.14. Tax Compliance . . . . . . . . . . . . . . . . . . 70
ARTICLE VIII
Supplemental Agreements . . . . . . . . . . . . . . . . . . . . . 71
Section 8.2. Supplemental Agreements with Consent of Holders . . 71
Section 8.3. Execution of Supplemental Agreements . . . . . . . 73
Section 8.4. Effect of Supplemental Agreements . . . . . . . . . 73
Section 8.5. Reference to Supplemental Agreements . . . . . . . 73
ARTICLE IX
Consolidation, Merger, Sale or Conveyance . . . . . . . . . . . . 74
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions . . . . . 74
Section 9.2. Rights and Duties of Successor Corporation . . . . 74
Section 9.3. Opinion of Counsel Given to Agent . . . . . . . . . 75
ARTICLE X
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 10.1. Performance Under Purchase Contracts . . . . . . . 75
Section 10.2. Maintenance of Office or Agency . . . . . . . . . . 75
Section 10.3. Company to Reserve Common Stock . . . . . . . . . . 76
Section 10.4. Covenants as to Common Stock . . . . . . . . . . . 76
Section 10.5. Statements of Officer of the Company as to Default 76
EXHIBIT A Form of Income PRIDES Certificate
EXHIBIT B Form of Growth PRIDES Certificate
EXHIBIT C Instructions to Collateral Agent
EXHIBIT D Instructions to Purchase Contract Agent
EXHIBIT E Notice to Settle with Separate Cash
PURCHASE CONTRACT AGREEMENT, dated as of _______ ___, between
Cendant Corporation, a Delaware corporation (the "Company"), and The First
National Bank of Chicago, a national banking association, acting as
purchase contract agent for the Holders of Securities from time to time
(the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of
this Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company and authenticated, executed on
behalf of the Holders and delivered by the Agent, as provided in this
Agreement, the valid obligations of the Company, and to constitute these
presents a valid agreement of the Company, in accordance with its terms,
have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
Definitions and Other Provisions
of General Applications
Section 1.1. Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular; and nouns and pronouns of the masculine gender include the
feminine and neuter genders;
(b) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
(d) the following terms have the meanings given to them in
the Declaration: (i) Applicable Ownership Interest; (ii) Applicable
Principal Amount; (iii) Authorized Newspaper; (iv) Indenture, (v)
Investment Company Event; (vi) Liquidation Distribution; (vii) Preferred
Securities Guarantee; (viii) Primary Treasury Dealer; (ix) Quotation Agent;
(x) Redemption Amount; (xi) Redemption Price; (xii) Reset Agent; (xiii)
Reset Announcement Date; (xiv) Reset Rate; (xv) Reset Spread; (xvi) Tax
Event; (xvii) Tax Event Redemption; (xviii) Tax Event Redemption Date;
(xix) Two-Year Benchmark Treasury; (xx) Treasury Portfolio; and (xxi)
Treasury Portfolio Purchase Price; and
(e) the following terms have the meanings given to them in
this Section 1.1(e).
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate"has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Agent" means the Person named as the "Agent" in the first
paragraph of this instrument until a successor Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Agent" shall mean such Person.
"Agreement" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions
hereof.
"Applicable Market Value" has the meaning specified in Section
5.1.
"Bankruptcy Code" means title 11 of the United States Code, or
any other law of the United States that from time to time provides a
uniform system of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry Interest,
a Person who is the beneficial owner of such Book-Entry Interest as
reflected on the books of the Clearing Agency or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Board of Directors" means the board of directors of the Company
or a duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification and delivered to the Agent.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 3.6.
"Business Day" means any day other than a Saturday, Sunday or any
other day on which banking institutions in New York City (in the State of
New York) are permitted or required by any applicable law to close.
"Cash Settlement" has the meaning set forth in Section 5.4(a)(i).
"Certificate" means an Income PRIDES Certificate or a Growth
PRIDES Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Securities and in whose name, or in the name of a
nominee of that organization, shall be registered a Global Certificate and
which shall undertake to effect book entry transfers and pledges of the
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Price" has the meaning specified in Section 5.1.
"Collateral" has the meaning specified in Section 2.1 of the
Pledge Agreement.
"Collateral Agent" means The Chase Manhattan Bank, as Collateral
Agent under the Pledge Agreement until a successor Collateral Agent shall
have become such pursuant to the applicable provisions of the Pledge
Agreement, and thereafter "Collateral Agent" shall mean the Person who is
then the Collateral Agent thereunder.
"Collateral Substitution" has the meaning specified in Section
3.13.
"Common Stock" means the Common Stock, par value $0.01, of the
Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such
pursuant to the applicable provision of this Agreement, and thereafter
"Company" shall mean such successor.
"Contract Adjustment Payments" means the fee payable by the
Company in respect of each Purchase Contract, equal to % per annum of the
Stated Amount in the case of Income PRIDES and % per annum of the Stated
Amount in the case of Growth PRIDES, computed on the basis of a 360 day
year of twelve 30 day months, plus any Deferred Contract Adjustment
Payments accrued pursuant to Section 5.2.
"Corporate Trust Office" means the principal corporate trust
office of the Agent at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located
at One First National Plaza, Suite 0126, Chicago, IL 60670-0126, Attention:
Corporate Trust Services Division, except that for purposes of Section
10.2, such term shall mean the office or agency of the Agent in the Borough
of Manhattan, the City of New York, which office at the date hereof is
located at 14 Wall Street, Eighth Floor, New York, NY 10005.
"Coupon Rate" means the percentage rate per annum at which each
Debenture will bear interest initially.
"Current Market Price" has the meaning specified in Section
5.6(a)(8).
"Debentures" means the series of debentures of the Company
designated the ____% Debentures due February 16, 2003, to be issued under
the Indenture as of the date hereof.
"Declaration" means the Amended and Restated Agreement of Trust
of Cendant Capital II, dated ________ ___, _______, among the Company, as
the sponsor, the trustees named therein and the holders from time to time
of individual beneficial interests in the assets of the Trust.
"Deferred Contract Adjustment Payments" has the meaning specified
in Section 5.3.
"Depositary" means, initially, DTC until another Clearing Agency
becomes its successor.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Early Settlement" has the meaning specified in Section 5.9(a).
"Early Settlement Amount" has the meaning specified in Section
5.9(a).
"Early Settlement Date" has the meaning specified in Section
5.9(a).
"Early Settlement Rate" has the meaning specified in Section
5.9(b).
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and
the rules and regulations promulgated thereunder.
"Expiration Date" has the meaning specified in Section 1.4.
"Expiration Time" has the meaning specified in Section 5.6(a)(6).
"Global Certificate" means a Certificate that evidences all or
part of the Securities and is registered in the name of a Depositary or a
nominee thereof.
"Global Preferred Security Certificate" means a certificate
evidencing the rights and obligations of a Holder in respect of the number
of Preferred Securities specified on such certificate and which is
registered in the name of a Clearing Agency or a nominee thereof.
"Growth PRIDES" means, following the substitution of one or more
Treasury Securities for Preferred Securities or for the Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, as
collateral to secure a holder's obligations under a Purchase Contract, the
collective rights and obligations of a holder of a Growth PRIDES
Certificate in respect of such Treasury Securities, subject in each case to
the Pledge thereof, and the related Purchase Contract.
"Growth PRIDES Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Growth
PRIDES specified on such certificate.
"Growth PRIDES Register" and "Growth PRIDES Registrar" have the
respective meanings specified in Section 3.5.
"Holder," when used with respect to a Security, means the Person
in whose name the Security evidenced by an Income PRIDES Certificate and/or
a Growth PRIDES Certificate is registered in the related Income PRIDES
Register and/or the Growth PRIDES Register, as the case may be.
"Income PRIDES" means the collective rights and obligations of a
Holder of an Income PRIDES Certificate in respect of a Preferred Security
or an appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, subject in each case to the Pledge thereof, and the
related Purchase Contract.
"Income PRIDES Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Income
PRIDES specified on such certificate.
"Income PRIDES Register" and "Income PRIDES Registrar" have the
respective meanings specified in Section 3.5.
"Indenture" has the meaning set forth in Section 1.1 of the
Declaration.
"Indenture Trustee" means The Bank of Nova Scotia Trust Company
of New York, a national banking association, as trustee under the
Indenture, or any successor thereto.
"Institutional Trustee" means Wilmington Trust Company, as
institutional trustee under the Declaration, or any successor thereto that
is a financial institution unaffiliated with the Company.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by its Chairman of the Board, any
Vice Chairman, its President or a Vice President and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Agent.
"NYSE" has the meaning specified in Section 5.1.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, any Vice Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary of the Company and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company or an
Affiliate and who shall be reasonably acceptable to the Agent.
"Outstanding Securities," with respect to any Income PRIDES or
Growth PRIDES, means, as of the date of determination, all Income PRIDES or
Growth PRIDES evidenced by Certificates theretofore authenticated, executed
and delivered under this Agreement, except:
(i) If a Termination Event has occurred, (A) Growth
PRIDES and (B) Income PRIDES for which the Stated Amount of the
related Preferred Security or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, or a Liquidation Distribution in
respect of such Preferred Security, as the case may be, has been
theretofore deposited with the Agent in trust for the Holders of such
Income PRIDES;
(ii) Income PRIDES and Growth PRIDES evidenced by
Certificates theretofore cancelled by the Agent or delivered to the
Agent for cancellation or deemed cancelled pursuant to the provisions
of this Agreement; and
(iii) Income PRIDES and Growth PRIDES evidenced by
Certificates in exchange for or in lieu of which other Certificates
have been authenticated, executed on behalf of the Holder and
delivered pursuant to this Agreement, other than any such Certificate
in respect of which there shall have been presented to the Agent proof
satisfactory to it that such Certificate is held by a bona fide
purchaser in whose hands the Income PRIDES or
Growth PRIDES evidenced by such Certificate are valid obligations
of the Company; provided, however, that in determining whether the Holders
of the requisite number of the Income PRIDES or Growth PRIDES have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Income PRIDES or Growth PRIDES owned by the Company or any
Affiliate of the Company shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Agent shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Income PRIDES or Growth PRIDES
which a Responsible Officer of the Agent knows to be so owned shall be so
disregarded. Income PRIDES or Growth PRIDES so owned which have been
pledged in good faith may be regarded as Outstanding Securities if the
pledgee establishes to the satisfaction of the Agent the pledgee's right so
to act with respect to such Income PRIDES or Growth PRIDES and that the
pledgee is not the Company or any Affiliate of the Company.
"Payment Date" means each February 16, May 16, August 16 and
November 16, commencing , .
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Permitted Investments" has the meaning set forth in Section 1 of
the Pledge Agreement.
"Pledge" means the pledge under the Pledge Agreement of the
Preferred Securities, the Treasury Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, in each case constituting a
part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, by and among the Company, the Collateral Agent and the Agent,
on its own behalf and as attorney-in-fact for the Holders from time to time
of the Securities.
"Predecessor Certificate" means a Predecessor Income PRIDES
Certificate or a Predecessor Growth PRIDES Certificate.
"Predecessor Growth PRIDES Certificate" of any particular Growth
PRIDES Certificate means every previous Growth PRIDES Certificate
evidencing all or a portion of the rights and obligations of the Company
and the Holder under the Growth PRIDES evidenced thereby; and, for the
purposes of this definition, any Growth PRIDES Certificate authenticated
and delivered under Section 3.10 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Growth PRIDES Certificate shall be deemed to
evidence the same rights and obligations of the Company and the Holder as
the mutilated, destroyed, lost or stolen Growth PRIDES Certificate.
"Predecessor Income PRIDES Certificate" of any particular Income
PRIDES Certificate means every previous Income PRIDES Certificate
evidencing all or a portion of the rights and obligations of the Company
and the Holder under the Income PRIDES evidenced thereby; and, for the
purposes of this definition, any Income PRIDES Certificate authenticated
and delivered under Section 3.10 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Income PRIDES Certificate shall be deemed to
evidence the same rights and obligations of the Company and the Holder as
the mutilated, destroyed, lost or stolen Income PRIDES Certificate.
"Preferred Securities" means the ____% Trust Originated Preferred
Securities of the Trust, each having a stated liquidation amount of $50,
representing preferred undivided beneficial interests in the assets of the
Trust.
"Proceeds" has the meaning set forth in Section 1 of the Pledge
Agreement.
"Purchase Contract," when used with respect to any Security,
means the contract forming a part of such Security and obligating the
Company to (i) sell and the Holder of such Security to purchase Common
Stock and (ii) pay the Holder Contract Adjustment Payments, if any, on the
terms and subject to the conditions set forth in Article Five hereof.
"Purchase Contract Settlement Date" means February 16, 2001.
"Purchase Contract Settlement Fund" has the meaning specified in
Section 5.5.
"Purchase Price" has the meaning specified in Section 5.1.
"Purchased Shares" has the meaning specified in Section
5.6(a)(6).
"Record Date" for the distribution and Contract Adjustment
Payments payable on any Payment Date means, as to any Global Certificate,
the Business Day next preceding such Payment Date, and as to any other
Certificate, a day selected by the Company which shall be more than one
Business Day but less than 60 Business Days prior to such Payment Date.
"Register" means the Income PRIDES Register and the Growth PRIDES
Register.
"Registrar" means the Income PRIDES Registrar and the Growth
PRIDES Registrar.
"Remarketing Agent" has the meaning specified in Section 5.4.
"Remarketing Agreement" means the Remarketing Agreement dated
_______ ___, _______ by and between the Company, the Trust, the Remarketing
Agent and the Purchase Contract Agent.
"Remarketing Fee" has the meaning specified in Section 5.4.
"Remarketing Purchase Agreement" has the meaning specified in the
Remarketing Agreement.
"Reorganization Event" has the meaning specified in Section
5.6(b).
"Responsible Officer," when used with respect to the Agent, means
any officer of the Agent assigned by the Agent to administer its corporate
trust matters.
"Security" means an Income PRIDES or a Growth PRIDES.
"Senior Indebtedness" means indebtedness of any kind of the
Company unless the instrument under which such indebtedness is incurred
expressly provides that it is on parity with or subordinated in right of
payment to the Contract Adjustment Payments.
"Settlement Rate" has the meaning specified in Section 5.1.
"Stated Amount" means $50.
"Termination Date" means the date, if any, on which a Termination
Event occurs.
"Termination Event" means the occurrence of any of the following
events: (i) at any time on or prior to the Purchase Contract Settlement
Date, a judgment, decree or court order shall have been entered granting
relief under the Bankruptcy Code, adjudicating the Company to be insolvent,
or approving as properly filed a petition seeking reorganization or
liquidation of the Company or any other similar applicable Federal or State
law, and, unless such judgment, decree or order shall have been entered
within 60 days prior to the Purchase Contract Settlement Date, such decree
or order shall have continued undischarged and unstayed for a period of 60
days; or (ii) a judgment, decree or court order for the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of the Company or of its property, or for the winding up or liquidation of
its affairs, shall have been entered, and, unless such judgment, decree or
order shall have been entered within 60 days prior to the Purchase Contract
Settlement Date, such judgment, decree or order shall have continued
undischarged and unstayed for a period of 60 days, or (iii) at any time on
or prior to the Purchase Contract Settlement Date the Company shall file a
petition for relief under the Bankruptcy Code, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization or liquidation under the
Bankruptcy Code or any other similar applicable Federal or State law, or
shall consent to the filing of any such petition, or shall consent to the
appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of it or of its property, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in
Section 5.1.
"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor statute.
"Trading Day" has the meaning specified in Section 5.1.
"Treasury Security" means a 1/2 undivided beneficial interest in
a zero-coupon U.S. Treasury Securities (Cusip Number ) with a
principal amount of maturity equal to $1000 which mature on February 15,
2001.
"Trust" means Cendant Capital II, a statutory business trust
formed under the laws of the State of Delaware, or any successor thereto by
merger or consolidation.
"Underwriting Agreement" means the Underwriting Agreement dated
________ ___, _____ between the Company, the Trust, and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Chase Securities Inc.
"Vice President" means any vice president, whether or not
designated by a number or a word or words added before or after the title
"vice president."
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon
any application or request by the Company to the Agent to take any action
under any provision of this Agreement, the Company shall furnish to the
Agent an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Agreement relating to the proposed action have
been complied with and, if requested by the Agent, an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with, except that in the case of any
such application or request as to which the furnishing of such documents is
specifically required by any provision of this Agreement relating to such
particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation
as is necessary to enable such individual to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
Section 1.3. Form of Documents Delivered to Agent.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Agent and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Agreement and (subject to
Section 7.1) conclusive in favor of the Agent and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner which the Agent
deems sufficient.
(c) The ownership of Securities shall be proved by the
Income PRIDES Register or the Growth PRIDES Register, as the case may be.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Certificate shall bind
every future Holder of the same Certificate and the Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Certificate.
(e) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Agreement to
be given, made or taken by Holders of Securities. If any record date is set
pursuant to this paragraph, the Holders of the Outstanding Income PRIDES
and the Outstanding Growth PRIDES, as the case may be, on such record date,
and no other Holders, shall be entitled to take the relevant action with
respect to the Income PRIDES or the Growth PRIDES, as the case may be,
whether or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken on or prior
to the applicable Expiration Date by Holders of the requisite number of
Outstanding Securities on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite number of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Agent in writing and to each Holder of Securities
in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to
time may change the Expiration Date to any earlier or later day; provided
that no such change shall be effective unless notice of the proposed new
Expiration Date is given to the Agent in writing, and to each Holder of
Securities in the manner set forth in Section 1.6, on or prior to the
existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the Company shall
be deemed to have initially designated the 180th day after such record date
as the Expiration Date with respect thereto, subject to its right to change
the Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
Section 1.5. Notices.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Agreement to be made upon, given or furnished to, or filed with,
(1) the Agent by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing
and personally delivered or mailed, first-class postage prepaid,
to the Agent at The First National Bank of Chicago, One First
National Plaza, Suite 0126, Chicago, IL 60670-0126, Attention:
Corporate Trust Services Division, or at any other address
previously furnished in writing by the Agent to the Holders and
the Company; or
(2) the Company by the Agent or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing
and personally delivered or mailed, first-class postage prepaid,
to the Company at Cendant Corporation, 9 West 57th Street, New
York, NY 10019, Attention: Corporate Secretary, or at any other
address previously furnished in writing to the Agent by the
Company; or
(3) the Collateral Agent by the Agent, the Company or
any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given,
furnished or filed in writing and personally delivered or mailed,
first-class postage prepaid, addressed to the Collateral Agent at
The Chase Manhattan Bank, 450 West 33rd Street, 15th Floor, New
York, NY 10001, Attention: Corporate Trust Administration, or at
any other address previously furnished in writing by the
Collateral Agent to the Agent, the Company and the Holders; or
(4) the Institutional Trustee by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing
and personally delivered or mailed, first-class postage prepaid,
addressed to the Institutional Trustee at Wilmington Trust
Company [ ], Attention: Corporate Trust Services Division, or at
any other address previously furnished in writing by the
Institutional Trustee to the Company; or
(5) the Indenture Trustee by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing
and personally delivered or mailed, first-class postage prepaid,
addressed to the Indenture Trustee at [ ] or at any other address
previously furnished in writing by the Indenture Trustee to the
Company.
Section 1.6. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at its address as it appears in the
applicable Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Agreement provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Agent, but
such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Agent shall constitute a sufficient notification for every purpose
hereunder.
Section 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.8. Successors and Assigns.
All covenants and agreements in this Agreement by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.9. Separability Clause.
In case any provision in this Agreement or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in
any way be affected or impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing in this Agreement or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and, to the extent provided hereby, the Holders, any
benefits or any legal or equitable right, remedy or claim under this
Agreement. The Holders from time to time shall be beneficiaries of this
Agreement and shall be bound by all of the terms and conditions hereof and
of the Securities evidenced by their Certificates by their acceptance of
delivery of such Certificates.
Section 1.11. Governing Law.
This Agreement and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business Day,
then (notwithstanding any other provision of this Agreement or the Income
PRIDES Certificates or the Growth PRIDES Certificates) payment of the
Contract Adjustment Payments, if any, shall not be made on such date, but
such payments shall be made on the next succeeding Business Day with the
same force and effect as if made on such Payment Date, provided that no
interest shall accrue or be payable by the Company or any Holder for the
period from and after any such Payment Date, except that, if such next
succeeding Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day with the
same force and effect as if made on such Payment Date.
In any case where any Purchase Contract Settlement Date shall not
be a Business Day, then (notwithstanding any other provision of this
Agreement, the Income PRIDES Certificates or the Growth PRIDES
Certificates), the Purchase Contracts shall not be performed on such date,
but the Purchase Contracts shall be performed on the immediately following
Business Day with the same force and effect as if performed on the Purchase
Contract Settlement Date.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts by
the parties hereto on separate counterparts, each of which, when so
executed and delivered, shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable
times during normal business hours at the Corporate Trust Office for
inspection by any Holder.
ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally.
The Income PRIDES Certificates (including the form of Purchase
Contract forming part of the Income PRIDES evidenced thereby) shall be in
substantially the form set forth in Exhibit A hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required
by the rules of any securities exchange on which the Income PRIDES are
listed or any depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Income PRIDES
Certificates, as evidenced by their execution of the Income PRIDES
Certificates.
The definitive Income PRIDES Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in
any other manner, all as determined by the officers of the Company
executing the Income PRIDES evidenced by such Income PRIDES Certificates,
consistent with the provisions of this Agreement, as evidenced by their
execution thereof.
The Growth PRIDES Certificates (including the form of Purchase
Contracts forming part of the Growth PRIDES evidenced thereby) shall be in
substantially the form set forth in Exhibit B hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required
by the rules of any securities exchange on which the Growth PRIDES may be
listed or any depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Growth PRIDES
Certificates, as evidenced by their execution of the Growth PRIDES
Certificates.
The definitive Growth PRIDES Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in
any other manner, all as determined by the officers of the Company
executing the Growth PRIDES evidenced by such Growth PRIDES Certificates,
consistent with the provisions of this Agreement, as evidenced by their
execution thereof.
Every Global Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the
following form:
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED
IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND
NO TRANSFER OF THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE
CONTRACT AGREEMENT.
Section 2.2. Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the
Income PRIDES shall be in substantially the form set forth on the form of
the Income PRIDES Certificates.
The form of the Agent's certificate of authentication of the
Growth PRIDES shall be in substantially the form set forth on the form of
the Growth PRIDES Certificates.
ARTICLE III
The Securities
Section 3.1. Title and Terms; Denominations.
The aggregate number of Income PRIDES evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to except for Certificates authenticated, executed and delivered
upon registration of transfer of, in exchange for, or in lieu of, other
Certificates pursuant to Section 3.4, 3.5, 3.10, 3.13, 3.14, 5.9 or 8.5.
The Certificates shall be issuable only in registered form and
only in denominations of a single Income PRIDES or Growth PRIDES and any
integral multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each Income PRIDES Certificate shall evidence the number of
Income PRIDES specified therein, with each such Income PRIDES representing
the ownership by the Holder thereof of a beneficial interest in a Preferred
Security or the Applicable Ownership Interest of the Treasury Portfolio, as
the case may be, subject to the Pledge of such Preferred Security or the
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, by such Holder pursuant to the Pledge Agreement, and the rights and
obligations of the Holder thereof and the Company under one Purchase
Contract. The Agent as attorney-in-fact for, and on behalf of, the Holder
of each Income PRIDES shall pledge, pursuant to the Pledge Agreement, the
Preferred Security or the Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, forming a part of such Income PRIDES, to the
Collateral Agent and grant to the Collateral Agent a security interest in
the right, title, and interest of such Holder in such Preferred Security or
the Applicable Ownership Interest of the Treasury Portfolio, as the case
may be, for the benefit of the Company, to secure the obligation of the
Holder under each Purchase Contract to purchase the Common Stock of the
Company. Prior to the purchase of shares of Common Stock under each
Purchase Contract, such Purchase Contracts shall not entitle the Holder of
an Income PRIDES Certificates to any of the rights of a holder of shares of
Common Stock, including, without limitation, the right to vote or receive
any dividends or other payments or to consent or to receive notice as
stockholders in respect of the meetings of stockholders or for the election
of directors of the Company or for any other matter, or any other rights
whatsoever as stockholders of the Company.
Each Growth PRIDES Certificate shall evidence the number of
Growth PRIDES specified therein, with each such Growth PRIDES representing
the ownership by the Holder thereof of a 1/20 undivided beneficial interest
in a Treasury Security with a principal amount equal to $1,000 subject to
the Pledge of such Treasury Security by such Holder pursuant to the Pledge
Agreement, and the rights and obligations of the Holder thereof and the
Company under one Purchase Contract. Prior to the purchase, if any, of
shares of Common Stock under the Purchase Contracts, such Growth PRIDES
Certificates shall not entitle the Holders of Growth PRIDES Certificates to
any of the rights of a holder of shares of Common Stock, including, without
limitation, the right to vote or receive any dividends or other payments or
to consent or to receive notice as stockholders in respect of the meetings
of stockholders or for the election of directors of the Company or for any
other matter, or any other rights whatsoever as stockholders of the
Company.
Section 3.3. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Sections 3.13 and 3.14 hereof, upon
the execution and delivery of this Agreement, and at any time and from time
to time thereafter, the Company may deliver Certificates executed by the
Company to the Agent for authentication, execution on behalf of the Holders
and delivery, together with its Issuer Order for authentication of such
Certificates, and the Agent in accordance with such Issuer Order shall
authenticate, execute on behalf of the Holders and deliver such
Certificates.
The Certificates shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President or
one of its Vice Presidents or Treasurer. The signature of any of these
officers on the Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Certificates or did not hold such offices at the date of such
Certificates.
No Purchase Contract evidenced by a Certificate shall be valid
until such Certificate has been executed on behalf of the Holder by the
manual signature of an authorized signatory of the Agent, as such Holder's
attorney-in-fact. Such signature by an authorized signatory of the Agent
shall be conclusive evidence that the Holder of such Certificate has
entered into the Purchase Contracts evidenced by such Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on
such Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized signatory of the Agent by
manual signature, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder.
Section 3.4. Temporary Certificates.
Pending the preparation of definitive Certificates, the Company
shall execute and deliver to the Agent, and the Agent shall authenticate,
execute on behalf of the Holders, and deliver, in lieu of such definitive
Certificates, temporary Certificates which are in substantially the form
set forth in Exhibit A or Exhibit B hereto, as the case may be, with such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the Income PRIDES
or Growth PRIDES are listed, or as may, consistently herewith, be
determined by the officers of the Company executing such Certificates, as
evidenced by their execution of the Certificates.
If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After
the preparation of definitive Certificates, the temporary Certificates
shall be exchangeable for definitive Certificates upon surrender of the
temporary Certificates at the Corporate Trust Office, at the expense of the
Company and without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Certificates, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf
of the Holder, and deliver in exchange therefor, one or more definitive
Certificates of like tenor and denominations and evidencing a like number
of Income PRIDES or Growth PRIDES, as the case may be, as the temporary
Certificate or Certificates so surrendered. Until so exchanged, the
temporary Certificates shall in all respects evidence the same benefits and
the same obligations with respect to the Income PRIDES or Growth PRIDES, as
the case may be, evidenced thereby as definitive Certificates.
Section 3.5. Registration; Registration of Transfer and Exchange.
The Agent shall keep at the Corporate Trust Office a register
(the "Income PRIDES Register") in which, subject to such reasonable
regulations as it may prescribe, the Agent shall provide for the
registration of Income PRIDES Certificates and of transfers of Income
PRIDES Certificates (the Agent, in such capacity, the "Income PRIDES
Registrar") and a Register (the "Growth PRIDES Register") in which, subject
to such reasonable regulations as it may prescribe, the Agent shall provide
for the registration of the Growth PRIDES Certificates and transfers of
Growth PRIDES Certificates (the Agent, in such capacity, the "Growth PRIDES
Registrar").
Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the
designated transferee or transferees, and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of any
authorized denominations, like tenor, and evidencing a like number of
Income PRIDES or Growth PRIDES, as the case may be.
At the option of the Holder, Certificates may be exchanged for
other Certificates, of any authorized denominations and evidencing a like
number of Income PRIDES or Growth PRIDES, as the case may be, upon
surrender of the Certificates to be exchanged at the Corporate Trust
Office. Whenever any Certificates are so surrendered for exchange, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver the Certificates
which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same number
of Income PRIDES or Growth PRIDES, as the case may be, and be entitled to
the same benefits and subject to the same obligations, under this Agreement
as the Income PRIDES or Growth PRIDES, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Agent duly executed, by the Holder
thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of a Certificate, but the Company and the Agent may require
payment from the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration
of transfer or exchange of Certificates, other than any exchanges pursuant
to Sections 3.6 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated
to execute and deliver to the Agent, and the Agent shall not be obligated
to authenticate, execute on behalf of the Holder and deliver any
Certificate presented or surrendered for registration of transfer or for
exchange on or after the Business Day immediately preceding the earlier of
the Purchase Contract Settlement Date or the Termination Date. In lieu of
delivery of a new Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Agent shall (i)
if the Purchase Contract Settlement Date has occurred, deliver the shares
of Common Stock issuable in respect of the Purchase Contracts forming a
part of the Securities evidenced by such Certificate, (ii) in the case of
Income PRIDES, if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the aggregate Stated Amount of
the Preferred Securities or the Treasury Portfolio, as applicable,
evidenced thereby, or (iii) in the case of Growth PRIDES, if a Termination
Event shall have occurred prior to the Purchase Contract Settlement Date,
transfer the Treasury Securities evidenced thereby, in each case subject to
the applicable conditions and in accordance with the applicable provisions
of Article Five hereof.
Section 3.6. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the
form of one or more, fully registered Global Certificates, to be delivered
to the Depositary by, or on behalf of, the Company. Such Global Certificate
shall initially be registered on the books and records of the Company in
the name of Cede & Co., the nominee of the Depositary, and no Beneficial
Owner will receive a definitive Certificate representing such Beneficial
Owner's interest in such Global Certificate, except as provided in Section
3.9. The Agent shall enter into an agreement with the Depositary if so
requested by the Company. Unless and until definitive, fully registered
Certificates have been issued to Beneficial Owners pursuant to Section 3.9:
(a) the provisions of this Section 3.6 shall be in full
force and effect;
(b) the Company shall be entitled to deal with the Clearing
Agency for all purposes of this Agreement (including the payment of
Contract Adjustment Payments, if any, and receiving approvals, votes or
consents hereunder) as the Holder of the Securities and the sole holder of
the Global Certificate(s) and shall have no obligation to the Beneficial
Owners;
(c) to the extent that the provisions of this Section 3.6
conflict with any other provisions of this Agreement, the provisions of
this Section 3.6 shall control; and
(d) the rights of the Beneficial Owners shall be exercised
only through the Clearing Agency and shall be limited to those established
by law and agreements between such Beneficial Owners and the Clearing
Agency and/or the Clearing Agency Participants. The Clearing Agency will
make book entry transfers among Clearing Agency Participants and receive
and transmit payments of Contract Adjustment Payments to such Clearing
Agency Participants.
Section 3.7. Notices to Holders.
Whenever a notice or other communication to the Holders is
required to be given under this Agreement, the Company or the Company's
agent shall give such notices and communications to the Holders and, with
respect to any Securities registered in the name of a Clearing Agency or
the nominee of a Clearing Agency, the Company or the Company's agent shall,
except as set forth herein, have no obligations to the Beneficial Owners.
Section 3.8. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities, the Company may, in
its sole discretion, appoint a successor Clearing Agency with respect to
the Securities.
Section 3.9. Definitive Certificates.
If (i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 3.8, (ii) the Company elects to terminate the book-
entry system through the Clearing Agency with respect to the Securities, or
(iii) there shall have occurred and be continuing a default by the Company
in respect of its obligations under one or more Purchase Contracts, then
upon surrender of the Global Certificates representing the Book-Entry
Interests with respect to the Securities by the Clearing Agency,
accompanied by registration instructions, the Company shall cause
definitive Certificates to be delivered to Beneficial Owners in accordance
with the instructions of the Clearing Agency. The Company shall not be
liable for any delay in delivery of such instructions and may conclusively
rely on and shall be protected in relying on, such instructions.
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Agent, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, a new Certificate at the cost of the Holder, evidencing the same
number of Income PRIDES or Growth PRIDES, as the case may be, and bearing a
Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i)
evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and (ii) such security or indemnity at the cost of the Holder
as may be required by them to hold each of them and any agent of any of
them harmless, then, in the absence of notice to the Company or the Agent
that such Certificate has been acquired by a bona fide purchaser, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver to the Holder,
in lieu of any such destroyed, lost or stolen Certificate, a new
Certificate, evidencing the same number of Income PRIDES or Growth PRIDES,
as the case may be, and bearing a Certificate number not contemporaneously
outstanding.
Notwithstanding the foregoing, the Company shall not be obligated
to execute and deliver to the Agent, and the Agent shall not be obligated
to authenticate, execute on behalf of the Holder, and deliver to the
Holder, a Certificate on or after the Business Day immediately preceding
the earlier of the Purchase Contract Settlement Date or the Termination
Date. In lieu of delivery of a new Certificate, upon satisfaction of the
applicable conditions specified above in this Section and receipt of
appropriate registration or transfer instructions from such Holder, the
Agent shall (i) if the Purchase Contract Settlement Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the Securities evidenced by such Certificate,
or (ii) if a Termination Event shall have occurred prior to the Purchase
Contract Settlement Date, transfer the Preferred Securities, the
appropriate Applicable Ownership Interest of the Treasury Portfolio or the
Treasury Securities, as the case may be, evidenced thereby, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
Upon the issuance of any new Certificate under this Section, the
Company and the Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of
any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder in
respect of the Security evidenced thereby, whether or not the destroyed,
lost or stolen Certificate (and the Securities evidenced thereby) shall be
at any time enforceable by anyone, and shall be entitled to all the
benefits and be subject to all the obligations of this Agreement equally
and proportionately with any and all other Certificates delivered
hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
Section 3.11. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of
transfer, the Company and the Agent, and any agent of the Company or the
Agent, may treat the Person in whose name such Certificate is registered as
the owner of the Income PRIDES or Growth PRIDES evidenced thereby, for the
purpose of receiving distributions on the Preferred Securities or on the
maturing quarterly interest strips of the Treasury Portfolio, as
applicable, receiving payments of Contract Adjustment Payments, performance
of the Purchase Contracts and for all other purposes whatsoever, whether or
not any distributions on the Preferred Securities or the Contract
Adjustment Payments payable in respect of the Purchase Contracts
constituting a part of the Income PRIDES or Growth PRIDES evidenced thereby
shall be overdue and notwithstanding any notice to the contrary, and
neither the Company nor the Agent, nor any agent of the Company or the
Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Certificate, nothing herein shall prevent the Company, the Agent or any
agent of the Company or the Agent, from giving effect to any written
certification, proxy or other authorization furnished by any Clearing
Agency (or its nominee), as a Holder, with respect to such Global
Certificate or impair, as between such Clearing Agency and owners of
beneficial interests in such Global Certificate, the operation of customary
practices governing the exercise of rights of such Clearing Agency (or its
nominee) as Holder of such Global Certificate.
Section 3.12. Cancellation.
All Certificates surrendered for delivery of shares of Common
Stock on or after the Purchase Contract Settlement Date, upon the transfer
of Preferred Securities, the appropriate Applicable Ownership Interest of
the Treasury Portfolio or Treasury Securities, as the case may be, after
the occurrence of a Termination Event or pursuant to an Early Settlement,
or upon the registration of a transfer or exchange of a Security, or a
Collateral Substitution or the re-establishment of an Income PRIDES shall,
if surrendered to any Person other than the Agent, be delivered to the
Agent and, if not already cancelled, shall be promptly cancelled by it. The
Company may at any time deliver to the Agent for cancellation any
Certificates previously authenticated, executed and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all
Certificates so delivered shall, upon Issuer Order, be promptly cancelled
by the Agent. No Certificates shall be authenticated, executed on behalf of
the Holder and delivered in lieu of or in exchange for any Certificates
cancelled as provided in this Section, except as expressly permitted by
this Agreement. All cancelled Certificates held by the Agent shall be
destroyed by the Agent unless otherwise directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Agent
cancelled or for cancellation.
Section 3.13. Establishment or Reestablishment of Growth PRIDES
A Holder may separate the Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as applicable,
from the related Purchase Contracts in respect of an Income PRIDES by
substituting for such Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, Treasury
Securities in an aggregate principal amount equal to the aggregate Stated
Amount of such Preferred Securities or for the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such
term) of the Treasury Portfolio, as applicable (a "Collateral
Substitution"), at any time from and after the date of this Agreement and
on or prior to the fifth Business Day immediately preceding the Purchase
Contract Settlement Date in the case of the Preferred Securities and on or
prior to the second Business Day immediately preceding the Purchase
Contract Settlement Date in the case of the appropriate Applicable
Ownership Interest of the Treasury Portfolio, in each case by (a)
depositing with the Collateral Agent Treasury Securities having an
aggregate principal amount equal to the aggregate Stated Amount of the
Preferred Securities comprising part of such Income PRIDES or for the
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio comprising part of
such Income PRIDES, as the case may be, and (b) (i) in the event that
Contract Adjustment Payments are at a higher rate for Income PRIDES than
for Growth PRIDES, by delivering cash in an amount equal to the excess of
the Contract Adjustment Payments that would have accrued since the last
Payment Date through the date of substitution on the Growth PRIDES being
created by the holder, over the Contract Adjustment Payments that have
accrued over the same time period on the related Income PRIDES, which
amount the Agent shall promptly remit to the Company, and (ii) transferring
the related Income PRIDES to the Agent accompanied by a notice to the
Agent, substantially in the form of Exhibit D hereto, stating that the
Holder has transferred the relevant amount of Treasury Securities to the
Collateral Agent and requesting that the Agent instruct the Collateral
Agent to release the Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be,
underlying such Income PRIDES, whereupon the Agent shall promptly give such
instruction to the Collateral Agent, substantially in the form of Exhibit C
hereto. Upon receipt of the Treasury Securities described in clause (a)
above and the instruction described in clause (b) above, in accordance with
the terms of the Pledge Agreement, the Collateral Agent will release to the
Agent, on behalf of the Holder, Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, having a corresponding aggregate Stated Amount of such Preferred
Securities or the appropriate Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio, as
the case may be, from the Pledge, free and clear of the Company's security
interest therein, and upon receipt thereof the Agent shall promptly:
(i) cancel the related Income PRIDES;
(ii) transfer the Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, to the Holder; and
(iii) authenticate, execute on behalf of
such Holder and deliver a Growth PRIDES Certificate executed by
the Company in accordance with Section 3.3 evidencing the same
number of Purchase Contracts as were evidenced by the cancelled
Income PRIDES.
Holders who elect to separate the Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, from the related Purchase Contract and to substitute Treasury
Securities for such Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, shall be
responsible for any fees or expenses payable to the Collateral Agent for
its services as Collateral Agent in respect of the substitution, and the
Company shall not be responsible for any such fees or expenses.
Holders may make Collateral Substitutions (i) only in integral
multiples of 20 Income PRIDES if Preferred Securities are being substituted
by Treasury Securities, or (ii) only in integral multiples of 160,000
Income PRIDES if the appropriate Applicable Ownership Interests of the
Treasury Portfolio are being substituted by Treasury Securities.
In the event a Holder making a Collateral Substitution pursuant
to this Section 3.13 fails to effect a book-entry transfer of the Income
PRIDES or fails to deliver an Income PRIDES Certificate(s) to the Agent
after depositing Treasury Securities with the Collateral Agent, the
Preferred Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, constituting a part of such
Income PRIDES, and any distributions on such Preferred Security or the
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, shall be held in the name of the Agent or its nominee in trust for the
benefit of such Holder, until such Income PRIDES is so transferred or the
Income PRIDES Certificate is so delivered, as the case may be, or, with
respect to an Income PRIDES Certificate, such Holder provides evidence
satisfactory to the Company and the Agent that such Income PRIDES
Certificate has been destroyed, lost or stolen, together with any indemnity
that may be required by the Agent and the Company.
Except as described in this Section 3.13, for so long as the
Purchase Contract underlying an Income PRIDES remains in effect, such
Income PRIDES shall not be separable into its constituent parts, and the
rights and obligations of the Holder in respect of the Preferred Securities
or the appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, and Purchase Contract comprising such Income PRIDES may
be acquired, and may be transferred and exchanged, only as an Income
PRIDES.
Section 3.14. Establishment or Reestablishment of Income PRIDES.
A Holder of a Growth PRIDES may create or recreate Income PRIDES
at any time (i) on or prior to the fifth Business Day immediately preceding
the Purchase Contract Settlement Date, if a Tax Event Redemption has not
occurred, and (ii) on or prior to the second Business Day immediately
preceding the Purchase Contract Settlement Date, if a Tax Event Redemption
has occurred, in each case by (a) depositing with the Collateral Agent
Preferred Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, having an aggregate Stated
Amount in the case of the Preferred Securities, or an appropriate
Applicable Ownership Interest (as defined in clause (A) of the definition
of such term) of the Treasury Portfolio, as the case may be, equal to the
aggregate principal amount of the Treasury Securities comprising part of
the Growth PRIDES and (b) (i) in the event that Contract Adjustment
Payments are at a higher rate for Income PRIDES than for Growth PRIDES, by
delivering to the Agent cash in an amount equal to the excess of the
Contract Adjustment Payments that would have accrued since the last payment
date through the date of substitution on the Income PRIDES being created or
recreated by such holders, over the Contract Adjustment Payments that have
accrued over the same time period on the related Growth PRIDES transferring
the related Growth PRIDES to the Agent accompanied by a notice to the
Agent, substantially in the form of Exhibit D hereto, stating that the
Holder has transferred the relevant amount of Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, to the Collateral Agent and requesting that the Agent instruct
the Collateral Agent to release the Treasury Securities underlying such
Growth PRIDES, whereupon the Agent shall promptly give such instruction to
the Collateral Agent, substantially in the form of Exhibit C hereto. Upon
receipt of the Preferred Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, described in clause
(a) above and the instruction described in clause (b) above, in accordance
with the terms of the Pledge Agreement, the Collateral Agent will effect
the release of the Treasury Securities having a corresponding aggregate
principal amount from the Pledge to the Agent free and clear of the
Company's security interest therein, and upon receipt thereof the Agent
shall promptly:
(i) cancel the related Growth PRIDES;
(ii) transfer the Treasury Securities to the
Holder; and
(iii) authenticate, execute on behalf of
such Holder and deliver an Income PRIDES Certificate executed by
the Company in accordance with Section 3.3 evidencing the same
number of Purchase Contracts as were evidenced by the cancelled
Growth PRIDES.
Holders of Growth PRIDES may establish or reestablish Income
PRIDES in integral multiples of 20 Growth PRIDES for 20 Income PRIDES if a
Tax Event Redemption has not occurred, and in integral multiples of 160,000
Growth PRIDES for 160,000 Income PRIDES if a Tax Event Redemption has
occurred.
Except as provided in this Section 3.14, for so long as the
Purchase Contract underlying a Growth PRIDES remains in effect, such Growth
PRIDES shall not be separable into its constituent parts and the rights and
obligations of the Holder of such Growth PRIDES in respect of the Treasury
Security and Purchase Contract comprising such Growth PRIDES may be
acquired, and may be transferred and exchanged only as a Growth PRIDES.
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.
Upon the occurrence of a Termination Event and the transfer to
the Agent of the Preferred Securities, the appropriate Applicable Ownership
Interest of the Treasury Portfolio or the Treasury Securities, as the case
may be, underlying the Income PRIDES and the Growth PRIDES pursuant to the
terms of the Pledge Agreement, the Agent shall request transfer
instructions with respect to such Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio or Treasury
Securities, as the case may be, from each Holder by written request mailed
to such Holder at its address as it appears in the Income PRIDES Register
or the Growth PRIDES Register, as the case may be. Upon book-entry transfer
of the Income PRIDES or Growth PRIDES or delivery of an Income PRIDES
Certificate or Growth PRIDES Certificate to the Agent with such transfer
instructions, the Agent shall transfer the Preferred Securities, the
Treasury Portfolio or Treasury Securities, as the case may be, underlying
such Income PRIDES or Growth PRIDES, as the case may be, to such Holder by
book-entry transfer, or other appropriate procedures, in accordance with
such instructions. In the event a Holder of Income PRIDES or Growth PRIDES
fails to effect such transfer or delivery, the Preferred Securities, the
appropriate Applicable Ownership Interest of the Treasury Portfolio or
Treasury Securities, as the case may be, underlying such Income PRIDES or
Growth PRIDES, as the case may be, and any distributions thereon, shall be
held in the name of the Agent or its nominee in trust for the benefit of
such Holder, until such Income PRIDES or Growth PRIDES are transferred or
the Income PRIDES Certificate or Growth PRIDES Certificate is surrendered
or such Holder provides satisfactory evidence that such Income PRIDES
Certificate or Growth PRIDES Certificate has been destroyed, lost or
stolen, together with any indemnity that may be required by the Agent and
the Company.
Section 3.16. No Consent to Assumption.
Each Holder of a Security, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365
of the Bankruptcy Code or otherwise, of the Purchase Contract by the
Company, receiver, liquidator or a person or entity performing similar
functions, its trustee in the event that the Company becomes the debtor
under the Bankruptcy Code or subject to other similar state or federal law
providing for reorganization or liquidation.
ARTICLE IV
The Preferred Securities
Section 4.1. Payment of Distribution; Rights to Distributions Preserved;
Distribution Rate Reset; Notice.
A distribution on any Preferred Security or on the appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case may
be, which is paid on any Payment Date shall, subject to receipt thereof by
the Agent from the Collateral Agent as provided by the terms of the Pledge
Agreement, be paid to the Person in whose name the Income PRIDES
Certificate (or one or more Predecessor Income PRIDES Certificates) of
which such Preferred Security or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, is a part is
registered at the close of business on the Record Date for such Payment
Date.
Each Income PRIDES Certificate evidencing Preferred Securities
delivered under this Agreement upon registration of transfer of or in
exchange for or in lieu of any other Income PRIDES Certificate shall carry
the rights to distributions accrued and unpaid, and to accrue
distributions, which were carried by the Preferred Securities underlying
such other Income PRIDES Certificate.
In the case of any Income PRIDES with respect to which Cash
Settlement of the underlying Purchase Contract is effected on the Business
Day immediately preceding the Purchase Contract Settlement Date pursuant to
prior notice, or with respect to which Early Settlement of the underlying
Purchase Contract is effected on a Early Settlement Date, or with respect
to which a Collateral Substitution is effected, in each case on a date that
is after any Record Date and on or prior to the next succeeding Payment
Date, distributions on the Preferred Securities or on the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, underlying such Income PRIDES otherwise payable on such Payment Date
shall be payable on such Payment Date notwithstanding such Cash Settlement
or Early Settlement or Collateral Substitution, and such distributions
shall, subject to receipt thereof by the Agent, be payable to the Person in
whose name the Income PRIDES Certificate (or one or more Predecessor Income
PRIDES Certificates) was registered at the close of business on the Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Income PRIDES with respect to which Cash
Settlement or Early Settlement of the underlying Purchase Contract is
effected on the Business Day immediately preceding the Purchase Contract
Settlement Date or an Early Settlement Date, as the case may be, or with
respect to which a Collateral Substitution has been effected, distributions
on the related Preferred Securities or on the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, that
would otherwise be payable after the Purchase Contract Settlement Date or
Early Settlement Date shall not be payable hereunder to the Holder of such
Income PRIDES; provided, however, that to the extent that such Holder
continues to hold the separated Preferred Securities that formerly
comprised a part of such Holder's Income PRIDES, such Holder shall be
entitled to receive the distributions on such separated Preferred
Securities.
The applicable Coupon Rate on the Preferred Securities on and
after the Purchase Contract Settlement Date will be reset on the third
Business Day immediately preceding the Purchase Contract Settlement Date to
the Reset Rate (such Reset Rate to be in effect on and after the purchase
Contract Settlement Date). On the Reset Announcement Date the Reset Spread
and the Two-Year Benchmark Treasury to be used to determine the Reset Rate
will be announced by the Company. On the Business Day immediately following
the Reset Announcement Date, the Preferred Securities Holders will be
notified of such Reset Spread and Two-Year Benchmark Treasury by the
Company. Such notice shall be sufficiently given to Holders of Preferred
Securities if published in an Authorized Newspaper in The City of New York.
Not later than 10 calendar days nor more than 15 calendar days
prior to the Reset Announcement Date, the Company will notify the DTC or
its nominee (or any successor Clearing Agency or its nominee) by first-
class mail, postage prepaid, to notify the Beneficial Owners or Clearing
Agency Participants holding Income PRIDES or Growth PRIDES, of such Reset
Announcement Date and the procedures to be followed by such Holders of
Income PRIDES who intend to settle their obligation under the Purchase
Contract with separate cash on the Purchase Contract Settlement Date.
Section 4.2. Notice and Voting.
Under the terms of the Pledge Agreement, the Agent will be
entitled to exercise the voting and any other consensual rights pertaining
to the Preferred Securities pledged with the Collateral Agent but only to
the extent instructed by the Holders as described below. Upon receipt of
notice of any meeting at which holders of Preferred Securities are entitled
to vote or upon any solicitation of consents, waivers or proxies of holders
of Preferred Securities, the Agent shall, as soon as practicable
thereafter, mail to the Holders of Income PRIDES a notice (a) containing
such information as is contained in the notice or solicitation, (b) stating
that each Holder on the record date set by the Agent therefor (which, to
the extent possible, shall be the same date as the record date for
determining the holders of Preferred Securities entitled to vote) shall be
entitled to instruct the Agent as to the exercise of the voting rights
pertaining to the Preferred Securities underlying their Income PRIDES and
(c) stating the manner in which such instructions may be given. Upon the
written request of the Holders of Income PRIDES on such record date, the
Agent shall endeavor insofar as practicable to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the maximum
number of Preferred Securities as to which any particular voting
instructions are received. In the absence of specific instructions from the
Holder of an Income PRIDES, the Agent shall abstain from voting the
Preferred Security underlying such Income PRIDES. The Company hereby
agrees, if applicable, to solicit Holders of Income PRIDES to timely
instruct the Agent in order to enable the Agent to vote such Preferred
Securities and the Trust shall covenant to such effect in the Declaration.
Section 4.3. Distribution of Debentures; Tax Event Redemption
Upon the occurrence of an Investment Company Event or a
liquidation of the Trust in accordance with the Declaration, a principal
amount of Debentures constituting the assets of the Trust and underlying
the Preferred Securities equal to the aggregate Stated Amount of the
Pledged Preferred Securities shall be delivered to the Collateral Agent in
exchange for the Pledged Preferred Securities. Thereafter, the Debentures
will be substituted for the Pledged Preferred Securities, and will be held
by the Collateral Agent in accordance with the terms of the Pledge
Agreement to secure the obligations of each Holder of an Income PRIDES to
purchase the Common Stock of the Company under the Purchase Contracts
constituting a part of such Income PRIDES. Following the occurrence of an
Investment Company Event or a liquidation of the Trust, the Holders and the
Collateral Agent shall have such security interests, rights and obligations
with respect to the Debentures as the Holders and the Collateral Agent had
in respect of the Preferred Securities subject to the Pledge thereof as
provided in Articles II, III, IV, V and VI of the Pledge Agreement, and any
reference herein to the Preferred Securities shall be deemed to be a
reference to such Debentures. The Company may cause to be made in any
Income PRIDES Certificates thereafter to be issued such change in
phraseology and form (but not in substance) as may be appropriate to
reflect the liquidation of the Trust and the substitution of Debentures for
Preferred Securities as Collateral.
Upon the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Redemption Price payable on the Tax
Event Redemption Date with respect to the Applicable Principle Amount of
Debentures shall be delivered to the Collateral Agent in exchange for the
Pledged Preferred Securities. Thereafter, pursuant to the terms of the
Pledge Agreement, the Collateral Agent will apply an amount equal to the
Redemption Amount of such Redemption Price to purchase on behalf of the
Holders of Income PRIDES the Treasury Portfolio and promptly remit the
remaining portion of such Redemption Price to the Agent for payment to the
Holders of such Income PRIDES. The Treasury Portfolio will be substituted
for the Pledged Preferred Securities, and will be held by the Collateral
Agent in accordance with the terms of the Pledge Agreement to secure the
obligation of each Holder of an Income PRIDES to purchase the Common Stock
of the Company under the Purchase Contract constituting a part of such
Income PRIDES. Following the occurrence of a Tax Event Redemption prior to
the Purchase Contract Settlement Date, the Holders of Income PRIDES and the
Collateral Agent shall have such security interests, rights and obligations
with respect to the Treasury Portfolio as the Holder of Income PRIDES and
the Collateral Agent had in respect of the Preferred Security or
Debentures, as the case may be, subject to the Pledge thereof as provided
in Articles II, III, IV, V, and VI of the Pledge Agreement, and any
reference herein to the Preferred Security or the Debenture shall be deemed
to be reference to such Treasury Portfolio. The Company may cause to be
made in any Income PRIDES Certificates thereafter to be issued such change
in phraseology and form (but not in substance) as may be appropriate to
reflect the liquidation of the Trust and the substitution of the Treasury
Portfolio for Preferred Securities or Debentures as collateral.
ARTICLE V
The Purchase Contracts
Section 5.1. Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless an Early Settlement has
occurred in accordance with Section 5.9 hereof, obligate the Holder of the
related Security to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price"), a number of newly issued shares of Common Stock equal to
the Settlement Rate unless, on or prior to the Purchase Contract Settlement
Date, there shall have occurred a Termination Event with respect to the
Security of which such Purchase Contract is a part. The "Settlement Rate"
is equal to (a) if the Applicable Market Value (as defined below) is equal
to or greater than $_____ (the "Threshold Appreciation Price"), _____
shares of Common Stock per Purchase Contract, (b) if the Applicable Market
Value is less than the Threshold Appreciation Price, but is greater than
$_____, the number of shares of Common Stock equal to the Stated Amount
divided by the Applicable Market Value and (c) if the Applicable Market
Value is less than or equal to $_____, _____ shares of Common Stock per
Purchase Contract, in each case subject to adjustment as provided in
Section 5.6 (and in each case rounded upward or downward to the nearest
1/10,000th of a share). As provided in Section 5.10, no fractional shares
of Common Stock will be issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date. The "Closing Price" of the Common Stock on any date of
determination means the closing sale price (or, if no closing price is
reported, the last reported sale price) of the Common Stock on the New York
Stock Exchange (the "NYSE") on such date or, if the Common Stock is not
listed for trading on the NYSE on any such date, as reported in the
composite transactions for the principal United States securities exchange
on which the Common Stock is so listed, or if the Common Stock is not so
listed on a United States national or regional securities exchange, as
reported by The Nasdaq Stock Market, or, if the Common Stock is not so
reported, the last quoted bid price for the Common Stock in the over-the-
counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of
the Common Stock on such date as determined by a nationally recognized
independent investment banking firm retained for this purpose by the
Company. A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of an Income PRIDES or a Growth PRIDES, by its
acceptance thereof, irrevocably authorizes the Agent to enter into and
perform the related Purchase Contract on its behalf as its attorney-in-fact
(including the execution of Certificates on behalf of such Holder), agrees
to be bound by the terms and provisions thereof, covenants and agrees to
perform its obligations under such Purchase Contracts, and consents to the
provisions hereof, irrevocably authorizes the Agent as its attorney-in-fact
to enter into and perform the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to and agrees to be bound by the Pledge of
the Preferred Securities, the Treasury Portfolio or the Treasury Securities
pursuant to the Pledge Agreement; provided that upon a Termination Event,
the rights of the Holder of such Security under the Purchase Contract may
be enforced without regard to any other rights or obligations. Each Holder
of an Income PRIDES or a Growth PRIDES, by its acceptance thereof, further
covenants and agrees, that, to the extent and in the manner provided in
Section 5.4 and the Pledge Agreement, but subject to the terms thereof,
payments in respect of the Stated Amount of the Preferred Securities or the
Proceeds of the Treasury Securities or the Treasury Portfolio on the
Purchase Contract Settlement Date shall be paid by the Collateral Agent to
the Company in satisfaction of such Holder's obligations under such
Purchase Contract and such Holder shall acquire no right, title or interest
in such payments.
Upon registration of transfer of a Certificate, the transferee
shall be bound (without the necessity of any other action on the part of
such transferee), under the terms of this Agreement, the Purchase Contracts
underlying such Certificate and the Pledge Agreement and the transferor
shall be released from the obligations under this Agreement, the Purchase
Contracts underlying the Certificates so transferred and the Pledge
Agreement. The Company covenants and agrees, and each Holder of a
Certificate, by its acceptance thereof, likewise covenants and agrees, to
be bound by the provisions of this paragraph.
Section 5.2. Contract Adjustment Payments.
Subject to Section 5.3 herein, the Company shall pay, on each
Payment Date, the Contract Adjustment Payments payable in respect of each
Purchase Contract to the Person in whose name a Certificate (or one or more
Predecessor Certificates) is registered at the close of business on the
Record Date next preceding such Payment Date. The Contract Adjustment
Payments will be payable at the office of the Agent in The City of New York
maintained for that purpose or, at the option of the Company, by check
mailed to the address of the Person entitled thereto at such Person's
address as it appears on the Income PRIDES Register or Growth PRIDES
Register.
Upon the occurrence of a Termination Event, the Company's
obligation to pay Contract Adjustment Payments (including any accrued or
Deferred Contract Adjustment Payments) shall cease.
Each Certificate delivered under this Agreement upon registration
of transfer of or in exchange for or in lieu of (including as a result of a
Collateral Substitution or the re-establishment of an Income PRIDES) any
other Certificate shall carry the rights to Contract Adjustment Payments
accrued and unpaid, and to accrue Contract Adjustment Payments, which were
carried by the Purchase Contracts underlying such other Certificates.
Subject to Section 5.9, in the case of any Security with respect
to which Early Settlement of the underlying Purchase Contract is effected
on an Early Settlement Date that is after any Record Date and on or prior
to the next succeeding Payment Date, Contract Adjustment Payments, if any,
otherwise payable on such Payment Date shall be payable on such Payment
Date notwithstanding such Early Settlement, and such Contract Adjustment
Payments shall be paid to the Person in whose name the Certificate
evidencing such Security (or one or more Predecessor Certificates) is
registered at the close of business on such Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the
case of any Security with respect to which Early Settlement of the
underlying Purchase Contract is effected on an Early Settlement Date,
Contract Adjustment Payments that would otherwise be payable after the
Early Settlement Date with respect to such Purchase Contract shall not be
payable.
The Company's obligations with respect to Contract Adjustment
Payments, will be subordinated and junior in right of payment to the
Company's obligations under any Senior Indebtedness.
Section 5.3. Deferral of Payment Dates For Contract Adjustment Payments.
The Company shall have the right, at any time prior to the
Purchase Contract Settlement Date, to defer the payment of any or all of
the Contract Adjustment Payments otherwise payable on any Payment Date, but
only if the Company shall give the Holders and the Agent written notice of
its election to defer such payment (specifying the amount to be deferred)
at least ten Business Days prior to the earlier of (i) the next succeeding
Payment Date or (ii) the date the Company is required to give notice of the
Record Date or Payment Date with respect to payment of such Contract
Adjustment Payments to the New York Stock Exchange or other applicable
self-regulatory organization or to Holders of the Securities, but in any
event not less than one Business Day prior to such Record Date. Any
Contract Adjustment Payments so deferred shall bear additional Contract
Adjustment Payments thereon at the rate of ____% per annum (computed on the
basis of 360 day year of twelve 30 day months), compounding on each
succeeding Payment Date, until paid in full (such deferred installments of
Contract Adjustment Payments together with the additional Contract
Adjustment Payments accrued thereon, being referred to herein as the
"Deferred Contract Adjustment Payments"). Deferred Contract Adjustment
Payments shall be due on the next succeeding Payment Date except to the
extent that payment is deferred pursuant to this Section. No Contract
Adjustment Payments may be deferred to a date that is after the Purchase
Contract Settlement Date. If the Purchase Contracts are terminated upon the
occurrence of a Termination Event, the Holder's right to receive Contract
Adjustment Payments and Deferred Contract Adjustment Payments will
terminate.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until the Purchase
Contract Settlement Date, each Holder will receive on the Purchase Contract
Settlement Date in lieu of a cash payment a number of shares of Common
Stock (in addition to a number of shares of Common Stock equal to the
Settlement Rate) equal to (x) the aggregate amount of Deferred Contract
Adjustment Payments payable to such Holder divided by (y) the Applicable
Market Value.
In the event the Company exercises its option to defer the
payment of Contract Adjustment Payments, then, until the Deferred Contract
Adjustment Payments have been paid, the Company shall not declare or pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock or make guarantee payments with respect to the foregoing (other than
(i) purchases or acquisitions of shares of capital stock of the Company in
connection with the satisfaction by the Company of its obligations under
any employee or agent benefit plans or the satisfaction by the Company of
its obligations pursuant to any contract or security outstanding on the
date of such event requiring the Company to purchase capital stock of the
Company, (ii) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock,
(iii) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (iv) dividends
or distributions in capital stock of the Company (or rights to acquire
capital stock) or repurchases or redemptions of capital stock solely from
the issuance or exchange of capital stock or (v) redemptions or repurchases
of any rights outstanding under a shareholder rights plan and the
declaration thereunder of a dividend of rights in the future).
No fractional shares of Common Stock will be issued by the
Company with respect to the payment of Deferred Contract Adjustment
Payments on the Purchase Contract Settlement Date. In lieu of fractional
shares otherwise issuable with respect to such payment of Deferred Contract
Adjustment Payments, the Holder will be entitled to receive an amount in
cash as provided in Section 5.10.
Section 5.4. Payment of Purchase Price.
(a) (i) Unless a Tax Event Redemption has occurred or a Holder
settles the underlying Purchase Contract through the early delivery of cash
to the Purchase Contract Agent in the manner described in Section 5.9, each
Holder of an Income PRIDES must notify the Agent by use of a notice in
substantially the form of Exhibit E hereto of its intention to pay in cash
("Cash Settlement") the Purchase Price for the shares of Common Stock to be
purchased pursuant to a Purchase Contract. Such notice shall be made on or
prior to 5:00 p.m., New York City time, on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date. The Agent
shall promptly notify the Collateral Agent of the receipt of such a notice
from a Holder intending to make a Cash Settlement.
(ii) A Holder of an Income PRIDES who has so
notified the Agent of its intention to make a Cash Settlement is
required to pay the Purchase Price to the Collateral Agent prior
to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Purchase Contract Settlement Date in lawful money
of the United States by certified or cashiers' check or wire
transfer, in each case in immediately available funds payable to
or upon the order of the Company. Any cash received by the
Collateral Agent will be invested promptly by the Collateral
Agent in Permitted Investments and paid to the Company on the
Purchase Contract Settlement Date in settlement of the Purchase
Contract in accordance with the terms of this Agreement and the
Pledge Agreement. Any funds received by the Collateral Agent in
respect of the investment earnings from the investment in such
Permitted Investments, will be distributed to the Agent when
received for payment to the Holder.
(iii) If a Holder of an Income PRIDES
fails to notify the Agent of its intention to make a Cash
Settlement in accordance with paragraph (a)(i) above, such
failure shall constitute an event of default and the Holder shall
be deemed to have consented to the disposition of the pledged
Preferred Securities pursuant to the Remarketing as described in
paragraph (b) below. If a Holder of an Income PRIDES does notify
the Agent as provided in paragraph (a)(i) above of its intention
to pay the Purchase Price in cash, but fails to make such payment
as required by paragraph (a)(ii) above, such failure shall also
constitute a default; however, the Preferred Securities of such a
Holder will not be remarketed but instead the Collateral Agent,
for the benefit of the Company, will exercise its rights as a
secured party with respect to such Preferred Securities,
including those rights specified in paragraph (c) below.
(b) In order to dispose of the Preferred Securities of
Income PRIDES Holders who have not notified the Agent of their intention to
effect a Cash Settlement as provided in paragraph (a)(i) above, the Company
shall engage a nationally recognized investment bank (the "Remarketing
Agent") pursuant to the Remarketing Agreement to sell such Preferred
Securities. In order to facilitate the remarketing, the Agent shall notify,
by 10:00 a.m., New York City time, on the fourth Business Day immediately
preceding the Purchase Contract Settlement Date, the Remarketing Agent of
the aggregate number of Preferred Securities to be remarketed.
Concurrently, the Collateral Agent, pursuant to the terms of the Pledge
Agreement, will present for remarketing such Preferred Securities to the
Remarketing Agent. Upon receipt of such notice from the Agent and such
Preferred Securities from the Collateral Agent, the Remarketing Agent will,
on the third Business Day immediately preceding the Purchase Contract
Settlement Date, use its reasonable efforts to remarket such Preferred
Securities on such date at a price of approximately 100.5% (but not less
than 100%) of the aggregate stated liquidation amount of such Preferred
Securities, plus accrued and unpaid distributions (including deferred
distributions), if any, thereon. After deducting as the remarketing fee
("Remarketing Fee") an amount not exceeding 25 basis points (.25%) of the
aggregate stated liquidation amount of the remarketed Preferred Securities
from any amount of such proceeds in excess of the aggregate stated
liquidation amount of the remarketed Preferred Securities plus accrued and
unpaid distributions (including any deferred distributions), if any, then
the Remarketing Agent will remit the entire amount of the proceeds from
such remarketing to the Collateral Agent. Such portion of the proceeds,
equal to the aggregate stated liquidation amount of such Preferred
Securities, will automatically be applied by the Collateral Agent, in
accordance with the Pledge Agreement to satisfy in full such Income PRIDES
holders' obligations to pay the Purchase Price for the Common Stock under
the related Purchase Contracts on the Purchase Contract Settlement Date.
Any proceeds in excess of those required to pay the Purchase Price and the
Remarketing Fee will be remitted to the Agent for payment to the Holders of
the related Income PRIDES. Income PRIDES Holders whose Preferred Securities
are so remarketed will not otherwise be responsible for the payment of any
Remarketing Fee in connection therewith. If, in spite of using its
reasonable efforts, the Remarketing Agent cannot remarket the related
Preferred Securities of such Holders of Income PRIDES at a price not less
then 100% of the aggregate stated liquidation amount of such Preferred
Securities plus accrued and unpaid distributions (including deferred
distributions), if any, the remarketing will be deemed to have failed (a
"Failed Remarketing") and in accordance with the terms of the Pledge
Agreement the Collateral Agent for the benefit of the Company will exercise
its rights as a secured party with respect to such Preferred Securities,
including those actions specified in paragraph (c) below; provided, that if
upon a Failed Remarketing the Collateral Agent exercises such rights for
the benefit of the Company with respect to such Preferred Securities, any
accrued and unpaid distributions (including any deferred distributions) on
such Preferred Securities will become payable by the Company to the Agent
for payment to the Beneficial Owner of the Income PRIDES to which such
Preferred Securities relates. Such payment will be made by the Company on
or prior to 11 a.m. New York City time on the Purchase Contract Settlement
Date in lawful money of the United States by certified or cashiers' check
or wire transfer in immediately available funds payable to or upon the
order of the Agent. The Company will cause a notice of such Failed
Remarketing to be published on the Second Business Day immediately
preceding the Purchase Contract Settlement Date in a daily newspaper in the
English language of general circulation in The City of New York, which is
expected to be The Wall Street Journal.
(c) With respect to any Preferred Securities beneficially
owned by Holders who have elected Cash Settlement but failed to deliver
cash as required in (a)(ii) above, or with respect to Preferred Securities
which are subject to a Failed Remarketing, the Collateral Agent for the
benefit of the Company reserves all of its rights as a secured party with
respect thereto and, subject to applicable law and paragraph (h) below,
may, among other things, (i) retain the Preferred Securities in full
satisfaction of the Holders obligations under the Purchase Contracts or
(ii) sell the Preferred Securities in one or more public or private sales.
(d) (i) Unless a Holder of Growth PRIDES or Income PRIDES (if a
Tax Event Redemption has occurred) settles the underlying Purchase Contract
through the early delivery of cash to the Purchase Contract Agent in the
manner described in Section 5.9, each Holder of a Growth PRIDES or Income
PRIDES (if a Tax Event Redemption has occurred) must notify the Agent by
use of a notice in substantially the form of Exhibit E hereto of its
intention to pay in cash the Purchase Price for the shares of Common Stock
to be purchased pursuant to a Purchase Contract on or prior to 5:00 p.m.,
New York City time, on the second Business Day immediately preceding the
Purchase Contract Settlement Date.
(ii) A Holder of a Growth PRIDES or Income
PRIDES (if a Tax Event Redemption has occurred) who has so
notified the Agent of its intention to make a Cash Settlement in
accordance with paragraph (d)(i) above is required to pay the
Purchase Price to the Collateral Agent prior to 11:00 a.m., New
York City time, on the Business Day immediately preceding the
Purchase Contract Settlement Date in lawful money of the United
States by certified or cashiers' check or wire transfer, in each
case in immediately available funds payable to or upon the order
of the Company. Any cash received by the Collateral Agent will be
invested promptly by the Collateral Agent in Permitted
Investments and paid to the Company on the Purchase Contract
Settlement Date in settlement of the Purchase Contract in
accordance with the terms of this Agreement and the Pledge
Agreement. Any funds received by the Collateral Agent in respect
of the investment earnings from the investment in such Permitted
Investments will be distributed to the Agent when received for
payment to the Holder.
(iii) If a Holder of a Growth PRIDES
fails to notify the Agent of its intention to make a Cash
Settlement in accordance with paragraph (d)(i) above, or if a
Holder of an Income PRIDES (if a Tax Event Redemption has
occurred) does notify the Agent as provided in paragraph (d)(i)
above its intention to pay the Purchase Price in cash, but fails
to make such payment as required by paragraph (d)(ii) above, then
upon the maturity of the Pledged Treasury Securities or the
appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, held by the Collateral Agent on
the Business Day immediately prior to the Purchase Contract
Settlement Date, the principal amount of the Treasury Securities
or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, received by the Collateral Agent
will be invested promptly in overnight Permitted Investments. On
the Purchase Contract Settlement Date an amount equal to the
Purchase Price will be remitted to the Company as payment thereof
without receiving any instructions from the Holder. In the event
the sum of the proceeds from the related Pledged Treasury
Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, and the investment
earnings earned from such investments is in excess of the
aggregate Purchase Price of the Purchase Contracts being settled
thereby, the Collateral Agent will distribute such excess to the
Agent for the benefit of the Holder of the related Growth PRIDES
or Income PRIDES when received.
(e) Any distribution to Holders of excess funds and
interest described above, shall be payable at the office of the Agent in
The City of New York maintained for that purpose or, at the option of the
Holder, by check mailed to the address of the Person entitled thereto at
such address as it appears on the Register.
(f) Unless a Holder settles the underlying Purchase
Contract through the early delivery of cash to the Collateral Agent in the
manner described herein, the Company shall not be obligated to issue any
shares of Common Stock in respect of a Purchase Contract or deliver any
certificate therefor to the Holder unless it shall have received payment in
full of the Purchase Price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
(g) Upon Cash Settlement of any Purchase Contract, (i) the
Collateral Agent will in accordance with the terms of the Pledge Agreement
cause the Pledged Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, or the
Pledged Treasury Securities underlying the relevant Security to be released
from the Pledge by the Collateral Agent free and clear of any security
interest of the Company and transferred to the Agent for delivery to the
Holder thereof or its designee as soon as practicable and (ii) subject to
the receipt thereof from the Collateral Agent, the Agent shall, by book-
entry transfer, or other appropriate procedures, in accordance with
instructions provided by the Holder thereof, transfer such Preferred
Securities or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, or such Treasury Securities (or, if no such
instructions are given to the Agent by the Holder, the Agent shall hold
such Preferred Securities or the Treasury Portfolio, as the case may be, or
such Treasury Securities, and any distribution thereon, in the name of the
Agent or its nominee in trust for the benefit of such Holder).
(h) The obligations of the Holders to pay the Purchase
Price are non-recourse obligations and are payable solely out of any Cash
Settlement or the proceeds of any Collateral Pledged to secure the
obligations of the Holders and in no event will Holders be liable for any
deficiency between the proceeds of Collateral disposition and the Purchase
Price.
Section 5.5. Issuance of Shares of Common Stock.
Unless a Termination Event shall have occurred on or prior to the
Purchase Contract Settlement Date or an Early Settlement shall have
occurred, on the Purchase Contract Settlement Date, upon its receipt of
payment in full of the Purchase Price for the shares of Common Stock
purchased by the Holders pursuant to the foregoing provisions of this
Article and subject to Section 5.6(b), the Company shall issue and deposit
with the Agent, for the benefit of the Holders of the Outstanding
Securities, one or more certificates representing the newly issued shares
of Common Stock registered in the name of the Agent (or its nominee) as
custodian for the Holders (such certificates for shares of Common Stock,
together with any dividends or distributions for which a record date and
payment date for such dividend or distribution has occurred after the
Purchase Contract Settlement Date, being hereinafter referred to as the
"Purchase Contract Settlement Fund") to which the Holders are entitled
hereunder. Subject to the foregoing, upon surrender of a Certificate to the
Agent on or after the Purchase Contract Settlement Date, together with
settlement instructions thereon duly completed and executed, the Holder of
such Certificate shall be entitled to receive in exchange therefor a
certificate representing that number of whole shares of Common Stock which
such Holder is entitled to receive pursuant to the provisions of this
Article Five (after taking into account all Securities then held by such
Holder) together with cash in lieu of fractional shares as provided in
Section 5.10 and any dividends or distributions with respect to such shares
constituting part of the Purchase Contract Settlement Fund, but without any
interest thereon, and the Certificate so surrendered shall forthwith be
cancelled. Such shares shall be registered in the name of the Holder or the
Holder's designee as specified in the settlement instructions provided by
the Holder to the Agent. If any shares of Common Stock issued in respect of
a Purchase Contract are to be registered to a Person other than the Person
in whose name the Certificate evidencing such Purchase Contract is
registered, no such registration shall be made unless the Person requesting
such registration has paid any transfer and other taxes required by reason
of such registration in a name other than that of the registered Holder of
the Certificate evidencing such Purchase Contract or has established to the
satisfaction of the Company that such tax either has been paid or is not
payable.
Section 5.6. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits,
Etc.
(1) In case the Company shall pay or make a dividend or
other distribution on the Common Stock in Common Stock, the Settlement
Rate, as in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive
such dividend or other distribution shall be increased by dividing
such Settlement Rate by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business
on the date fixed for such determination and the denominator shall be
the sum of such number of shares and the total number of shares
constituting such dividend or other distribution, such increase to
become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of
this paragraph (1), the number of shares of Common Stock at time
outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock.
The Company will not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or
warrants to all holders of its Common Stock (not being available on an
equivalent basis to Holders of the Securities upon settlement of the
Purchase Contracts underlying such Securities) entitling them, for a
period expiring within 45 days after the record date for the
determination of stockholders entitled to receive such rights, options
or warrants, to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price per share of the
Common Stock on the date fixed for the determination of stockholders
entitled to receive such rights, options or warrants (other than
pursuant to a dividend reinvestment plan), the Settlement Rate, in
effect at the opening of business on the day following the date fixed
for such determination shall be increased by dividing such Settlement
Rate, by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common
Stock which the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase would
purchase at such Current Market Price and the denominator shall be the
number of shares of Common Stock outstanding at the close of business
on the date fixed for such determination plus the number of shares of
Common Stock so offered for subscription or purchase, such increase to
become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of
this paragraph (2), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock.
The Company shall not issue any such rights, options or warrants in
respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock,
the Settlement Rate, in effect at the opening of business on the day
following the day upon which such subdivision or split becomes
effective shall be proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, the Settlement Rate, in
effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become
effective immediately after the opening of business on the day
following the day upon which such subdivision, split or combination
becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but excluding any rights
or warrants referred to in paragraph (2) of this Section, any dividend
or distribution paid exclusively in cash and any dividend or
distribution referred to in paragraph (1) of this Section), the
Settlement Rate, shall be adjusted so that the same shall equal the
rate determined by dividing the Settlement Rate in effect immediately
prior to the close of business on the date fixed for the determination
of stockholders entitled to receive such distribution by a fraction of
which the numerator shall be the Current Market Price per share of the
Common Stock on the date fixed for such determination less the then
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution
filed with the Agent) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common Stock
and the denominator shall be such Current Market Price per share of
the Common Stock, such adjustment to become effective immediately
prior to the opening of business on the day following the date fixed
for the determination of stockholders entitled to receive such
distribution. In any case in which this paragraph (4) is applicable,
paragraph (2) of this Section shall not be applicable.
(5) In case the Company shall, (I) by dividend or
otherwise, distribute to all holders of its Common Stock cash
(excluding any cash that is distributed in a Reorganization Event to
which Section 5.6(b) applies or as part of a distribution referred to
in paragraph (4) of this Section) in an aggregate amount that,
combined together with (II) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in
cash within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to this
paragraph (5) or paragraph (6) of this Section has been made and (III)
the aggregate of any cash plus the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) of consideration payable in respect
of any tender or exchange offer by the Company or any of its
subsidiaries for all or any portion of the Common Stock concluded
within the 12 months preceding the date of payment of the distribution
described in clause (I) above and in respect of which no adjustment
pursuant to this paragraph (5) or paragraph (6) of this Section has
been made, exceeds 15% of the product of the Current Market Price per
share of the Common Stock on the date for the determination of holders
of shares of Common Stock entitled to receive such distribution times
the number of shares of Common Stock outstanding on such date, then,
and in each such case, immediately after the close of business on such
date for determination, the Settlement Rate, shall be increased so
that the same shall equal the rate determined by dividing the
Settlement Rate in effect immediately prior to the close of business
on the date fixed for determination of the stockholders entitled to
receive such distribution by a fraction (i) the numerator of which
shall be equal to the Current Market Price per share of the Common
Stock on the date fixed for such determination less an amount equal to
the quotient of (x) the combined amount distributed or payable in the
transactions described in clauses (I), (II) and (III) above and (y)
the number of shares of Common Stock outstanding on such date for
determination and (ii) the denominator of which shall be equal to the
Current Market Price per share of the Common Stock on such date for
determination.
(6) In case (I) a tender or exchange offer made by the
Company or any subsidiary of the Company for all or any portion of the
Common Stock shall expire and such tender or exchange offer (as
amended upon the expiration thereof) shall require the payment to
stockholders (based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of Purchased Shares) of an
aggregate consideration having a fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) that combined together with (II) the
aggregate of the cash plus the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution), as of the expiration of such tender
or exchange offer, of consideration payable in respect of any other
tender or exchange offer, by the Company or any subsidiary of the
Company for all or any portion of the Common Stock expiring within the
12 months preceding the expiration of such tender or exchange offer
and in respect of which no adjustment pursuant to paragraph (5) of
this Section or this paragraph (6) has been made and (III) the
aggregate amount of any distributions to all holders of the Company's
Common Stock made exclusively in cash within the 12 months preceding
the expiration of such tender or exchange offer and in respect of
which no adjustment pursuant to paragraph (5) of this Section or this
paragraph (6) has been made, exceeds 15% of the product of the Current
Market Price per share of the Common Stock as of the last time (the
"Expiration Time") tenders could have been made pursuant to such
tender or exchange offer (as it may be amended) times the number of
shares of Common Stock outstanding (including any tendered shares) on
the Expiration Time, then, and in each such case, immediately prior to
the opening of business on the day after the date of the Expiration
Time, the Settlement Rate, shall be adjusted so that the same shall
equal the rate determined by dividing the Settlement Rate immediately
prior to the close of business on the date of the Expiration Time by a
fraction (i) the numerator of which shall be equal to (A) the product
of (I) the Current Market Price per share of the Common Stock on the
date of the Expiration Time and (II) the number of shares of Common
Stock outstanding (including any tendered shares) on the Expiration
Time less (B) the amount of cash plus the fair market value
(determined as aforesaid) of the aggregate consideration payable to
stockholders based on the transactions described in clauses (I), (II)
and (III) above (assuming in the case of clause (I) the acceptance, up
to any maximum specified in the terms of the tender or exchange offer,
of Purchased Shares), and (ii) the denominator of which shall be equal
to the product of (A) the Current Market Price per share of the Common
Stock as of the Expiration Time and (B) the number of shares of Common
Stock outstanding (including any tendered shares) as of the Expiration
Time less the number of all shares validly tendered and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up to any
such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any
reclassification upon a Reorganization Event to which Section 5.6(b)
applies) shall be deemed to involve (a) a distribution of such
securities other than Common Stock to all holders of Common Stock (and
the effective date of such reclassification shall be deemed to be "the
date fixed for the determination of stockholders entitled to receive
such distribution" and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (b) a subdivision,
split or combination, as the case may be, of the number of shares of
Common Stock outstanding immediately prior to such reclassification
into the number of shares of Common Stock outstanding immediately
thereafter (and the effective date of such reclassification shall be
deemed to be "the day upon which such subdivision or split becomes
effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision, split or
combination becomes effective" within the meaning of paragraph (3) of
this Section).
(8) The "Current Market Price" per share of Common Stock on
any day means the average of the daily Closing Prices for the 5
consecutive Trading Days selected by the Company commencing not more
than 30 Trading Days before, and ending not later than, the earlier of
the day in question and the day before the "ex date" with respect to
the issuance or distribution requiring such computation. For purposes
of this paragraph, the term "ex date", when used with respect to any
issuance or distribution, shall mean the first date on which the
Common Stock trades regular way on such exchange or in such market
without the right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate, shall be
calculated to the nearest 1/10,000th of a share of Common Stock (or if
there is not a nearest 1/10,000th of a share to the next lower
1/10,000th of a share). No adjustment in the Settlement Rate shall be
required unless such adjustment would require an increase or decrease
of at least one percent therein; provided, however, that any
adjustments which by reason of this subparagraph are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment. If an adjustment is made to the Settlement Rate
pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of
this Section 5.6(a), an adjustment shall also be made to the
Applicable Market Value solely to determine which of clauses (a), (b)
or (c) of the definition of Settlement Rate in Section 5.1 will apply
on the Purchase Contract Settlement Date. Such adjustment shall be
made by multiplying the Applicable Market Value by a fraction of which
the numerator shall be the Settlement Rate immediately after such
adjustment pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
(10) of this Section 5.6(a) and the denominator shall be the
Settlement Rate immediately before such adjustment; provided, however,
that if such adjustment to the Settlement Rate is required to be made
pursuant to the occurrence of any of the events contemplated by
paragraph (1) (2) (3) (4) (5) (7) or (10) of this Section 5.6(a)
during the period taken into consideration for determining the
Applicable Market Value, appropriate and customary adjustments shall
be made to the Settlement Rate.
(10) The Company may make such increases in the Settlement
Rate, in addition to those required by this Section, as it considers
to be advisable in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any dividend or
distribution of stock or issuance of rights or warrants to purchase or
subscribe for stock or from any event treated as such for income tax
purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other
Reorganization Event. In the event of (i) any consolidation or merger of
the Company with or into another Person (other than a merger or
consolidation in which the Company is the continuing corporation and in
which the Common Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash, securities or other property of
the Company or another corporation), (ii) any sale, transfer, lease or
conveyance to another Person of the property of the Company as an entirety
or substantially as an entirety, (iii) any statutory exchange of securities
of the Company with another Person (other than in connection with a merger
or acquisition) or (iv) any liquidation, dissolution or winding up of the
Company other than as a result of or after the occurrence of a Termination
Event (any such event, a "Reorganization Event"), the Settlement Rate will
be adjusted to provide that each Holder of Securities will receive on the
Purchase Contract Settlement Date with respect to each Purchase Contract
forming a part thereof, the kind and amount of securities, cash and other
property receivable upon such Reorganization Event (without any interest
thereon, and without any right to dividends or distribution thereon which
have a record date that is prior to the Purchase Contract Settlement Date)
by a Holder of the number of shares of Common Stock issuable on account of
each Purchase Contract if the Purchase Contract Settlement Date had
occurred immediately prior to such Reorganization Event assuming such
Holder of Common Stock is not a Person with which the Company consolidated
or into which the Company merged or which merged into the Company or to
which such sale or transfer was made, as the case may be (any such Person,
a "Constituent Person"), or an Affiliate of a Constituent Person to the
extent such Reorganization Event provides for different treatment of common
Stock held by Affiliates of the Company and non-affiliates and such Holder
failed to exercise his rights of election, if any, as to the kind or amount
of securities, cash and other property receivable upon such Reorganization
Event (provided that if the kind or amount of securities, cash and other
property receivable upon such Reorganization Event is not the same for each
share of Common Stock held immediately prior to such Reorganization Event
by other than a Constituent Person or an Affiliate thereof and in respect
of which such rights of election shall not have been exercised ("non-
electing share"), then for the purpose of this Section the kind and amount
of securities, cash and other property receivable upon such Reorganization
Event by each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares). In the
event of such a Reorganization Event, the Person formed by such
consolidation, merger or exchange or the Person which acquires the assets
of the Company or, in the event of a liquidation or dissolution of the
Company, the Company or a liquidating trust created in connection
therewith, shall execute and deliver to the Agent an agreement supplemental
hereto providing that the Holders of each Outstanding Security shall have
the rights provided by this Section 5.6. Such supplemental agreement shall
provide for adjustments which, for events subsequent to the effective date
of such supplemental agreement, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section. The above
provisions of this Section shall similarly apply to successive
Reorganization Events.
Section 5.7. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein
provided, the Company shall:
(i) forthwith compute the Settlement Rate in
accordance with Section 5.6 and prepare and transmit to the Agent
an Officer's Certificate setting forth the Settlement Rate, the
method of calculation thereof in reasonable detail, and the facts
requiring such adjustment and upon which such adjustment is
based; and
(ii) within 10 Business Days following the
occurrence of an event that requires an adjustment to the
Settlement Rate pursuant to Section 5.6 (or if the Company is not
aware of such occurrence, as soon as practicable after becoming
so aware), provide a written notice to the Holders of the
Securities of the occurrence of such event and a statement in
reasonable detail setting forth the method by which the
adjustment to the Settlement Rate was determined and setting
forth the adjusted Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts
exist which may require any adjustment of the Settlement Rate, or with
respect to the nature or extent or calculation of any such adjustment when
made, or with respect to the method employed in making the same. The Agent
shall not be accountable with respect to the validity or value (or the kind
or amount) of any shares of Common Stock, or of any securities or property,
which may at the time be issued or delivered with respect to any Purchase
Contract; and the Agent makes no representation with respect thereto. The
Agent shall not be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock pursuant to a Purchase
Contract or to comply with any of the duties, responsibilities or covenants
of the Company contained in this Article.
Section 5.8. Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the
rights of the Holders to receive and the obligation of the Company to pay
any Contract Adjustment Payments or Deferred Contract Adjustment Payments,
if the Company shall have such obligation, and the rights and obligations
of Holders to purchase Common Stock, shall immediately and automatically
terminate, without the necessity of any notice or action by any Holder, the
Agent or the Company, if, on or prior to the Purchase Contract Settlement
Date, a Termination Event shall have occurred. Upon and after the
occurrence of a Termination Event, the Securities shall thereafter
represent the right to receive the Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, forming a part of such Securities in the case of Income PRIDES, or
Treasury Securities in the case of Growth PRIDES, in accordance with the
provisions of Section 4.3 of the Pledge Agreement. Upon the occurrence of a
Termination Event, the Company shall promptly but in no event later than
two Business Days thereafter give written notice to the Agent, the
Collateral Agent and to the Holders, at their addresses as they appear in
the Register.
Section 5.9. Early Settlement.
(a) Subject to and upon compliance with the provisions of this
Section 5.9, at the option of the Holder thereof, Purchase Contracts
underlying Securities, having an aggregate Stated Amount equal to $1,000 or
an integral multiple thereof, may be settled early ("Early Settlement") in
the case of Income PRIDES (unless a Tax Event Redemption has occurred) on
or prior to the fifth Business Day immediately preceding the Purchase
Contract Settlement Date and in the case of Growth PRIDES on or prior to
the second Business Day immediately preceding the Purchase Contract
Settlement Date, in each case, as provided herein; provided however, that
if a Tax Event Redemption has occurred and the Treasury Portfolio has
become a component of the Income PRIDES Purchase Contracts, underlying
Income PRIDES may be settled early, on or prior to the second Business Day
immediately preceding the Purchase Contract Settlement Date, but only in an
aggregate amount of $160,000 or in an integral multiple thereof. In order
to exercise the right to effect Early Settlement with respect to any
Purchase Contracts, the Holder of the Certificate evidencing Securities
shall deliver such Certificate to the Agent at the Corporate Trust Office
duly endorsed for transfer to the Company or in blank with the form of
Election to Settle Early on the reverse thereof duly completed and
accompanied by payment (payable to the Company in immediately available
funds in an amount (the "Early Settlement Amount") equal to (i) the product
of (A) the Stated Amount times (B) the number of Purchase Contracts with
respect to which the Holder has elected to effect Early Settlement plus
(ii) if such delivery is made with respect to any Purchase Contracts during
the period from the close of business on any Record Date next preceding any
Payment Date to the opening of business on such Payment Date, an amount
equal to the sum of (x) the Contract Adjustment Payments payable on such
Payment Date with respect to such Purchase Contracts plus (y) in the case
of Income PRIDES Certificate, the distributions on the related Preferred
Securities payable on such Payment Date. Except as provided in the
immediately preceding sentence and subject to the second to last paragraph
of Section 5.2, no payment or adjustment shall be made upon Early
Settlement of any Purchase Contract on account of any Contract Adjustment
Payments accrued on such Purchase Contract or on account of any dividends
on the Common Stock issued upon such Early Settlement. If the foregoing
requirements are first satisfied with respect to Purchase Contracts
underlying any Securities at or prior to 5:00 p.m., New York City time, on
a Business Day, such day shall be the "Early Settlement Date" with respect
to such Securities and if such requirements are first satisfied after 5:00
p.m., New York City time, on a Business Day or on a day that is not a
Business Day, the "Early Settlement Date" with respect to such Securities
shall be the next succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of
the related Securities, the Company shall issue, and the Holder shall be
entitled to receive, _____ shares of Common Stock on account of each
Purchase Contract as to which Early Settlement is effected (the "Early
Settlement Rate"); provided, however, that upon the Early Settlement of the
Purchase Contracts, the Holder of such related Securities will forfeit the
right to receive any Deferred Contract Adjustment Payments. The Early
Settlement Rate shall be adjusted in the same manner and at the same time
as the Settlement Rate is adjusted. As promptly as practicable after Early
Settlement of Purchase Contracts in accordance with the provisions of this
Section 5.9, the Company shall issue and shall deliver to the Agent at the
Corporate Trust Office a certificate or certificates for the full number of
shares of Common Stock issuable upon such Early Settlement together with
payment in lieu of any fraction of a share, as provided in Section 5.10.
(c) No later than the third Business Day after the applicable
Early Settlement Date the Company shall cause (i) the shares of Common
Stock issuable upon Early Settlement of Purchase Contracts to be issued and
delivered, and (ii) the related Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, in the case of
Income PRIDES, or the related Treasury Securities, in the case of Growth
PRIDES, to be released from the Pledge by the Collateral Agent and
transferred, in each case to the Agent for delivery to the Holder thereof
or its designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject
to receipt of shares of Common Stock from the Company and the Preferred
Securities, the appropriate Applicable Ownership Interest of the Treasury
Portfolio or Treasury Securities, as the case may be, from the Collateral
Agent, as applicable, the Agent shall, in accordance with the instructions
provided by the Holder thereof on the applicable form of Election to Settle
Early on the reverse of the Certificate evidencing the related Securities,
(i) transfer to the Holder the Preferred Securities, Treasury Portfolio or
Treasury Securities, as the case may be, forming a part of such Securities,
and (ii) deliver to the Holder a certificate or certificates for the full
number of shares of Common Stock issuable upon such Early Settlement
together with payment in lieu of any fraction of a share, as provided in
Section 5.10.
(e) In the event that Early Settlement is effected with respect
to Purchase Contracts underlying less than all the Securities evidenced by
a Certificate, upon such Early Settlement the Company shall execute and the
Agent shall authenticate, countersign and deliver to the Holder thereof, at
the expense of the Company, a Certificate evidencing the Securities as to
which Early Settlement was not effected.
Section 5.10. No Fractional Shares.
No fractional shares or scrip representing fractional shares of
Common Stock shall be issued or delivered upon settlement on the Purchase
Contract Settlement Date or upon Early Settlement of any Purchase
Contracts. If Certificates evidencing more than one Purchase Contract shall
be surrendered for settlement at one time by the same Holder, the number of
full shares of Common Stock which shall be delivered upon settlement shall
be computed on the basis of the aggregate number of Purchase Contracts
evidenced by the Certificates so surrendered. Instead of any fractional
share of Common Stock which would otherwise be deliverable upon settlement
of any Purchase Contracts on the Purchase Contract Settlement Date or upon
Early Settlement, the Company, through the Agent, shall make a cash payment
in respect of such fractional interest in an amount equal to the value of
such fractional shares times the Applicable Market Value. The Company shall
provide the Agent from time to time with sufficient funds to permit the
Agent to make all cash payments required by this Section 5.10 in a timely
manner.
Section 5.11. Charges and Taxes.
The Company will pay all stock transfer and similar taxes
attributable to the initial issuance and delivery of the shares of Common
Stock pursuant to the Purchase Contracts and in payment of any Deferred
Contract Adjustment Payments; provided, however, that the Company shall not
be required to pay any such tax or taxes which may be payable in respect of
any exchange of or substitution for a Certificate evidencing a Security or
any issuance of a share of Common Stock in a name other than that of the
registered Holder of a Certificate surrendered in respect of the Securities
evidenced thereby, other than in the name of the Agent, as custodian for
such Holder, and the Company shall not be required to issue or deliver such
share certificates or Certificates unless or until the Person or Persons
requesting the transfer or issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
ARTICLE VI
Remedies
Section 6.1. Unconditional Right of Holders to Receive Contract
Adjustment
Payments and to Purchase Common Stock.
In the event that Contract Adjustment Payments shall constitute a
component of Income PRIDES or Growth PRIDES, the Holder of any Income
PRIDES or Growth PRIDES shall have the right, which is absolute and
unconditional (subject to the right of the Company to defer payment thereof
pursuant to Section 5.3, the prepayment of Contract Adjustment Payments
pursuant to Section 5.9(a) and to the forfeiture of any Deferred Contract
Adjustment Payments upon Early Settlement pursuant to Section 5.9(b) or
upon the occurrence of a Termination Event), to receive payment of each
installment of the Contract Adjustment Payments with respect to the
Purchase Contract constituting a part of such Security on the respective
Payment Date for such Security and to purchase Common Stock pursuant to
such Purchase Contract and, in each such case, to institute suit for the
enforcement of any such payment and right to purchase Common Stock, and
such rights shall not be impaired without the consent of such Holder.
Section 6.2. Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any right
or remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights
and remedies of such Holder shall continue as though no such proceeding had
been instituted.
Section 6.3. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates in the last
paragraph of Section 3.10, no right or remedy herein conferred upon or
reserved to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.4. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or
remedy upon a default shall impair any such right or remedy or constitute a
waiver of any such right. Every right and remedy given by this Article or
by law to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by such Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of Income
PRIDES or Growth PRIDES, by its acceptance of such Income PRIDES or Growth
PRIDES shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Agreement, or in any suit against the Agent for any action taken, suffered
or omitted by it as Agent, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party
litigant; provided that the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Agent, to
any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of distributions on any
Preferred Securities or Contract Adjustment Payments, if any, on any
Purchase Contract on or after the respective Payment Date therefor in
respect of any Security held by such Holder, or for enforcement of the
right to purchase shares of Common Stock under the Purchase Contracts
constituting part of any Security held by such Holder.
Section 6.6. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Agreement; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Agent or
the Holders, but will suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE VII
The Agent
Section 7.1. Certain Duties and Responsibilities.
(a) (1) The Agent undertakes to perform, with respect to
the Securities, such duties and only such duties as are specifically set
forth in this Agreement and the Pledge Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Agent; and
(2) in the absence of bad faith or negligence on its part,
the Agent may, with respect to the Securities, conclusively rely, as
to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the
Agent and conforming to the requirements of this Agreement, but in the
case of any certificates or opinions which by any provision hereof are
specifically required to be furnished to the Agent, the Agent shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to
relieve the Agent from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Agent was negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require the Agent
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if adequate indemnity is not
provided to it.
(c) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the
liability of or affording protection to the Agent shall be subject to the
provisions of this Section.
(d) The Agent is authorized to execute and deliver the
Pledge Agreement in its capacity as Agent.
Section 7.2. Notice of Default.
Within 30 days after the occurrence of any default by the Company
hereunder of which a Responsible Officer of the Agent has actual knowledge,
the Agent shall transmit by mail to the Company and the Holders of
Securities, as their names and addresses appear in the Register, notice of
such default hereunder, unless such default shall have been cured or
waived.
Section 7.3. Certain Rights of Agent.
Subject to the provisions of Section 7.1:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by an Officer's Certificate, Issuer
Order or Issuer Request, and any resolution of the Board of Directors of
the Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the
Agent shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Agent (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate of the Company;
(d) the Agent may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Agent, in its discretion, may make reasonable further
inquiry or investigation into such facts or matters related to the
execution, delivery and performance of the Purchase Contracts as it may see
fit, and, if the Agent shall determine to make such further inquiry or
investigation, it shall be given a reasonable opportunity to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(f) the Agent may execute any of the powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or an Affiliate and the Agent shall not be responsible for any
misconduct or negligence on the part of any agent or attorney or an
Affiliate appointed with due care by it hereunder.
Section 7.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Certificates shall be
taken as the statements of the Company and the Agent assumes no
responsibility for their accuracy. The Agent makes no representations as to
the validity or sufficiency of either this Agreement or of the Securities,
or of the Pledge Agreement or the Pledge. The Agent shall not be
accountable for the use or application by the Company of the proceeds in
respect of the Purchase Contracts.
Section 7.5. May Hold Securities.
Any Registrar or any other agent of the Company, or the Agent and
its Affiliates, in their individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with the Company, the
Collateral Agent or any other Person with the same rights it would have if
it were not Registrar or such other agent, or the Agent.
Section 7.6. Money Held in Custody.
Money held by the Agent in custody hereunder need not be
segregated from the other funds except to the extent required by law or
provided herein. The Agent shall be under no obligation to invest or pay
interest on any money received by it hereunder except as otherwise agreed
in writing with the Company.
Section 7.7. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Agent from time to time reasonable
compensation for all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to
reimburse the Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in accordance
with any provision of this Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Agent and any predecessor Agent for,
and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of its duties
hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
Section 7.8. Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having (or
being a member of a bank holding company having) a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or State authority and having a Corporate Trust Office in the
Borough of Manhattan, The City of New York, if there be such a corporation
in the Borough of Manhattan, The City of New York, qualified and eligible
under this Article and willing to act on reasonable terms. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time
the Agent shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no
appointment of a successor Agent pursuant to this Article shall become
effective until the acceptance of appointment by the successor Agent in
accordance with the applicable requirements of Section 7.10.
(b) The Agent may resign at any time by giving written
notice thereof to the Company 60 days prior to the effective date of such
resignation. If the instrument of acceptance by a successor Agent required
by Section 7.10 shall not have been delivered to the Agent within 30 days
after the giving of such notice of resignation, the resigning Agent may
petition any court of competent jurisdiction for the appointment of a
successor Agent.
(c) The Agent may be removed at any time by Act of the
Holders of a majority in number of the Outstanding Securities delivered to
the Agent and the Company.
(d) if at any time
(1) the Agent fails to comply with Section 310(b) of the
TIA, as if the Agent were an indenture trustee under an indenture
qualified under the TIA, after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Agent shall cease to be eligible under Section 7.8
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or of its
property shall be appointed or any public officer shall take charge or
control of the Agent or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Agent, or (ii) any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Agent and the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Agent for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Agent and shall comply with the applicable requirements of
Section 7.10. If no successor Agent shall have been so appointed by the
Company and accepted appointment in the manner required by Section 7.10,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Agent.
(f) The Company shall give, or shall cause such successor
Agent to give, notice of each resignation and each removal of the Agent and
each appointment of a successor Agent by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders as their names
and addresses appear in the applicable Register. Each notice shall include
the name of the successor Agent and the address of its Corporate Trust
Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Agent, every such successor Agent so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Agent an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Agent shall become effective and such successor Agent, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, agencies and duties of the retiring Agent; but, on the request of
the Company or the successor Agent, such retiring Agent shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Agent all the rights, powers and trusts of the retiring Agent and
shall duly assign, transfer and deliver to such successor Agent all
property and money held by such retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Agent all such rights, powers and
agencies referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless
at the time of such acceptance such successor Agent shall be qualified and
eligible under this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Agent shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Agent, shall be the successor of the Agent hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Certificates
shall have been authenticated and executed on behalf of the Holders, but
not delivered, by the Agent then in office, any successor by merger,
conversion or consolidation to such Agent may adopt such authentication and
execution and deliver the Certificates so authenticated and executed with
the same effect as if such successor Agent had itself authenticated and
executed such Securities.
Section 7.12. Preservation of Information; Communications to Holders.
(a) The Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the
Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Agent, and furnish to the Agent
reasonable proof that each such applicant has owned a Security for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Agent
shall, mail to all the Holders copies of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Agent of the materials to be mailed and of
payment, or provision for the payment, of the reasonable expenses of such
mailing.
Section 7.13. No Obligations of Agent.
Except to the extent otherwise provided in this Agreement, the
Agent assumes no obligations and shall not be subject to any liability
under this Agreement, the Pledge Agreement or any Purchase Contract in
respect of the obligations of the Holder of any Security thereunder. The
Company agrees, and each Holder of a Certificate, by his acceptance
thereof, shall be deemed to have agreed, that the Agent's execution of the
Certificates on behalf of the Holders shall be solely as agent and
attorney-in-fact for the Holders, and that the Agent shall have no
obligation to perform such Purchase Contracts on behalf of the Holders,
except to the extent expressly provided in Article Five hereof.
Section 7.14. Tax Compliance.
(a) The Agent, on its own behalf and on behalf of the
Company, will comply with all applicable certification, information
reporting and withholding (including "backup" withholding) requirements
imposed by applicable tax laws, regulations or administrative practice with
respect to (i) any payments made with respect to the Securities or (ii) the
issuance, delivery, holding, transfer, redemption or exercise of rights
under the Securities. Such compliance shall include, without limitation,
the preparation and timely filing of required returns and the timely
payment of all amounts required to be withheld to the appropriate taxing
authority or its designated agent.
(b) The Agent shall comply with any written direction
received from the Company with respect to the application of such
requirements to particular payments or Holders or in other particular
circumstances, and may for purposes of this Agreement rely on any such
direction in accordance with the provisions of Section 7.1(a)(2) hereof.
(c) The Agent shall maintain all appropriate records
documenting compliance with such requirements, and shall make such records
available, on written request, to the Company or its authorized
representative within a reasonable period of time after receipt of such
request.
ARTICLE VIII
Supplemental Agreements
Section 8.1. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Agent, at
any time and from time to time, may enter into one or more agreements
supplemental hereto, in form satisfactory to the Company and the Agent, for
any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Certificates; or
(2) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein conferred
upon the Company; or
(3) to evidence and provide for the acceptance of
appointment hereunder by a successor Agent; or
(4) to make provision with respect to the rights of Holders
pursuant to the requirements of Section 5.6(b); or
(5) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions
herein, or to make any other provisions with respect to such
matters or questions arising under this Agreement, provided such
action shall not adversely affect the interests of the Holders.
Section 8.2. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of
the outstanding Purchase Contracts voting together as one Class, by Act of
said Holders delivered to the Company and the Agent, the Company, when
authorized by a Board Resolution, and the Agent may enter into an agreement
or agreements supplemental hereto for the purpose of modifying in any
manner the terms of the Purchase Contracts, or the provisions of this
Agreement or the rights of the Holders in respect of the Securities;
provided, however, that, except as contemplated herein, no such
supplemental agreement shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to
be Pledged to secure a Holder's Obligations under the
Purchase Contract, impair the right of the Holder of any Purchase
Contract to receive distributions on the related Collateral (except
for the rights of Holders of Income PRIDES to substitute the Treasury
Securities for the Pledge Preferred Securities or the rights of
holders of Growth PRIDES to substitute Preferred Securities for the
Pledged Treasury Securities) or otherwise adversely affect the
Holder's rights in or to such Collateral or adversely alter the rights
in or to such Collateral;
(3) reduce any Contract Adjustment Payments or any Deferred
Contract Adjustment Payment, or change any place where, or the coin or
currency in which, any Contract Adjustment Payments is payable;
(4) impair the right to institute suit for the enforcement
of any Purchase Contract;
(5) reduce the number of shares of Common Stock to be
purchased pursuant to any Purchase Contract, increase the price to
purchase shares of Common Stock upon settlement of any Purchase
Contract, change the Purchase Contract Settlement Date or otherwise
adversely affect the Holder's rights under any Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase
Contracts the consent of whose Holders is required for any such
supplemental agreement;
provided, that if any amendment or proposal referred to above would
adversely affect only the Income PRIDES or the Growth PRIDES, then only the
affected class of Holder as of the record date for the Holders entitled to
vote thereon will be entitled to vote on such amendment or proposal, and
such amendment or proposal shall not be effective except with the consent
of Holders of not less than a majority of such class.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
agreement, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 8.3. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by,
any supplemental agreement permitted by this Article or the modifications
thereby of the agencies created by this Agreement, the Agent shall be
entitled to receive and (subject to Section 7.1) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement. The
Agent may, but shall not be obligated to, enter into any such supplemental
agreement which affects the Agent's own rights, duties or immunities under
this Agreement or otherwise.
Section 8.4. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this
Article, this Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Agreement for all
purposes; and every Holder of Certificates theretofore or thereafter
authenticated, executed on behalf of the Holders and delivered hereunder
shall be bound thereby.
Section 8.5. Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to
this Article may, and shall if required by the Agent, bear a notation in
form approved by the Agent as to any matter provided for in such
supplemental agreement. If the Company shall so determine, new Certificates
so modified as to conform, in the opinion of the Agent and the Company, to
any such supplemental agreement may be prepared and executed by the Company
and authenticated, executed on behalf of the Holders and delivered by the
Agent in exchange for Outstanding Certificates.
ARTICLE IX
Consolidation, Merger, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions.
The Company covenants that it will not merge or consolidate with
any other Person or sell, assign, transfer, lease or convey all or
substantially all of its properties and assets to any Person or group of
affiliated Persons in one transaction or a series of related transactions,
unless (i) either the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof
or the District of Columbia and such corporation shall expressly assume all
the obligations of the Company under the Purchase Contracts, this Agreement
and the Pledge Agreement by one or more supplemental agreements in form
reasonably satisfactory to the Agent and the Collateral Agent, executed and
delivered to the Agent and the Collateral Agent by such corporation, and
(ii) the Company or such successor corporation, as the case may be, shall
not, immediately after such merger or consolidation, or such sale,
assignment, transfer, lease or conveyance, be in default in the performance
of any covenant or condition hereunder, under any of the Securities or
under the Pledge Agreement.
Section 9.2. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, assignment,
transfer, lease or conveyance and upon any such assumption by a successor
corporation in accordance with Section 9.1, such successor corporation
shall succeed to and be substituted for the Company with the same effect as
if it had been named herein as the Company. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or
in the name of Cendant Corporation any or all of the Certificates
evidencing Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Agent; and, upon the order
of such successor corporation, instead of the Company, and subject to all
the terms, conditions and limitations in this Agreement prescribed, the
Agent shall authenticate and execute on behalf of the Holders and deliver
any Certificates which previously shall have been signed and delivered by
the officers of the Company to the Agent for authentication and execution,
and any Certificate evidencing Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Agent for that
purpose. All the Certificates so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Certificates theretofore
or thereafter issued in accordance with the terms of this Agreement as
though all of such Certificates had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, assignment,
transfer, lease or conveyance such change in phraseology and form (but not
in substance) may be made in the Certificates evidencing Securities
thereafter to be issued as may be appropriate.
Section 9.3. Opinion of Counsel Given to Agent.
The Agent, subject to Sections 7.1 and 7.3, shall receive an
Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, assignment, transfer, lease or conveyance, and any such
assumption, complies with the provisions of this Article and that all
conditions precedent to the consummation of any such consolidation, merger,
sale, assignment, transfer, lease or conveyance have been met.
ARTICLE X
Covenants
Section 10.1. Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders
from time to time of the Securities that it will duly and punctually
perform its obligations under the Purchase Contracts in accordance with the
terms of the Purchase Contracts and this Agreement.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City
of New York an office or agency where Certificates may be presented or
surrendered for acquisition of shares of Common Stock upon settlement of
the Purchase Contracts on the Purchase Contract Settlement Date or Early
Settlement and for transfer of Collateral upon occurrence of a Termination
Event, where Certificates may be surrendered for registration of transfer
or exchange, for a Collateral Substitution or re-establishment of an Income
PRIDES and where notices and demands to or upon the Company in respect of
the Securities and this Agreement may be served. The Company will give
prompt written notice to the Agent of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Agent with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office, and the
Company hereby appoints the Agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where Certificates may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the Borough of Manhattan, The City of New
York for such purposes. The Company will give prompt written notice to the
Agent of any such designation or rescission and of any change in the
location of any such other office or agency. The Company hereby designates
as the place of payment for the Securities the Corporate Trust Office and
appoints the Agent at its Corporate Trust Office as paying agent in such
city.
Section 10.3. Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract
Settlement Date reserve and keep available, free from preemptive rights,
out of its authorized but unissued Common Stock the full number of shares
of Common Stock issuable against tender of payment in respect of all
Purchase Contracts constituting a part of the Securities evidenced by
Outstanding Certificates.
Section 10.4. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may
be issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be
duly authorized, validly issued, fully paid and nonassessable.
Section 10.5. Statements of Officer of the Company as to Default.
The Company will deliver to the Agent, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officer's Certificate, stating whether or not to the best knowledge of the
signer thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions hereof, and if the Company
shall be in default, specifying all such defaults and the nature and status
thereof of which such Officer may have knowledge.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
CENDANT CORPORATION
By: ____________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Purchase Contract Agent
By: ____________________________________
Name:
Title:
EXHIBIT A
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED
IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND
NO TRANSFER OF THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE
CONTRACT AGREEMENT.
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the Company or its agent for registration of transfer,
exchange or payment, and any Certificate issued is registered in the name
of Cede & Co., or such other name as requested by an authorized
representative of The Depository Trust Company, and any payment hereon is
made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.
No. _____
Cusip No. Number of Income PRIDES _______
Form of Face of Income PRIDES Certificate
____% Income PRIDES
This Income PRIDES Certificate certifies that ___________ is the
registered Holder of the number of Income PRIDES set forth above. Each
Income PRIDES represents (i) either (a) beneficial ownership by the Holder
of one ____% Trust Originated Preferred Security (the "Preferred Security")
of Cendant Capital II, a Delaware statutory business trust (the "Trust"),
having a stated liquidation amount of $50, subject to the Pledge of such
Preferred Security by such Holder pursuant to the Pledge Agreement or (b)
upon the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date, the appropriate Applicable Ownership Interest of
the Treasury Portfolio, subject to the Pledge of such Applicable Ownership
Interest of the Treasury Portfolio by such Holder pursuant to the Pledge
Agreement, and (ii) the rights and obligations of the Holder under one
Purchase Contract with Cendant Corporation, a Delaware corporation (the
"Company"). All capitalized terms used herein which are defined in the
Purchase Contract Agreement have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, constituting part of each Income PRIDES evidenced hereby have
been pledged to the Collateral Agent, for the benefit of the Company, to
secure the obligations of the Holder under the Purchase Contract comprising
a portion of such Income PRIDES.
The Pledge Agreement provides that all payments of the Stated
Amount of or the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) in the Treasury Portfolio, as
the case may be, or cash distributions on, any Pledged Preferred Securities
(as defined in the Pledge Agreement) or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be,
constituting part of the Income PRIDES received by the Collateral Agent
shall be paid by the Collateral Agent by wire transfer in same day funds
(i) in the case of (A) cash distributions with respect to Pledged Preferred
Securities or the appropriate Applicable Ownership Interest (as specified
in clause (B) of the definition of such term) of the Treasury Portfolio, as
the case may be, and (B) any payments of the Stated Amount or the
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such terms) of the Treasury Portfolio, as the case may
be, with respect to any Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, that have
been released from the Pledge pursuant to the Pledge Agreement, to the
Agent to the account designated by the Agent, no later than 2:00 p.m., New
York City time, on the Business Day such payment is received by the
Collateral Agent (provided that in the event such payment is received by
the Collateral Agent on a day that is not a Business Day or after 12:30
p.m., New York City time, on a Business Day, then such payment shall be
made no later than 10:30 a.m., New York City time, on the next succeeding
Business Day) and (ii) in the case of payments of the Stated Amount or the
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) in the Treasury Portfolio, as the case may be,
of any Pledged Preferred Securities or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) in the
Treasury Portfolio, as the case may be, to the Company on the Purchase
Contract Settlement Date (as defined herein) in accordance with the terms
of the Pledge Agreement, in full satisfaction of the respective obligations
of the Holders of the Income PRIDES of which such Pledged Preferred
Securities or the Treasury Portfolio, as the case may be, are a part under
the Purchase Contracts forming a part of such Income PRIDES. Distributions
on any Preferred Security or the appropriate Applicable Ownership Interest
(as specified in clause (B) of the definition of such term) of the Treasury
Portfolio, as the case may be, forming part of an Income PRIDES evidenced
hereby which are payable quarterly in arrears on February 16, May 16,
August 16 and November 16 each year, commencing ______________,
(a "Payment Date"), shall, subject to receipt thereof by the Agent from
the Collateral Agent, be paid to the Person in whose name this Income
PRIDES Certificate (or a Predecessor Income PRIDES Certificate) is
registered at the close of business on the Record Date for such Payment
Date.
Each Purchase Contract evidenced hereby obligates the Holder of
this Income PRIDES Certificate to purchase, and the Company to sell, on
____________, 2001 (the "Purchase Contract Settlement Date"), at a price
equal to $50 (the "Stated Amount"), a number of shares of Common Stock, no
par value ("Common Stock"), of the Company, equal to the Settlement Rate,
unless on or prior to the Purchase Contract Settlement Date there shall
have occurred a Termination Event or an Early Settlement with respect to
the Income PRIDES of which such Purchase Contract is a part, all as
provided in the Purchase Contract Agreement and more fully described on the
reverse hereof. The purchase price (the "Purchase Price") for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby,
if not paid earlier, shall be paid on the Purchase Contract Settlement Date
by application of payment received in respect of the Stated Amount or the
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio, as the case may be,
of the Pledged Preferred Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, pledged to secure
the obligations under such Purchase Contract of the Holder of the Income
PRIDES of which such Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of an Income PRIDES evidenced hereby an
amount (the "Contract Adjustment Payments") equal to % per annum of the
Stated Amount, computed on the basis of a 360 day year of twelve 30 day
months, subject to deferral at the option of the Company as provided in the
Purchase Contract Agreement and more fully described on the reverse hereof.
Such Contract Adjustment Payments shall be payable to the Person in whose
name this Income PRIDES Certificate (or a Predecessor Income PRIDES
Certificate) is registered at the close of business on the Record Date for
such Payment Date.
Distributions on the Preferred Securities or the appropriate
Applicable Ownership Interest (as specified in clause (B) of the definition
of such term) of the Treasury Portfolio, as the case may be, and Contract
Adjustment Payments will be payable at the office of the Agent in The City
of New York or, at the option of the Company, by check mailed to the
address of the Person entitled thereto as such address appears on the
Income PRIDES Register.
Reference is hereby made to the further provisions set forth on
the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Agent by manual signature, this Income PRIDES Certificate shall not
be entitled to any benefit under the Pledge Agreement or the Purchase
Contract Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
CENDANT CORPORATION
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts evidenced hereby)
By: THE FIRST NATIONAL BANK OF
CHICAGO, not individually but solely
as Attorney-in-Fact of such Holder
By: ____________________________________
Name:
Title:
Dated:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Income PRIDES Certificates referred to in the
within mentioned Purchase Contract Agreement.
By: THE FIRST NATIONAL BANK OF
CHICAGO, as Purchase Contract Agent
By:
Authorized Officer
(Form of Reverse of Income PRIDES Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of _______ ___, (as may be
supplemented from time to time, the "Purchase Contract Agreement"), between
the Company and The First National Bank of Chicago, as Purchase Contract
Agent (herein called the "Agent"), to which Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description
of the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Agent, the Company, and the Holders and of the
terms upon which the Income PRIDES Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of
this Income PRIDES Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount
(the "Purchase Price"), a number of shares of Common Stock of the Company
equal to the Settlement Rate, unless, on or prior to the Purchase Contract
Settlement Date, there shall have occurred a Termination Event with respect
to the Security of which such Purchase Contract is a part or an Early
Settlement shall have occurred. The "Settlement Rate" is equal to (a) if
the Applicable Market Value (as defined below) is equal to or greater than
$ (the "Threshold Appreciation Price"), shares of Common Stock per Purchase
Contract, (b) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than $ , the number of shares of Common
Stock per Purchase Contract equal to the Stated Amount divided by the
Applicable Market Value and (c) if the Applicable Market Amount is less
than or equal to $ , shares of Common Stock per Purchase Contract, in each
case subject to adjustment as provided in the Purchase Contract Agreement.
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of
the related Income PRIDES to purchase at the Purchase Price, and the
Company to sell, a number of newly issued shares of Common Stock equal to
the Early Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date.
The "Closing Price" of the Common Stock on any date of
determination means the closing sale price (or, if no closing price is
reported, the last reported sale price) of the Common Stock on the New York
Stock Exchange (the "NYSE") on such date or, if the Common Stock is not
listed for trading on the NYSE on any such date, as reported in the
composite transactions for the principal United States securities exchange
on which the Common Stock is so listed, or if the Common Stock is not so
listed on a United States national or regional securities exchange, as
reported by The Nasdaq Stock Market, or, if the Common Stock is not so
reported, the last quoted bid price for the Common Stock in the over-the-
counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of
the Common Stock on such date as determined by a nationally recognized
independent investment banking firm retained for this purpose by the
Company. A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement,
the Holder of this Income PRIDES Certificate shall pay the Purchase Price
for the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby by effecting a Cash Settlement, or an Early Settlement or
from the proceeds of a remarketing of the related Pledged Preferred
Securities of such holders. A Holder of Income PRIDES who does not elect,
on or prior to 5:00 p.m. New York City time on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, to make an
effective Cash Settlement or an Early Settlement, shall pay the Purchase
Price for the shares of Common Stock to be issued under the related
Purchase Contract from the Proceeds of the sale of the related Pledged
Preferred Securities held by the Collateral Agent. Such sale will be made
by the Remarketing Agent pursuant to the terms of the Remarketing Agreement
and the Remarketing Underwriting Agreement on the third Business Day
immediately preceding the Purchase Contract Settlement Date. If, as
provided in the Purchase Contract Agreement, upon the occurrence of a
Failed Remarketing the Collateral Agent, for the benefit of the Company,
exercises its rights as a secured creditor with respect to the Pledged
Preferred Securities related to this Income PRIDES certificate, any accrued
and unpaid distributions (including deferred distributions) on such Pledged
Preferred Securities will become payable by the Company to the holder of
this Income PRIDES Certificate in the manner provided for in the Purchase
Contract Agreement.
The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment in full of the
aggregate purchase price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
Each Purchase Contract evidenced hereby and all obligations and
rights of the Company and the Holder thereunder shall terminate if a
Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall give written notice to the Agent and to the
Holders, at their addresses as they appear in the Income PRIDES Register.
Upon and after the occurrence of a Termination Event, the Collateral Agent
shall release the Pledged Preferred Security (as defined in the Pledge
Agreement) or the appropriate Applicable Ownership Interest of the Treasury
Portfolio forming a part of each Income PRIDES, or the Liquidation
Distribution received in respect of such Pledged Preferred Security, from
the Pledge. An Income PRIDES shall thereafter represent the right to
receive the Preferred Security or the appropriate Applicable Ownership
Interest of the Treasury Portfolio forming a part of such Income PRIDES, or
the Liquidation Distribution received in respect of such Preferred
Security, in accordance with the terms of the Purchase Contract Agreement
and the Pledge Agreement.
Under the terms of the Pledge Agreement, the Agent will be
entitled to exercise the voting and any other consensual rights pertaining
to the Pledged Preferred Securities. Upon receipt of notice of any meeting
at which holders of Preferred Securities are entitled to vote or upon the
solicitation of consents, waivers or proxies of holders of Preferred
Securities, the Agent shall, as soon as practicable thereafter, mail to the
Income PRIDES holders a notice (a) containing such information as is
contained in the notice or solicitation, (b) stating that each Income
PRIDES holder on the record date set by the Agent therefor (which, to the
extent possible, shall be the same date as the record date for determining
the holders of Preferred Securities entitled to vote) shall be entitled to
instruct the Agent as to the exercise of the voting rights pertaining to
the Preferred Securities constituting a part of such holder's Income PRIDES
and (c) stating the manner in which such instructions may be given. Upon
the written request of the Income PRIDES Holders on such record date, the
Agent shall endeavor insofar as practicable to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the maximum
number of Preferred Securities as to which any particular voting
instructions are received. In the absence of specific instructions from the
Holder of an Income PRIDES, the Agent shall abstain from voting the
Preferred Security evidenced by such Income PRIDES.
Upon the occurrence of an Investment Company Event or liquidation
of the Trust, a principal amount of the Debentures constituting the assets
of the Trust and underlying the Preferred Securities equal to the aggregate
Stated Amount of the Pledged Preferred Securities shall be delivered to the
Collateral Agent in exchange for Pledged Preferred Securities. Thereafter,
the Debentures shall be held by the Collateral Agent to secure the
obligations of each Holder of Income PRIDES to purchase shares of Common
Stock under the Purchase Contracts constituting a part of such Income
PRIDES. Following the liquidation of the Trust, the Holders and the
Collateral Agent shall have such security interests, rights and obligations
with respect to the Debentures as the Holders and the Collateral Agent had
in respect of the Pledged Preferred Securities, and any reference in the
Purchase Contract Agreement or Pledge Agreement to the Preferred Securities
shall be deemed to be a reference to the Debentures.
Upon the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Redemption Price payable on the Tax
Event Redemption Date with respect to the Applicable Principal Amount of
Debentures shall be delivered to the Collateral Agent in exchange for the
Pledged Preferred Securities. Thereafter, pursuant to the terms of the
Pledge Agreement, the Collateral Agent for the benefit of the Company will
apply an amount equal to the Redemption Amount of such Redemption Price to
purchase, the Treasury Portfolio and promptly remit the remaining portion
of such Redemption Price to the Agent for payment to the Holders of such
Income PRIDES.
Following the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Holders of Income PRIDES and the
Collateral Agent shall have such security interests rights and obligations
with respect to the Treasury Portfolio as the Holder of Income PRIDES and
the Collateral Agent had in respect of the Preferred Security or
Debentures, as the case may be, subject to the Pledge thereof as provided
in Articles II, III, IV, V and VI, of the Pledge Agreement and any
reference herein to the Preferred Security or the Debenture shall be deemed
to be reference to such Treasury Portfolio.
The Income PRIDES Certificates are issuable only in registered
form and only in denominations of a single Income PRIDES and any integral
multiple thereof. The transfer of any Income PRIDES Certificate will be
registered and Income PRIDES Certificates may be exchanged as provided in
the Purchase Contract Agreement. The Income PRIDES Registrar may require a
Holder, among other things, to furnish appropriate endorsements and
transfer documents permitted by the Purchase Contract Agreement. No service
charge shall be required for any such registration of transfer or exchange,
but the Company and the Agent may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
A holder who elects to substitute a Treasury Security for Preferred
Securities or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, thereby creating Growth PRIDES, shall be responsible for any
fees or expenses payable in connection therewith. Except as provided in the
Purchase Contract Agreement, for so long as the Purchase Contract
underlying an Income PRIDES remains in effect, such Income PRIDES shall not
be separable into its constituent parts, and the rights and obligations of
the Holder of such Income PRIDES in respect of the Preferred Security or
the appropriate Applicable Ownership Interest of the Treasury Portfolio, as
the case may be, and Purchase Contract constituting such Income PRIDES may
be transferred and exchanged only as an Income PRIDES. The holder of an
Income PRIDES may substitute for the Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio
securing its obligation under the related Purchase Contract Treasury
Securities in an aggregate principal amount equal to the aggregate Stated
Amount of the Pledged Preferred Securities or the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such
term) in the Treasury Portfolio in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. From and after such
Collateral Substitution, the Security for which such Pledged Treasury
Securities secures the holder's obligation under the Purchase Contract
shall be referred to as a "Growth PRIDES." A Holder may make such
Collateral Substitution only in integral multiples of 20 Income PRIDES for
20 Growth PRIDES; provided, however, that if a Tax Event Redemption has
occurred and the Treasury Portfolio has become a component of the Income
PRIDES, a Holder may make such Collateral Substitutions only in integral
multiples of 160,000 Income PRIDES for 160,000 Growth PRIDES. Such
Collateral Substitution may cause the equivalent aggregate principal amount
of this Certificate to be increased or decreased; provided, however, the
equivalent aggregate principal amount outstanding under this Income PRIDES
Certificate shall not exceed $200,000,000. All such adjustments to the
equivalent aggregate principal amount of this Income PRIDES Certificate
shall be duly recorded by placing an appropriate notation on the Schedule
attached hereto.
A Holder of Growth PRIDES may create or recreate Income PRIDES by
delivering to the Collateral Agent Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, with a Stated
Amount, in the case of such Preferred Securities, or with the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, in the case of such appropriate
Applicable Ownership Interest of the Treasury Portfolio, equal to the
aggregate principal amount of the Pledged Treasury Securities in exchange
for the release of such Pledged Treasury Securities in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement.
Subject to the next succeeding paragraph, the Company shall pay,
on each Payment Date, the Contract Adjustment Payments payable in respect
of each Purchase Contract to the Person in whose name the Income PRIDES
Certificate evidencing such Purchase Contract is registered at the close of
business on the Record Date for such Payment Date. Contract Adjustment
Payments will be payable at the office of the Agent in The City of New York
or, at the option of the Company, by check mailed to the address of the
Person entitled thereto at such address as it appears on the Income PRIDES
Register.
The Company shall have the right, at any time prior to the
Purchase Contract Settlement Date, to defer the payment of any or all of
the Contract Adjustment Payments otherwise payable on any Payment Date, but
only if the Company shall give the Holders and the Agent written notice of
its election to defer such payment (specifying the amount to be deferred)
as provided in the Purchase Contract Agreement. Any Contract Adjustment
Payments so deferred shall bear additional Contract Adjustment Payments
thereon at the rate of ____% per annum (computed on the basis of a 360 day
year of twelve 30 day months), compounding on each succeeding Payment Date,
until paid in full (such deferred installments of Contract Adjustment
Payments, if any, together with the additional Contract Adjustment Payments
accrued thereon, are referred to herein as the "Deferred Contract
Adjustment Payments"). Deferred Contract Adjustment Payments, if any, shall
be due on the next succeeding Payment Date except to the extent that
payment is deferred pursuant to the Purchase Contract Agreement. No
Contract Adjustment Payments may be deferred to a date that is after the
Purchase Contract Settlement Date.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until the Purchase
Contract Settlement Date, the Holder of this Income PRIDES Certificate will
receive on the Purchase Contract Settlement Date, in lieu of a cash
payment, a number of shares of Common Stock equal to (x) the aggregate
amount of Deferred Contract Adjustment Payments payable to the Holder of
this Income PRIDES Certificate divided by (y) the Applicable Market Value.
In the event the Company exercises its option to defer the
payment of Contract Adjustment Payments, then until the Deferred Contract
Adjustment Payments have been paid, the Company shall not declare or pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock or make guarantee payments with respect to the foregoing (other than
(i) purchases or acquisitions of capital stock of the Company in connection
with the satisfaction by the Company of its obligations under any employee
or agent benefit plans or the satisfaction by the Company of its
obligations pursuant to any contract or security outstanding on the date of
such event requiring the Company to purchase capital stock of the Company,
(ii) as a result of a reclassification of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital
stock for another class or series of the Company's capital stock, (iii) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (iv) dividends or distributions
in capital stock of the Company (or rights to acquire capital stock) or
repurchases or redemptions of capital stock solely from the issuance or
exchange of capital stock or (v) redemptions or repurchases of any rights
outstanding under a shareholder rights plan and a declaration thereunder of
a dividend of rights in the future).
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the
rights of the Holders to receive and the obligation of the Company to pay
any Contract Adjustment Payments or any Deferred Contract Adjustment
Payments, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Agent or the Company,
if, on or prior to the Purchase Contract Settlement Date, a Termination
Event shall have occurred. Upon the occurrence of a Termination Event, the
Company shall promptly but in no event later than two Business Days
thereafter give written notice to the Agent, the Collateral Agent and to
the Holders, at their addresses as they appear in the Income PRIDES
Register. Upon and after the occurrence of a Termination Event, the
Collateral Agent shall release the Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, from the Pledge in accordance with the provisions of the Pledge
Agreement.
Subject to and upon compliance with the provisions of the
Purchase Contract Agreement, at the option of the Holder thereof, Purchase
Contracts underlying Securities having an aggregate amount equal to $1,000
or an integral multiple thereof may be settled early ("Early Settlement")
as provided in the Purchase Contract Agreement; provided, however, that if
a Tax Event Redemption has occurred and the Treasury Portfolio has become a
component of the Income PRIDES, Holders may early settle Income PRIDES only
in integral multiples of 160,000 Income PRIDES. In order to exercise the
right to effect Early Settlement with respect to any Purchase Contracts
evidenced by this Income PRIDES Certificate, the Holder of this Income
PRIDES Certificate shall deliver this Income PRIDES Certificate to the
Agent at the Corporate Trust Office duly endorsed for transfer to the
Company or in blank with the form of Election to Settle Early set forth
below duly completed and accompanied by payment in the form of immediately
available funds payable to the order of the Company in an amount (the
"Early Settlement Amount") equal to (i) the product of (A) the Stated
Amount times (B) the number of Purchase Contracts with respect to which the
Holder has elected to effect Early Settlement, plus (ii) if such delivery
is made with respect to any Purchase Contracts during the period from the
close of business on any Record Date for any Payment Date to the opening of
business on such Payment Date, an amount equal to the Contract Adjustment
Payments payable on such Payment Date with respect to such Purchase
Contracts. Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Pledged Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio underlying such
Securities shall be released from the Pledge as provided in the Pledge
Agreement and the Holder shall be entitled to receive a number of shares of
Common Stock on account of each Purchase Contract forming part of a Income
PRIDES as to which Early Settlement is effected equal to the Early
Settlement Rate; provided however, that upon the Early Settlement of the
Purchase Contracts, the Holder thereof will forfeit the right to receive
any Deferred Contract Adjustment Payments, if any, on such Purchase
Contracts. The Early Settlement Rate shall initially be equal to shares of
Common Stock and shall be adjusted in the same manner and at the same time
as the Settlement Rate is adjusted as provided in the Purchase Contract
Agreement.
Upon registration of transfer of this Income PRIDES Certificate,
the transferee shall be bound (without the necessity of any other action on
the part of such transferee, except as may be required by the Agent
pursuant to the Purchase Contract Agreement), under the terms of the
Purchase Contract Agreement and the Purchase Contracts evidenced hereby and
the transferor shall be released from the obligations under the Purchase
Contracts evidenced by this Income PRIDES Certificate. The Company
covenants and agrees, and the Holder, by its acceptance hereof, likewise
covenants and agrees, to be bound by the provisions of this paragraph.
The Holder of this Income PRIDES Certificate, by its acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Income PRIDES evidenced hereby on his behalf
as his attorney-in-fact, expressly withholds any consent to the assumption
(i.e., affirmance) of the Purchase Contracts by the Company or its trustee
in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract Agreement,
authorizes the Agent to enter into and perform the Pledge Agreement on his
behalf as its attorney-in-fact, and consents to the Pledge of the Preferred
Securities or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, underlying this Income PRIDES Certificate
pursuant to the Pledge Agreement. The Holder further covenants and agrees,
that, to the extent and in the manner provided in the Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof,
payments in respect to the Stated Amount of the Pledged Preferred
Securities, or the appropriate Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio, on
the Purchase Contract Settlement Date shall be paid by the Collateral Agent
to the Company in satisfaction of such Holder's obligations under such
Purchase Contract and such Holder shall acquire no right, title or interest
in such payments.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of a
majority of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the
Company or the Agent may treat the Person in whose name this Income PRIDES
Certificate is registered as the owner of the Income PRIDES evidenced
hereby for the purpose of receiving payments of distributions payable
quarterly on the Preferred Securities, receiving payments of Contract
Adjustment Payments and any Deferred Contract Adjustment Payments,
performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the
Agent nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of
Common Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
(cust) (minor)
Under Uniform Gifts to Minors Act
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(Please insert Social Security or Taxpayer I.D. or other Identifying Number
of Assignee)
(Please Print or Type Name and Address Including Postal Zip Code of
Assignee)
the within Income PRIDES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
attorney to transfer said Income PRIDES Certificates on the books of
CENDANT
Inc. with full power of substitution in the premises.
Dated:
Signature
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within Income
PRIDES Certificates in every particular,
without alteration or enlargement or any change
whatsoever.
Signature Guarantee:
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of Income
PRIDES evidenced by this Income PRIDES Certificate be registered in the
name of, and delivered, together with a check in payment for any fractional
share, to the undersigned at the address indicated below unless a different
name and address have been indicated below. If shares are to be registered
in the name of a Person other than the undersigned, the undersigned will
pay any transfer tax payable incident thereto.
Dated:
Signature
Signature Guarantee:
(if assigned to another person)
If shares are to be registered
in the name of and delivered to REGISTERED HOLDER a Person
other than the Holder,
please (i) print such Person's
name and address and (ii) provide a
guarantee of your signature:
Please print name
and address of
Registered
Holder:
Name Name
Address Address
Social Security or other
Taxpayer Identification
Number, if any
ELECTION TO SETTLE EARLY
The undersigned Holder of this Income PRIDES Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance
with the terms of the Purchase Contract Agreement with respect to the
Purchase Contracts underlying the number of Income PRIDES evidenced by this
Income PRIDES Certificate specified below. The option to effect Early
Settlement may be exercised only with respect to Purchase Contracts
underlying Growth PRIDES with an aggregate Stated Amount equal to $1,000 or
an integral multiple thereof. The undersigned Holder directs that a
certificate for shares of Common Stock deliverable upon such Early
Settlement be registered in the name of, and delivered, together with a
check in payment for any fractional share and any Income PRIDES Certificate
representing any Income PRIDES evidenced hereby as to which Early
Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and
address have been indicated below. Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, deliverable upon such Early Settlement will be transferred in
accordance with the transfer instructions set forth below. If shares are to
be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.
Dated:
Signature
Signature Guarantee:
Number of Securities evidenced hereby as to which Early
Settlement of the related Purchase Contracts is being elected:
If shares of Common Stock or Income REGISTERED HOLDER PRIDES
Certificates are to be regis-
tered in the name of and delivered to
and Pledged Preferred Securities, or
the Treasury Portfolio, as the case may
be, are to be transferred to a Person
other than the Holder, please print such
Person's name and address:
Please print name
and address of
Registered
Holder:
Name Name
Address Address
Social Security or other
Taxpayer Identification
Number, if any
Transfer Instructions for Pledged Preferred Securities, or the Treasury
Portfolio, as the case may be, Transferable Upon Early Settlement or a
Termination Event:
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate
have been made:
Principal Amount of
Amount of Amount of this Global Certificate Signature of
decrease in Principal increase in Principal following such decrease authorized officer of
Amount of the Global Amount of the Global or Trustee or Securities
Date Certificate Certificate increase Custodian
EXHIBIT B
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED
IN THE NAME OF A CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO
TRANSFER OF THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE
NAME OF ANY PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT.
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the Company or its agent for registration of transfer,
exchange or payment, and any Certificate issued is registered in the name
of Cede & Co., or such other name as requested by an authorized
representative of The Depository Trust Company, and any payment hereon is
made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.
No. Number of Growth PRIDES Cusip No.
Form of Face of Growth PRIDES Certificate
This Growth PRIDES Certificate certifies that __________ is the
registered Holder of the number of Growth PRIDES set forth above. Each
Growth PRIDES represents (i) a 1/20 undivided beneficial ownership
interest, of a Treasury Security having a principal amount at maturity
equal to $1,000, subject to the Pledge of such Treasury Security by such
Holder pursuant to the Pledge Agreement, and (ii) the rights and
obligations of the Holder under one Purchase Contract with Cendant
Corporation, a Delaware corporation (the "Company"). All capitalized terms
used herein which are defined in the Purchase Contract Agreement have the
meaning set forth therein.
Pursuant to the Pledge Agreement, the Treasury Securities
constituting part of each Growth PRIDES evidenced hereby have been pledged
to the Collateral Agent, for the benefit of the Company, to secure the
obligations of the Holder under the Purchase Contract comprising a portion
of such Growth PRIDES.
Each Purchase Contract evidenced hereby obligates the Holder of
this Growth PRIDES Certificate to purchase, and the Company, to sell, on
February 16, 2001 (the "Purchase Contract Settlement Date"), at a price
equal to $50 (the "Stated Amount"), a number of shares of Common stock, no
par value per share ("Common Stock"), of the Company equal to the
Settlement Rate, unless on or prior to the Purchase Contract Settlement
Date there shall have occurred a Termination Event or an Early Settlement
with respect to the Growth PRIDES of which such Purchase Contract is a
part, all as provided in the Purchase Contract Agreement and more fully
described on the reverse hereof. The purchase price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby
will be paid by application of the Proceeds from the Treasury Securities
pledged to secure the obligations under such Purchase Contract in
accordance with the terms of the Pledge Agreement.
The Company shall pay on each Payment Date in respect of each
Purchase Contract evidenced hereby an amount (the "Contract Adjustment
Payments") equal to __% per annum of the Stated Amount, computed on the
basis of the actual number of days elapsed in a year of 360 day year of
twelve 30 day months, as the case may be, subject to deferral at the option
of the Company as provided in the Purchase Contract Agreement and more
fully described on the reverse hereof. Such Contract Adjustment Payments
shall be payable to the Person in whose name this Growth PRIDES Certificate
(or a Predecessor Growth PRIDES Certificate) is registered at the close of
business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the
Agent in The City of New York or, at the option of the Company, by check
mailed to the address of the Person entitled thereto as such address
appears on the Growth PRIDES Register.
Reference is hereby made to the further provisions set forth on
the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Agent by manual signature, this Growth PRIDES Certificate shall not
be entitled to any benefit under the Pledge Agreement or the Purchase
Contract Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
CENDANT CORPORATION
By:
Name:
Title:
By:
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under
the Purchase Contracts)
By: THE FIRST NATIONAL BANK OF
CHICAGO, not individually but
solely as Attorney-in-Fact of
such Holder
By:
Name:
Title:
Dated:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Income PRIDES Certificates referred to in the
within mentioned Purchase Contract Agreement.
By: THE FIRST NATIONAL BANK OF
CHICAGO, as Purchase Contract Agent
By:
Authorized Officer
(Form of Reverse of Income PRIDES Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of _______ ___, (as may be
supplemented from time to time, the "Purchase Contract Agreement"), between
the Company and The First National Bank of Chicago, as Purchase Contract
Agent (herein called the "Agent"), to which Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description
of the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Agent, the Company, and the Holders and of the
terms upon which the Income PRIDES Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of
this Income PRIDES Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount
(the "Purchase Price"), a number of shares of Common Stock of the Company
equal to the Settlement Rate, unless, on or prior to the Purchase Contract
Settlement Date, there shall have occurred a Termination Event with respect
to the Security of which such Purchase Contract is a part or an Early
Settlement shall have occurred. The "Settlement Rate" is equal to (a) if
the Applicable Market Value (as defined below) is equal to or greater than
$ (the "Threshold Appreciation Price"), shares of Common Stock per Purchase
Contract, (b) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than $ , the number of shares of Common
Stock per Purchase Contract equal to the Stated Amount divided by the
Applicable Market Value and (c) if the Applicable Market Amount is less
than or equal to $ , shares of Common Stock per Purchase Contract, in each
case subject to adjustment as provided in the Purchase Contract Agreement.
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of
the related Income PRIDES to purchase at the Purchase Price, and the
Company to sell, a number of newly issued shares of Common Stock equal to
the Early Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date.
The "Closing Price" of the Common Stock on any date of
determination means the closing sale price (or, if no closing price is
reported, the last reported sale price) of the Common Stock on the New York
Stock Exchange (the "NYSE") on such date or, if the Common Stock is not
listed for trading on the NYSE on any such date, as reported in the
composite transactions for the principal United States securities exchange
on which the Common Stock is so listed, or if the Common Stock is not so
listed on a United States national or regional securities exchange, as
reported by The Nasdaq Stock Market, or, if the Common Stock is not so
reported, the last quoted bid price for the Common Stock in the over-the-
counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of
the Common Stock on such date as determined by a nationally recognized
independent investment banking firm retained for this purpose by the
Company. A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement,
the Holder of this Income PRIDES Certificate shall pay the Purchase Price
for the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby by effecting a Cash Settlement, or an Early Settlement or
from the proceeds of a remarketing of the related Pledged Preferred
Securities of such holders. A Holder of Income PRIDES who does not elect,
on or prior to 5:00 p.m. New York City time on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, to make an
effective Cash Settlement or an Early Settlement, shall pay the Purchase
Price for the shares of Common Stock to be issued under the related
Purchase Contract from the Proceeds of the sale of the related Pledged
Preferred Securities held by the Collateral Agent. Such sale will be made
by the Remarketing Agent pursuant to the terms of the Remarketing Agreement
and the Remarketing Underwriting Agreement on the third Business Day
immediately preceding the Purchase Contract Settlement Date. If, as
provided in the Purchase Contract Agreement, upon the occurrence of a
Failed Remarketing the Collateral Agent, for the benefit of the Company,
exercises its rights as a secured creditor with respect to the Pledged
Preferred Securities related to this Income PRIDES certificate, any accrued
and unpaid distributions (including deferred distributions) on such Pledged
Preferred Securities will become payable by the Company to the holder of
this Income PRIDES Certificate in the manner provided for in the Purchase
Contract Agreement.
The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment in full of the
aggregate purchase price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
Each Purchase Contract evidenced hereby and all obligations and
rights of the Company and the Holder thereunder shall terminate if a
Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall give written notice to the Agent and to the
Holders, at their addresses as they appear in the Income PRIDES Register.
Upon and after the occurrence of a Termination Event, the Collateral Agent
shall release the Pledged Preferred Security (as defined in the Pledge
Agreement) or the appropriate Applicable Ownership Interest of the Treasury
Portfolio forming a part of each Income PRIDES, or the Liquidation
Distribution received in respect of such Pledged Preferred Security, from
the Pledge. An Income PRIDES shall thereafter represent the right to
receive the Preferred Security or the appropriate Applicable Ownership
Interest of the Treasury Portfolio forming a part of such Income PRIDES, or
the Liquidation Distribution received in respect of such Preferred
Security, in accordance with the terms of the Purchase Contract Agreement
and the Pledge Agreement.
Under the terms of the Pledge Agreement, the Agent will be
entitled to exercise the voting and any other consensual rights pertaining
to the Pledged Preferred Securities. Upon receipt of notice of any meeting
at which holders of Preferred Securities are entitled to vote or upon the
solicitation of consents, waivers or proxies of holders of Preferred
Securities, the Agent shall, as soon as practicable thereafter, mail to the
Income PRIDES holders a notice (a) containing such information as is
contained in the notice or solicitation, (b) stating that each Income
PRIDES holder on the record date set by the Agent therefor (which, to the
extent possible, shall be the same date as the record date for determining
the holders of Preferred Securities entitled to vote) shall be entitled to
instruct the Agent as to the exercise of the voting rights pertaining to
the Preferred Securities constituting a part of such holder's Income PRIDES
and (c) stating the manner in which such instructions may be given. Upon
the written request of the Income PRIDES Holders on such record date, the
Agent shall endeavor insofar as practicable to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the maximum
number of Preferred Securities as to which any particular voting
instructions are received. In the absence of specific instructions from the
Holder of an Income PRIDES, the Agent shall abstain from voting the
Preferred Security evidenced by such Income PRIDES.
Upon the occurrence of an Investment Company Event or liquidation
of the Trust, a principal amount of the Debentures constituting the assets
of the Trust and underlying the Preferred Securities equal to the aggregate
Stated Amount of the Pledged Preferred Securities shall be delivered to the
Collateral Agent in exchange for Pledged Preferred Securities. Thereafter,
the Debentures shall be held by the Collateral Agent to secure the
obligations of each Holder of Income PRIDES to purchase shares of Common
Stock under the Purchase Contracts constituting a part of such Income
PRIDES. Following the liquidation of the Trust, the Holders and the
Collateral Agent shall have such security interests, rights and obligations
with respect to the Debentures as the Holders and the Collateral Agent had
in respect of the Pledged Preferred Securities, and any reference in the
Purchase Contract Agreement or Pledge Agreement to the Preferred Securities
shall be deemed to be a reference to the Debentures.
Upon the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Redemption Price payable on the Tax
Event Redemption Date with respect to the Applicable Principal Amount of
Debentures shall be delivered to the Collateral Agent in exchange for the
Pledged Preferred Securities. Thereafter, pursuant to the terms of the
Pledge Agreement, the Collateral Agent for the benefit of the Company will
apply an amount equal to the Redemption Amount of such Redemption Price to
purchase, the Treasury Portfolio and promptly remit the remaining portion
of such Redemption Price to the Agent for payment to the Holders of such
Income PRIDES.
Following the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Holders of Income PRIDES and the
Collateral Agent shall have such security interests rights and obligations
with respect to the Treasury Portfolio as the Holder of Income PRIDES and
the Collateral Agent had in respect of the Preferred Security or
Debentures, as the case may be, subject to the Pledge thereof as provided
in Articles II, III, IV, V and VI, of the Pledge Agreement and any
reference herein to the Preferred Security or the Debenture shall be deemed
to be reference to such Treasury Portfolio.
The Income PRIDES Certificates are issuable only in registered
form and only in denominations of a single Income PRIDES and any integral
multiple thereof. The transfer of any Income PRIDES Certificate will be
registered and Income PRIDES Certificates may be exchanged as provided in
the Purchase Contract Agreement. The Income PRIDES Registrar may require a
Holder, among other things, to furnish appropriate endorsements and
transfer documents permitted by the Purchase Contract Agreement. No service
charge shall be required for any such registration of transfer or exchange,
but the Company and the Agent may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
A holder who elects to substitute a Treasury Security for Preferred
Securities or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, thereby creating Growth PRIDES, shall be responsible for any
fees or expenses payable in connection therewith. Except as provided in the
Purchase Contract Agreement, for so long as the Purchase Contract
underlying an Income PRIDES remains in effect, such Income PRIDES shall not
be separable into its constituent parts, and the rights and obligations of
the Holder of such Income PRIDES in respect of the Preferred Security or
the appropriate Applicable Ownership Interest of the Treasury Portfolio, as
the case may be, and Purchase Contract constituting such Income PRIDES may
be transferred and exchanged only as an Income PRIDES. The holder of an
Income PRIDES may substitute for the Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio
securing its obligation under the related Purchase Contract Treasury
Securities in an aggregate principal amount equal to the aggregate Stated
Amount of the Pledged Preferred Securities or the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such
term) in the Treasury Portfolio in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. From and after such
Collateral Substitution, the Security for which such Pledged Treasury
Securities secures the holder's obligation under the Purchase Contract
shall be referred to as a "Growth PRIDES." A Holder may make such
Collateral Substitution only in integral multiples of 20 Income PRIDES for
20 Growth PRIDES; provided, however, that if a Tax Event Redemption has
occurred and the Treasury Portfolio has become a component of the Income
PRIDES, a Holder may make such Collateral Substitutions only in integral
multiples of 160,000 Income PRIDES for 160,000 Growth PRIDES. Such
Collateral Substitution may cause the equivalent aggregate principal amount
of this Certificate to be increased or decreased; provided, however, the
equivalent aggregate principal amount outstanding under this Income PRIDES
Certificate shall not exceed $200,000,000. All such adjustments to the
equivalent aggregate principal amount of this Income PRIDES Certificate
shall be duly recorded by placing an appropriate notation on the Schedule
attached hereto.
A Holder of Growth PRIDES may create or recreate Income PRIDES by
delivering to the Collateral Agent Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, with a Stated
Amount, in the case of such Preferred Securities, or with the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, in the case of such appropriate
Applicable Ownership Interest of the Treasury Portfolio, equal to the
aggregate principal amount of the Pledged Treasury Securities in exchange
for the release of such Pledged Treasury Securities in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement.
Subject to the next succeeding paragraph, the Company shall pay,
on each Payment Date, the Contract Adjustment Payments payable in respect
of each Purchase Contract to the Person in whose name the Income PRIDES
Certificate evidencing such Purchase Contract is registered at the close of
business on the Record Date for such Payment Date. Contract Adjustment
Payments will be payable at the office of the Agent in The City of New York
or, at the option of the Company, by check mailed to the address of the
Person entitled thereto at such address as it appears on the Income PRIDES
Register.
The Company shall have the right, at any time prior to the
Purchase Contract Settlement Date, to defer the payment of any or all of
the Contract Adjustment Payments otherwise payable on any Payment Date, but
only if the Company shall give the Holders and the Agent written notice of
its election to defer such payment (specifying the amount to be deferred)
as provided in the Purchase Contract Agreement. Any Contract Adjustment
Payments so deferred shall bear additional Contract Adjustment Payments
thereon at the rate of ____% per annum (computed on the basis of a 360 day
year of twelve 30 day months), compounding on each succeeding Payment Date,
until paid in full (such deferred installments of Contract Adjustment
Payments, if any, together with the additional Contract Adjustment Payments
accrued thereon, are referred to herein as the "Deferred Contract
Adjustment Payments"). Deferred Contract Adjustment Payments, if any, shall
be due on the next succeeding Payment Date except to the extent that
payment is deferred pursuant to the Purchase Contract Agreement. No
Contract Adjustment Payments may be deferred to a date that is after the
Purchase Contract Settlement Date.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until the Purchase
Contract Settlement Date, the Holder of this Income PRIDES Certificate will
receive on the Purchase Contract Settlement Date, in lieu of a cash
payment, a number of shares of Common Stock equal to (x) the aggregate
amount of Deferred Contract Adjustment Payments payable to the Holder of
this Income PRIDES Certificate divided by (y) the Applicable Market Value.
In the event the Company exercises its option to defer the
payment of Contract Adjustment Payments, then until the Deferred Contract
Adjustment Payments have been paid, the Company shall not declare or pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock or make guarantee payments with respect to the foregoing (other than
(i) purchases or acquisitions of capital stock of the Company in connection
with the satisfaction by the Company of its obligations under any employee
or agent benefit plans or the satisfaction by the Company of its
obligations pursuant to any contract or security outstanding on the date of
such event requiring the Company to purchase capital stock of the Company,
(ii) as a result of a reclassification of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital
stock for another class or series of the Company's capital stock, (iii) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (iv) dividends or distributions
in capital stock of the Company (or rights to acquire capital stock) or
repurchases or redemptions of capital stock solely from the issuance or
exchange of capital stock or (v) redemptions or repurchases of any rights
outstanding under a shareholder rights plan and a declaration thereunder of
a dividend of rights in the future).
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the
rights of the Holders to receive and the obligation of the Company to pay
any Contract Adjustment Payments or any Deferred Contract Adjustment
Payments, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Agent or the Company,
if, on or prior to the Purchase Contract Settlement Date, a Termination
Event shall have occurred. Upon the occurrence of a Termination Event, the
Company shall promptly but in no event later than two Business Days
thereafter give written notice to the Agent, the Collateral Agent and to
the Holders, at their addresses as they appear in the Income PRIDES
Register. Upon and after the occurrence of a Termination Event, the
Collateral Agent shall release the Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, from the Pledge in accordance with the provisions of the Pledge
Agreement.
Subject to and upon compliance with the provisions of the
Purchase Contract Agreement, at the option of the Holder thereof, Purchase
Contracts underlying Securities having an aggregate amount equal to $1,000
or an integral multiple thereof may be settled early ("Early Settlement")
as provided in the Purchase Contract Agreement; provided, however, that if
a Tax Event Redemption has occurred and the Treasury Portfolio has become a
component of the Income PRIDES, Holders may early settle Income PRIDES only
in integral multiples of 160,000 Income PRIDES. In order to exercise the
right to effect Early Settlement with respect to any Purchase Contracts
evidenced by this Income PRIDES Certificate, the Holder of this Income
PRIDES Certificate shall deliver this Income PRIDES Certificate to the
Agent at the Corporate Trust Office duly endorsed for transfer to the
Company or in blank with the form of Election to Settle Early set forth
below duly completed and accompanied by payment in the form of immediately
available funds payable to the order of the Company in an amount (the
"Early Settlement Amount") equal to (i) the product of (A) the Stated
Amount times (B) the number of Purchase Contracts with respect to which the
Holder has elected to effect Early Settlement, plus (ii) if such delivery
is made with respect to any Purchase Contracts during the period from the
close of business on any Record Date for any Payment Date to the opening of
business on such Payment Date, an amount equal to the Contract Adjustment
Payments payable on such Payment Date with respect to such Purchase
Contracts. Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Pledged Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio underlying such
Securities shall be released from the Pledge as provided in the Pledge
Agreement and the Holder shall be entitled to receive a number of shares of
Common Stock on account of each Purchase Contract forming part of a Income
PRIDES as to which Early Settlement is effected equal to the Early
Settlement Rate; provided however, that upon the Early Settlement of the
Purchase Contracts, the Holder thereof will forfeit the right to receive
any Deferred Contract Adjustment Payments, if any, on such Purchase
Contracts. The Early Settlement Rate shall initially be equal to shares of
Common Stock and shall be adjusted in the same manner and at the same time
as the Settlement Rate is adjusted as provided in the Purchase Contract
Agreement.
Upon registration of transfer of this Income PRIDES Certificate,
the transferee shall be bound (without the necessity of any other action on
the part of such transferee, except as may be required by the Agent
pursuant to the Purchase Contract Agreement), under the terms of the
Purchase Contract Agreement and the Purchase Contracts evidenced hereby and
the transferor shall be released from the obligations under the Purchase
Contracts evidenced by this Income PRIDES Certificate. The Company
covenants and agrees, and the Holder, by its acceptance hereof, likewise
covenants and agrees, to be bound by the provisions of this paragraph.
The Holder of this Income PRIDES Certificate, by its acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Income PRIDES evidenced hereby on his behalf
as his attorney-in-fact, expressly withholds any consent to the assumption
(i.e., affirmance) of the Purchase Contracts by the Company or its trustee
in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract Agreement,
authorizes the Agent to enter into and perform the Pledge Agreement on his
behalf as its attorney-in-fact, and consents to the Pledge of the Preferred
Securities or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, underlying this Income PRIDES Certificate
pursuant to the Pledge Agreement. The Holder further covenants and agrees,
that, to the extent and in the manner provided in the Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof,
payments in respect to the Stated Amount of the Pledged Preferred
Securities, or the appropriate Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio, on
the Purchase Contract Settlement Date shall be paid by the Collateral Agent
to the Company in satisfaction of such Holder's obligations under such
Purchase Contract and such Holder shall acquire no right, title or interest
in such payments.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of a
majority of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the
Company or the Agent may treat the Person in whose name this Income PRIDES
Certificate is registered as the owner of the Income PRIDES evidenced
hereby for the purpose of receiving payments of distributions payable
quarterly on the Preferred Securities, receiving payments of Contract
Adjustment Payments and any Deferred Contract Adjustment Payments,
performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the
Agent nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of
Common Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
(cust) (minor)
Under Uniform Gifts to Minors Act
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(Please insert Social Security or Taxpayer I.D. or other Identifying Number
of Assignee)
(Please Print or Type Name and Address Including Postal Zip Code of
Assignee)
the within Income PRIDES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
attorney to transfer said Income PRIDES Certificates on the books of
CENDANT
Inc. with full power of substitution in the premises.
Dated:
Signature
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within Income
PRIDES Certificates in every particular,
without alteration or enlargement or any change
whatsoever.
Signature Guarantee:
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of Income
PRIDES evidenced by this Income PRIDES Certificate be registered in the
name of, and delivered, together with a check in payment for any fractional
share, to the undersigned at the address indicated below unless a different
name and address have been indicated below. If shares are to be registered
in the name of a Person other than the undersigned, the undersigned will
pay any transfer tax payable incident thereto.
Dated:
Signature
Signature Guarantee:
(if assigned to another person)
If shares are to be registered
in the name of and delivered to REGISTERED HOLDER a Person
other than the Holder,
please (i) print such Person's
name and address and (ii) provide a
guarantee of your signature:
Please print name
and address of
Registered
Holder:
Name Name
Address Address
Social Security or other
Taxpayer Identification
Number, if any
ELECTION TO SETTLE EARLY
The undersigned Holder of this Income PRIDES Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance
with the terms of the Purchase Contract Agreement with respect to the
Purchase Contracts underlying the number of Income PRIDES evidenced by this
Income PRIDES Certificate specified below. The option to effect Early
Settlement may be exercised only with respect to Purchase Contracts
underlying Growth PRIDES with an aggregate Stated Amount equal to $1,000 or
an integral multiple thereof. The undersigned Holder directs that a
certificate for shares of Common Stock deliverable upon such Early
Settlement be registered in the name of, and delivered, together with a
check in payment for any fractional share and any Income PRIDES Certificate
representing any Income PRIDES evidenced hereby as to which Early
Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and
address have been indicated below. Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, deliverable upon such Early Settlement will be transferred in
accordance with the transfer instructions set forth below. If shares are to
be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.
Dated:
Signature
Signature Guarantee:
Number of Securities evidenced hereby as to which Early
Settlement of the related Purchase Contracts is being elected:
If shares of Common Stock or Income REGISTERED HOLDER PRIDES
Certificates are to be regis-
tered in the name of and delivered to
and Pledged Preferred Securities, or
the Treasury Portfolio, as the case may
be, are to be transferred to a Person
other than the Holder, please print such
Person's name and address:
Please print name
and address of
Registered
Holder:
Name Name
Address Address
Social Security or other
Taxpayer Identification
Number, if any
Transfer Instructions for Pledged Preferred Securities, or the Treasury
Portfolio, as the case may be, Transferable Upon Early Settlement or a
Termination Event:
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate
have been made:
Principal Amount of
Amount of Amount of this Global Certificate Signature of
decrease in Principal increase in Principal following such decrease authorized officer of
Amount of the Global Amount of the Global or Trustee or Securities
Date Certificate Certificate increase Custodian
EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO
COLLATERAL AGENT
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10010-2697
Attention: Corporate Trust Administration Department
Re: FELINE PRIDES of Cendant Corporation (the "Company"),
and Cendant Capital I
We hereby notify you in accordance with Section 4.1 of the Pledge
Agreement, dated as of _______ ___, , among the Company,
yourselves, as Collateral Agent, and ourselves, as Purchase Contract Agent
and as attorney-in-fact for the holders of [Income PRIDES] [Growth PRIDES]
from time to time, that the holder of securities listed below (the
"Holder") has elected to substitute [$_____ aggregate [principal amount] of
Treasury Securities] [$_______ Stated Amount of Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be,] in exchange for the [Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be,] [Pledged Treasury Securities] held by you in accordance with
the Pledge Agreement and has delivered to us a notice stating that the
Holder has Transferred [Treasury Securities] [Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be,] to you, as Collateral Agent. We hereby instruct you, upon
receipt of such [Pledged Treasury Securities] [Pledged Preferred Securities
or the appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be], and upon the payment by such Holder of any applicable
fees, to release the [Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be,]
[Treasury Securities] related to such [Income PRIDES] [Growth PRIDES] to us
in accordance with the Holder's instructions.
Date:
By:
Name:
Title:
Signature Guarantee:
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be,] for the
[Pledged Preferred Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be,] [Pledged Treasury
Securities]:
Name
Social Security or other Taxpayer
Identification Number, if any
Address
EXHIBIT D
INSTRUCTION TO PURCHASE CONTRACT AGENT
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
Re: FELINE PRIDES of Cendant Corporation (the "Company"),
and Cendant Capital I
The undersigned Holder hereby notifies you that it has delivered
to The Chase Manhattan Bank, as Collateral Agent, $_______ aggregate
principal amount of [Treasury Securities] [Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be,] in exchange for the [Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be,] [Pledged Treasury Securities] held by the Collateral Agent,
in accordance with Section 4.1 of the Pledge Agreement, dated _______ ___,
, between you, the Company and the Collateral Agent. The undersigned
Holder has paid the Collateral Agent all applicable fees relating to such
exchange. The undersigned Holder hereby instructs you to instruct the
Collateral Agent to release to you on behalf of the undersigned Holder the
[Pledged Preferred Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be,] [Pledged Treasury
Securities] related to such [Income PRIDES] [Growth PRIDES].
Date:
By:
Signature Guarantee:
Dated:
Please print name and address of Registered Holder:
Name Social Security or other Taxpayer
Identification Number, if any
Address
EXHIBIT E
NOTICE TO SETTLE BY SEPARATE CASH
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
Re: FELINE PRIDES of Cendant Corporation (the "Company"),
and Cendant Capital I
The undersigned Holder hereby irrevocably notifies you in
accordance with Section 5.4 of the Purchase Contract Agreement, dated as of
______ ___, among the Company, yourselves, as Purchase Contract Agent
and as Attorney-in-Fact for the Holders of the Purchase Contracts, that
such Holder has elected to pay to the Collateral Agent, on or prior to 5:00
p.m. New York City time, on the Business Day immediately preceding the
Purchase Contract Settlement Date, (in lawful money of the United States by
[certified or cashiers check or] wire transfer, in each case in immediately
available funds), $_________ as the Purchase Price for the shares of Common
Stock issuable to such Holder by the Company under the related Purchase
Contract on the Purchase Contract Settlement Date. The undersigned Holder
hereby instructs you to notify promptly the Collateral Agent of the
undersigned Holders election to make such cash settlement with respect to
the Purchase Contracts related to such Holder's [Income PRIDES] [Growth
PRIDES].
Date:
By:
Signature Guarantee:
Dated:
Please print name and address of Registered Holder:
Name Social Security or other Taxpayer
Identification Number, if any
Address
Exhibit 4.13
CENDANT CORPORATION,
THE CHASE MANHATTAN BANK,
as Collateral Agent
AND
THE FIRST NATIONAL BANK OF CHICAGO,
as Purchase Contract Agent
FORM OF PLEDGE AGREEMENT
Dated as of
TABLE OF CONTENTS
Page
Section 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. Pledge; Control and Perfection . . . . . . . . . . . . . . 7
Section 2.1 The Pledge . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.2 Control and Perfection . . . . . . . . . . . . . . . . . . 8
Section 3. Distributions on Pledged Collateral . . . . . . . . . . . 9
Section 4. Substitution, Release, Repledge and Settlement of
Preferred Securities . . . . . . . . . . . . . . . . . 11
Section 4.1 Substitution of Preferred Securities and the
Creation of Growth PRIDES or Income PRIDES . . . . . . 11
Section 4.2 Pledge of Preferred Securities and Reestablishment
of Income PRIDES or Growth PRIDES . . . . . . . . . . . 13
Section 4.3 Termination Event . . . . . . . . . . . . . . . . . . . . 14
Section 4.4 Cash Settlement . . . . . . . . . . . . . . . . . . . . . 15
Section 4.5 Early Settlement . . . . . . . . . . . . . . . . . . . . 17
Section 4.6 Application of Proceeds Settlement . . . . . . . . . . . . 17
Section 5. Voting Rights -- Preferred Securities . . . . . . . . . . 20
Section 6. Rights and Remedies; Distribution of the Debentures;
Tax Event Redemption . . . . . . . . . . . . . . . . . . 21
Section 6.1 Rights and Remedies of the Collateral Agent . . . . . . . 21
Section 6.2 Distribution of the Debentures; Tax Event
Redemption . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.3 Substitutions . . . . . . . . . . . . . . . . . . . . . . 23
Section 7. Representations and Warranties, Covenants . . . . . . . . 23
Section 7.1 Representations and Warranties . . . . . . . . . . . . . . 23
Section 7.2 Covenants . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 8. The Collateral Agent . . . . . . . . . . . . . . . . . . . 24
Section 8.1 Appointment, Powers and Immunities . . . . . . . . . . . . 24
Section 8.2 Instructions of the Company . . . . . . . . . . . . . . . 25
Section 8.3 Reliance by Collateral Agent . . . . . . . . . . . . . . . 26
Section 8.4 Rights in Other Capacities . . . . . . . . . . . . . . . . 26
Section 8.5 Non-Reliance on Collateral Agent . . . . . . . . . . . . . 26
Section 8.6 Compensation and Indemnity . . . . . . . . . . . . . . . . 27
Section 8.7 Failure to Act . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.8 Resignation of Collateral Agent . . . . . . . . . . . . . 28
Section 8.9 Right to Appoint Agent or Advisor . . . . . . . . . . . . 28
Section 8.10 Survival . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.11 Exculpation . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9. Amendment . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.1 Amendment Without Consent of Holders . . . . . . . . . . . 29
Section 9.2 Amendment with Consent of Holders . . . . . . . . . . . . 30
Section 9.3 Execution of Amendments . . . . . . . . . . . . . . . . . 30
Section 9.4 Effect of Amendments . . . . . . . . . . . . . . . . . . . 31
Section 9.5 Reference to Amendments . . . . . . . . . . . . . . . . . 31
Section 10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 31
Section 10.1 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 10.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . 31
Section 10.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.4 Successors and Assigns . . . . . . . . . . . . . . . . . . 32
Section 10.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.6 Severability . . . . . . . . . . . . . . . . . . . . . . . 33
Section 10.7 Expenses, etc. . . . . . . . . . . . . . . . . . . . . . 33
Section 10.8 Security Interest Absolute . . . . . . . . . . . . . . . . 33
EXHIBIT A INSTRUCTIONS TO COLLATERAL AGENT
EXHIBIT B INSTRUCTIONS TO PURCHASE CONTRACT AGENT
PLEDGE AGREEMENT
FORM OF PLEDGE AGREEMENT, dated as of ________ (this "Agreement"),
among Cendant Corporation, a Delaware corporation (the "Company"), The
Chase Manhattan Bank, a New York banking corporation, not individually but
solely as collateral agent (in such capacity, together with its successors
in such capacity, the "Collateral Agent") and in its capacity as a
"securities intermediary" as defined in Section 8-102(a)(14) of the Code
(as defined herein) (in such capacity, together with its successors in
such capacity, the "Securities Intermediary"), and The First National Bank
of Chicago, not individually but solely as purchase contract agent and as
attorney-in-fact of the Holders (as defined in the Purchase Contract
Agreement) from time to time of the Securities (as hereinafter defined)
(in such capacity, together with its successors in such capacity, the
"Purchase Contract Agent") under the Purchase Contract Agreement (as
hereinafter defined).
RECITALS
The Company and the Purchase Contract Agent are parties to the
Purchase Contract Agreement, dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "Purchase Contract
Agreement"), pursuant to which there may be issued up to FELINE PRIDES
and ___% Trust Originated Preferred Securities (the "Preferred Securities"
and, together with the FELINE PRIDES, the "Securities").
The FELINE PRIDES will initially consist of (A) _______ units
(referred to as "Income PRIDES") with a Stated Amount, per Income
PRIDES, of $50 (the "Stated Amount") and (B) at least ________ units
(referred to as "Growth PRIDES") with a face amount, per Growth PRIDES,
equal to the Stated Amount. Each Income PRIDES will initially consist of
a unit comprised of (a) a stock purchase contract (a "Purchase Contract")
under which (i) the holder will purchase from the Company on _______, 2001
(the "Purchase Contract Settlement Date"), for an amount of cash equal
to the Stated Amount, a number of newly issued shares of common stock,
$0.01 par value per share (the "Common Stock"), of the Company equal to
the Settlement Rate and (ii) the Company will pay the holder Contract
Adjustment Payments at the rate of ___% of the Stated Amount per annum and
(b) either beneficial ownership of a Trust Preferred Security or upon the
occurrence of a Tax Event Redemption the Applicable Ownership Interest of
the Treasury Portfolio. Each Growth PRIDES will initially consist of a
unit comprised of (a) a Purchase Contract under which (i) the holder will
purchase from the Company on the Purchase Contract Settlement Date, for an
amount in cash equal to the Stated Amount, a number of newly issued shares
of Common Stock of the Company, equal to the Settlement Rate, and (ii) the
Company will pay the holder Contract Adjustment Payments, at the rate of
___% of the Stated Amount per annum, and (b) a 1/20 undivided beneficial
interest in a ___% zero-coupon U.S. Treasury Security (CUSIP No. _____)
having a principal amount equal to $1,000 and maturing on __________, 2001
(the "Treasury Securities").
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders, from time to time, of the Securities have
irrevocably authorized the Purchase Contract Agent, as attorney-in-fact of
such Holders, among other things, to execute and deliver this Agreement on
behalf of such Holders and to grant the pledge provided hereby of the
Preferred Securities and any Treasury Securities delivered in exchange
therefor to secure each Holder's obligations under the related Purchase
Contract, as provided herein and subject to the terms hereof. Upon such
pledge, the Preferred Securities will be beneficially owned by the Holders
but will be owned of record by the Purchase Contract Agent subject to the
Pledge hereunder.
Accordingly, the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact of the Holders from time to time of the Securities, agree
as follows:
Section 1. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) the words "herein," "hereof' and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
(c) the following terms have the meanings assigned to them in the
Purchase Contract Agreement: (i) Act, (ii) Agent, (iii) Board Resolution,
(iv) Cash Settlement, (v) Certificate, (vi) Common Stock, (vii) Contract
Adjustment Payments, (viii) Debentures, (ix) Early Settlement, (x) Early
Settlement Amount, (xi) Early Settlement Date, (xii) Failed Remarketing,
(xiii) Holder, (xiv) Opinion of Counsel, (xv) Outstanding Securities,
(xvi) Purchase Agreement, (xvii) Purchase Contract, (xviii) Purchase
Contract Settlement Date, (xix) Purchase Price, (xx) Remarketing Agent,
(xxi) Remarketing Agreement, (xxii) Remarketing Underwriting Agreement,
(xxiii) Settlement Rate, and (xxiv) Termination Event; and
(d) the following terms have the meanings assigned to them in
the Declaration: (i) Applicable Ownership Interest (ii) Applicable
Principal Amount, (iii) Institutional Trustee, (iv) Investment Company
Event,(v) Primary Treasury Dealer, (vi) Quotation Agent, (vii) Redemption
Amount, (viii) Redemption Price, (ix) Tax Event, (x) Tax Event Redemption,
(xi) Tax Event Redemption Date, (xii) Treasury Portfolio, (xiii) Treasury
Portfolio Purchase Price.
"Agreement" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions
hereof.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Business Day" means any day other than a Saturday, a Sunday or
any other day on which banking institutions in The City of New York (in the
State of New York) are permitted or required by any applicable law to
close.
"Cash" means any coin or currency of the United States as at the
time shall be legal tender for payment of public and private debts.
"Code" has the meaning specified in Section 6.1 hereof.
"Collateral" has the meaning specified in Section 2.1 hereof.
"Collateral Account" means the trust account (number _________)
maintained at The Chase Manhattan Bank in the name "The First National Bank
of Chicago", as Purchase Contract Agent on behalf of the holders of certain
securities of Cendant Capital III, Cendant Capital IV and Cendant Capital
V, Collateral Account subject to the security interest of The Chase
Manhattan Bank, as Collateral Agent, for the benefit of Cendant
Corporation, as pledgee and any successor account.
"Collateral Agent" has the meaning specified in the first
paragraph of this instrument.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Debenture Trustee" means The Bank of Nova Scotia Trust Company of
New York, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Declaration" means the Amended and Restated Declaration of Trust,
dated as of ______________, among the Company as sponsor, the trustees
named therein and the holders from time to time of undivided beneficial
interests in the assets of the Trust.
"Intermediary" means any entity that in the ordinary course of its
business maintains securities accounts for others and is acting in that
capacity.
"Permitted Investments" means any one of the following which shall
mature not later than the next succeeding Business Day (i) any evidence of
indebtedness with an original maturity of 365 days or less issued, or
directly and fully guaranteed or insured, by the United States of America
or any agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof or
such indebtedness constitutes a general obligation of it); (ii) deposits,
certificates of deposit or acceptances with an original maturity of 365
days or less of any institution which is a member of the Federal Reserve
System having combined capital and surplus and undivided profits of not
less than US$ 200.0 million at the time of deposit; (iii) investments with
an original maturity of 365 days or less of any Person that is fully and
unconditionally guaranteed by a bank referred to in clause (ii); (iv)
repurchase agreements and reverse repurchase agreements relating to
marketable direct obligations issued or unconditionally guaranteed by the
United States Government or issued by any agency thereof and backed by the
full faith and credit of the United States Government; (v) investments in
commercial paper, other than commercial paper issued by the Company or its
affiliates, of any corporation incorporated under the laws of the United
States or any State thereof, which commercial paper has a rating at the
time of purchase at least equal to "A-1" by Standard & Poor's Ratings
Services or at least equal to "P-1" by Moody's Investors Service, Inc.; and
(vi) investments in money market funds registered under the Investment
Company Act of 1940, as amended, rated in the highest applicable rating
category by S&P or Moody's.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Pledge" has the meaning specified in Section 2.1 hereof.
"Pledged Preferred Securities" has the meaning specified in
Section 2.1 hereof.
"Pledged Treasury Securities" has the meaning specified in Section
2.1 hereof.
"Preferred Securities" has the meaning specified in the Recitals.
"Proceeds" means all interest, dividends, cash, instruments,
securities, financial assets (as defined in ss. 8-102(a)(9) of the Code)
and other property from time to time received, receivable or otherwise
distributed upon the sale, exchange, collection or disposition of the
Collateral or any proceeds thereof.
"Purchase Contract" has the meaning specified in the Recitals.
"Purchase Contract Agent" has the meaning specified in the first
paragraph of this Agreement.
"Purchase Contract Agreement" has the meaning specified in the
Recitals.
"Securities" has the meaning specified in the Recitals.
"Securities Intermediary" has the meaning specified in the first
paragraph of this Agreement.
"Security Entitlement" has the meaning set forth in Section
8-102(a)(17) of the Code.
"Stated Amount" has the meaning specified in the Recitals.
"TRADES" means the Treasury/Reserve Automated Debt Entry System
maintained by the Federal Reserve Bank of New York pursuant to the TRADES
Regulations.
"TRADES Regulations" means the regulations of the United States
Department of the Treasury, published at 31 C.F.R. Part 357, as amended
from time to time. Unless otherwise defined herein, all terms defined in
the TRADES Regulations are used herein as therein defined.
"Transfer" means, with respect to the Collateral and in accordance
with the instructions of the Collateral Agent, the Purchase Contract Agent
or the Holder, as applicable:
(i) in the case of Collateral consisting of securities
which cannot be delivered by book-entry or which the parties agree
are to be delivered in physical form, delivery in appropriate
physical form to the recipient accompanied by any duly executed
instruments of transfer, assignments in blank, transfer tax stamps
and any other documents necessary to constitute a legally valid
transfer to the recipient;
(ii) in the case of Collateral consisting of securities
maintained in book-entry form by causing a "securities intermediary"
(as defined in Section 8-102(a)(14) of the Code) to (i) credit a
"securities entitlement" (as defined in Section 8-102(a)(17) of the
Code) with respect to such securities to a "securities account" (as
defined in Section 8-501 (a) of the Code) maintained by or on behalf
of the recipient and (ii) to issue a confirmation to the recipient
with respect to such credit.
"Treasury Security" means a 1/20 undivided beneficial interest in
a zero-coupon U.S. Treasury Security (Cusip Number ________) with a
principal amount at maturity equal to $1,000 which mature on February 15,
2001.
"Trust" has the meaning specified in the Recitals.
"Value" with respect to any item of Collateral on any date means,
as to (i) a Preferred Security, the Stated Amount, (ii) Cash, the face
amount thereof and (iii) Treasury Securities, the aggregate principal
amount thereof at maturity.
Section 2. Pledge; Control and Perfection.
Section 2.1 The Pledge. The Holders from time to time acting
through the Purchase Contract Agent, as their attorney-in-fact, hereby
pledge and grant to the Collateral Agent, for the benefit of the Company,
as collateral security for the performance when due by such Holders of
their respective obligations under the related Purchase Contracts, a
security interest in (i) all of the right, title and interest of such
Holders (a) in the Preferred Securities constituting a part of the
Securities and all Proceeds thereof and any Treasury Securities delivered
in exchange for such Preferred Securities in accordance with Section 4
hereof, in each case that have been Transferred to or received by the
Collateral Agent and not released by the Collateral Agent to such Holders
under the provisions of this Agreement (the "Collateral"); (b) in payments
made by Holders pursuant to Section 4.4; (c) in the Collateral Account and
all securities, financial assets and other property credited thereto and
all Security Entitlements related thereto; (d) in any Debentures delivered
to the Collateral Agent upon the occurrence of an Investment Company Event
or a liquidation of the Trust as provided in Section 6.2; (e) in the
Treasury Portfolio purchased on behalf of the Holders of Income PRIDES by
the Collateral Agent upon the occurrence of a Tax Event Redemption as
provided in Section 6.2 and (f) all proceeds of the foregoing. Prior to or
concurrently with the execution and delivery of this Agreement, the
Purchase Contract Agent, on behalf of the initial Holders of the Income
PRIDES, shall cause the Preferred Securities comprising a part of the
Income PRIDES to be delivered to the Collateral Agent for the benefit of
the Company by physically delivering such securities to the Collateral
Agent endorsed in blank and the Collateral Agent delivering such securities
to the Securities Intermediary and causing the Securities Intermediary to
credit the Collateral Account with such securities and send the Collateral
Agent a confirmation of the deposit of such securities. In the event a
Holder of Income PRIDES so elects, such Holder may Transfer Treasury
Securities to the Collateral Agent for the benefit of the Company in
exchange for the release by the Collateral Agent on behalf of the Company
of Preferred Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, with an aggregate stated
liquidation amount equal to the aggregate principal amount of the Treasury
Securities so Transferred, in the case of Preferred Securities, or with an
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio equal to the
aggregate principal amount of the Treasury Securities so transferred, in
the event that a Tax Event Redemption has occurred, to the Purchase
Contract Agent on behalf of such Holder. Treasury Securities and the
Treasury Portfolio, as applicable, shall be Transferred to the Collateral
Account maintained by the Collateral Agent at the Securities Intermediary
by book-entry transfer to the Collateral Account in accordance with the
TRADES Regulations and other applicable law and by the notation by the
Securities Intermediary on its books that a Security Entitlement with
respect to such Treasury Securities or Treasury Portfolio, has been
credited to the Collateral Account. For purposes of perfecting the Pledge
under applicable law, including, to the extent applicable, the TRADES
Regulations or the Uniform Commercial Code as adopted and in effect in any
applicable jurisdiction, the Collateral Agent shall be the agent of the
Company as provided herein. The pledge provided in this Section 2.1 is
herein referred to as the "Pledge" and the Preferred Securities (or the
Debentures that are delivered pursuant to Section 6.2 hereof) or Treasury
Securities subject to the Pledge, excluding any Preferred Securities (or
the Debentures that are delivered pursuant to Section 6.2 hereof) or
Treasury Securities released from the Pledge as provided in Section 4
hereof, are hereinafter referred to as "Pledged Preferred Securities" or
the "Pledged Treasury Securities," respectively. Subject to the Pledge and
the provisions of Section 2.2 hereof, the Holders from time to time shall
have full beneficial ownership of the Collateral. Whenever directed by the
Collateral Agent acting on behalf of the Company, the Securities
Intermediary shall have the right to reregister the Preferred Securities or
any other securities held in physical form in its name.
Except as may be required in order to release Preferred Securities
in connection with a Holder's election to convert its investment from an
Income PRIDES to a Growth PRIDES, or except as otherwise required to
release securities as specified herein, neither the Collateral Agent nor
the Securities Intermediary shall relinquish physical possession of any
certificate evidencing a Preferred Security prior to the termination of
this Agreement. If it becomes necessary for the Securities Intermediary to
relinquish physical possession of a certificate in order to release a
portion of the Preferred Securities evidenced thereby from the Pledge, the
Securities Intermediary shall use its best efforts to obtain physical
possession of a replacement certificate evidencing any Preferred Securities
remaining subject to the Pledge hereunder registered to it or endorsed in
blank within fifteen days of the date it relinquished possession. The
Securities Intermediary shall promptly notify the Company and the
Collateral Agent of the Securities Intermediary's failure to obtain
possession of any such replacement certificate as required hereby.
Section 2.2 Control and Perfection. In connection with the
Pledge granted in Section 2.1, and subject to the other provisions of this
Agreement, the Holders from time to time acting through the Purchase
Contract Agent, as their attorney-in-fact, hereby authorize and direct the
Securities Intermediary (without the necessity of obtaining the further
consent of the Purchase Contract Agent or any of the Holders), and the
Securities Intermediary agrees, to comply with and follow any instructions
and entitlement orders (as defined in ss. 8-102(a)(8) of the Code) that the
Collateral Agent on behalf of the Company may give in writing with respect
to the Collateral Account, the Collateral credited thereto and any security
entitlements with respect to any thereof. Such instructions and
entitlement orders may, without limitation, direct the Securities
Intermediary to transfer, redeem, sell, liquidate, assign, deliver or
otherwise dispose of the Preferred Securities, the Treasury Securities, the
Treasury Portfolio, and any Security Entitlements with respect thereto and
to pay and deliver any income, proceeds or other funds derived therefrom to
the Company. The Holders from time to time acting through the Purchase
Contract Agent hereby further authorize and direct the Collateral Agent, as
agent of the Company, to itself issue instructions and entitlement orders,
and to otherwise take action, with respect to the Collateral Account, the
Collateral credited thereto and any security entitlements with respect
thereto, pursuant to the terms and provisions hereof, all without the
necessity of obtaining the further consent of the Purchase Contract Agent
or any of the Holders. The Collateral Agent shall be the Agent of the
Company and shall act as directed in writing by the Company. Without
limiting the generality of the foregoing, the Collateral Agent shall issue
entitlement orders to the Securities Intermediary when and as directed by
the Company.
Section 3. Distributions on Pledged Collateral. So long as the
Purchase Contract Agent is the registered owner of the Pledged Preferred
Securities, it shall receive all payments thereon. If the Pledged
Preferred Securities are reregistered, such that the Collateral Agent
becomes the registered holder, all payments of the Stated Amount of or, if
applicable, the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, or
cash distributions on, the Pledged Preferred Securities or on the
appropriate Applicable Ownership Interest (as specified in clause (B) of
the definition of such term) of the Treasury Portfolio, as the case may be,
and all payments of the principal of, or cash distributions on, any Pledged
Treasury Securities received by the Collateral Agent that are properly
payable hereunder shall be paid by the Collateral Agent by wire transfer in
same day funds:
(i) In the case of (A) cash distributions with respect to
the Pledged Preferred Securities or the appropriate Applicable
Ownership Interest (as specified in clause (B) of the definition of
such term) of the Treasury Portfolio, as the case may be, and (B) any
payments of the Stated Amount or, if applicable, the appropriate
Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio with respect to any
Preferred Securities or the appropriate Applicable Ownership Interest
of the Treasury Portfolio, as the case may be, that have been released
from the Pledge pursuant to Section 4.3 hereof, to the Purchase
Contract Agent, for the benefit of the relevant Holders of Securities,
to the account designated by the Purchase Contract Agent for such
purpose, no later than 2:00 p.m., New York City time, on the Business
Day such payment is received by the Collateral Agent (provided that in
the event such payment is received by the Collateral Agent on a day
that is not a Business Day or after 12:30 p.m., New York City time, on
a Business Day, then such payment shall be made no later than 10:30
a.m., New York City time, on the next succeeding Business Day);
(ii) In the case of any principal payments with respect to
any Treasury Securities that have been released from the Pledge
pursuant to Section 4.3 hereof, to the Holders of the Growth PRIDES to
the accounts designated by them in writing for such purpose no later
than 2:00 p.m., New York City time, on the Business Day such payment
is received by the Collateral Agent (provided that in the event such
payment is received by the Collateral Agent on a day that is not a
Business Day or after 12:30 p.m., New York City time, on a Business
Day, then such payment shall be made no later than 10:30 a.m., New
York City time, on the next succeeding Business Day); and
(iii) In the case of payments of the Stated Amount of
any Pledged Preferred Securities or the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio, as the case may be, or the
principal of any Pledged Treasury Securities, to the Company on the
Purchase Contract Settlement Date in accordance with the procedure set
forth in Section 4.6(a) or 4.6(b) hereof, in full satisfaction of the
respective obligations of the Holders under the related Purchase
Contracts.
All payments received by the Purchase Contract Agent as provided herein
shall be applied by the Purchase Contract Agent pursuant to the provisions
of the Purchase Contract Agreement. If, notwithstanding the foregoing, the
Purchase Contract Agent shall receive any payments of the Stated Amount or,
if applicable, the appropriate Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) on account of any Preferred
Security or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as applicable that, at the time of such payment, is a Pledged
Preferred Security or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, or a Holder of a Growth PRIDES
shall receive any payments of principal on account of any Treasury
Securities that, at the time of such payment, are Pledged Treasury
Securities, the Purchase Contract Agent or such Holder shall hold the same
as trustee of an express trust for the benefit of the Company (and promptly
deliver the same over to the Company) for application to the obligations of
the Holders under the related Purchase Contracts, and the Holders shall
acquire no right, title or interest in any such payments of Stated Amount
or principal so received.
Section 4. Substitution, Release, Repledge and Settlement of
Preferred Securities.
Section 4.1 Substitution of Preferred Securities and the Creation
of Growth PRIDES or Income PRIDES.
(a) At any time on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date (unless a Tax
Event Redemption has occurred), a Holder of Income PRIDES shall have the
right to substitute Treasury Securities for the Pledged Preferred
Securities securing such Holder's obligations under the Purchase
Contract(s) comprising a part of its Income PRIDES in integral multiples of
20 Income PRIDES by (a) Transferring to the Collateral Agent Treasury
Securities having a Value equal to the Stated Amount of the Pledged
Preferred Securities to be released and (b)(i) in the event that Contract
Adjustment Payments are at a higher rate for Growth PRIDES than for Income
PRIDES, delivering cash in an amount equal to the excess of the Contract
Adjustment Payments that would have accrued since the last Payment Date
through the date of substitution on the Growth PRIDES being created by the
holder, over the Contract Adjustment Payments that have accrued over the
same time period on the related Income PRIDES, which amount the Purchase
Contract Agent shall promptly remit to the Company, and (ii) delivering the
related Income PRIDES to the Purchase Contract Agent, accompanied by a
notice, substantially in the form of Exhibit B hereto, to the Purchase
Contract Agent stating that such Holder has Transferred Treasury Securities
to the Collateral Agent pursuant to clause (a) above (stating the Value of
the Treasury Securities Transferred by such Holder) and requesting that the
Purchase Contract Agent instruct the Collateral Agent to release from the
Pledge the Pledged Preferred Securities related to such Income PRIDES. The
Purchase Contract Agent shall instruct the Collateral Agent in the form
provided in Exhibit A; provided, however, that if a Tax Event Redemption
has occurred and the Treasury Portfolio has become a component of the
Income PRIDES, Holders of Income PRIDES may make such substitution only in
integral multiples of 160,000 Income PRIDES at any time on or prior to the
second Business Day immediately preceding the Purchase Contract Settlement
Date. Upon receipt of Treasury Securities from a Holder of Income PRIDES
and the related instruction from the Purchase Contract Agent, the
Collateral Agent shall release the Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, and shall promptly Transfer such Pledged Preferred Securities
or the appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, free and clear of any lien, pledge or security interest
created hereby, to the Purchase Contract Agent.
(b) At any time on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date (unless a Tax
Event Redemption has occurred), a Holder of Growth PRIDES shall have the
right to establish or reestablish Income PRIDES consisting of the Purchase
Contracts and Preferred Securities in integral multiples of 20 Income
PRIDES by (a) Transferring to the Collateral Agent Preferred Securities
having a Stated Amount equal to the Stated Amount of the Pledged Treasury
Securities to be released and (b)(i) in the event that Contract Adjustment
Payments are at a higher rate for Income PRIDES than for Growth PRIDES,
holders of Growth PRIDES wishing to recreate Income PRIDES will also be
required to deliver cash in an amount equal to the excess of the Contract
Adjustment Payments that would have accrued since the last payment date
through the date of substitution on the Income PRIDES being recreated by
such holders, over the Contract Adjustment Payments that have accrued over
the same time period on the related Growth PRIDES and (ii) delivering the
related Growth PRIDES to the Purchase Contract Agent, accompanied by a
notice, substantially in the form of Exhibit B hereto, to the Purchase
Contract Agent stating that such Holder has transferred Preferred
Securities to the Collateral Agent pursuant to clause (a) above and
requesting that the Purchase Contract Agent instruct the Collateral Agent
to release from the Pledge the Pledged Treasury Securities related to such
Growth PRIDES. The Purchase Contract Agent shall instruct the Collateral
Agent in the form provided in Exhibit A; provided, however, that if a Tax
Event Redemption has occurred and the Treasury Portfolio has become a
component of the Income PRIDES, Holders of Growth PRIDES may make such
substitution only in integral multiples of 160,000 Growth PRIDES, at any
time on or prior to the Business Day immediately preceding the Purchase
Contract Settlement Date. Upon receipt of the Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, from such Holder and the instruction from the Purchase
Contract Agent, the Collateral Agent shall release the Treasury Securities
and shall promptly Transfer such Treasury Securities, free and clear of any
lien, pledge or security interest created hereby, to the Purchase Contract
Agent.
Section 4.2 Pledge of Preferred Securities and Reestablishment of
Income PRIDES or Growth PRIDES.
(a) At any time on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date (unless a Tax
Event Redemption has occurred), a Holder of Income PRIDES shall have the
right to substitute Treasury Securities for the Pledged Preferred
Securities securing such Holder's obligations under the Purchase
Contract(s) comprising a part of its Income PRIDES in integral multiples of
20 Income PRIDES by (a) Transferring to the Collateral Agent Treasury
Securities having a Value equal to the Stated Amount of the Pledged
Preferred Securities to be released and (b)(i) in the event that Contract
Adjustment Payments are at a higher rate for Growth PRIDES than for Income
PRIDES, delivering cash in an amount equal to the excess of the Contract
Adjustment Payments that would have accrued since the last Payment Date
through the date of substitution on the Growth PRIDES being created by the
holder, over the Contract Adjustment Payments that have accrued over the
same time period on the related Income PRIDES, which amount the Purchase
Contract Agent shall promptly remit to the Company, and (ii) delivering the
related Income PRIDES to the Purchase Contract Agent, accompanied by a
notice, substantially in the form of Exhibit B hereto, to the Purchase
Contract Agent stating that such Holder has Transferred Treasury Securities
to the Collateral Agent pursuant to clause (a) above (stating the Value of
the Treasury Securities Transferred by such Holder) and requesting that the
Purchase Contract Agent instruct the Collateral Agent to release from the
Pledge the Pledged Preferred Securities related to such Income PRIDES. The
Purchase Contract Agent shall instruct the Collateral Agent in the form
provided in Exhibit A; provided, however, that if a Tax Event Redemption
has occurred and the Treasury Portfolio has become a component of the
Income PRIDES, Holders of Income PRIDES may make such substitution only in
integral multiples of 160,000 Income PRIDES at any time on or prior to the
second Business Day immediately preceding the Purchase Contract Settlement
Date. Upon receipt of Treasury Securities from a Holder of Income PRIDES
and the related instruction from the Purchase Contract Agent, the
Collateral Agent shall release the Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, and shall promptly Transfer such Pledged Preferred Securities
or the appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, free and clear of any lien, pledge or security interest
created hereby, to the Purchase Contract Agent.
(b) At any time on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date (unless a Tax
Event Redemption has occurred), a Holder of Growth PRIDES shall have the
right to establish or reestablish Income PRIDES consisting of the Purchase
Contracts and Preferred Securities in integral multiples of 20 Income
PRIDES by (a) Transferring to the Collateral Agent Preferred Securities
having a Stated Amount equal to the Stated Amount of the Pledged Treasury
Securities to be released and (b)(i) in the event that Contract Adjustment
Payments are at a higher rate for Income PRIDES than for Growth PRIDES,
holders of Growth PRIDES wishing to recreate Income PRIDES will also be
required to deliver cash in an amount equal to the excess of the Contract
Adjustment Payments that would have accrued since the last payment date
through the date of substitution on the Income PRIDES being recreated by
such holders, over the Contract Adjustment Payments that have accrued over
the same time period on the related Growth PRIDES and (ii) delivering the
related Growth PRIDES to the Purchase Contract Agent, accompanied by a
notice, substantially in the form of Exhibit B hereto, to the Purchase
Contract Agent stating that such Holder has transferred Preferred
Securities to the Collateral Agent pursuant to clause (a) above and
requesting that the Purchase Contract Agent instruct the Collateral Agent
to release from the Pledge the Pledged Treasury Securities related to such
Growth PRIDES. The Purchase Contract Agent shall instruct the Collateral
Agent in the form provided in Exhibit A; provided, however, that if a Tax
Event Redemption has occurred and the Treasury Portfolio has become a
component of the Income PRIDES, Holders of Growth PRIDES may make such
substitution only in integral multiples of 160,000 Growth PRIDES, at any
time on or prior to the Business Day immediately preceding the Purchase
Contract Settlement Date. Upon receipt of the Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, from such Holder and the instruction from the Purchase
Contract Agent, the Collateral Agent shall release the Treasury Securities
and shall promptly Transfer such Treasury Securities, free and clear of any
lien, pledge or security interest created hereby, to the Purchase Contract
Agent.
Section 4.3 Termination Event. Upon receipt by the Collateral
Agent of written notice from the Company or the Purchase Contract Agent
that there has occurred a Termination Event, the Collateral Agent shall
release all Collateral from the Pledge and shall promptly Transfer any
Pledged Preferred Securities (or the Applicable Ownership Interest of the
Treasury Portfolio if a Tax Event Redemption has occurred) and Pledged
Treasury Securities to the Purchase Contract Agent for the benefit of the
Holders of the Income PRIDES and the Growth PRIDES, respectively, free and
clear of any lien, pledge or security interest or other interest created
hereby.
If such Termination Event shall result from the Company's becoming
a debtor under the Bankruptcy Code, and if the Collateral Agent shall for
any reason fail promptly to effectuate the release and Transfer of all
Pledged Preferred Securities, the Treasury Portfolio or of the Pledged
Treasury Securities, as the case may be, as provided by this Section 4.3,
the Purchase Contract Agent shall (i) use its best efforts to obtain an
opinion of a nationally recognized law firm reasonably acceptable to the
Collateral Agent to the effect that, as a result of the Company's being the
debtor in such a bankruptcy case, the Collateral Agent will not be
prohibited from releasing or Transferring the Collateral as provided in
this Section 4.3, and shall deliver such opinion to the Collateral Agent
within ten days after the occurrence of such Termination Event, and if (y)
the Purchase Contract Agent shall be unable to obtain such opinion within
ten days after the occurrence of such Termination Event or (z) the
Collateral Agent shall continue, after delivery of such opinion, to refuse
to effectuate the release and Transfer of all Pledged Preferred Securities,
of the Treasury Portfolio or of the Pledged Treasury Securities, as the
case may be, as provided in this Section 4.3, then the Purchase Contract
Agent shall within fifteen days after the occurrence of such Termination
Event commence an action or proceeding in the court with jurisdiction of
the Company's case under the Bankruptcy Code seeking an order requiring the
Collateral Agent to effectuate the release and transfer of all Pledged
Preferred Securities, of the Treasury Portfolio or of the Pledged Treasury
Securities, as the case may be, as provided by this Section 4.3 or (ii)
commence an action or proceeding like that described in subsection (i)(z)
hereof within ten days after the occurrence of such Termination Event.
Section 4.4 Cash Settlement. (a) Upon receipt by the Collateral
Agent of (i) a notice from the Purchase Contract Agent promptly after the
receipt by the Purchase Contract Agent of such notice that a Holder of an
Income PRIDES or Growth PRIDES has elected, in accordance with the
procedures specified in Section 5.4(a)(i) or (d)(i) of the Purchase
Contract Agreement, respectively, to settle its Purchase Contract with cash
and (ii) payment by such Holder on or prior to 11:00 a.m., New York City
time, on the Business Day immediately preceding the Purchase Contract
Settlement Date in lawftil money of the United States by certified or
cashiers' check or wire transfer in immediately available funds payable to
or upon the order of the Company, then the Collateral Agent shall, upon the
written direction of the Purchase Contract Agent, promptly invest any Cash
received from a Holder in connection with a Cash Settlement in Permitted
Investments. Upon receipt of the proceeds upon the maturity of the
Permitted Investments on the Purchase Contract Settlement Date, the
Collateral Agent shall pay the portion of such proceeds and deliver any
certified or cashiers' checks received, in an aggregate amount equal to the
Purchase Price, to the Company on the Purchase Contract Settlement Date,
and shall distribute any funds in respect of the interest earned from the
Permitted Investments to the Purchase Contract Agent for payment to the
relevant Holders.
(b) If a Holder of an Income PRIDES fails to notify the Agent of
its intention to make a Cash Settlement in accordance with paragraph
5.4(a)(i) of the Purchase Contract Agreement, such failure shall constitute
an event of default under the Purchase Contract Agreement and hereunder,
and the Holder shall be deemed to have consented to the disposition of the
pledged Preferred Securities pursuant to the remarketing as described in
paragraph 5.4(b) of the Purchase Contract Agreement, which is incorporated
herein by reference. If a Holder of an Income PRIDES does notify the Agent
as provided in paragraph 5.4(a)(i) of the Purchase Contract Agreement of
its intention to pay the Purchase Price in cash, but fails to make such
payment as required by paragraph 5.4(a)(ii) of the Purchase Contract
Agreement, the Preferred Securities of such a Holder will not be remarketed
but instead the Collateral Agent, for the benefit of the Company, will
exercise its rights as a secured party with respect to such Preferred
Securities at the direction of the Company to retain or dispose of the
Collateral in accordance with applicable law. In addition, in the event of
a Failed Remarketing as described in paragraph 5.4(b) of the Purchase
Contract Agreement, such Failed Remarketing shall constitute an event of
default hereunder by such Holder and the Collateral Agent, for the benefit
of the Company, will also exercise its rights as a secured party with
respect to such Preferred Securities at the direction of the Company to
retain or dispose of the Collateral in accordance with applicable law.
(c) If a Holder of a Growth PRIDES fails to notify the Purchase
Contract Agent of such Holder's intention to make a Cash Settlement in
accordance with paragraph 5.4(d)(i) of the Purchase Contract Agreement, or
if a Holder of an Income PRIDES does notify the Agent as provided in
paragraph (d)(i) of the Purchase Contract Agreement of its intention to pay
the Purchase Price in cash, but fails to make such payment as required by
paragraph 5.4(d)(ii) of the Purchase Contract Agreement, such failure shall
constitute an event of default hereunder by such Holder and upon the
maturity of any Pledged Treasury Securities or the Treasury Portfolio, if
any, held by the Collateral Agent on the Business Day immediately preceding
the Purchase Contract Settlement Date, the principal amount of the Pledged
Treasury Securities or the Treasury Portfolio received by the Collateral
Agent shall, upon written direction of the Purchase Contract Agent, be
invested promptly in Permitted Investments. On the Purchase Contract
Settlement Date, an amount equal to the Purchase Price will be remitted to
the Company as payment thereof. In the event the sum of the proceeds from
the related Pledged Treasury Securities or the Treasury Portfolio, as the
case may be, and the investment earnings earned from such investments is in
excess of the aggregate Purchase Price of the Purchase Contracts being
settled thereby, the Collateral Agent will distribute such excess to the
Purchase Contract Agent for the benefit of the Holder of the related Growth
PRIDES or Income PRIDES when received.
Section 4.5 Early Settlement. Upon written notice to the
Collateral Agent by the Purchase Contract Agent that one or more Holders of
Securities have elected to effect Early Settlement of their respective
obligations under the Purchase Contracts forming a part of such Securities
in accordance with the terms of the Purchase Contracts and the Purchase
Contract Agreement (setting forth the number of such Purchase Contracts as
to which such Holders have elected to effect Early Settlement), and that
the Purchase Contract Agent has received from such Holders, and paid to the
Company as confirmed in writing by the Company, the related Early
Settlement Amounts pursuant to the terms of the Purchase Contracts and the
Purchase Contract Agreement and that all conditions to such Early
Settlement have been satisfied, then the Collateral Agent shall release
from the Pledge, (a) Pledged Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio in the case of a
Holder of Income PRIDES or (b) Pledged Treasury Securities in the case of a
Holder of Growth PRIDES, as the case may be, with a principal amount equal
to the product of (i) the Stated Amount times (ii) the number of such
Purchase Contracts as to which such Holders have elected to effect Early
Settlement and shall Transfer all such Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio or
Pledged Treasury Securities, as the case may be, free and clear of the
Pledge created hereby, to the Purchase Contract Agent for the benefit of
the Holders.
Section 4.6 Application of Proceeds Settlement. (a) In the
event a Holder of Income PRIDES (if a Tax Event Redemption has not
occurred) has not elected to make an effective Cash Settlement by notifying
the Purchase Contract Agent in the manner provided for in paragraph
5.4(a)(i) in the Purchase Contract Agreement or has not made an Early
Settlement of the Purchase Contract(s) underlying its Income PRIDES, such
Holder shall be deemed to have elected to pay for the shares of Common
Stock to be issued under such Purchase Contract(s) from the Proceeds of the
related Pledged Preferred Securities. The Collateral Agent shall, by 10:00
a.m., New York City time, on the fourth Business Day immediately preceding
the Purchase Contract Settlement Date, without any instruction from such
Holder of Income PRIDES, present the related Pledged Preferred Securities
to the Remarketing Agent for remarketing. Upon receiving such Pledged
Preferred Securities, the Remarketing Agent, pursuant to the terms of the
Remarketing Agreement and the Remarketing Underwriting Agreement, will use
its reasonable efforts to remarket such Pledged Preferred Securities on
such date at a price not less than approximately 100.5% of the aggregate
Stated Amount of such Pledged Preferred Securities, plus accrued and unpaid
distributions (including deferred distributions), if any, thereon. After
deducting as the Remarketing Fee an amount not exceeding 25 basis points
(.25%) of the aggregate Stated Amount of the Pledged Preferred Securities
from any amount of such Proceeds in excess of the aggregate Stated Amount,
plus such accrued and unpaid distributions (including deferred
distributions) of the remarketed Pledged Preferred Securities, the
Remarketing Agent will remit the entire amount of the Proceeds of such
remarketing to the Collateral Agent. On the Purchase Contract Settlement
Date, the Collateral Agent shall apply that portion of the Proceeds from
such remarketing equal to the aggregate Stated Amount, plus such accrued
and unpaid distributions (including deferred distributions) of such Pledged
Preferred Securities, to satisfy in full the obligations of such Holders of
Income PRIDES to pay the Purchase Price to purchase the Common Stock under
the related Purchase Contracts. The remaining portion of such Proceeds, if
any, shall be distributed by the Collateral Agent to the Purchase Contract
Agent for payment to the Holders. If the Remarketing Agent advises the
Collateral Agent in writing that it cannot remarket the related Pledged
Preferred Securities of such Holders of Income PRIDES at a price not less
than 100% of the aggregate Stated Amount of such Pledged Preferred
Securities plus any accrued and unpaid distributions (including deferred
distributions), thus resulting in a Failed Remarketing and an event of
default under the Purchase Contract Agreement and hereunder, the Collateral
Agent, for the benefit of the Company will, at the written direction of the
Company, retain or dispose of the Pledged Preferred Securities in
accordance with applicable law and satisfy in full, from any such
disposition or retention, such Holder's obligation to pay the Purchase
Price for the Common Stock.
(b) In the event a Holder of Growth PRIDES or Income PRIDES (if
a Tax Event Redemption has occurred) has not made an Early Settlement of
the Purchase Contract(s) underlying its Growth PRIDES or Income PRIDES,
such Holder shall be deemed to have elected to pay for the shares of Common
Stock to be issued under such Purchase Contract(s) from the Proceeds of the
related Pledged Treasury Securities or the Treasury Portfolio, as the case
may be. On the Business Day immediately prior to the Purchase Contract
Settlement Date, the Collateral Agent shall, at the written direction of
the Purchase Contract Agent, invest the Cash proceeds of the maturing
Pledged Treasury Securities or the Treasury Portfolio, as the case may be,
in overnight Permitted Investments. Without receiving any instruction from
any such Holder of Growth PRIDES or Income PRIDES, the Collateral Agent
shall apply the Proceeds of the related Pledged Treasury Securities or
Treasury Portfolio to the settlement of such Purchase Contracts on the
Purchase Contract Settlement Date.
In the event the sum of the Proceeds from the related Pledged
Treasury Securities or Treasury Portfolio and the investment earnings from
the investment in overnight Permitted Investments is in excess of the
aggregate Purchase Price of the Purchase Contracts being settled thereby,
the Collateral Agent shall distribute such excess, when received, to the
Purchase Contract Agent for the benefit of the Holders.
(c) Pursuant to the Remarketing Agreement and subject to the
terms of the Remarketing Underwriting Agreement, on or prior to the
Business Day immediately preceding the Purchase Contract Settlement Date,
but no earlier than the Business Day immediately preceding the Purchase
Contract Settlement Date, holders of separate Preferred Securities which
are not components of Income PRIDES may elect to have their Preferred
Securities remarketed by delivering their Preferred Securities along with a
notice of such election to the Collateral Agent. The Collateral Agent will
hold such Preferred Securities in an account separate from the collateral
account in which the Pledged Securities will be held. Holders of Preferred
Securities electing to have their Preferred Securities remarketed will also
have the right to withdraw such election by written notice to the
Collateral Agent on or prior to the Business Day immediately preceding the
Purchase Contract Settlement Date, upon which notice the Collateral Agent
will return such Preferred Securities to such holders. On the fourth
Business Day immediately preceding the Purchase Contract Settlement Date,
the Collateral Agent will deliver the Preferred Securities to the
Remarketing Agent for remarketing. The Remarketing Agent will use its
reasonable efforts to remarket such Preferred Securities on such date at a
price of approximately 100.5% of the aggregate stated liquidation amount of
such Preferred Securities, plus accrued and unpaid distributions (including
deferred distributions), if any, thereon. The portion of the proceeds from
such remarketing equal to the aggregate stated liquidation amount of such
Preferred Securities will automatically be remitted by the Remarketing
Agent to the Collateral Agent for the benefit of such Preferred Securities
holders. In addition, after deducting as the Remarketing Fee an amount not
exceeding 25 basis points (.25%) of the aggregate stated liquidation amount
of the remarketed securities, from any amount of such proceeds in excess of
the aggregate stated liquidation amount of the remarketed Trust Preferred
Securities plus any accrued and unpaid distributions (including deferred
distributions, if any), the Remarketing Agent will remit to the Collateral
Agent the remaining portion of the proceeds, if any, for the benefit of
such holder. If, despite using its reasonable efforts, the Remarketing
Agent advises the Collateral Agent in writing that it cannot remarket the
related Preferred Securities of such holders at a price not less than 100%
of the aggregate stated liquidation amount of such Preferred Securities
plus accrued and unpaid distributions (including deferred distributions)
and thus resulting in a Failed Remarketing, the Remarketing Agent will
promptly return such Trust Preferred Securities to the Collateral Agent to
release to such holders.
Section 5. Voting Rights Preferred Securities. The Purchase
Contract Agent may exercise, or refrain from exercising, any and all voting
and other consensual rights pertaining to the Pledged Preferred Securities
or any part thereof for any purpose not inconsistent with the terms of this
Agreement and in accordance with the terms of the Purchase Contract
Agreement; provided, that the Purchase Contract Agent shall not exercise
or, as the case may be, shall not refrain from exercising such right if, in
the judgment of the Company, such action would impair or otherwise have a
material adverse effect on the value of all or any of the Pledged Preferred
Securities; and provided, further, that the Purchase Contract Agent shall
give the Company and the Collateral Agent at least five days' prior written
notice of the manner in which it intends to exercise, or its reasons for
refraining from exercising, any such right. Upon receipt of any notices
and other communications in respect of any Pledged Preferred Securities,
including notice of any meeting at which holders of Preferred Securities
are entitled to vote or solicitation of consents, waivers or proxies of
holders of Preferred Securities, the Collateral Agent shall use reasonable
efforts to send promptly to the Purchase Contract Agent such notice or
communication, and as soon as reasonably practicable after receipt of a
written request therefor from the Purchase Contract Agent, execute and
deliver to the Purchase Contract Agent such proxies and other instruments
in respect of such Pledged Preferred Securities (in form and substance
satisfactory to the Collateral Agent) as are prepared by the Purchase
Contract Agent with respect to the Pledged Preferred Securities.
Section 6. Rights and Remedies; Distribution of the Debentures;
Tax Event Redemption.
Section 6.1 Rights and Remedies of the Collateral Agent. (a) In
addition to the rights and remedies specified in Section 4.4 hereof or
otherwise available at law or in equity, after an event of default
hereunder, the Collateral Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the Uniform
Commercial Code as in effect in the State of New York (the "Code") (whether
or not the Code is in effect in the jurisdiction where the rights and
remedies are asserted) and the TRADES Regulations and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted. Without limiting the generality of the foregoing, such remedies
may include, to the extent permitted by applicable law, (i) retention of
the Pledged Preferred Securities or other Collateral in full satisfaction
of the Holders obligations under the Purchase Contracts or (ii) sale of the
Pledged Preferred Securities or other Collateral in one or more public or
private sales.
(b) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, in the event the Collateral Agent
is unable to make payments to the Company on account of the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio or on account of principal payments
of any Pledged Treasury Securities as provided in Section 3 hereof in
satisfaction of the obligations of the Holder of the Securities of which
such Pledged Treasury Securities, or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio, as applicable, is a part under the related Purchase
Contracts, the inability to make such payments shall constitute an event of
default hereunder and the Collateral Agent shall have and may exercise,
with reference to such Pledged Treasury Securities, or such appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, as applicable, and such
obligations of such Holder, any and all of the rights and remedies
available to a secured party under the Code and the TRADES Regulations
after default by a debtor, and as otherwise granted herein or under any
other law.
(c) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, the Collateral Agent is hereby
irrevocably authorized to receive and collect all payments of (i) the
Stated Amount of or, cash distributions on, the Pledged Preferred
Securities, (ii) the principal amount of the Pledged Treasury Securities,
or (iii) the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio,
subject, in each case, to the provisions of Section 3, and as otherwise
granted herein.
(d) The Purchase Contract Agent and each Holder of Securities,
in the event such Holder becomes the Holder of a Growth PRIDES, agrees
that, from time to time, upon the written request of the Collateral Agent,
the Purchase Contract Agent or such Holder shall execute and deliver such
further documents and do such other acts and things as the Collateral Agent
may reasonably request in order to maintain the Pledge, and the perfection
and priority thereof, and to confirm the rights of the Collateral Agent
hereunder. The Purchase Contract Agent shall have no liability to any
Holder for executing any documents or taking any such acts requested by the
Collateral Agent hereunder, except for liability for its own negligent act,
its own negligent failure to act or its own willful misconduct.
Section 6.2 Distribution of the Debentures; Tax Event Redemption.
Upon the occurrence of an Investment Company Event or a liquidation of the
Trust, a principal amount of the Debentures constituting the assets of the
Trust and underlying the Preferred Securities equal to the aggregate Stated
Amount of the Pledged Preferred Securities shall be delivered to the
Collateral Agent in exchange for the Pledged Preferred Securities. In the
event the Collateral Agent receives such Debentures in respect of Pledged
Preferred Securities upon the occurrence of an Investment Company Event or
liquidation of the Trust, the Collateral Agent shall Transfer the
Debentures to the Collateral Account in the manner specified herein for
Pledged Preferred Securities to secure the obligations of the Holders of
Income PRIDES to purchase the Company's Common Stock under the related
Purchase Contracts. Thereafter, the Collateral Agent shall have such
security interests, rights and obligations with respect to the Debentures
as it had in respect of the Pledged Preferred Securities as provided in
Articles II, III, IV, V and VI hereof, and any reference herein to the
Pledged Preferred Securities shall be deemed to be referring to such
Debentures.
Upon the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Redemption Price payable on the Tax
Event Redemption Date with respect to the Applicable Principal Amount of
Debentures shall be delivered to the Collateral Agent by the Institutional
Trustee or upon a dissolution of the Trust and the distribution of the
related Debentures by the Debenture Trustee on or prior to 12:30 p.m., New
York City time, by check or wire transfer in immediately available funds at
such place and at such account as may be designated by the Collateral Agent
in exchange for the Pledged Preferred Securities or Debentures, as the case
may be. In the event the Collateral Agent receives such Redemption Price,
the Collateral Agent will, at the written direction of the Company, apply
an amount equal to the Redemption Amount of such Redemption Price to
purchase from the Quotation Agent, the Treasury Portfolio and promptly
remit the remaining portion of such Redemption Price to the Purchase
Contract Agent for payment to the Holders of Income PRIDES. The Collateral
Agent shall Transfer the Treasury Portfolio to the Collateral Account in
the manner specified herein for Pledged Preferred Securities to secure the
obligation of all Holders of Income PRIDES to purchase Common Stock of the
Company under the Purchase Contracts constituting a part of such Income
PRIDES, in substitution for the Pledged Preferred Securities. Thereafter
the Collateral Agent shall have such security interests, rights and
obligations with respect to the Treasury Portfolio as it had in respect of
the Pledged Preferred Securities or Debentures, as the case may be, as
provided in Articles II, III, IV, V, and VI, and any reference herein to
the Pledged Preferred Securities or the Debentures shall be deemed to be
reference to such Treasury Portfolio.
Section 6.3 Substitutions. Whenever a Holder has the right to
substitute Treasury Securities, Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, for Collateral held by the Collateral Agent, such substitution shall
not constitute a novation of the security interest created hereby.
Section 7. Representations and Warranties, Covenants.
Section 7.1 Representations and Warranties. The Holders from
time to time, acting through the Purchase Contract Agent as their attorney-
in-fact (it being understood that the Purchase Contract Agent shall not be
liable for any representation or warranty made by or on behalf of a
Holder), hereby represent and warrant to the Collateral Agent, which
representations and warranties shall be deemed repeated on each day a
Holder Transfers Collateral that:
(a) such Holder has the power to grant a security interest in
and lien on the Collateral;
(b) such Holder is the sole beneficial owner of the Collateral
and, in the case of Collateral delivered in physical form, is the sole
holder of such Collateral and is the sole beneficial owner of, or has the
right to Transfer, the Collateral it Transfers to the Collateral Agent,
free and clear of any security interest, lien, encumbrance, call, liability
to pay money or other restriction other than the security interest and lien
granted under Section 2 hereof;
(c) upon the Transfer of the Collateral to the Collateral
Account, the Collateral Agent, for the benefit of the Company, will have a
valid and perfected first priority security interest therein (assuming that
any central clearing operation or any Intermediary or other entity not
within the control of the Holder involved in the Transfer of the
Collateral, including the Collateral Agent, gives the notices and takes the
action required of it hereunder and under applicable law for perfection of
that interest and assuming the establishment and exercise of control
pursuant to Section 2.2 hereof); and
(d) the execution and performance by the Holder of its
obligations under this Agreement will not result in the creation of any
security interest, lien or other encumbrance on the Collateral other than
the security interest and lien granted under Section 2 hereof or violate
any provision of any existing law or regulation applicable to it or of any
mortgage, charge, pledge, indenture, contract or undertaking to which it is
a party or which is binding on it or any of its assets.
Section 7.2 Covenants. The Holders from time to time, acting
through the Purchase Contract Agent as their attorney-in-fact (it being
understood that the Purchase Contract Agent shall not be liable for any
covenant made by or on behalf of a Holder), hereby covenant to the
Collateral Agent that for so long as the Collateral remains subject to the
Pledge:
(a) neither the Purchase Contract Agent nor such Holders will
create or purport to create or allow to subsist any mortgage, charge, lien,
pledge or any other security interest whatsoever over the Collateral or any
part of it other than pursuant to this Agreement; and
(b) neither the Purchase Contract Agent nor such Holders will
sell or otherwise dispose (or attempt to dispose) of the Collateral or any
part of it except for the beneficial interest therein, subject to the
pledge hereunder, transferred in connection with the Transfer of the
Securities.
Section 8. The Collateral Agent. It is hereby agreed as follows:
Section 8.1 Appointment, Powers and Immunities. The Collateral
Agent shall act as agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. The
Collateral Agent: (a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants or
obligations shall be infeffed from this Agreement against the Collateral
Agent, nor shall the Collateral Agent be bound by the provisions of any
agreement by any party hereto beyond the specific terms hereof; (b) shall
not be responsible for any recitals contained in this Agreement, or in any
certificate or other document refeffed to or provided for in, or received
by it under, this Agreement, the Securities or the Purchase Contract
Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (other than as against the
Collateral Agent), the Securities or the Purchase Contract Agreement or any
other document refeffed to or provided for herein or therein or for any
failure by the Company or any other Person (except the Collateral Agent) to
perform any of its obligations hereunder or thereunder or for the
perfection, priority or, except as expressly required hereby, maintenance
of any security interest created hereunder; (c) shall not be required to
initiate or conduct any litigation or collection proceedings hereunder
(except pursuant to directions furnished under Section 8.2 hereof, subject
to Section 8.6 hereof); (d) shall not be responsible for any action taken
or omitted to be taken by it hereunder or under any other document or
instrument referred to or provided for herein or in connection herewith or
therewith, except for its own negligence or willful misconduct; and (e)
shall not be required to advise any party as to selling or retaining, or
taking or refraining from taking any action with respect to, any securities
or other property deposited hereunder. Subject to the foregoing, during
the term of this Agreement, the Collateral Agent shall take all reasonable
action in connection with the safekeeping and preservation of the
Collateral hereunder.
No provision of this Agreement shall require the Collateral Agent
to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder. In no event shall the
Collateral Agent be liable for any amount in excess of the Value of the
Collateral. Notwithstanding the foregoing, the Collateral Agent and
Securities Intermediary in its individual capacity hereby waive any right
of setoff, bankers lien, liens or perfection rights as securities
intermediary or any counterclaim with respect to any of the Collateral.
Section 8.2 Instructions of the Company. The Company shall have
the right, by one or more instruments in writing executed and delivered to
the Collateral Agent, to direct the time, method and place of conducting
any proceeding for the realization of any right or remedy available to the
Collateral Agent, or of exercising any power conferred on the Collateral
Agent, or to direct the taking or refraining from taking of any action
authorized by this Agreement; provided, however, that (i) such direction
shall not conflict with the provisions of any law or of this Agreement and
(ii) the Collateral Agent shall be adequately indemnified as provided
herein. Nothing in this Section 8.2 shall impair the right of the
Collateral Agent in its discretion to take any action or omit to take any
action which it deems proper and which is not inconsistent with such
direction.
Section 8.3 Reliance by Collateral Agent. Each of the Securities
Intermediary and the Collateral Agent shall be entitled to rely upon any
certification, order, judgment, opinion, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telex
or facsimile) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons (without
being required to determine the correctness of any fact stated therein),
and upon advice and statements of legal counsel and other experts selected
by the Collateral Agent and the Securities Intermediary. As to any matters
not expressly provided for by this Agreement, the Collateral Agent and the
Securities Intermediary shall in all cases be fully protected in acting, or
in refraining from acting, hereunder in accordance with instructions given
by the Company in accordance with this Agreement.
Section 8.4 Rights in Other Capacities. The Collateral Agent and
the Securities Intermediary and their affiliates may (without having to
account therefor to the Company) accept deposits from, lend money to, make
their investments in and generally engage in any kind of banking, trust or
other business with the Purchase Contract Agent and any Holder of
Securities (and any of their respective subsidiaries or affiliates) as if
it were not acting as the Collateral Agent, and the Collateral Agent and
its affiliates may accept fees and other consideration from the Purchase
Contract Agent and any Holder of Securities without having to account for
the same to the Company; provided that each of the Securities Intermediary
and the Collateral Agent covenants and agrees with the Company that it
shall not accept, receive or permit there to be created in favor of itself
and shall take no affirmative action to permit there to be created in favor
of any other Person, any security interest, lien or other encumbrance of
any kind in or upon the Collateral.
Section 8.5 Non-Reliance on Collateral Agent. Neither the
Securities Intermediary nor the Collateral Agent shall be required to keep
itself informed as to the performance or observance by the Purchase
Contract Agent or any Holder of Securities of this Agreement, the Purchase
Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. The Collateral Agent
shall not have any duty or responsibility to provide the Company with any
credit or other information concerning the affairs, financial condition or
business of the Purchase Contract Agent or any Holder of Securities (or any
of their respective affiliates) that may come into the possession of the
Collateral Agent or the Securities Intermediary or any of their respective
affiliates.
Section 8.6 Compensation and Indemnity. The Company agrees:
(i) to pay the Collateral Agent from time to time such compensation as
shall be agreed in writing between the Company and the Collateral Agent
for all services rendered by it hereunder and (ii) to indemnify the
Collateral Agent and the Securities Intermediary for, and to hold each
of them harmless from and against, any loss, liability or reasonable
out-of-pocket expense incurred without negligence, willful misconduct
or bad faith on its part, arising out of or in connection with the
acceptance or administration of its powers and duties under this
Agreement, including the reasonable out-of-pocket costs and expenses
(including reasonable fees and expenses of counsel) of defending itself
against any claim or liability in connection with the exercise or
performance of such powers and duties.
Section 8.7 Failure to Act. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims
by or among the parties hereto or any other Person with respect to any
funds or property deposited hereunder, the Collateral Agent shall be
entitled, after prompt notice to the Company and the Purchase Contract
Agent, at its sole option, to refuse to comply with any and all claims,
demands or instructions with respect to such property or funds so long as
such dispute or conflict shall continue, and the Collateral Agent shall not
be or become liable in any way to any of the parties hereto for its failure
or refusal to comply with such conflicting claims, demands or instructions.
The Collateral Agent shall be entitled to refuse to act until either (i)
such conflicting or adverse claims or demands shall have been finally
determined by a court of competent jurisdiction or settled by agreement
between the conflicting parties as evidenced in a writing, satisfactory to
the Collateral Agent or (ii) the Collateral Agent shall have received
security or an indemnity satisfactory to the Collateral Agent sufficient to
save the Collateral Agent harmless from and against any and all loss,
liability or reasonable out-of-pocket expense which the Collateral Agent
may incur by reason of its acting. The Collateral Agent may in addition
elect to commence an interpleader action or seek other judicial relief or
orders as the Collateral Agent may deem necessary. Notwithstanding
anything contained herein to the contrary, the Collateral Agent shall not
be required to take any action that is in its opinion contrary to law or to
the terms of this Agreement, or which would in its opinion subject it or
any of its officers, employees or directors to liability.
Section 8.8 Resignation of Collateral Agent. Subject to the
appointment and acceptance of a successor Collateral Agent as provided
below, (a) the Collateral Agent may resign at any time by giving notice
thereof to the Company and the Purchase Contract Agent as attorney-in-fact
for the Holders of Securities, (b) the Collateral Agent may be removed at
any time by the Company and (c) if the Collateral Agent fails to perform
any of its material obligations hereunder in any material respect for a
period of not less than 20 days after receiving written notice of such
failure by the Purchase Contract Agent and such failure shall be
continuing, the Collateral Agent may be removed by the Purchase Contract
Agent. The Purchase Contract Agent shall promptly notify the Company of
any removal of the Collateral Agent pursuant to clause (c) of the
immediately preceding sentence. Upon any such resignation or removal, the
Company shall have the right to appoint a successor Collateral Agent. If
no successor Collateral Agent shall have been so appointed and shall have
accepted such appointment within 30 days after the retiring Collateral
Agent's giving of notice of resignation or such removal, then the retiring
Collateral Agent may petition any court of competent jurisdiction for the
appointment of a successor Collateral Agent. The Collateral Agent shall be
a bank which has an office in New York, New York with a combined capital
and surplus of at least $750,000,000. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor Collateral Agent,
such successor Collateral Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent, and the retiring Collateral Agent shall take all
appropriate action to transfer any money and property held by it hereunder
(including the Collateral) to such successor Collateral Agent. The
retiring Collateral Agent shall, upon such succession, be discharged from
its duties and obligations as Collateral Agent hereunder. After any
retiring Collateral Agent's resignation hereunder as Collateral Agent, the
provisions of this Section 8 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was
acting as the Collateral Agent.
Section 8.9 Right to Appoint Agent or Advisor. The Collateral
Agent shall have the right to appoint agents or advisors in connection with
any of its duties hereunder, and the Collateral Agent shall not be liable
for any action taken or omitted by, or in reliance upon the advice of, such
agents or advisors selected in good faith. The appointment of agents
pursuant to this Section 8.9 shall be subject to prior consent of the
Company, which consent shall not be unreasonably withheld.
Section 8.10 Survival. The provisions of this Section 8 shall
survive termination of this Agreement and the resignation or removal of the
Collateral Agent.
Section 8.11 Exculpation. Anything in this Agreement to the
contrary notwithstanding, in no event shall the Collateral Agent or the
Securities Intermediary or their officers, employees or agents be liable
under this Agreement to any third party for indirect, special, punitive, or
consequential loss or damage of any kind whatsoever, including lost
profits, whether or not the likelihood of such loss or damage was known to
the Collateral Agent or the Securities Intermediary, or any of them,
incurred without any act or deed that is found to be attributable to gross
negligence or willful misconduct on the part of the Collateral Agent or the
Securities Intermediary.
Section 9. Amendment.
Section 9.1 Amendment Without Consent of Holders. Without the
consent of any Holders, the Company, the Collateral Agent and the Purchase
Contract Agent, at any time and from time to time, may amend this
Agreement, in form satisfactory to the Company, the Collateral Agent and
the Purchase Contract Agent, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants
of the Company; or
(2) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein conferred
upon the Company so long as such covenants or such surrender do not
adversely affect the validity, perfection or priority of the security
interests granted or created hereunder; or
(3) to evidence and provide for the acceptance of
appointment hereunder by a successor Collateral Agent, Securities
Intermediary or Purchase Contract Agent; or
(4) provisions herein which may be inconsistent with any
other such provisions herein, or to make any other provisions with
respect to such matters or questions arising under this Agreement,
provided such action shall not adversely affect the interests of the
Holders.
Section 9.2 Amendment with Consent of Holders. With the consent
of the Holders of not less than a majority of the Purchase Contracts at the
time outstanding, by Act of said Holders delivered to the Company, the
Purchase Contract Agent or the Collateral Agent, as the case may be, the
Company, when duly authorized, the Purchase Contract Agent and the
Collateral Agent may amend this Agreement for the purpose of modifying in
any manner the provisions of this Agreement or the rights of the Holders in
respect of the Securities; provided, however, that no such supplemental
agreement shall, without the consent of the Holder of each Outstanding
Security adversely affected thereby,
(1) change the amount or type of Collateral underlying a
Security (except for the rights of holders of Income PRIDES to
substitute the Treasury Securities for the Pledged Preferred
Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, or the rights of Holders of
Growth PRIDES to substitute Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as
applicable, for the Pledged Treasury Securities), impair the right
of the Holder of any Security to receive distributions on the
underlying Collateral or otherwise adversely affect the Holder's
rights in or to such Collateral; or
(2) otherwise effect any action that would require the
consent of the Holder of each Outstanding Security affected thereby
pursuant to the Purchase Contract Agreement if such action were
effected by an agreement supplemental thereto; or
(3) reduce the percentage of Purchase Contracts the consent
of whose Holders is required for any such amendment.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent and the Purchase Contract
Agent shall be entitled to receive and (subject to Section 6.1 hereof, with
respect to the Collateral Agent, and Section 7.1 of the Purchase Contract
Agreement, with respect to the Purchase Contract Agent) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of such amendment is authorized or permitted by this Agreement and that all
conditions precedent, if any, to the execution and delivery of such
amendment have been satisfied.
Section 9.4 Effect of Amendments. Upon the execution of any
amendment under this Section, this Agreement shall be modified in
accordance therewith, and such amendment shall form a part of this
Agreement for all purposes; and every Holder of Certificates theretofore or
thereafter authenticated, executed on behalf of the Holders and delivered
under the Purchase Contract Agreement shall be bound thereby.
Section 9.5 Reference to Amendments. Security Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any amendment pursuant to this Section may, and shall if
required by the Collateral Agent or the Purchase Contract Agent, bear a
notation in form approved by the Purchase Contract Agent and the Collateral
Agent as to any matter provided for in such amendment. If the Company
shall so determine, new Security Certificates so modified as to conform, in
the opinion of the Collateral Agent, the Purchase Contract Agent and the
Company, to any such amendment may be prepared and executed by the Company
and authenticated, executed on behalf of the Holders and delivered by the
Purchase Contract Agent in accordance with the Purchase Contract Agreement
in exchange for Outstanding Security Certificates.
Section 10. Miscellaneous.
Section 10.1 No Waiver. No failure on the part of the Collateral
Agent or any of its agents to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by the Collateral Agent or any of its agents of any right,
power or remedy hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. The remedies herein are
cumulative and are not exclusive of any remedies provided by law.
Section 10.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Without limiting the foregoing, the above choice of law is expressly agreed
to by the Securities Intermediary, the Collateral Agent and the Holders
from time to time acting through the Purchase Contract Agent, as their
attorney-in-fact, in connection with the establishment and maintenance of
the Collateral Account. The Company, the Collateral Agent and the Holders
from time to time of the Securities, acting through the Purchase Contract
Agent as their attorney-in-fact, hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District
of New York and of any New York state court sitting in New York City for
the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Company, the
Collateral Agent and the Holders from time to time of the Securities,
acting through the Purchase Contract Agent as their attorney-in-fact,
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum.
Section 10.3 Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be
given or made in writing (including, without limitation, by telecopy)
delivered to the intended recipient at the "Address for Notices" specified
below its name on the signature pages hereof or, as to any party, at such
other address as shall be designated by such party in a notice to the other
parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
Section 10.4 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and
assigns of the Company, the Collateral Agent and the Purchase Contract
Agent, and the Holders from time to time of the Securities, by their
acceptance of the same, shall be deemed to have agreed to be bound by the
provisions hereof and to have ratified the agreements of, and the grant of
the Pledge hereunder by, the Purchase Contract Agent.
Section 10.5 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
and the same instrument, and any of the parties hereto may execute this
Agreement by signing any such counterpart.
Section 10.6 Severability. If any provision hereof is invalid
and unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, (i) the other provisions hereof shall remain in full
force and effect in such jurisdiction and shall be liberally construed in
order to carry out the intentions of the parties hereto as nearly as may be
possible and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability
of such provision in any other jurisdiction.
Section 10.7 Expenses, etc. The Company agrees to reimburse the
Collateral Agent for: (a) all reasonable out-of-pocket costs and expenses
of the Collateral Agent (including, without limitation, the reasonable fees
and expenses of counsel to the Collateral Agent), in connection with (i)
the negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the
terms of this Agreement; (b) all reasonable costs and expenses of the
Collateral Agent (including, without limitation, reasonable fees and
expenses of counsel) in connection with (i) any enforcement or proceedings
resulting or incurred in connection with causing any Holder of Securities
to satisfy its obligations under the Purchase Contracts forming a part of
the Securities and (ii) the enforcement of this Section 10.7; and (c) all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this
Agreement or any other document referred to herein and all costs, expenses,
taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated hereby.
Section 10.8 Security Interest Absolute. All rights of the
Collateral Agent and security interests hereunder, and all obligations of
the Holders from time to time hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
any other term of, or any increase in the amount of, all or any of the
obligations of Holders of Securities under the related Purchase Contracts,
or any other amendment or waiver of any term of, or any consent to any
departure from any requirement of, the Purchase Contract Agreement or any
Purchase Contract or any other agreement or instrument relating thereto; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a
pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
CENDANT CORPORATION
By:__________________________________
Name:
Title:
Address for Notices:
CENDANT CORPORATION
9 West 57th Street
New York, NY 10019
Attention:
Telecopy:
THE FIRST NATIONAL BANK OF CHICAGO,
as Purchase Contract Agent and as
attorney-in-fact of the Holders from
time to time of the Securities
By:_________________________________
Name:
Title:
Address for Notices:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention:
Corporate Trust Administration
Telecopy:
(312) 407-1708
THE CHASE MANHATTAN BANK,
as Collateral Agent and as
Securities Intermediary
By:__________________________________
Name:
Title:
Address for Notices:
The Chase Manhattan Bank
450 West 33rd Street
New York, NY 10001-2697
Attention: Corporate Trust
Administration Department
Telecopy:
(212) 946-8160
EXHIBIT A
INSTRUCTION FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10010-2697
Attention: Corporate Trust Administration Department
Re: FELINE PRIDES of Cendant Corporation (the "Company"),
and Cendant Capital III, Cendant Capital IV and
Cendant Capital V
We hereby notify you in accordance with Section 4.1 of the Pledge
Agreement, dated as of ________, ________, (the "Pledge Agreement") among
the Company, yourselves, as Collateral Agent, and ourselves, as Purchase
Contract Agent and as attorney-in-fact for the holders of [Income PRIDES]
[Growth PRIDES] from time to time, that the holder of securities listed
below (the "Holder") has elected to substitute [$_________ aggregate
principal amount of Treasury Securities] [$__________ Stated Amount of
Preferred Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio] in exchange for an equal Value of [Pledged
Preferred Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio] [Pledged Treasury Securities] held by you in
accordance with the Pledge Agreement and has delivered to us a notice
stating that the Holder has Transferred [Treasury Securities] [Preferred
Securities or the appropriate Applicable Ownership Interest of the Treasury
Portfolio] to you, as Collateral Agent. We hereby instruct you, upon
receipt of such [Pledged Treasury Securities] [Pledged Preferred Securities
or the appropriate Applicable Ownership Interest of the Treasury
Portfolio], to release the [Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio) [Treasury
Securities] related to such [Income PRIDES] [Growth PRIDES] to us in
accordance with the Holder's instructions. Capitalized terms used herein
but not defined shall have the meaning set forth in the Pledge Agreement.
Date: ___________________ _________________________________________
By: _____________________________________
Name:
Title:
Signature Guarantee: ________________
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio] for the [Pledged Preferred
Securities or the Treasury Portfolio] [Pledged Treasury Securities]:
__________________________ _______________________________________
Name Social Security or other
Taxpayer Identification Number, if any
__________________________
Address
__________________________
__________________________
EXHIBIT B
INSTRUCTION TO PURCHASE CONTRACT AGENT
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
Re: FELINE PRIDES of Cendant Corporation (the "Company"),
and Cendant Capital III, Cendant Capital IV and
Cendant Capital V
The undersigned Holder hereby notifies you that it has delivered to
The Chase Manhattan Bank, as Collateral Agent, [$________ aggregate
principal amount of Treasury Securities] [$ aggregate Stated Amount of
Preferred Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio of the appropriate Applicable Ownership Interest of
the Treasury Portfolio] in exchange for an equal Value of [Pledged
Preferred Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio] [Pledged Treasury Securities] held by the
Collateral Agent (the "Pledge Agreement"), in accordance with Section 4.1
of the Pledge Agreement, dated ___________, ________, between you, the
Company and the Collateral Agent. The undersigned Holder hereby instructs
you to instruct the Collateral Agent to release to you on behalf of the
undersigned Holder the [Pledged Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio] [Pledged Treasury
Securities] related to such [Income PRIDES] [Growth PRIDES]. Capitalized
terms used herein but not defined shall have the meaning set forth in the
Pledge Agreement.
Dated: ____________________ _______________________________________
Signature
Signature Guarantee: __________________
Please print name and address of Registered Holder:
__________________________ _______________________________________
Name Social Security or other
Taxpayer Identification Number, if any
__________________________
Address
__________________________
__________________________
Exhibit 4.14
FORM OF FIRST SUPPLEMENTAL INDENTURE
Dated as of ,
between
CENDANT CORPORATION,
AS ISSUER
and
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK,
AS TRUSTEE
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS...................................................1
SECTION 1.1. Definition of Terms.....................................1
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES.........3
SECTION 2.1. Designation and Principal Amount........................3
SECTION 2.2. Maturity................................................3
SECTION 2.3. Form and Payment........................................3
SECTION 2.4. Global Debenture........................................4
SECTION 2.5. Interest................................................5
ARTICLE III
REDEMPTION OF THE DEBENTURES...........................5
SECTION 3.1. Tax Event Redemption....................................6
SECTION 3.2. Redemption Procedure for Debentures.....................6
SECTION 3.3. No Sinking Fund.........................................6
SECTION 3.4. Option to Put Debentures................................6
SECTION 3.5. Repurchase Procedure for Debentures.....................6
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD...................7
SECTION 4.1. Extension of Interest Payment Period....................7
SECTION 4.2. Notice of Extension.....................................8
SECTION 4.3. Limitation of Transactions..............................8
ARTICLE V
EXPENSES...............................................8
SECTION 5.1. Payment of Expenses.....................................8
SECTION 5.2. Payment Upon Resignation or Removal.....................9
ARTICLE VI
NOTICE.................................................9
SECTION 6.1. Notice by the Company...................................9
ARTICLE VII
FORM OF DEBENTURE.....................................10
SECTION 7.1. Form of Debenture......................................10
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES..........................18
SECTION 8.1. Original Issue of Debentures...........................18
ARTICLE IX
MISCELLANEOUS.........................................18
SECTION 9.1. Ratification of Indenture..............................18
SECTION 9.2. Trustee Not Responsible for Recitals...................18
SECTION 9 3 Governing Law..........................................18
SECTION 9.4. Separability...........................................18
SECTION 9.5. Counterparts...........................................18
SECTION 9.6. Preferred Securities Guarantee and Declaration.........18
FORM OF FIRST SUPPLEMENTAL INDENTURE, dated as of (the "First
Supplemental Indenture"), between CENDANT CORPORATION, a corporation duly
organized and existing under the laws of the State of Delaware, (the
"Company"), and The Bank of Nova Scotia Trust Company of New York, as
trustee (the "Trustee").
WHEREAS, the Company executed and delivered the indenture dated as
of (the "Base Indenture"), to the Trustee to provide for the future
issuance of the Company's Senior unsecured debentures, notes or other
evidence of indebtedness (the "Securities"), to be issued from time to time
in one or more series as might be determined by the Company under the Base
Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of a new series of its Securities
to be known as its ___% Debentures due , 2003 (the "Debentures"), the form
and substance of such Debentures and the terms, provisions and conditions
thereof to be set forth as provided in the Base Indenture and this First
Supplemental Indenture (together, the "Indenture");
WHEREAS, Cendant Capital, a Delaware statutory business trust (the
"Trust"), has offered to the public its ___% Trust Originated Preferred
Securities (the "Preferred Securities"), representing preferred, undivided
beneficial interests in the assets of the Trust, and proposes to invest the
proceeds from such offering, together with the proceeds of the issuance and
sale by the Trust to the Company of its ___% Trust Originated Common
Securities (the "Common Securities" and together with the Preferred
Securities, the "Trust Securities"), in the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance
with its terms, and to make the Debentures, when executed by the Company
and authenticated and delivered by the Trustee, the valid obligations of
the Company and all acts and things necessary have been done and performed
to make this First Supplemental Indenture enforceable in accordance with
its terms, and the execution and delivery of this First Supplemental
Indenture has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of
the Debentures by the Holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used
in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not
affect interpretation;
(e) the following terms have the meanings given to them in the
Declaration: (i) Authorized Newspaper; (ii) Business Day; (iii) Clearing
Agency; (iv) Delaware Trustee; (v) DTC; (vi) FELINE PRIDES; (vii) Growth
PRIDES; (viii) Income PRIDES; (xix) Institutional Trustee; (x) Investment
Company Event; (xi) Preferred Security Certificate; (xii) Pricing
Agreement; (xiii) Purchase Agreement; (xiv) Regular Trustees; (xv) Reset
Agent; (xvi) Reset Announcement Date; (xvii) Reset Spread; (xviii) Two-Year
Benchmark Treasury; and (xix) Treasury Securities.
(f) the following terms have the meanings given to them in this
Section 1.11(f):
"Applicable Principal Amount" means either (i) if the Tax Event
Redemption Date occurs prior to February 16, 2001, the aggregate principal
amount of the Debentures corresponding to the aggregate stated liquidation
amount of the Preferred Securities which are components of Income PRIDES on
the Tax Event Redemption Date or (ii) if the Tax Event Redemption occurs on
or after February 16, 2001, the aggregate principal amount of the
Debentures corresponding to the aggregate stated liquidation amount of the
Preferred Securities outstanding on such Tax Event Redemption Date.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Debentures Redemption Price" shall have the meaning set forth
in Section 3.4.
"Declaration" means the Amended and Restated Declaration of Trust
of Cendant Capital II, a Delaware statutory business trust, dated as of
, .
"Deferred Interest" shall have the meaning set forth in
Section 4.1 hereof.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Tax Event, an Investment Company Event or otherwise, the
Trust is to be dissolved in accordance with the Declaration, and, except in
the case of a Tax Event Redemption, the Debentures held by the
Institutional Trustee are to be distributed to the holders of the Trust
Securities issued by the Trust pro rata in accordance with the Declaration.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Failed Remarketing" shall have the meaning set forth in Section
5.4(b) of the Purchase Contract Agreement.
"Global Debentures" shall have the meaning set forth in
Section 2.4.
"Non Book-Entry Preferred Securities" shall have the meaning set
forth in Section 2.4 .
"Purchase Contract" shall have the meaning set forth in the
Purchase Contract Agreement, dated as of , , between the Company and The
First National Bank of Chicago, as purchase contract agent.
"Purchase Contract Settlement Date" means ,
2001.
"Put Option" shall have the meaning set forth in Section 3.4.
"Quotation Agent" means (i) Merrill Lynch Government Securities,
Inc. and its respective successors, provided, however, that if the
foregoing shall cease to be a Primary Treasury Dealer, the Company shall
substitute therefor another Primary Treasury Dealer, and (ii) any other
Primary Treasury Dealer selected by the Company.
"Redemption Amount" means for each Debenture, the product of (i)
the principal amount of such Debenture and (ii) a fraction whose numerator
is the Treasury Portfolio Purchase Price and whose denominator is the
Applicable Principal Amount of the Treasury Portfolio.
"Tax Event" means the receipt by the Trust of an opinion of a
nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein affecting taxation, (b) any
amendment to or change in an interpretation or application of such laws or
regulations by any legislative body, court, governmental agency or
regulatory authority or (c) any interpretation or pronouncement that
provides for a position with respect to such laws or regulations that
differs from the generally accepted position on the date the Trust
Securities are issued, which amendment or change is effective or which
interpretation or pronouncement is announced on or after the date of
issuance of the Trust Securities under the Declaration, there is more than
an insubstantial risk that (i) interest payable by the Company on the
Debentures would not be deductible, in whole or in part, by the Company for
federal income tax purposes or (ii) the Trust would be subject to more than
a de minimis amount of other taxes, duties or other governmental charges.
"Tax Event Redemption Date" shall have the meaning set forth in
Section 3.1 hereof.
"Treasury Portfolio" means with respect to the Applicable
Principal Amount of Debentures (a) if the Tax Event Redemption Date occurs
prior to February 16, 2001, a portfolio of zero-coupon U.S. Treasury
Securities consisting of (i) principal or interest strips of U.S. Treasury
Securities which mature on or prior to February 15, 2001 in an aggregate
amount equal to the Applicable Principal Amount and (ii) with respect to
each scheduled interest payment date on the Debentures that occurs after
the Tax Event Redemption Date principal or interest strips of U.S. Treasury
Securities which mature on or prior to such date in an aggregate amount
equal to the aggregate interest payment that would be due on the Applicable
Principal Amount of the Debentures on such date, and (b) if the Tax Event
Redemption Date occurs after February 16, 2001, a portfolio of zero-coupon
U.S. Treasury Securities consisting of (i) principal or interest strips of
U.S. Treasury Securities which mature on or prior to February 15, 2003 in
an aggregate amount equal to the Applicable Principal Amount and (ii) with
respect to each scheduled interest payment date on the Debentures that
occurs after the Tax Event Redemption Date interest or principal strips of
such U.S. Treasury Securities which mature on or prior to such date in an
aggregate amount equal to the aggregate interest payment that would be due
on the Applicable Principal Amount of the Debentures on such date.
"Treasury Portfolio Purchase Price" means the lowest aggregate
price quoted by a primary U.S. government securities dealer in New York
City (a "Primary Treasury Dealer") to the Quotation Agent on the third
Business Day immediately preceding the Tax Event Redemption Date for the
purchase of the Treasury Portfolio for settlement on the Tax Event
Redemption Date.
(g) the following terms shall have the meanings given to them in
the Purchase Contract: Collateral Agent.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the
___% Debentures (the "Debentures") due , 2003, limited in aggregate
principal amount to $ , which amount shall be as set forth in any written
order of the Company for the authentication and delivery of Debentures
pursuant to Section of the Base Indenture.
SECTION 2.2. Maturity. The Maturity Date will be .
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued
in fully registered certificated form without interest coupons bearing
identical terms. Principal and interest on the Debentures issued in
certificated form will be payable, the transfer of such Debentures will be
registrable and such Debentures will be exchangeable for Debentures bearing
identical terms and provisions at the office or agency of the Institutional
Trustee; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the Holder at such address as
shall appear in the Security Register. Notwithstanding the foregoing, so
long as the Holder of any Debentures is the Institutional Trustee, the
payment of the principal of and interest (including Compounded Interest and
expenses and taxes of the Trust set forth in Section 4.1 hereof, if any) on
such Debentures held by the Institutional Trustee will be made at such
place and to such account as may be designated by the Institutional
Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented
to the Trustee by the Institutional Trustee in exchange for a global
Debenture in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Debentures (a "Global Debenture"), to be
registered in the name of the Clearing Agency, or its nominee, and
delivered by the Institutional Trustee to the Clearing Agency for crediting
to the accounts of its participants pursuant to the instructions of the
Regular Trustees. The Company upon any such presentation shall execute a
Global Debenture in such aggregate principal amount and deliver the same to
the Trustee for authentication and delivery in accordance with the
Indenture. Payments on the Debentures issued as a Global Debenture will be
made to the Clearing Agency; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated form may be
presented to the Trustee by the Institutional Trustee and any Preferred
Security Certificate which represents Preferred Securities other than
Preferred Securities held by the Clearing Agency or its nominee ("Non
Book-Entry Preferred Securities") will be deemed to represent beneficial
interests in the Debentures presented to the Trustee by the Institutional
Trustee having an aggregate principal amount equal to the aggregate
liquidation amount of the Non Book-Entry Preferred Securities until such
Preferred Security Certificates are presented to the Security Registrar for
transfer or reissuance at which time such Preferred Security Certificates
will be cancelled and a Debenture, registered in the name of the holder of
the Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Security Certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with
the Indenture to such holder. On issue of such Debentures, Debentures with
an equivalent aggregate principal amount that were presented by the
Institutional Trustee to the Trustee will be deemed to have been cancelled.
(b) Unless and until it is exchanged for the Debentures in
registered form, a Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Clearing Agency, or to a successor
Clearing Agency selected or approved by the Company or to a nominee of such
successor Clearing Agency.
(c) If at any time the Clearing Agency notifies the Company that
it is unwilling or unable to continue as a Clearing Agency or if at any
time the Clearing Agency for such series shall no longer be registered or
in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, and a successor Clearing Agency for
such series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the
case may be, the Company will execute, and, subject to Article III of the
Indenture, the Trustee, upon written notice from the Company, will
authenticate and deliver the Debentures in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture in exchange
for such Global Debenture. In addition, the Company may at any time
determine that the Debentures shall no longer be represented by Global
Debenture. In such event the Company will execute, and subject to Section
3.3 of the Base Indenture, the Trustee, upon receipt of an Officer's
Certificate evidencing such determination by the Company, will authenticate
and deliver the Debentures in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to
the principal amount of the Global Debenture in exchange for such Global
Debenture. Upon the exchange of the Global Debenture for such Debentures in
definitive registered form without coupons, in authorized denominations,
the Global Debenture shall be cancelled by the Trustee. Such Debentures in
definitive registered form issued in exchange for the Global Debenture
shall be registered in such names and in such authorized denominations as
the Clearing Agency, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Clearing Agency for delivery to the Persons
in whose names such Securities are so registered.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest initially at the rate of
___% per annum (the "Coupon Rate") from the original date of issuance until
February 15, 2001, and at the Reset Rate thereafter until the principal
thereof becomes due and payable, and on any overdue principal and (to the
extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the rate of ___% until February
15, 2001 and at the Reset Rate thereafter, compounded quarterly, payable
(subject to the provisions of Article IV herein) quarterly in arrears on
February 16, May 16, August 16 and November 16 of each year (each, an
"Interest Payment Date") commencing on , to the Person in whose name such
Debenture or any predecessor Debenture is registered, at the close of
business on the Regular Record Date for such interest installment, which,
in respect of (i) Debentures of which the Institutional Trustee is the
Holder and the Preferred Securities are in book-entry only form or (ii) a
Global Debenture, shall be the close of business on the Business Day next
preceding that Interest Payment Date. Notwithstanding the foregoing
sentence, if (i) the Debentures are held by the Institutional Trustee and
the Preferred Securities are no longer in book-entry only form or (ii) the
Debentures are not represented by a Global Debenture, the Company may
select a Regular Record Date for such interest installment which shall be
more than one Business Day but less than 60 Business Days prior to an
Interest Payment Date.
(b) The Coupon Rate on the Debentures will be reset on the third
Business Day immediately preceding the Purchase Contract Settlement Date to
the Reset Rate (which Reset Rate will become effective on and after the
Purchase Contract Settlement Date). On the tenth (10) Business Day
immediately preceding the Purchase Contract Settlement Date, the Reset
Announcement Date, the Reset Spread and the relevant Two-Year Benchmark
Treasury will be announced by the Company. On the Business Day immediately
following such Reset Announcement Date, the Holders of Debentures will be
notified of such Reset Spread and Two-Year Benchmark Treasury by the
Company. Such notice shall be sufficiently given to such Holders of
Debentures if published in an Authorized Newspaper.
(c) Not later than 10 calendar days nor more than 15 calendar days
immediately preceding the Reset Announcement Date, the Company will request
that the Clearing Agency or its nominee (or any successor Clearing Agency
or its nominee) or the Institutional Trustee, notify the Holders of
Debentures of such Reset Announcement Date and the procedures to be
followed by such holders of Debentures wishing to settle the related
Purchase Contract with separate cash on the Business Day immediately
preceding the Purchase Contract Settlement Date.
(d) The amount of interest payable for any period will be computed
on the basis of a 360-day year consisting of twelve 30-day months. Except
as provided in the following sentence, the amount of interest payable for
any period shorter than a full quarterly period for which interest is
computed, will be computed on the basis of the actual number of days
elapsed in such a 90-day period. In the event that any date on which
interest is payable on the Debentures is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event Redemption.
If a Tax Event shall occur and be continuing, the Company may, at
its option, redeem the Debentures in whole (but not in part) at any time at
a Redemption Price per Debenture equal to the Redemption Amount plus
accrued and unpaid interest thereon, including Compounded Interest and the
expenses and taxes of the Trust set forth in Section 4.1 hereof, if any, to
the date of such redemption (the "Tax Event Redemption Date"). If,
following the occurrence of a Tax Event, the Company exercises its option
to redeem the Debentures, then the proceeds of such redemption, if
distributed to the Institutional Trustee as the sole Holder of such
Debentures, will be applied by the Institutional Trustee to redeem Trust
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed, at the Redemption Price.
If, following the occurrence of a Tax Event, the Company exercises its
option to redeem the Debentures, the Company shall appoint the Quotation
Agent to assemble the Treasury Portfolio in consultation with the Company.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Tax Event Redemption Date to each registered Holder of
the Debentures to be prepaid at its registered address. Unless the Company
defaults in payment of the Redemption Price, on and after the redemption
date interest shall cease to accrue on such Debentures.
SECTION 3.2. Redemption Procedure for Debentures.
Payment of the Redemption Price to each Holder of Debentures shall
be made by the Paying Agent, no later than 12:00 noon, New York City time,
on the Tax Event Redemption Date, by check or wire transfer in immediately
available funds at such place and to such account as may be designated by
each such Holder of Debentures, including the Institutional Trustee or the
Collateral Agent, as the case may be. If the Trustee holds immediately
available funds sufficient to pay the Redemption Price of the Debentures
(or, if the Company is acting as Paying Agent or the Institutional Trustee
has received the Redemption Price), then, on such Tax Event Redemption
Date, such Debentures will cease to be outstanding and interest thereon
will cease to accrue, whether or not such Debentures have been received by
the Company, and all other rights of the Holder in respect of the
Debentures shall terminate and lapse (other than the right to receive the
Redemption Price upon delivery of such Debentures but without interest on
such Redemption Price).
SECTION 3.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking
fund.
SECTION 3.4. Option to Put Debentures.
If a Failed Remarketing has occurred, each Holder of Debentures
who holds such Debentures on the day immediately following the Purchase
Contract Settlement Date shall have the right (the "Put Option") on or
after the Business Day immediately following the Purchase Contract
Settlement Date, upon at least three Business Days' prior notice, to
require the Company to repurchase such Holder's Debentures on March 2, 2001
(the "Put Option Exercise Date"), either in whole or in part, at a
repayment price per Debenture equal to $50, plus accrued and unpaid
interest, if any, thereon to the date of payment including deferred
interest, if any (the "Debenture Repayment Price").
SECTION 3.5. Repurchase Procedure for Debentures.
(a) In order for the Debentures to be repurchased on the
Put Option Exercise Date, the Company must receive on or prior to 5:00 p.m.
New York City time on the third Business Day immediately preceding the Put
Option Exercise Date, at the principal executive offices of Cendant
Corporation in New York, New York, the Debentures to be repurchased with
the form entitled "Option to Elect Repayment" on the reverse of or
otherwise accompanying such Debentures duly completed. Any such notice
received by the Trustee shall be irrevocable. All questions as to the
validity, eligibility (including time of receipt) and acceptance of the
Debentures for repayment shall be determined by the Company, whose
determination shall be final and binding.
(b) Payment of the Debentures Repayment Price to Holders
of Debentures shall be made through the Trustee, subject to the Trustee's
receipt of payment from the Company in accordance with the terms of the
Indenture either through the Trustee or the Company acting as Paying Agent,
no later than 12:00 noon, New York City time, on the Put Option Exercise
Date, and to such account as may be designated by such Holders. If the
Trustee holds immediately available funds sufficient to pay the Debentures
Repayment Price of the Debentures presented for repayment (or, if the
Company is acting as Paying Agent and the Institutional Trustee has
received the Debentures Repayment Price), then, immediately prior to the
close of business on the Business Day immediately preceding the Put Option
Exercise Date, such Debentures will cease to be outstanding and interest
thereon will cease to accrue, whether or not such Debentures have been
received by the Company, and all other rights of the Holder in respect of
the Debentures, including the Holder's right to require the Company to
repay such Debentures, shall terminate and lapse (other than the right to
receive the Debentures Repayment Price upon delivery of such Debentures but
without interest on such Debentures Repayment Price). Neither the Trustee
nor the Company will be required to register or cease to be registered the
transfer of any Debentures for which repayment has been elected.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
The Company shall have the right at any time, and from time to
time, during the term of the Debentures, to defer payments of interest by
extending the interest payment period of such Debentures for a period not
extending, in the aggregate, beyond the Maturity Date of the Debentures
(the "Extended Interest Payment Period"), during which Extended Interest
Payment Period no interest shall be due and payable. To the extent
permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant
to this Section 4.1, will bear interest thereon at the rate of ___% until
February 15, 2001, and at the Reset Rate thereafter compounded quarterly
for each quarter of the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period, the Company
shall pay all interest accrued and unpaid on the Debentures, including any
expenses and taxes of the Trust set forth in Section 5.1 hereof and
Compounded Interest (together, "Deferred Interest") that shall be payable
to the Holders of the Debentures in whose names the Debentures are
registered in the Security Register on the first record date after the end
of the Extended Interest Payment Period; provided, however, that during any
such Extended Interest Payment Period, (a) the Company shall not declare or
pay dividends on or make any distribution with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock (other than (i) purchases or acquisitions of capital stock of
the Company in connection with the satisfaction by the Company of its
obligations under any employee or agent benefit plans or the satisfaction
by the Company of its obligations pursuant to any contract or security
outstanding on the date of such event requiring the Company to purchase
capital stock of the Company, (ii) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or
series of the Company's capital stock for another class or series of the
Company capital stock, (iii) the purchase of fractional interests in shares
of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (iv) dividends or distributions in capital stock of the Company
(or rights to acquire capital stock) or repurchases or redemptions of
capital stock solely from the issuance or exchange of capital stock or (v)
redemptions or repurchases of any rights outstanding under a shareholder
rights plan and the declaration thereunder of a dividend of rights in the
future), (b) the Company shall not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any debt securities
issued by the Company that rank junior to the Debentures, and (c) the
Company shall not make any guarantee payments with respect to the foregoing
(other than payments pursuant to the Guarantee or the Common Securities
Guarantee). Prior to the termination of any Extended Interest Payment
Period, the Company may further extend such period, provided that such
period together with all such previous and further extensions thereof shall
not extend beyond the Maturity Date of the Debentures. Upon the termination
of any Extended Interest Payment Period and the payment of all Deferred
Interest then due, the Company may commence a new Extended Interest Payment
Period, subject to the foregoing requirements. No interest shall be due and
payable during an Extended Interest Payment Period, except at the end
thereof, but the Company, at its option, may prepay on any Interest Payment
Date all or any portion of the interest accrued during the then elapsed
portion of an Extended Interest Payment Period.
SECTION 4.2. Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder of
the Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give written notice to the Regular Trustees, the
Institutional Trustee and the Trustee of its selection of such Extended
Interest Payment Period one Business Day before the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities issued by
the Trust are payable, or (ii) the date the Trust is required to give
notice of the record date, or the date such Distributions are payable, to
the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the Trust,
but in any event at least one Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give the Holders of the Debentures and the
Trustee written notice of its selection of such Extended Interest Payment
Period at least 10 Business Days before the earlier of (i) the next
succeeding Interest Payment Date, or (ii) the date the Company is required
to give notice of the record or payment date of such interest payment to
the New York Stock Exchange or other applicable self-regulatory
organization or to Holders of the Debentures.
SECTION 4.3. Limitation of Transactions.
If (i) the Company shall exercise its right to defer payment of
interest as provided in Section 4.1, or (ii) there shall have occurred any
Event of Default, as defined in the Indenture, then (a) the Company shall
not declare or pay dividends or make any distribution with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock (other than (i) purchases or acquisitions of
capital stock of the Company in connection with the satisfaction by the
Company of its obligations under any employee or agent benefit plans or the
satisfaction by the Company of its obligations pursuant to any contract or
security outstanding on the date of such event requiring the Company to
purchase capital stock of the Company, (ii) as a result of a
reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for
another class or series of the Company capital stock, (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (iv) dividends or distributions in capital
stock of the Company (or rights to acquire capital stock) or repurchases or
redemptions of capital stock solely from the issuance or exchange of
capital stock and (v) redemptions or repurchases of any rights outstanding
under a shareholder rights plan and the declaration thereunder of a
dividend of rights in the future), (b) the Company shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Company that rank junior to the
Debentures, and (c) the Company shall not make any guarantee payments with
respect to the foregoing (other than payments pursuant to the Guarantee or
the Common Securities Guarantee).
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Institutional Trustee and in connection with the sale of
the Trust Securities by the Trust, the Company, in its capacity as borrower
with respect to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters
payable pursuant to any Underwriting Agreement and the Pricing Agreement
and compensation of the Trustee under the Indenture in accordance with the
provisions of Section ___ of the Base Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust,
the offering, sale and issuance of the Trust Securities (including
commissions to the underwriters in connection therewith), the fees and
expenses of the Institutional Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing,
and disposition of Trust assets) to which the Trust might become subject;
(c) be primarily liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs
and expenses with respect to such taxes of the Trust.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the Base
Indenture or the removal or resignation of the Trustee pursuant to this
Section 5.2, the Company shall pay to the Trustee all amounts accrued to
the date of such termination, removal or resignation. Upon termination of
the Declaration or the removal or resignation of the Delaware Trustee or
the Institutional Trustee, as the case may be, pursuant to Section 5.6 of
the Declaration, the Company shall pay to the Delaware Trustee or the
Institutional Trustee, as the case may be, all amounts accrued to the date
of such termination, removal or resignation.
ARTICLE VI
NOTICE
SECTION 6.1. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article VI. Notwithstanding
any of the provisions of the Base Indenture and this First Supplemental
Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment of monies to or
by the Trustee in respect of the Debentures pursuant to the provisions of
the Base Indenture, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof from the Company or a holder or
holders of Senior Indebtedness or from any trustee therefor and before the
receipt of any such written notice, the Trustee, subject to the provisions
of the Base Indenture, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Article VI at least two Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any Debenture), then,
anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the
same to the purposes for which they were received, and shall not be
affected by any notice to the contrary that may be received by it within
two Business Days prior to such date.
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Clearing
Agency or a nominee of the Clearing Agency. This Debenture is exchangeable
for Debentures registered in the name of a person other than the Clearing
Agency or its nominee only in the limited circumstances described in the
Indenture, and no transfer of this Debenture (other than a transfer of this
Debenture as a whole by the Clearing Agency to a nominee of the Clearing
Agency or by a nominee of the Clearing Agency to the Clearing Agency or
another nominee of the Clearing Agency) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to
the issuer or its agent for registration of transfer, exchange or payment,
and any Debenture issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.]
No.
$
CUSIP No.
CENDANT CORPORATION
___% DEBENTURE
DUE FEBRUARY 16, 2003
CENDANT CORPORATION, a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
, the principal sum of ($______________) on February 16,
2003 (such date is hereinafter referred to as the "Maturity Date"), and to
pay interest on said principal sum from , , or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on February 16, May 16, August 16
and November 16 of each year, commencing on , initially at the rate of ___%
per annum until February 15, 2001, and at the Reset Rate thereafter until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the rate of ___% until February 15,
2001, and at the Reset Date thereafter, compounded quarterly. The interest
rate will be reset on the third business day preceding February 16, 2001 to
the Reset Rate (as determined by the Reset Agent). The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a
360-day year consisting of twelve 30-day months. In the event that any date
on which interest is payable on this Debenture is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this
Debenture (or one or more Predecessor Securities, as defined in said
Indenture) is registered at the close of business on the regular record
date for such interest installment which in the case of a Global Debenture
shall be the close of business on the business day next preceding such
Interest Payment Date; provided, however, if pursuant to the terms of the
indenture the Debentures are no longer represented by a Global Debenture,
the Company may select such regular record date for such interest
installment which shall be more than one Business Day but less than 60
Business Days prior to an Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall forthwith cease
to be payable to the registered Holders on such regular record date and may
be paid to the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered Holders of this
series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Debentures may be listed, and upon such notice as may be required by such
exchange all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is
legal tender for payment of public and private debts; provided, however,
that payment of interest may be made at the option of the Company by check
mailed to the registered Holder at such address as shall appear in the
Security Register or by wire transfer to an account appropriately
designated by the Holder entitled thereto. Notwithstanding the foregoing,
so long as the Holder of this Debenture is the Institutional Trustee or the
Collateral Agent, the payment of the principal of (and premium, if any) and
interest on this Debenture will be made at such place and to such account
as may be designated in writing by the Institutional Trustee or the
Collateral Agent.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, senior and unsecured and will rank in right of
payment on parity with all other senior unsecured obligations of the
Company.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been
signed by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated
CENDANT CORPORATION
By:--------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in
the within-mentioned Indenture.
Dated
-----------------------
- ---------------------------
as Trustee
By
---------------------------
Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Securities"), specified in
the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of , (the "Base Indenture"), duly
executed and delivered between the Company and The First National Bank of
Chicago, as Trustee (the "Trustee") (as supplemented by a First
Supplemental Indenture, dated , ), (the Base Indenture as so supplemented,
the "Indenture"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities. By the terms of the
Indenture, the Securities are issuable in series that may vary as to
amount, date of maturity, rate of interest and in other respects as
provided in the Indenture. This series of Securities is limited in
aggregate principal amount as specified in said First Supplemental
Indenture.
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem Debentures in whole (but not in part) at any time at a
Redemption Price per Debenture equal to the Redemption Amount plus accrued
and unpaid interest thereon, including Compounded Interest and expenses and
taxes of the Trust (each as defined herein), if any, to the Tax Event
Redemption Date. The Redemption Price shall be paid to each Holder of the
Debenture by the Company, no later than 12:00 noon, New York City time, on
the Tax Event Redemption Date, by check or wire transfer in immediately
available funds, at such place and to such account as may be designated by
each such Holder.
The Debentures are not entitled to the benefit of any sinking fund.
If a Failed Remarketing has occurred, each Holder of this
Debenture who holds this Debenture on the day immediately following the
Purchase Contract Settlement Date shall have the right (the "Put Option")
on or after the Business Day immediately following the Purchase Contract
Settlement Date, upon at least three Business Days' prior notice, to
require the Company to repurchase such Holder's Debentures on March 2, 2001
(the "Put Option Exercise Date"), either in whole or in part, at a
repayment price per Debenture equal to $50, plus accrued and unpaid
interest, if any, thereon to the date of payment including deferred
interest, if any (the "Debenture Repayment Price"). In order for the
Debentures to be so repurchased, the Company must receive, on or prior to
5:00 p.m. New York City Time on the third Business Day immediately
preceding the Put Option Exercise Date, at the principal executive offices
of Cendant Corporation in New York, New York, the Debentures to be
repurchased with the form entitled "Option to Elect Repayment" on the
reverse of or otherwise accompanying such Debentures duly completed. Any
such notice received by the Trustee shall be irrevocable. All questions as
to the validity, eligibility (including time of receipt) and acceptance of
the Debentures for repayment shall be determined by the Company, whose
determination shall be final and binding. The payment of the Debentures
Repayment Price in respect of such Debentures shall be made, either through
the Trustee or the Company acting as Paying Agent, no later than 12:00
noon, New York City time, on the Put Option Exercise Date.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of, among other things, adding any provisions to
or changing or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying the rights of the Holders of the
Debentures; provided, however, that, among other things, no such
supplemental indenture shall (i) reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon (subject
to the Company's right to defer such payments in the manner set forth
herein), or reduce any premium payable upon the redemption thereof, without
the consent of the Holder of each Debenture so affected, or (ii) reduce the
aforesaid percentage of Debentures, the Holders of which are required to
consent to any such supplemental indenture, without the consent of the
Holders of each Debenture then outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Securities of any series at the time
outstanding affected thereby, on behalf of all of the Holders of the
Debentures of such series, to waive a Default or Event of Default with
respect to such series, and its consequences, except a Default or Event of
Default in the payment of the principal of or premium, if any, or interest
on any of the Securities of such series. Any such consent or waiver by the
registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange for or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium,
if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
So long as the Company is not in default in the payment of interest on
the Debenture, the Company shall have the right at any time during the term
of the Debentures from time to time to extend the interest payment period
of such Debentures for a period not extending, in the aggregate, beyond the
Maturity Date of the Debentures (an "Extended Interest Payment Period"). At
the end of an Extended Interest Payment Period, the Company shall pay all
interest then accrued and unpaid (together with the interest thereon at the
rate of ___% until February 15, 2001 and at the Reset Rate thereafter to
the extent that payment of such interest is enforceable under applicable
law). In the event that the Company exercises this right, then (a) the
Company shall not declare or pay dividends or make any distribution with
respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than (i) purchases or
acquisitions of capital stock of the Company in connection with the
satisfaction by the Company of its obligations under any employee or agent
benefit plans or the satisfaction by the Company of its obligations
pursuant to any contract or security outstanding on the date of such event
requiring the Company to purchase capital stock of the Company, (ii) as
a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital
stock for another class or series of the Company capital stock, (iii) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (iv) dividends or distributions
in capital stock of the Company (or rights to acquire capital stock) or
repurchases or redemptions of capital stock solely from the issuance or
exchange of capital stock or (v) redemptions or purchases of any rights
outstanding under a shareholder rights plan and the declaration thereunder
of a dividend of rights in the future), (b) the Company shall not make any
payment of interest, principal or premium, if any, or repay, repurchase or
redeem any debt securities issued by the Company that rank junior to the
Debentures, and (c) the Company shall not make any guarantee payments with
respect to the foregoing (other than payments pursuant to the Guarantee or
the Common Securities Guarantee). Prior to the termination of any such
Extended Interest Payment Period, the Company may further extend the
interest payment period; provided, that such Extended Interest Payment
Period, together with all such previous and further extensions thereof, may
not extend beyond the Maturity Date of the Debenture. At the termination of
any such Extended Interest Payment Period and upon the payment of all
accrued and unpaid interest and any additional amount then due, the Company
may commence a new Extended Interest Payment Period, subject to the above
requirements.
As provided in the Indenture and subject to certain limitations therein
set forth, this Debenture is transferable by the registered Holder hereof
on the Security Register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in the
City of Chicago and State of Illinois accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company or the
Trustee duly executed by the registered Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount and
series will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any Paying Agent and the Security
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of
or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any Paying Agent nor any Security Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
The Indenture imposes certain limitations on the ability of the Company
to, among other things, merge or consolidate with any other Person or sell,
assign, transfer or lease all or substantially all of its properties or
assets. All such covenants and limitations are subject to a number of
important qualifications and exceptions. The Company must report
periodically to the Trustee on compliance with the covenants in the
Indenture.
The Debentures of this series are issuable only in registered form
without coupons in denominations of $50 and any integral multiple thereof.
This Global Debenture is exchangeable for Debentures in definitive form
only under certain limited circumstances set forth in the Indenture. As
provided in the Indenture and subject to certain limitations therein set
forth, Debentures of this series so issued are exchangeable for a like
aggregate principal amount of Debentures of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay $_____ principal amount of the within Debenture, pursuant
to its terms, on the "Put Option Exercise Date," together with any interest
thereon accrued but unpaid to the date of repayment, to the undersigned at:
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the
Indenture, a new Debenture or Debentures representing the remaining aggregate
principal amount of this Debenture.
For this Option to Elect Repayment to be effective, this Indenture with the
Option to Elect Repayment duly completed must be received by the Company at
Cendant Corporation, Attn: Corporate Secretary, 9 West 57th Street, New York,
New York 10019, no later than 5:00 p.m. on February 27, 2001.
Dated: Signature:--------------------------------
Signature Guarantee:---------------------
Note: The signature to this Option to Elect Repayment must correspond with
the name as written upon the face of the within Debenture in every
particular without alternation or enlargement or any change whatsoever.
----------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Debenture
to:
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
agent to transfer this Debenture on the books of the Trust. The agent
may substitute another to act for him or her.
Date: ____________________________________
Signature:--------------------------------
Signature Guarantee:----------------------
(Sign exactly as your name appears on the other side of this
Debenture)
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $ may, upon
execution of this First Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written
order of the Company, signed by its Chairman, its Vice Chairman, its
President, or any Vice President and its Treasurer or an Assistant
Treasurer, without any further action by the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.
The Indenture as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner
and to the extent herein and therein provided.
SECTION 9.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
SECTION 9.3. Governing Law.
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New
York, and for all purposes shall be construed in accordance with the laws
of said State.
SECTION 9.4. Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to
be invalid illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
this First Supplemental Indenture or of the Debentures, but this First
Supplemental Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 9.5. Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
SECTION 9.6. Preferred Securities Guarantee and Declaration.
The Preferred Securities Guarantee and the Declaration shall be
deemed to be specifically described in this First Supplemental Indenture
for purposes of clause (i) of the first proviso contained in Section 310(b)
of the Trust Indenture Act.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
CENDANT CORPORATION,
as Issuer
By:---------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK ,
as Trustee
By:---------------------------
Name:
Title:
EXHIBIT 5.1
CENDANT CORPORATION
9 West 57th Street
New York, NY 10019
October 13, 1999
Cendant Corporation
9 West 57th Street
New York, NY 10019
Ladies and Gentlemen:
I am acting as counsel for (1) Cendant Corporation, a corporation
organized under the laws of the State of Delaware (the "Company") and (2)
Cendant Capital III, Cendant Capital IV and Cendant Capital V, each a
statutory business trust formed under the Business Trust Act of the State
of Delaware (each, a "Trust"), in connection with the preparation of a
Registration Statement on Form S-3 (File No. 333-86469) filed with the
Securities and Exchange Commission on September 2, 1999 under the
Securities Act of 1933, as amended (the "Act") and Amendment No. 1 thereto
filed with the Commission on October 13, 1999 (such Registration Statement,
as so amended, being hereinafter referred to as the "Registration
Statement") in connection with the public offering of the Company's (i)
debentures (the "Debentures"), (ii) shares of common stock, $.01 par value
per share (collectively, the "Common Stock"), (iii) stock purchase
contracts to purchase the Common Stock (the "Stock Purchase Contracts") and
(iv) stock purchase units, each representing ownership of a Stock Purchase
Contract and Debentures, the Preferred Securities (as defined below) or
debt obligations of third parties, including U.S. Treasury Securities,
securing the holder's obligation to purchase the Common Stock under the
stock Purchase Contract ("Stock Purchase Units"). The Registration
Statement also relates to the registration under the Securities Act of
1933, as amended (the "Securities Act"), of preferred securities of the
Trusts (the "Preferred Securities") and guarantees of the Preferred
Securities by the Company (the "Preferred Securities Guarantees").
Capitalized terms used but not defined herein are used as defined in the
Registration Statement.
This opinion is being delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of (i) the
certificate of trust of Cendant Capital III, dated February 5, 1998, the
certificate of trust of Cendant Capital IV, dated August 20, 1999 and the
Certificate of Trust of Cendant Capital V, dated August 20, 1999, each as
filed with the Secretary of State of the State of Delaware; (ii) the
Declaration for each of the Trusts (including the designation of the terms
of the Preferred Securities annexed thereto); and (iii) the Preferred
Securities. I have also examined originals or copies, certified or
otherwise identified to my satisfaction, of such other documents,
certificates and records as I have deemed necessary or appropriate as a
basis for the opinions set forth herein.
In my examination, I have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to me as originals, the conformity to original
documents of all documents submitted to me as certified or photostatic
copies and the authenticity of the originals of such copies. In making my
examination of documents executed by parties other than the Trust, I have
assumed that such parties had the power, corporate or other, to enter into
and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution
and delivery by such parties of such documents and that such documents
constitute valid and binding obligations of such parties. In addition, I
have assumed that Preferred Securities when executed, will be substantially
in the form reviewed by me. As to any facts material to the opinions
expressed herein which were not independently established or verified, I
have relied upon oral or written statements and representations of
officers, trustees and other representatives of the Company, the Trusts and
others.
I am admitted to the bar in the States of New York and New
Jersey, and I express no opinion as to the laws of any other jurisdiction.
Based on the above, upon and subject to the foregoing, I am of
the opinion that:
1. The Company is a corporation duly incorporated and validly
existing pursuant to the laws of the State of Delaware.
2. The Debentures, the Common Stock, the Purchase Contracts, which
are covered by the Registration Statement, when sold will be
legally issued by the Company, duly authorized, fully paid and
non-assessable and, in the case of the Debentures, will
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms
except as such enforcement is subject to any applicable
bankruptcy insolvency, reorganization or other laws relating to
or affecting creditors' rights generally and general principles
of equity.
3. Upon issuance, the Preferred Securities Guarantee will constitute
the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as such enforcement is subject to any applicable
bankruptcy, insolvency, reorganization or other law relating to
or affecting creditors' rights generally and general principles
of equity.
I hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. I also consent to
the use of my name under the heading "Legal Opinions" in the prospectus
included in the Registration Statement. In giving this consent, I do not
thereby admit that I am within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission promulgated thereunder. This opinion is expressed as of the date
hereof unless otherwise expressly stated and I disclaim any undertaking to
advise you of any subsequent changes in the facts stated or assumed herein
or of any subsequent changes in applicable law.
Very truly yours,
/s/ Eric J. Bock, Esq.
________________________
Eric J. Bock
Vice President - Legal
EXHIBIT 5.2
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
October 13, 1999
Cendant Corporation
Cendant Capital III
Cendant Capital IV
Cendant Capital V
c/o Cendant Corporation
9 West 57th Street
New York, NY 10019
Re: Cendant Corporation; Cendant Capital III; Cendant Capital IV
and Cendant Captial V; Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to (1) Cendant Corporation (the
"Company"), a corporation organized under the laws of the State of
Delaware, and (2) Cendant Capital III, Cendant Capital IV and Cendant
Capital V (each, a "Trust" and, collectively, the "Trusts" ), each a
statutory business trust formed under the Business Trust Act of the State
of Delaware, in connection with the preparation of a Registration Statement
on Form S-3 (File No. 333-86469), filed with the Securities and Exchange
Commission (the "Commission") on September 2, 1999 under the Securities Act
of 1933, as amended (the "Act") and Amendment No. 1, thereto, filed with
the Commission on October 13, 1999 (such Registration Statement, as so
amended, being hereinafter referred to as the "Registration Statement") in
connection with the public offering of certain securities of the Company
and the Trusts. The Registration Statement relates to the registration
under the Act of the following securities of the Company: (i) debentures
(the "Debentures"), (ii) shares of common stock, $.01 par value per share (
the "Common Stock"), (iii) stock purchase contracts to purchase the Common
Stock (the "Stock Purchase Contracts") and (iv) Stock Purchase Units, each
representing ownership of a Stock Purchase Contract and Debentures, the
Preferred Securities (as defined below) or debt obligations of third
parties, including U.S. Treasury Securities, securing the holder's
obligation to purchase the Common Stock under the Stock Purchase Contract
("Stock Purchase Units"). The Registration Statement also relates to the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of preferred securities of the Trusts (the "Preferred Securities")
and guarantees of the Preferred Securities by the Company (the "Preferred
Securities Guarantees"). Capitalized terms used but not defined herein are
used as defined in the Registration Statement.
The Preferred Securities of each Trust are to be issued pursuant
to an Amended and Restated Declaration of Trust of such Trust, a form of
which is attached as an exhibit to the Registration Statement (the
"Declaration"), among the Company, as sponsor, Wilmington Trust Company, as
the institutional trustee (in such capacity, the "Institutional Trustee")
and as the Delaware trustee, and Michael P. Monaco and James E. Buckman, as
regular trustees.
This opinion is being delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
certificate of trust of Cendant Capital III, dated February 5, 1998, the
certificate of trust of Cendant Capital IV, dated August 20, 1999, and the
certificate of trust of Cendant Capital V, dated August 20, 1999, each as
filed with the Secretary of State of the State of Delaware; (ii) the
Declarations (including the designation of the terms of the Preferred
Securities annexed thereto) for each of the Trusts; and (iii) specimen
certificates of each of the Preferred Securities. We have also examined
originals or copies, certified or otherwise identified to our satisfaction,
of such other documents, certificates and records as we have deemed
necessary or appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photo static
copies and the authenticity of the originals of such copies. In making our
examination of documents executed by parties other than the Trusts, we have
assumed that such parties had the power, corporate or other, to enter into
and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution
and delivery by such parties of such documents and that such documents
constitute valid and binding obligations of such parties. As to any facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers, trustees and other representatives of the
Company, the Trusts and others.
Members of our firm are admitted to the bar in the States of New
York and Delaware, and we express no opinion as to the laws of any other
jurisdiction.
Based upon and subject to the foregoing and to the other
qualifications and limitations set forth herein, we are of the opinion that
the Preferred Securities have been duly authorized for issuance and, when
issued, executed and authenticated in accordance with the terms of the
applicable Declaration and delivered and paid for as contemplated by the
prospectus supplement included in the Registration Statement, will be
validly issued, fully paid and nonassessable, representing undivided
beneficial interests in the assets of the applicable Trust. We bring to
your attention, however, that the Preferred Securities holders may be
obligated, pursuant to the applicable Declaration, to (i) provide indemnity
and/or security in connection with and pay taxes or governmental charges
arising from transfers of Preferred Securities and (ii) provide security
and indemnity in connection with the requests of or directions to the
Institutional Trustee to exercise its rights and powers under the
applicable Declaration.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. We also consent to
the use of our name under the heading "Legal Matters" in the prospectus
supplement included in the Registration Statement. In giving this consent,
we do not thereby admit that we are within the category of persons whose
consent is required under Section 7 of the Act or the rules and regulations
of the Commission promulgated thereunder. This opinion is expressed as of
the date hereof unless otherwise expressly stated and we disclaim any
undertaking to advise you of any subsequent changes in the facts stated or
assumed herein or of any subsequent changes in applicable law.
Very truly yours,
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP
EXHIBIT 12.1
CENDANT CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN MILLIONS)
In connection with the Company's discovery and announcement of accounting
irregularities, previously reported information for periods prior to
December 31, 1994 should not be relied upon. Accordingly, the computation
of Ratio of Earnings to Fixed Charges is presented for the six months ended
June 30, 1999 and for the years subsequent to and
including December 31, 1995.
SIX MONTHS ENDED YEAR ENDED DECEMBER 31,
----------------------------------------------------
JUNE 30, 1999 1998 1997 1996 1995
---------------------- ------------ ------------ ------------ ------------
Income from continuing operations before income
taxes, minority interest, extraordinary gain
and cumulative effect of accounting change $ 1,311.6 $ 315.0 $ 257.3 $ 533.5 $ 350.3
Plus: Fixed changes 363.8 676.6 409.4 325.6 291.2
Less: Equity income (loss) in unconsolidated
affiliates 8.0 13.5 51.3 - -
Capitalized interest - - - 0.6 -
Minority interest in
mandatorily preferred securities 48.2 80.4 - - -
---------------------- ------------ ------------ ------------ ------------
Earnings available to cover fixed charges $ 1,619.2 $ 897.7 $ 615.4 $ 858.5 $ 641.5
====================== ============ ============ ============ ==========
Fixed charges (1):
Interest, including amortization of deferred
financing costs $ 278.6 $ 509.0 $ 379.0 $ 299.9 $ 270.4
Capitalized costs - - - 0.6 -
Other charges, financing costs - 27.9 - - -
Minority interest in mandatorily preferred
securities 48.2 80.4 - - -
Interest portion of rental payment 37.0 59.3 30.4 25.1 20.8
---------------------- ------------ ------------ ------------ ------------
Total fixed charges $ 363.8 $ 676.6 $ 409.4 $ 325.6 $ 291.2
====================== ============ ============ ============ ============
Ratio of earnings to fixed charges 4.4x(2) 1.33x(3) 1.50x(3) 2.64x(3) 2.20x(3)
====================== ============ ============ ============ ============
- ---------------
(1) Fixed charges consist of interest expense on all indebtedness
(including amortization of deferred financing costs) and the
portion of operating lease rental expense that is representative of
the interest factor (deemed to be one-third of operating lease
rentals).
(2) For the six months June 30, 1999, income from continuing operations
before income taxes and minority interest includes non-recurring
charges of $36.9 million and a net gain on disposition of
businesses of $749.5 million. Excluding such items, the ratio of
earnings to fixed charges for the six months ended June 30, 1999 is
2.49x.
(3) For the years ended December 31, 1998, 1997, 1996 and 1995, income
from continuing operations before income taxes, minority interest,
extraordinary gain and cumulative effect of accounting change
includes non-recurring other charges of $810.4 million (exclusive
of financing costs of $27.9 million), $704.1 million, $109.4
million and $97.0 million, respectively. Excluding such charges,
the ratio of earnings to fixed charges for the years ended December
31, 1998, 1997, 1996 and 1995 is 2.52x, 3.22x, 2.97x and 2.54x,
respectively.
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Amendment No. 1
to Registration Statement number 333-86469 of Cendant Corporation on form
S-3 of our report dated October 8, 1999, appearing in the Annual Report of
Cendant Corporation on form 10- K/A for the year ended December 31, 1998
(which expresses an unqualified opinion and includes an explanatory
paragraph relating to certain litigation as described in Note 18, and the
change in the method of recognizing revenue and membership solicitation
costs as described in Note 2) and to the reference to us under the heading
"Experts" in the Prospectus, which is part of such Registration Statement.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
October 8, 1999
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
PHH Corporation:
We consent to the incorporation by reference in Amendment No. 1 to
the Registration Statement on Form S-3 (No. 333-86469) of Cendant
Corporation of our report dated April 30, 1997, with respect to the
consolidated statements of income, shareholder's equity and cash flows of
PHH Corporation and subsidiaries (the "Company") for the year ended
December 31, 1996, before the restatement related to the merger of Cendant
Corporation's relocation business with the Company and reclassifications to
conform to the presentation used by Cendant Corporation, which report is
included in the Annual Report on Form 10-K/A of Cendant Corporation for the
year ended December 31, 1998. We also consent to the reference to our name
under the heading "Experts" in the Registration Statement.
KPMG LLP
Baltimore, Maryland
October 7, 1999
_____________________________________________________________________________
_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________________________________________________________
FORM T- 1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) ________________
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5691211
(State of Incorporation (I.R.S. employer
If not a U.S. national bank) Identification number)
One Liberty Plaza
New York, N.Y.
(Address of principal 10006
Executive office) (Zip code)
_____________________________________________________________________________
CENDANT CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
060918165
(I.R.S. employer identification no.)
6 Sylvan Way
Parsippany, N.J. 07054
(Address of principal executive offices) (Postal Code)
_____________________________________________________________________________
SENIOR DEBENTURES
(Title of the indenture securities)
Item 1. General Information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Reserve Bank of New York
33 Liberty Street
New York, N. Y. 10045
State of New York Banking Department
State House, Albany, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust
powers.
Item 2. Affiliation with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation. The obligor is not an affiliate of the
Trustee.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
Exhibit I - Copy of the Organization Certificate of the
Trustee as now in effect. (Exhibit I to T-1 to
Registration Statement No. 3336688).
Exhibit 2 - Copy of the Certificate of Authority of the
Trustee to commerce business. (Exhibit 2 to T-1 to
Registration Statement No. 333-6688).
Exhibit 3 - None; authorization to exercise corporate trust
powers is contained in the documents identified
above as Exhibit I and 2.
Exhibit 4 - Copy of the existing By-Laws of the Trustee.
(Exhibit 4 to T- 1 to Registration Statement No.
333-6688).
Exhibit 5 - No Indenture referred to in Item 4.
Exhibit 6 - The consent of the Trustee required by Section
321 (b) of the Trust Indenture Act of 1939.(Exhibit
6 to T-1 to Registration Statement No. 333-27685).
Exhibit 7 - Copy of the latest Report of Condition of the
Trustee as of June 30, 1999
SIGNATURE
Pursuant to the requirements of the Trust Indenture
Act of 1939, the Trustee, The Bank of Nova Scotia Trust Company of New
York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
New York, and State of New York, on the 1st day of September, 1999.
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK
By: /s/ Warren Goshine
_________________________
Warren Goshine
Secretary
FFIEC 034
Page RC- I
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK LEGAL TITLE OF BANK
- ---------------------------------------------------------------------------
LEGAL TITLE OF BANK
NEW YORK
- ---------------------------------------------------------------------------
CITY
NEW YORK 10006
- ---------------------------------------------------------------------------
STATE ZIP CODE
FDIC CERTIFICATE NUMBER _ _ _ _ _
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC-BALANCE SHEET
Dollar Amounts in Thousands C100
- -----------------------------------------------------------------------------------------------------------------
Mil Thou
ASSETS
1. Cash and balances due from depository institutions:
a. Noninterest-bearing balances and currency and coin[1,2] ........................ RCON 13 643 1.a.
0081
b. Interest-bearing balances[3] ................................................... RCON 1.b.
0071
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) ..................... RCON 1 371 2.a.
1754
b. Available-for-sale securities (from Schedule RC-8, column D) ................... RCON 0 2.b.
1773
3. Federal funds sold[4] and securities purchased under agreements to resell .......... RCON 3 852 3.
1350
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) RCON 4.a.
2122
b. LESS: Allowance for loan and lease losses 3123 4.b. RCON 4.b.
3123
c. LESS. Allocated transfer risk reserve RCON 4.c.
3128
d. Loans and leases, net of unearned income, allowance, and reserve ............... RCON 0 4.d.
(item 4.a minus 4.b and 4.c) 2125
5. Trading assets RCON 0 5.
3545
6. Premises and fixed assets (including capitalized leases) RCON 243 6.
2145
7. Other real estate owned (from Schedule RC-M) RCON 0 7.
2150
8. Investments in unconsolidated subsidiaries and associated companies RCON 0 8.
(from Schedule RC-M) 2130
9. Customers' liability to this bank on acceptances outstanding RCON 0 9.
2155
10. Intangible assets (from Schedule RC-M) RCON 7 455 10.
2143
11. Other assets (from Schedule RC-F) RCON 779 11.
2160
12. Total assets (sum of items 1 through 11) RCON 28 873 12.
2170
[1] Includes cash items in process of collection and unposted debits.
[2] The amount reported in this item must be greater than or equal to the
sum of Schedule RC-M, items 3.a and 3.b.
[3] Includes time certificates of deposit not held for trading.
[4] Report "term federal funds sold" in Schedule RC, item 4.a, "Loans and
leases, not of unearned income," and in Schedule RC-C, part I.
Before second table
Dollar Amounts in Thousands C100
- -------------------------------------------------------------------------------------------------------------------
Mil Thou
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON 15 928 13.a.
from Schedule RC-E) 2200
(1) Noninterest-bearing[1] RCON 15 764 13.a.(1)
6631
(2) Interest-bearing RCON 164 13.a.(2)
6636
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased[2] and securities sold under RCON 0 14.
agreements to repurchase 2800
15. a. Demand notes issued to the U.S. Treasury RCON 0 15.a.
2840
b. Trading liabilities RCON 0 15.b.
3548
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
a. With a remaining maturity of one year or less IS 0 RCON 0 16.a.
2332
b. With a remaining maturity of more than one year through RCON 0 16.b.
three years A547
c. With a remaining maturity of more than three years RCON 0 16.c.
A548
17. Not applicable
18. Bank's liability on acceptances executed and outstanding RCON 0 18.
2920
19. Subordinated notes and debentures[3] RCON 0 19.
3200
20. Other liabilities (from Schedule RC-G) 12c. . e 2 RCON 2 510 20.
2930
21. Total liabilities Isum, of items 13 through 20) RCON 18 438 21.
2948
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCON 0 23.
3838
24. Common stock RCON 1 000 24.
3230
25. Surplus (exclude all surplus related to preferred stock) RCON 8 200 25.
3839
26. a. Undivided profits and capital reserves RCON 1 235 26.a
3632
b. Net unrealized holding gains (losses) on available-for-sale RCON 0 26.b.
securities 8434
c. Accumulated not gains (losses) on cash flow hedges RCON 0 26.c.
4336
27. Cumulative foreign currency translation adjustments
28. Total equity capital (sum of items 23 through 27) RCON 10 435 28.
3210
29. Total liabilities and equity capital (sum of items 21 and 28) RCON 28 873 29.
3300
Memorandum
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number auditors as of any date
during 1998
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed accordance with generally
accepted auditing by standards by other external auditors Imay be
required by a certified public accounting firm which submits state a
report chartering authority) on the bank
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
[1] Includes total demand deposits and nonintarest-bearing time and
savings deposits.
[2] Report "term federal funds purchased" in Schedule RC, item 16,
"Other borrowed money."
[3] Includes limited-life preferred stock and related surplus.
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CENDANT CORPORATION
CENDANT CAPITAL III
(Exact name of obligor as specified in its charter)
Delaware 06-0918165
Delaware 22-3565321
(State of incorporation) (I.R.S. employer identification no.)
9 Sylvan Way
Parsippany, New Jersey 07054
(Address of principal executive offices) (Zip Code)
Preferred Securities of Cendant Capital III
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is not
an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by
Section 321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington
Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th
day of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Joseph B. Feil By: /s/ Bruce L. Bisson
------------------------- ----------------------------
Assistant Secretary Name: Bruce L. Bisson
Title: Vice President
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 10, 1999 By: /s/ Bruce L. Bisson
----------------------------
Name: Bruce L. Bisson
Title: Vice President
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate
the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and
the name of which company was changed to "WILMINGTON TRUST Company" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been
from time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of
Delaware, does hereby alter and amend its Charter or Act of Incorporation
so that the same as so altered and amended shall in its entirety read as
follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is WILMINGTON
TRUST COMPANY whose address is Rodney Square North, in said City.
In addition to such principal office, the said corporation
maintains and operates branch offices in the City of Newark, New
Castle County, Delaware, the Town of Newport, New Castle County,
Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle
County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware
Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other
branch offices or places of business as may be authorized from
time to time by the agency or agencies of the government of the
State of Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court
of law or equity and to make and use a common seal, and
alter the seal at pleasure, to hold, purchase, convey,
mortgage or otherwise deal in real and personal estate
and property, and to appoint such officers and agents as
the business of the Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of
the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of
money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all
the powers, rights, privileges and franchises incident to
a corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or
any estate or interests therein, and to guarantee the
holder of such property, real or personal, against any
claim or claims, adverse to his interest therein, and to
prepare and give certificates of title for any lands or
premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management
of funds, and the purchase, sale, management and disposal
of property of all descriptions, and to prepare and
execute all papers which may be necessary or proper in
such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other
personal property of every sort and kind, from executors,
administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries,
and from all other persons and individuals, and from all
corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of
any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state,
municipality, body politic, corporation, association or
person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of
any contract or agreement, and the fidelity of persons
holding places of responsibility or trust; to become
surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations,
or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or
decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and
all estates and property, real, personal or mixed, and to
be appointed as such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State
of Delaware or elsewhere; and whenever this Corporation
is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon
it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake
or be called upon to perform, or for the assumption of
any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other
securities, obligations, contracts and evidences of
indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or
of the Government of the United States, or of any state,
territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect,
receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in
respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys
of the Corporation upon such securities and in such
manner as it may think fit and proper, and from time to
time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the
property held or owned by the Corporation, and to sell
and pledge such bonds, as and when the Board of Directors
shall determine, and in the promotion of its said
corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate
or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to
the same extent as natural persons might or could do, and
in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association
or corporation, and to pay for the same in cash, stock of
this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the
property so purchased; to conduct in any lawful manner
the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts
of every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw,
make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any
of its operations and businesses, without restriction to
the same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and
in any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said
paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock,
par value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock,
par value $1.00 per share (hereinafter referred to as
"Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock shall
be alike in every particular, except that there may be different
dates from which dividends, if any, thereon shall be cumulative,
if made cumulative. The voting powers and the preferences and
relative, participating, optional and other special rights of each
such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series
at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board
of Directors of the Corporation is hereby expressly granted
authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of a particular series of Preferred Stock,
the voting powers and the designations, preferences and relative,
optional and other special rights, and the qualifications,
limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or
decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the
Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred
Stock of such series shall be paid, the extent of the
preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or
series of the same or other class of stock and whether
such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock
of such series to convert the same into or exchange the
same for, shares of any other class or classes or of any
series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall
be subject to redemption, and the redemption price or
prices and the time or times at which, and the terms and
conditions on which, Preferred Stock of such series may
be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale
of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the
Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as
a series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation
if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or
under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
all the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed
in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall
be entitled to receive such dividends as may be declared from time
to time by the Board of Directors.
(2) After distribution in full of the preferential
amount, if any, (fixed in accordance with the provisions
of section (b) of this Article FOURTH), to be distributed
to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the
Corporation, the holders of the Common Stock shall be
entitled to receive all of the remaining assets of the
Corporation, tangible and intangible, of whatever kind
available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held
by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b)
of this Article FOURTH, each holder of Common Stock shall
have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other securities of the Corporation
shall have any preemptive right to purchase or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or
other securities convertible into or exchangeable for stock of the
Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued
stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to
such persons, firms, corporations or associations, whether such
holders or others, and upon such terms as may be deemed advisable
by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences
and rights of each other series of Preferred Stock shall, in each
case, be as fixed from time to time by the Board of Directors in
the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such of the
series of Preferred Stock as are from time to time outstanding
shall not be required for the issuance by the Board of Directors
of any other series of Preferred Stock whether or not the powers,
preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock
adopted pursuant to section (b) of this Article FOURTH that the
consent of the holders of a majority (or such greater proportion
as shall be therein fixed) of the outstanding shares of such
series voting thereon shall be required for the issuance of any or
all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series
of Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of
Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the term
of any director at the time in office, and provided further, that
the number of directors constituting the whole Board shall be
twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting.
Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the
directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the
By-Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed,
as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations
which are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should
so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any action
is specifically denied.
SIXTH: - The Directors shall choose such officers, agents and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time to
time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional
By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the books
of the Company outside of the State of Delaware at such places as
may be from time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required
by law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii)
any other corporation (whether or not itself an
Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter
defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested
Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of
$1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder, or any
Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or
that some lesser percentage may be specified, by law or in any agreement
with any national securities exchange or otherwise.
(2) The term "business combination" as used in
this Article FIFTEENTH shall mean any
transaction which is referred to in any one or
more of clauses (A) through (E) of paragraph 1
of the section (a).
(b) The provisions of section (a) of this Article
FIFTEENTH shall not be applicable to any particular
business combination and such business combination shall
require only such affirmative vote as is required by law
and any other provisions of the Charter or Act of
Incorporation or By-Laws if such business combination has
been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote on
such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at
any time within two years prior thereto beneficially
owned by any Interested Stockholder, and such assignment
or succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned
person or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares
of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and
duty to determine for the purposes of this Article
FIFTEENTH on the basis of information known to them, (1)
the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate
of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business
combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except to the extent
such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with
respect to any act or omission occurring prior to the
time of such repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or
at such other date, time, or place as may be designated by resolution by
the Board of Directors.
Section 2. Special meetings of all stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before said
meeting, at his last known address, a written or printed notice fixing the
time and place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined,
shall constitute a quorum at all meetings of stockholders for the
transaction of any business, but the holders of a small number of shares
may adjourn, from time to time, without further notice, until a quorum is
secured. At each annual or special meeting of stockholders, each
stockholder shall be entitled to one vote, either in person or by proxy,
for each share of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as determined
herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any
person who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of
the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority of
the directors.
Section 7. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in the
time or place of any regular meeting, stating the time and place of such
meeting, which shall be mailed not less than two days before the time of
holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect the
successor who shall hold office for the remainder of the full term of the
class of directors in which the vacancy occurred, and until such director's
successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President
who may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may
appoint at any time such other committees and elect or appoint such other
officers as it may deem advisable. The Board of Directors may also elect at
such meeting one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be
in charge of such of the departments or divisions of the Company as it may
deem advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed
of not more than nine members who shall be selected by the Board of
Directors from its own members and who shall hold office during the
pleasure of the Board.
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact all
business for and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of the
Chairman of the Executive Committee or at the call of the Chairman of the
Board of Directors. The majority of its members shall be necessary to
constitute a quorum for the transaction of business. Special meetings of
the Executive Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its next
meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the Company,
and shall direct the disposal of the same, in accordance with such rules
and regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the affairs
and business of the Company by its directors and officers as contemplated
by these By-Laws any two available members of the Executive Committee as
constituted immediately prior to such disaster shall constitute a quorum of
that Committee for the full conduct and management of the affairs and
business of the Company in accordance with the provisions of Article III of
these By-Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available for the
transaction of its business, such Executive Committee shall also be
empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at
such time, of a minimum of two members of such Executive Committee, any
three available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the foregoing provisions of this Section. This By-Law shall
be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose,
and any provisions of these By-Laws (other than this Section) and any
resolutions which are contrary to the provisions of this Section or to the
provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim
Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its
affairs and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of
not more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of Directors
and who shall hold office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust funds, in
all matters, however, being subject to the approval of the Board of
Directors.
(C) The Trust Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members or at the call of its
chairman. A majority of its members shall be necessary to constitute a
quorum for the transaction of business.
(D) Minutes of each meeting of the Trust
Committee shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power
to appoint Committees and/or designate officers or employees of the Company
to whom supervision over the investment of trust funds may be delegated
when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of
five members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall hold
office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to the
approval of the Board of Directors; it shall consider all matters brought
to its attention by the officer in charge of the Audit Division, review all
reports of examination of the Company made by any governmental agency or
such independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or with
respect to any other matters pertaining to auditing the Company as it shall
deem desirable.
(C) The Audit Committee shall meet whenever
and wherever the majority of its members shall deem it to be proper for the
transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be
composed of not more than five (5) members who shall be selected by the
Board of Directors from its own members who are not officers of the Company
and who shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in
general advise upon all matters of policy concerning the Company brought to
its attention by the management and from time to time review the management
of the Company, major organizational matters, including salaries and
employee benefits and specifically shall administer the Executive Incentive
Compensation Plan.
(C) Meetings of the Compensation Committee may
be called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director
may be elected by the Board of Directors as an associate director, to serve
during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all
matters brought to the Board, with the exception that he would have no
right to vote. An associate director will be eligible for appointment to
Committees of the Company, with the exception of the Executive Committee,
Audit Committee and Compensation Committee, which must be comprised solely
of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any
member of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers
and shall perform such duties as the Board of Directors may from time to
time confer and direct. He shall also exercise such powers and perform such
duties as may from time to time be agreed upon between himself and the
President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of
Directors at which the Chairman of the Board shall not be present and shall
have such further authority and powers and shall perform such duties as the
Board of Directors or the Chairman of the Board may from time to time
confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute or assigned to him by the Board of Directors. In the absence of the
Chairman of the Board the President shall have the powers and duties of the
Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and
shall at all times exercise general supervision over the interest, affairs
and operations of the Company and perform all duties incident to his
office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them
by the Board of Directors, the Executive Committee, the Chairman of the
Board or the President and by the officer in charge of the department or
division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition
to the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed
well in advance of the scheduled date of any other meeting. He shall have
custody of the corporate seal and shall affix the same to any documents
requiring such corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and
of all the transactions of the Company. He shall have general supervision
of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and
perform such other duties as may be assigned to him from time to time by
the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times
a report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller
and such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be
in charge of the Audit Division of the Company with such title as the Board
of Directors shall prescribe, shall report to and be directly responsible
only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge of
the Audit Division.
Section 10. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined
from time to time by the Board of Directors, who shall ex officio hold the
office Assistant Secretary of this Company and who may perform such duties
as may be prescribed by the officer in charge of the department or division
to whom they are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of
the Company and a transfer book shall be kept in which all transfers of
stock shall be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an Assistant
Secretary, and the seal of the corporation shall be engraved thereon. Each
certificate shall recite that the stock represented thereby is
transferrable only upon the books of the Company by the holder thereof or
his attorney, upon surrender of the certificate properly endorsed. Any
certificate of stock surrendered to the Company shall be cancelled at the
time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of
Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to
fix in advance a record date for the determination of the stockholders
entitled to notice of, and to vote at, any meeting of stockholders and any
adjournment thereof, or entitled to receive payment of any dividend, or to
any allotment or rights, or to exercise any rights in respect of any
change, conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection
with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power
and authority to attest and affix the corporate seal of the Company to any
and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business
of this Company or in acting as executor, administrator, guardian, trustee,
agent or in any other fiduciary or representative capacity by any and every
method of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of Directors
or the Executive Committee, and any and all such instruments shall have the
same force and validity as though expressly authorized by the Board of
Directors and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable
honoraria or fees for attending meetings of the Board of Directors as the
Board of Directors may from time to time determine. Directors and associate
directors who serve as members of committees, other than salaried employees
of the Company, shall be paid such reasonable honoraria or fees for
services as members of committees as the Board of Directors shall from time
to time determine and directors and associate directors may be employed by
the Company for such special services as the Board of Directors may from
time to time determine and shall be paid for such special services so
performed reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or
may hereafter be amended, any person who was or is made or is threatened to
be made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding")
by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or
of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses
incurred in defending any proceeding in advance of its final disposition,
provided, however, that the payment of expenses incurred by a Director or
officer in his capacity as a Director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an
undertaking by the Director or officer to repay all amounts advanced if it
should be ultimately determined that the Director or officer is not
entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment
of expenses, under this Article X is not paid in full within ninety days
after a written claim therefor has been received by the Corporation the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of the Charter or
Act of Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the
foregoing provisions of this Article X shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all
the members of the Board of Directors then in office.
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and
savings banks with state publication requirements. It has
not been approved by any state banking authorities. Refer
to your appropriate state banking authorities for your
state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ----------------------------------------- --------------
Name of Bank City
in the State of DELAWARE, at the close of business on June 30, 1999.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins...................................207,947
Interest-bearing balances................................................................. 0
Held-to-maturity securities.................................................................... 37,680
Available-for-sale securities................................................................1,598,933
Federal funds sold and securities purchased under agreements to resell.........................180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,237,557
LESS: Allowance for loan and lease losses. . . . . . 70,233
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve....................4,167,324
Assets held in trading accounts......................................................................0
Premises and fixed assets (including capitalized leases).......................................141,415
Other real estate owned......................................................................... 922
Investments in unconsolidated subsidiaries and associated companies..............................1,227
Customers' liability to this bank on acceptances outstanding.........................................0
Intangible assets............................................................................... 5,179
Other assets...................................................................................104,101
Total assets.................................................................................6,445,094
LIABILITIES
Deposits:
In domestic offices..........................................................................4,574,509
Noninterest-bearing . . . . . . . . 992,436
Interest-bearing. . . . . . . . . . 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase.................... 344,719
Demand notes issued to the U.S. Treasury........................................................83,802
Trading liabilities (from Schedule RC-D).............................................................0
Other borrowed money:..........................................................................///////
With original maturity of one year or less............................................860,000
With original maturity of more than one year...........................................43,000
Bank's liability on acceptances executed and outstanding.............................................0
Subordinated notes and debentures....................................................................0
Other liabilities (from Schedule RC-G)....................................................... 80,279
Total liabilities............................................................................5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................................0
Common Stock.......................................................................................500
Surplus (exclude all surplus related to preferred stock)........................................62,118
Undivided profits and capital reserves.........................................................412,409
Net unrealized holding gains (losses) on available-for-sale securities........................(16,242)
Total equity capital...........................................................................458,785
Total liabilities, limited-life preferred stock, and equity capital..........................6,445,094
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CENDANT CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 06-0918165
(State of incorporation) (I.R.S. employer identification no.)
9 Sylvan Way
Parsippany, New Jersey 07054
(Address of principal executive offices) (Zip Code)
Guarantees and backup undertakings of Cendant
Corporation in connection with Preferred
Securities of Cendant Capital III
by Cendant Corporation
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe
each affiliation:
Based upon an examination of the books and records of
the trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington
Trust Company to commence business and the
authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington
Trust Company.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Wilmington Trust Company, a corporation
organized and existing under the laws of Delaware, has duly caused this
Statement of Eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Wilmington and State of
Delaware on the 10th day of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/Joseph B. Feil By: /s/Bruce L. Bisson
----------------------- -----------------------
Assistant Secretary Name: Bruce L. Bisson
Title: Vice President
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939,
as amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 10, 1999 By: /s/ Bruce L. Bisson
----------------------------
Name: Bruce L. Bisson
Title: Vice President
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate
the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and
the name of which company was changed to "WILMINGTON TRUST Company" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been
from time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of
Delaware, does hereby alter and amend its Charter or Act of Incorporation
so that the same as so altered and amended shall in its entirety read as
follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is WILMINGTON
TRUST COMPANY whose address is Rodney Square North, in said City.
In addition to such principal office, the said corporation
maintains and operates branch offices in the City of Newark, New
Castle County, Delaware, the Town of Newport, New Castle County,
Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle
County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware
Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other
branch offices or places of business as may be authorized from
time to time by the agency or agencies of the government of the
State of Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court
of law or equity and to make and use a common seal, and
alter the seal at pleasure, to hold, purchase, convey,
mortgage or otherwise deal in real and personal estate
and property, and to appoint such officers and agents as
the business of the Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of
the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of
money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all
the powers, rights, privileges and franchises incident to
a corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or
any estate or interests therein, and to guarantee the
holder of such property, real or personal, against any
claim or claims, adverse to his interest therein, and to
prepare and give certificates of title for any lands or
premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management
of funds, and the purchase, sale, management and disposal
of property of all descriptions, and to prepare and
execute all papers which may be necessary or proper in
such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other
personal property of every sort and kind, from executors,
administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries,
and from all other persons and individuals, and from all
corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of
any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state,
municipality, body politic, corporation, association or
person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of
any contract or agreement, and the fidelity of persons
holding places of responsibility or trust; to become
surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations,
or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or
decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and
all estates and property, real, personal or mixed, and to
be appointed as such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State
of Delaware or elsewhere; and whenever this Corporation
is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon
it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake
or be called upon to perform, or for the assumption of
any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other
securities, obligations, contracts and evidences of
indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or
of the Government of the United States, or of any state,
territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect,
receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in
respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys
of the Corporation upon such securities and in such
manner as it may think fit and proper, and from time to
time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the
property held or owned by the Corporation, and to sell
and pledge such bonds, as and when the Board of Directors
shall determine, and in the promotion of its said
corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate
or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to
the same extent as natural persons might or could do, and
in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association
or corporation, and to pay for the same in cash, stock of
this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the
property so purchased; to conduct in any lawful manner
the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts
of every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw,
make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any
of its operations and businesses, without restriction to
the same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and
in any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said
paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock,
par value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock,
par value $1.00 per share (hereinafter referred to as
"Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock shall
be alike in every particular, except that there may be different
dates from which dividends, if any, thereon shall be cumulative,
if made cumulative. The voting powers and the preferences and
relative, participating, optional and other special rights of each
such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series
at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board
of Directors of the Corporation is hereby expressly granted
authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of a particular series of Preferred Stock,
the voting powers and the designations, preferences and relative,
optional and other special rights, and the qualifications,
limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or
decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the
Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred
Stock of such series shall be paid, the extent of the
preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or
series of the same or other class of stock and whether
such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock
of such series to convert the same into or exchange the
same for, shares of any other class or classes or of any
series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall
be subject to redemption, and the redemption price or
prices and the time or times at which, and the terms and
conditions on which, Preferred Stock of such series may
be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale
of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the
Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as
a series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation
if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or
under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
all the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed
in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall
be entitled to receive such dividends as may be declared from time
to time by the Board of Directors.
(2) After distribution in full of the preferential
amount, if any, (fixed in accordance with the provisions
of section (b) of this Article FOURTH), to be distributed
to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the
Corporation, the holders of the Common Stock shall be
entitled to receive all of the remaining assets of the
Corporation, tangible and intangible, of whatever kind
available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held
by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b)
of this Article FOURTH, each holder of Common Stock shall
have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other securities of the Corporation
shall have any preemptive right to purchase or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or
other securities convertible into or exchangeable for stock of the
Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued
stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to
such persons, firms, corporations or associations, whether such
holders or others, and upon such terms as may be deemed advisable
by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences
and rights of each other series of Preferred Stock shall, in each
case, be as fixed from time to time by the Board of Directors in
the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such of the
series of Preferred Stock as are from time to time outstanding
shall not be required for the issuance by the Board of Directors
of any other series of Preferred Stock whether or not the powers,
preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock
adopted pursuant to section (b) of this Article FOURTH that the
consent of the holders of a majority (or such greater proportion
as shall be therein fixed) of the outstanding shares of such
series voting thereon shall be required for the issuance of any or
all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series
of Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of
Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the term
of any director at the time in office, and provided further, that
the number of directors constituting the whole Board shall be
twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting.
Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the
directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the
By-Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed,
as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations
which are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should
so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any action
is specifically denied.
SIXTH: - The Directors shall choose such officers, agents and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time to
time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional
By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the books
of the Company outside of the State of Delaware at such places as
may be from time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required
by law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii)
any other corporation (whether or not itself an
Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter
defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested
Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of
$1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder, or any
Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or
that some lesser percentage may be specified, by law or in any agreement
with any national securities exchange or otherwise.
(2) The term "business combination" as used in
this Article FIFTEENTH shall mean any
transaction which is referred to in any one or
more of clauses (A) through (E) of paragraph 1
of the section (a).
(b) The provisions of section (a) of this Article
FIFTEENTH shall not be applicable to any particular
business combination and such business combination shall
require only such affirmative vote as is required by law
and any other provisions of the Charter or Act of
Incorporation or By-Laws if such business combination has
been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote on
such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at
any time within two years prior thereto beneficially
owned by any Interested Stockholder, and such assignment
or succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned
person or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares
of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and
duty to determine for the purposes of this Article
FIFTEENTH on the basis of information known to them, (1)
the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate
of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business
combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except to the extent
such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with
respect to any act or omission occurring prior to the
time of such repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or
at such other date, time, or place as may be designated by resolution by
the Board of Directors.
Section 2. Special meetings of all stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before said
meeting, at his last known address, a written or printed notice fixing the
time and place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined,
shall constitute a quorum at all meetings of stockholders for the
transaction of any business, but the holders of a small number of shares
may adjourn, from time to time, without further notice, until a quorum is
secured. At each annual or special meeting of stockholders, each
stockholder shall be entitled to one vote, either in person or by proxy,
for each share of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as determined
herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any
person who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of
the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority of
the directors.
Section 7. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in the
time or place of any regular meeting, stating the time and place of such
meeting, which shall be mailed not less than two days before the time of
holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect the
successor who shall hold office for the remainder of the full term of the
class of directors in which the vacancy occurred, and until such director's
successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President
who may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may
appoint at any time such other committees and elect or appoint such other
officers as it may deem advisable. The Board of Directors may also elect at
such meeting one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be
in charge of such of the departments or divisions of the Company as it may
deem advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed
of not more than nine members who shall be selected by the Board of
Directors from its own members and who shall hold office during the
pleasure of the Board.
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact all
business for and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of the
Chairman of the Executive Committee or at the call of the Chairman of the
Board of Directors. The majority of its members shall be necessary to
constitute a quorum for the transaction of business. Special meetings of
the Executive Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its next
meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the Company,
and shall direct the disposal of the same, in accordance with such rules
and regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the affairs
and business of the Company by its directors and officers as contemplated
by these By-Laws any two available members of the Executive Committee as
constituted immediately prior to such disaster shall constitute a quorum of
that Committee for the full conduct and management of the affairs and
business of the Company in accordance with the provisions of Article III of
these By-Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available for the
transaction of its business, such Executive Committee shall also be
empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at
such time, of a minimum of two members of such Executive Committee, any
three available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the foregoing provisions of this Section. This By-Law shall
be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose,
and any provisions of these By-Laws (other than this Section) and any
resolutions which are contrary to the provisions of this Section or to the
provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim
Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its
affairs and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of
not more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of Directors
and who shall hold office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust funds, in
all matters, however, being subject to the approval of the Board of
Directors.
(C) The Trust Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members or at the call of its
chairman. A majority of its members shall be necessary to constitute a
quorum for the transaction of business.
(D) Minutes of each meeting of the Trust
Committee shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power
to appoint Committees and/or designate officers or employees of the Company
to whom supervision over the investment of trust funds may be delegated
when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of
five members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall hold
office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to the
approval of the Board of Directors; it shall consider all matters brought
to its attention by the officer in charge of the Audit Division, review all
reports of examination of the Company made by any governmental agency or
such independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or with
respect to any other matters pertaining to auditing the Company as it shall
deem desirable.
(C) The Audit Committee shall meet whenever
and wherever the majority of its members shall deem it to be proper for the
transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be
composed of not more than five (5) members who shall be selected by the
Board of Directors from its own members who are not officers of the Company
and who shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in
general advise upon all matters of policy concerning the Company brought to
its attention by the management and from time to time review the management
of the Company, major organizational matters, including salaries and
employee benefits and specifically shall administer the Executive Incentive
Compensation Plan.
(C) Meetings of the Compensation Committee may
be called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director
may be elected by the Board of Directors as an associate director, to serve
during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all
matters brought to the Board, with the exception that he would have no
right to vote. An associate director will be eligible for appointment to
Committees of the Company, with the exception of the Executive Committee,
Audit Committee and Compensation Committee, which must be comprised solely
of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any
member of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers
and shall perform such duties as the Board of Directors may from time to
time confer and direct. He shall also exercise such powers and perform such
duties as may from time to time be agreed upon between himself and the
President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of
Directors at which the Chairman of the Board shall not be present and shall
have such further authority and powers and shall perform such duties as the
Board of Directors or the Chairman of the Board may from time to time
confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute or assigned to him by the Board of Directors. In the absence of the
Chairman of the Board the President shall have the powers and duties of the
Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and
shall at all times exercise general supervision over the interest, affairs
and operations of the Company and perform all duties incident to his
office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them
by the Board of Directors, the Executive Committee, the Chairman of the
Board or the President and by the officer in charge of the department or
division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition
to the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed
well in advance of the scheduled date of any other meeting. He shall have
custody of the corporate seal and shall affix the same to any documents
requiring such corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and
of all the transactions of the Company. He shall have general supervision
of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and
perform such other duties as may be assigned to him from time to time by
the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times
a report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller
and such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be
in charge of the Audit Division of the Company with such title as the Board
of Directors shall prescribe, shall report to and be directly responsible
only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge of
the Audit Division.
Section 10. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined
from time to time by the Board of Directors, who shall ex officio hold the
office Assistant Secretary of this Company and who may perform such duties
as may be prescribed by the officer in charge of the department or division
to whom they are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of
the Company and a transfer book shall be kept in which all transfers of
stock shall be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an Assistant
Secretary, and the seal of the corporation shall be engraved thereon. Each
certificate shall recite that the stock represented thereby is
transferrable only upon the books of the Company by the holder thereof or
his attorney, upon surrender of the certificate properly endorsed. Any
certificate of stock surrendered to the Company shall be cancelled at the
time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of
Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to
fix in advance a record date for the determination of the stockholders
entitled to notice of, and to vote at, any meeting of stockholders and any
adjournment thereof, or entitled to receive payment of any dividend, or to
any allotment or rights, or to exercise any rights in respect of any
change, conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection
with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power
and authority to attest and affix the corporate seal of the Company to any
and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business
of this Company or in acting as executor, administrator, guardian, trustee,
agent or in any other fiduciary or representative capacity by any and every
method of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of Directors
or the Executive Committee, and any and all such instruments shall have the
same force and validity as though expressly authorized by the Board of
Directors and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable
honoraria or fees for attending meetings of the Board of Directors as the
Board of Directors may from time to time determine. Directors and associate
directors who serve as members of committees, other than salaried employees
of the Company, shall be paid such reasonable honoraria or fees for
services as members of committees as the Board of Directors shall from time
to time determine and directors and associate directors may be employed by
the Company for such special services as the Board of Directors may from
time to time determine and shall be paid for such special services so
performed reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or
may hereafter be amended, any person who was or is made or is threatened to
be made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding")
by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or
of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses
incurred in defending any proceeding in advance of its final disposition,
provided, however, that the payment of expenses incurred by a Director or
officer in his capacity as a Director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an
undertaking by the Director or officer to repay all amounts advanced if it
should be ultimately determined that the Director or officer is not
entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment
of expenses, under this Article X is not paid in full within ninety days
after a written claim therefor has been received by the Corporation the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of the Charter or
Act of Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the
foregoing provisions of this Article X shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all
the members of the Board of Directors then in office.
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and
savings banks with state publication requirements. It has
not been approved by any state banking authorities. Refer
to your appropriate state banking authorities for your
state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ----------------------------------------- --------------
Name of Bank City
in the State of DELAWARE, at the close of business on June 30, 1999.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins...................................207,947
Interest-bearing balances................................................................. 0
Held-to-maturity securities.................................................................... 37,680
Available-for-sale securities................................................................1,598,933
Federal funds sold and securities purchased under agreements to resell.........................180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,237,557
LESS: Allowance for loan and lease losses. . . . . . 70,233
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve....................4,167,324
Assets held in trading accounts......................................................................0
Premises and fixed assets (including capitalized leases).......................................141,415
Other real estate owned......................................................................... 922
Investments in unconsolidated subsidiaries and associated companies..............................1,227
Customers' liability to this bank on acceptances outstanding.........................................0
Intangible assets............................................................................... 5,179
Other assets...................................................................................104,101
Total assets.................................................................................6,445,094
LIABILITIES
Deposits:
In domestic offices..........................................................................4,574,509
Noninterest-bearing . . . . . . . . 992,436
Interest-bearing. . . . . . . . . . 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase.................... 344,719
Demand notes issued to the U.S. Treasury........................................................83,802
Trading liabilities (from Schedule RC-D).............................................................0
Other borrowed money:..........................................................................///////
With original maturity of one year or less............................................860,000
With original maturity of more than one year...........................................43,000
Bank's liability on acceptances executed and outstanding.............................................0
Subordinated notes and debentures....................................................................0
Other liabilities (from Schedule RC-G)....................................................... 80,279
Total liabilities............................................................................5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................................0
Common Stock.......................................................................................500
Surplus (exclude all surplus related to preferred stock)........................................62,118
Undivided profits and capital reserves.........................................................412,409
Net unrealized holding gains (losses) on available-for-sale securities........................(16,242)
Total equity capital...........................................................................458,785
Total liabilities, limited-life preferred stock, and equity capital..........................6,445,094
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CENDANT CORPORATION
CENDANT CAPITAL IV
(Exact name of obligor as specified in its charter)
Delaware 06-0918165
Delaware 22-3565321
(State of incorporation) (I.R.S. employer identification no.)
9 Sylvan Way
Parsippany, New Jersey 07054
(Address of principal executive offices) (Zip Code)
Preferred Securities of Cendant Capital IV
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is not
an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington
Trust Company to commence business and the
authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington
Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th
day of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Joseph B. Feil By: /s/ Bruce L. Bisson
_________________________ __________________________
Assistant Secretary Name: Bruce L. Bisson
Title: Vice President
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 10, 1999 By: /s/ Bruce L. Bisson
----------------------------
Name: Bruce L. Bisson
Title: Vice President
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate
the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and
the name of which company was changed to "WILMINGTON TRUST Company" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been
from time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of
Delaware, does hereby alter and amend its Charter or Act of Incorporation
so that the same as so altered and amended shall in its entirety read as
follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is WILMINGTON
TRUST COMPANY whose address is Rodney Square North, in said City.
In addition to such principal office, the said corporation
maintains and operates branch offices in the City of Newark, New
Castle County, Delaware, the Town of Newport, New Castle County,
Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle
County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware
Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other
branch offices or places of business as may be authorized from
time to time by the agency or agencies of the government of the
State of Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court
of law or equity and to make and use a common seal, and
alter the seal at pleasure, to hold, purchase, convey,
mortgage or otherwise deal in real and personal estate
and property, and to appoint such officers and agents as
the business of the Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of
the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of
money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all
the powers, rights, privileges and franchises incident to
a corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or
any estate or interests therein, and to guarantee the
holder of such property, real or personal, against any
claim or claims, adverse to his interest therein, and to
prepare and give certificates of title for any lands or
premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management
of funds, and the purchase, sale, management and disposal
of property of all descriptions, and to prepare and
execute all papers which may be necessary or proper in
such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other
personal property of every sort and kind, from executors,
administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries,
and from all other persons and individuals, and from all
corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of
any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state,
municipality, body politic, corporation, association or
person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of
any contract or agreement, and the fidelity of persons
holding places of responsibility or trust; to become
surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations,
or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or
decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and
all estates and property, real, personal or mixed, and to
be appointed as such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State
of Delaware or elsewhere; and whenever this Corporation
is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon
it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake
or be called upon to perform, or for the assumption of
any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other
securities, obligations, contracts and evidences of
indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or
of the Government of the United States, or of any state,
territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect,
receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in
respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys
of the Corporation upon such securities and in such
manner as it may think fit and proper, and from time to
time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the
property held or owned by the Corporation, and to sell
and pledge such bonds, as and when the Board of Directors
shall determine, and in the promotion of its said
corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate
or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to
the same extent as natural persons might or could do, and
in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association
or corporation, and to pay for the same in cash, stock of
this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the
property so purchased; to conduct in any lawful manner
the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts
of every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw,
make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any
of its operations and businesses, without restriction to
the same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and
in any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said
paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock,
par value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock,
par value $1.00 per share (hereinafter referred to as
"Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock shall
be alike in every particular, except that there may be different
dates from which dividends, if any, thereon shall be cumulative,
if made cumulative. The voting powers and the preferences and
relative, participating, optional and other special rights of each
such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series
at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board
of Directors of the Corporation is hereby expressly granted
authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of a particular series of Preferred Stock,
the voting powers and the designations, preferences and relative,
optional and other special rights, and the qualifications,
limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or
decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the
Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred
Stock of such series shall be paid, the extent of the
preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or
series of the same or other class of stock and whether
such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock
of such series to convert the same into or exchange the
same for, shares of any other class or classes or of any
series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall
be subject to redemption, and the redemption price or
prices and the time or times at which, and the terms and
conditions on which, Preferred Stock of such series may
be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale
of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the
Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as
a series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation
if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or
under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
all the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed
in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall
be entitled to receive such dividends as may be declared from time
to time by the Board of Directors.
(2) After distribution in full of the preferential
amount, if any, (fixed in accordance with the provisions
of section (b) of this Article FOURTH), to be distributed
to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the
Corporation, the holders of the Common Stock shall be
entitled to receive all of the remaining assets of the
Corporation, tangible and intangible, of whatever kind
available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held
by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b)
of this Article FOURTH, each holder of Common Stock shall
have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other securities of the Corporation
shall have any preemptive right to purchase or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or
other securities convertible into or exchangeable for stock of the
Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued
stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to
such persons, firms, corporations or associations, whether such
holders or others, and upon such terms as may be deemed advisable
by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences
and rights of each other series of Preferred Stock shall, in each
case, be as fixed from time to time by the Board of Directors in
the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such of the
series of Preferred Stock as are from time to time outstanding
shall not be required for the issuance by the Board of Directors
of any other series of Preferred Stock whether or not the powers,
preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock
adopted pursuant to section (b) of this Article FOURTH that the
consent of the holders of a majority (or such greater proportion
as shall be therein fixed) of the outstanding shares of such
series voting thereon shall be required for the issuance of any or
all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series
of Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of
Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the term
of any director at the time in office, and provided further, that
the number of directors constituting the whole Board shall be
twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting.
Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the
directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the
By-Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed,
as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations
which are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should
so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any action
is specifically denied.
SIXTH: - The Directors shall choose such officers, agents and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time to
time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional
By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the books
of the Company outside of the State of Delaware at such places as
may be from time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required
by law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii)
any other corporation (whether or not itself an
Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter
defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested
Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of
$1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder, or any
Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or
that some lesser percentage may be specified, by law or in any agreement
with any national securities exchange or otherwise.
(2) The term "business combination" as used in
this Article FIFTEENTH shall mean any
transaction which is referred to in any one or
more of clauses (A) through (E) of paragraph 1
of the section (a).
(b) The provisions of section (a) of this Article
FIFTEENTH shall not be applicable to any particular
business combination and such business combination shall
require only such affirmative vote as is required by law
and any other provisions of the Charter or Act of
Incorporation or By-Laws if such business combination has
been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote on
such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at
any time within two years prior thereto beneficially
owned by any Interested Stockholder, and such assignment
or succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned
person or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares
of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and
duty to determine for the purposes of this Article
FIFTEENTH on the basis of information known to them, (1)
the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate
of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business
combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except to the extent
such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with
respect to any act or omission occurring prior to the
time of such repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or
at such other date, time, or place as may be designated by resolution by
the Board of Directors.
Section 2. Special meetings of all stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before said
meeting, at his last known address, a written or printed notice fixing the
time and place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined,
shall constitute a quorum at all meetings of stockholders for the
transaction of any business, but the holders of a small number of shares
may adjourn, from time to time, without further notice, until a quorum is
secured. At each annual or special meeting of stockholders, each
stockholder shall be entitled to one vote, either in person or by proxy,
for each share of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as determined
herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any
person who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of
the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority of
the directors.
Section 7. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in the
time or place of any regular meeting, stating the time and place of such
meeting, which shall be mailed not less than two days before the time of
holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect the
successor who shall hold office for the remainder of the full term of the
class of directors in which the vacancy occurred, and until such director's
successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President
who may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may
appoint at any time such other committees and elect or appoint such other
officers as it may deem advisable. The Board of Directors may also elect at
such meeting one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be
in charge of such of the departments or divisions of the Company as it may
deem advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed
of not more than nine members who shall be selected by the Board of
Directors from its own members and who shall hold office during the
pleasure of the Board.
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact all
business for and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of the
Chairman of the Executive Committee or at the call of the Chairman of the
Board of Directors. The majority of its members shall be necessary to
constitute a quorum for the transaction of business. Special meetings of
the Executive Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its next
meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the Company,
and shall direct the disposal of the same, in accordance with such rules
and regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the affairs
and business of the Company by its directors and officers as contemplated
by these By-Laws any two available members of the Executive Committee as
constituted immediately prior to such disaster shall constitute a quorum of
that Committee for the full conduct and management of the affairs and
business of the Company in accordance with the provisions of Article III of
these By-Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available for the
transaction of its business, such Executive Committee shall also be
empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at
such time, of a minimum of two members of such Executive Committee, any
three available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the foregoing provisions of this Section. This By-Law shall
be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose,
and any provisions of these By-Laws (other than this Section) and any
resolutions which are contrary to the provisions of this Section or to the
provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim
Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its
affairs and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of
not more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of Directors
and who shall hold office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust funds, in
all matters, however, being subject to the approval of the Board of
Directors.
(C) The Trust Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members or at the call of its
chairman. A majority of its members shall be necessary to constitute a
quorum for the transaction of business.
(D) Minutes of each meeting of the Trust
Committee shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power
to appoint Committees and/or designate officers or employees of the Company
to whom supervision over the investment of trust funds may be delegated
when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of
five members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall hold
office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to the
approval of the Board of Directors; it shall consider all matters brought
to its attention by the officer in charge of the Audit Division, review all
reports of examination of the Company made by any governmental agency or
such independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or with
respect to any other matters pertaining to auditing the Company as it shall
deem desirable.
(C) The Audit Committee shall meet whenever
and wherever the majority of its members shall deem it to be proper for the
transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be
composed of not more than five (5) members who shall be selected by the
Board of Directors from its own members who are not officers of the Company
and who shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in
general advise upon all matters of policy concerning the Company brought to
its attention by the management and from time to time review the management
of the Company, major organizational matters, including salaries and
employee benefits and specifically shall administer the Executive Incentive
Compensation Plan.
(C) Meetings of the Compensation Committee may
be called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director
may be elected by the Board of Directors as an associate director, to serve
during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all
matters brought to the Board, with the exception that he would have no
right to vote. An associate director will be eligible for appointment to
Committees of the Company, with the exception of the Executive Committee,
Audit Committee and Compensation Committee, which must be comprised solely
of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any
member of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers
and shall perform such duties as the Board of Directors may from time to
time confer and direct. He shall also exercise such powers and perform such
duties as may from time to time be agreed upon between himself and the
President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of
Directors at which the Chairman of the Board shall not be present and shall
have such further authority and powers and shall perform such duties as the
Board of Directors or the Chairman of the Board may from time to time
confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute or assigned to him by the Board of Directors. In the absence of the
Chairman of the Board the President shall have the powers and duties of the
Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and
shall at all times exercise general supervision over the interest, affairs
and operations of the Company and perform all duties incident to his
office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them
by the Board of Directors, the Executive Committee, the Chairman of the
Board or the President and by the officer in charge of the department or
division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition
to the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed
well in advance of the scheduled date of any other meeting. He shall have
custody of the corporate seal and shall affix the same to any documents
requiring such corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and
of all the transactions of the Company. He shall have general supervision
of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and
perform such other duties as may be assigned to him from time to time by
the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times
a report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller
and such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be
in charge of the Audit Division of the Company with such title as the Board
of Directors shall prescribe, shall report to and be directly responsible
only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge of
the Audit Division.
Section 10. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined
from time to time by the Board of Directors, who shall ex officio hold the
office Assistant Secretary of this Company and who may perform such duties
as may be prescribed by the officer in charge of the department or division
to whom they are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of
the Company and a transfer book shall be kept in which all transfers of
stock shall be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an Assistant
Secretary, and the seal of the corporation shall be engraved thereon. Each
certificate shall recite that the stock represented thereby is
transferrable only upon the books of the Company by the holder thereof or
his attorney, upon surrender of the certificate properly endorsed. Any
certificate of stock surrendered to the Company shall be cancelled at the
time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of
Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to
fix in advance a record date for the determination of the stockholders
entitled to notice of, and to vote at, any meeting of stockholders and any
adjournment thereof, or entitled to receive payment of any dividend, or to
any allotment or rights, or to exercise any rights in respect of any
change, conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection
with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power
and authority to attest and affix the corporate seal of the Company to any
and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business
of this Company or in acting as executor, administrator, guardian, trustee,
agent or in any other fiduciary or representative capacity by any and every
method of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of Directors
or the Executive Committee, and any and all such instruments shall have the
same force and validity as though expressly authorized by the Board of
Directors and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable
honoraria or fees for attending meetings of the Board of Directors as the
Board of Directors may from time to time determine. Directors and associate
directors who serve as members of committees, other than salaried employees
of the Company, shall be paid such reasonable honoraria or fees for
services as members of committees as the Board of Directors shall from time
to time determine and directors and associate directors may be employed by
the Company for such special services as the Board of Directors may from
time to time determine and shall be paid for such special services so
performed reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or
may hereafter be amended, any person who was or is made or is threatened to
be made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding")
by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or
of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses
incurred in defending any proceeding in advance of its final disposition,
provided, however, that the payment of expenses incurred by a Director or
officer in his capacity as a Director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an
undertaking by the Director or officer to repay all amounts advanced if it
should be ultimately determined that the Director or officer is not
entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment
of expenses, under this Article X is not paid in full within ninety days
after a written claim therefor has been received by the Corporation the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of the Charter or
Act of Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the
foregoing provisions of this Article X shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all
the members of the Board of Directors then in office.
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and
savings banks with state publication requirements. It has
not been approved by any state banking authorities. Refer
to your appropriate state banking authorities for your
state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ----------------------------------------- --------------
Name of Bank City
in the State of DELAWARE, at the close of business on June 30, 1999.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins...................................207,947
Interest-bearing balances................................................................. 0
Held-to-maturity securities.................................................................... 37,680
Available-for-sale securities................................................................1,598,933
Federal funds sold and securities purchased under agreements to resell.........................180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,237,557
LESS: Allowance for loan and lease losses. . . . . . 70,233
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve....................4,167,324
Assets held in trading accounts......................................................................0
Premises and fixed assets (including capitalized leases).......................................141,415
Other real estate owned......................................................................... 922
Investments in unconsolidated subsidiaries and associated companies..............................1,227
Customers' liability to this bank on acceptances outstanding.........................................0
Intangible assets............................................................................... 5,179
Other assets...................................................................................104,101
Total assets.................................................................................6,445,094
LIABILITIES
Deposits:
In domestic offices..........................................................................4,574,509
Noninterest-bearing . . . . . . . . 992,436
Interest-bearing. . . . . . . . . . 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase.................... 344,719
Demand notes issued to the U.S. Treasury........................................................83,802
Trading liabilities (from Schedule RC-D).............................................................0
Other borrowed money:..........................................................................///////
With original maturity of one year or less............................................860,000
With original maturity of more than one year...........................................43,000
Bank's liability on acceptances executed and outstanding.............................................0
Subordinated notes and debentures....................................................................0
Other liabilities (from Schedule RC-G)....................................................... 80,279
Total liabilities............................................................................5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................................0
Common Stock.......................................................................................500
Surplus (exclude all surplus related to preferred stock)........................................62,118
Undivided profits and capital reserves.........................................................412,409
Net unrealized holding gains (losses) on available-for-sale securities........................(16,242)
Total equity capital...........................................................................458,785
Total liabilities, limited-life preferred stock, and equity capital..........................6,445,094
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CENDANT CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 06-0918165
(State of incorporation) (I.R.S. employer identification no.)
9 Sylvan Way
Parsippany, New Jersey 07054
(Address of principal executive offices) (Zip Code)
Guarantees and backup undertakings of Cendant
Corporation in connection with Preferred
Securities of Cendant Capital IV
by Cendant Corporation
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe
each affiliation:
Based upon an examination of the books and records of
the trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington
Trust Company to commence business and the
authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington
Trust Company.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Wilmington Trust Company, a corporation
organized and existing under the laws of Delaware, has duly caused this
Statement of Eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Wilmington and State of
Delaware on the 10th day of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Joseph B. Feil By: /s/ Bruce L. Bisson
------------------------- --------------------------
Assistant Secretary Name: Bruce L. Bisson
Title: Vice President
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939,
as amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 10, 1999 By: /s/ Bruce L. Bisson
----------------------------
Name: Bruce L. Bisson
Title: Vice President
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate
the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and
the name of which company was changed to "WILMINGTON TRUST Company" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been
from time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of
Delaware, does hereby alter and amend its Charter or Act of Incorporation
so that the same as so altered and amended shall in its entirety read as
follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is WILMINGTON
TRUST COMPANY whose address is Rodney Square North, in said City.
In addition to such principal office, the said corporation
maintains and operates branch offices in the City of Newark, New
Castle County, Delaware, the Town of Newport, New Castle County,
Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle
County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware
Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other
branch offices or places of business as may be authorized from
time to time by the agency or agencies of the government of the
State of Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court
of law or equity and to make and use a common seal, and
alter the seal at pleasure, to hold, purchase, convey,
mortgage or otherwise deal in real and personal estate
and property, and to appoint such officers and agents as
the business of the Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of
the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of
money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all
the powers, rights, privileges and franchises incident to
a corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or
any estate or interests therein, and to guarantee the
holder of such property, real or personal, against any
claim or claims, adverse to his interest therein, and to
prepare and give certificates of title for any lands or
premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management
of funds, and the purchase, sale, management and disposal
of property of all descriptions, and to prepare and
execute all papers which may be necessary or proper in
such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other
personal property of every sort and kind, from executors,
administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries,
and from all other persons and individuals, and from all
corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of
any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state,
municipality, body politic, corporation, association or
person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of
any contract or agreement, and the fidelity of persons
holding places of responsibility or trust; to become
surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations,
or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or
decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and
all estates and property, real, personal or mixed, and to
be appointed as such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State
of Delaware or elsewhere; and whenever this Corporation
is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon
it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake
or be called upon to perform, or for the assumption of
any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other
securities, obligations, contracts and evidences of
indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or
of the Government of the United States, or of any state,
territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect,
receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in
respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys
of the Corporation upon such securities and in such
manner as it may think fit and proper, and from time to
time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the
property held or owned by the Corporation, and to sell
and pledge such bonds, as and when the Board of Directors
shall determine, and in the promotion of its said
corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate
or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to
the same extent as natural persons might or could do, and
in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association
or corporation, and to pay for the same in cash, stock of
this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the
property so purchased; to conduct in any lawful manner
the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts
of every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw,
make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any
of its operations and businesses, without restriction to
the same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and
in any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said
paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock,
par value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock,
par value $1.00 per share (hereinafter referred to as
"Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock shall
be alike in every particular, except that there may be different
dates from which dividends, if any, thereon shall be cumulative,
if made cumulative. The voting powers and the preferences and
relative, participating, optional and other special rights of each
such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series
at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board
of Directors of the Corporation is hereby expressly granted
authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of a particular series of Preferred Stock,
the voting powers and the designations, preferences and relative,
optional and other special rights, and the qualifications,
limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or
decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the
Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred
Stock of such series shall be paid, the extent of the
preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or
series of the same or other class of stock and whether
such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock
of such series to convert the same into or exchange the
same for, shares of any other class or classes or of any
series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall
be subject to redemption, and the redemption price or
prices and the time or times at which, and the terms and
conditions on which, Preferred Stock of such series may
be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale
of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the
Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as
a series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation
if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or
under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
all the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed
in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall
be entitled to receive such dividends as may be declared from time
to time by the Board of Directors.
(2) After distribution in full of the preferential
amount, if any, (fixed in accordance with the provisions
of section (b) of this Article FOURTH), to be distributed
to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the
Corporation, the holders of the Common Stock shall be
entitled to receive all of the remaining assets of the
Corporation, tangible and intangible, of whatever kind
available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held
by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b)
of this Article FOURTH, each holder of Common Stock shall
have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other securities of the Corporation
shall have any preemptive right to purchase or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or
other securities convertible into or exchangeable for stock of the
Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued
stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to
such persons, firms, corporations or associations, whether such
holders or others, and upon such terms as may be deemed advisable
by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences
and rights of each other series of Preferred Stock shall, in each
case, be as fixed from time to time by the Board of Directors in
the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such of the
series of Preferred Stock as are from time to time outstanding
shall not be required for the issuance by the Board of Directors
of any other series of Preferred Stock whether or not the powers,
preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock
adopted pursuant to section (b) of this Article FOURTH that the
consent of the holders of a majority (or such greater proportion
as shall be therein fixed) of the outstanding shares of such
series voting thereon shall be required for the issuance of any or
all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series
of Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of
Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the term
of any director at the time in office, and provided further, that
the number of directors constituting the whole Board shall be
twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting.
Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the
directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the
By-Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed,
as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations
which are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should
so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any action
is specifically denied.
SIXTH: - The Directors shall choose such officers, agents and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time to
time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional
By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the books
of the Company outside of the State of Delaware at such places as
may be from time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required
by law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii)
any other corporation (whether or not itself an
Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter
defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested
Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of
$1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder, or any
Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or
that some lesser percentage may be specified, by law or in any agreement
with any national securities exchange or otherwise.
(2) The term "business combination" as used in
this Article FIFTEENTH shall mean any
transaction which is referred to in any one or
more of clauses (A) through (E) of paragraph 1
of the section (a).
(b) The provisions of section (a) of this Article
FIFTEENTH shall not be applicable to any particular
business combination and such business combination shall
require only such affirmative vote as is required by law
and any other provisions of the Charter or Act of
Incorporation or By-Laws if such business combination has
been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote on
such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at
any time within two years prior thereto beneficially
owned by any Interested Stockholder, and such assignment
or succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned
person or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares
of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and
duty to determine for the purposes of this Article
FIFTEENTH on the basis of information known to them, (1)
the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate
of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business
combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except to the extent
such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with
respect to any act or omission occurring prior to the
time of such repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or
at such other date, time, or place as may be designated by resolution by
the Board of Directors.
Section 2. Special meetings of all stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before said
meeting, at his last known address, a written or printed notice fixing the
time and place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined,
shall constitute a quorum at all meetings of stockholders for the
transaction of any business, but the holders of a small number of shares
may adjourn, from time to time, without further notice, until a quorum is
secured. At each annual or special meeting of stockholders, each
stockholder shall be entitled to one vote, either in person or by proxy,
for each share of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as determined
herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any
person who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of
the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority of
the directors.
Section 7. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in the
time or place of any regular meeting, stating the time and place of such
meeting, which shall be mailed not less than two days before the time of
holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect the
successor who shall hold office for the remainder of the full term of the
class of directors in which the vacancy occurred, and until such director's
successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President
who may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may
appoint at any time such other committees and elect or appoint such other
officers as it may deem advisable. The Board of Directors may also elect at
such meeting one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be
in charge of such of the departments or divisions of the Company as it may
deem advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed
of not more than nine members who shall be selected by the Board of
Directors from its own members and who shall hold office during the
pleasure of the Board.
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact all
business for and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of the
Chairman of the Executive Committee or at the call of the Chairman of the
Board of Directors. The majority of its members shall be necessary to
constitute a quorum for the transaction of business. Special meetings of
the Executive Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its next
meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the Company,
and shall direct the disposal of the same, in accordance with such rules
and regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the affairs
and business of the Company by its directors and officers as contemplated
by these By-Laws any two available members of the Executive Committee as
constituted immediately prior to such disaster shall constitute a quorum of
that Committee for the full conduct and management of the affairs and
business of the Company in accordance with the provisions of Article III of
these By-Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available for the
transaction of its business, such Executive Committee shall also be
empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at
such time, of a minimum of two members of such Executive Committee, any
three available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the foregoing provisions of this Section. This By-Law shall
be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose,
and any provisions of these By-Laws (other than this Section) and any
resolutions which are contrary to the provisions of this Section or to the
provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim
Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its
affairs and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of
not more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of Directors
and who shall hold office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust funds, in
all matters, however, being subject to the approval of the Board of
Directors.
(C) The Trust Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members or at the call of its
chairman. A majority of its members shall be necessary to constitute a
quorum for the transaction of business.
(D) Minutes of each meeting of the Trust
Committee shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power
to appoint Committees and/or designate officers or employees of the Company
to whom supervision over the investment of trust funds may be delegated
when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of
five members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall hold
office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to the
approval of the Board of Directors; it shall consider all matters brought
to its attention by the officer in charge of the Audit Division, review all
reports of examination of the Company made by any governmental agency or
such independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or with
respect to any other matters pertaining to auditing the Company as it shall
deem desirable.
(C) The Audit Committee shall meet whenever
and wherever the majority of its members shall deem it to be proper for the
transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be
composed of not more than five (5) members who shall be selected by the
Board of Directors from its own members who are not officers of the Company
and who shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in
general advise upon all matters of policy concerning the Company brought to
its attention by the management and from time to time review the management
of the Company, major organizational matters, including salaries and
employee benefits and specifically shall administer the Executive Incentive
Compensation Plan.
(C) Meetings of the Compensation Committee may
be called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director
may be elected by the Board of Directors as an associate director, to serve
during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all
matters brought to the Board, with the exception that he would have no
right to vote. An associate director will be eligible for appointment to
Committees of the Company, with the exception of the Executive Committee,
Audit Committee and Compensation Committee, which must be comprised solely
of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any
member of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers
and shall perform such duties as the Board of Directors may from time to
time confer and direct. He shall also exercise such powers and perform such
duties as may from time to time be agreed upon between himself and the
President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of
Directors at which the Chairman of the Board shall not be present and shall
have such further authority and powers and shall perform such duties as the
Board of Directors or the Chairman of the Board may from time to time
confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute or assigned to him by the Board of Directors. In the absence of the
Chairman of the Board the President shall have the powers and duties of the
Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and
shall at all times exercise general supervision over the interest, affairs
and operations of the Company and perform all duties incident to his
office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them
by the Board of Directors, the Executive Committee, the Chairman of the
Board or the President and by the officer in charge of the department or
division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition
to the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed
well in advance of the scheduled date of any other meeting. He shall have
custody of the corporate seal and shall affix the same to any documents
requiring such corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and
of all the transactions of the Company. He shall have general supervision
of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and
perform such other duties as may be assigned to him from time to time by
the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times
a report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller
and such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be
in charge of the Audit Division of the Company with such title as the Board
of Directors shall prescribe, shall report to and be directly responsible
only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge of
the Audit Division.
Section 10. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined
from time to time by the Board of Directors, who shall ex officio hold the
office Assistant Secretary of this Company and who may perform such duties
as may be prescribed by the officer in charge of the department or division
to whom they are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of
the Company and a transfer book shall be kept in which all transfers of
stock shall be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an Assistant
Secretary, and the seal of the corporation shall be engraved thereon. Each
certificate shall recite that the stock represented thereby is
transferrable only upon the books of the Company by the holder thereof or
his attorney, upon surrender of the certificate properly endorsed. Any
certificate of stock surrendered to the Company shall be cancelled at the
time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of
Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to
fix in advance a record date for the determination of the stockholders
entitled to notice of, and to vote at, any meeting of stockholders and any
adjournment thereof, or entitled to receive payment of any dividend, or to
any allotment or rights, or to exercise any rights in respect of any
change, conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection
with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power
and authority to attest and affix the corporate seal of the Company to any
and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business
of this Company or in acting as executor, administrator, guardian, trustee,
agent or in any other fiduciary or representative capacity by any and every
method of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of Directors
or the Executive Committee, and any and all such instruments shall have the
same force and validity as though expressly authorized by the Board of
Directors and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable
honoraria or fees for attending meetings of the Board of Directors as the
Board of Directors may from time to time determine. Directors and associate
directors who serve as members of committees, other than salaried employees
of the Company, shall be paid such reasonable honoraria or fees for
services as members of committees as the Board of Directors shall from time
to time determine and directors and associate directors may be employed by
the Company for such special services as the Board of Directors may from
time to time determine and shall be paid for such special services so
performed reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or
may hereafter be amended, any person who was or is made or is threatened to
be made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding")
by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or
of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses
incurred in defending any proceeding in advance of its final disposition,
provided, however, that the payment of expenses incurred by a Director or
officer in his capacity as a Director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an
undertaking by the Director or officer to repay all amounts advanced if it
should be ultimately determined that the Director or officer is not
entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment
of expenses, under this Article X is not paid in full within ninety days
after a written claim therefor has been received by the Corporation the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of the Charter or
Act of Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the
foregoing provisions of this Article X shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all
the members of the Board of Directors then in office.
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and
savings banks with state publication requirements. It has
not been approved by any state banking authorities. Refer
to your appropriate state banking authorities for your
state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ----------------------------------------- --------------
Name of Bank City
in the State of DELAWARE, at the close of business on June 30, 1999.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins...................................207,947
Interest-bearing balances................................................................. 0
Held-to-maturity securities.................................................................... 37,680
Available-for-sale securities................................................................1,598,933
Federal funds sold and securities purchased under agreements to resell.........................180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,237,557
LESS: Allowance for loan and lease losses. . . . . . 70,233
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve....................4,167,324
Assets held in trading accounts......................................................................0
Premises and fixed assets (including capitalized leases).......................................141,415
Other real estate owned......................................................................... 922
Investments in unconsolidated subsidiaries and associated companies..............................1,227
Customers' liability to this bank on acceptances outstanding.........................................0
Intangible assets............................................................................... 5,179
Other assets...................................................................................104,101
Total assets.................................................................................6,445,094
LIABILITIES
Deposits:
In domestic offices..........................................................................4,574,509
Noninterest-bearing . . . . . . . . 992,436
Interest-bearing. . . . . . . . . . 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase.................... 344,719
Demand notes issued to the U.S. Treasury........................................................83,802
Trading liabilities (from Schedule RC-D).............................................................0
Other borrowed money:..........................................................................///////
With original maturity of one year or less............................................860,000
With original maturity of more than one year...........................................43,000
Bank's liability on acceptances executed and outstanding.............................................0
Subordinated notes and debentures....................................................................0
Other liabilities (from Schedule RC-G)....................................................... 80,279
Total liabilities............................................................................5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................................0
Common Stock.......................................................................................500
Surplus (exclude all surplus related to preferred stock)........................................62,118
Undivided profits and capital reserves.........................................................412,409
Net unrealized holding gains (losses) on available-for-sale securities........................(16,242)
Total equity capital...........................................................................458,785
Total liabilities, limited-life preferred stock, and equity capital..........................6,445,094
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CENDANT CORPORATION
CENDANT CAPITAL V
(Exact name of obligor as specified in its charter)
Delaware 06-0918165
Delaware 22-3565321
(State of incorporation) (I.R.S. employer identification no.)
9 Sylvan Way
Parsippany, New Jersey 07054
(Address of principal executive offices) (Zip Code)
Preferred Securities of Cendant Capital V
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is not
an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 10th
day of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Joseph B. Feil By: /s/ Bruce L. Bisson
------------------------ -------------------------
Assistant Secretary Name: Bruce L. Bisson
Title: Vice President
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 10, 1999 By: /s/ Bruce L. Bisson
----------------------------
Name: Bruce L. Bisson
Title: Vice President
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate
the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and
the name of which company was changed to "WILMINGTON TRUST Company" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been
from time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of
Delaware, does hereby alter and amend its Charter or Act of Incorporation
so that the same as so altered and amended shall in its entirety read as
follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is WILMINGTON
TRUST COMPANY whose address is Rodney Square North, in said City.
In addition to such principal office, the said corporation
maintains and operates branch offices in the City of Newark, New
Castle County, Delaware, the Town of Newport, New Castle County,
Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle
County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware
Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other
branch offices or places of business as may be authorized from
time to time by the agency or agencies of the government of the
State of Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court
of law or equity and to make and use a common seal, and
alter the seal at pleasure, to hold, purchase, convey,
mortgage or otherwise deal in real and personal estate
and property, and to appoint such officers and agents as
the business of the Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of
the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of
money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all
the powers, rights, privileges and franchises incident to
a corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or
any estate or interests therein, and to guarantee the
holder of such property, real or personal, against any
claim or claims, adverse to his interest therein, and to
prepare and give certificates of title for any lands or
premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management
of funds, and the purchase, sale, management and disposal
of property of all descriptions, and to prepare and
execute all papers which may be necessary or proper in
such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other
personal property of every sort and kind, from executors,
administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries,
and from all other persons and individuals, and from all
corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of
any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state,
municipality, body politic, corporation, association or
person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of
any contract or agreement, and the fidelity of persons
holding places of responsibility or trust; to become
surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations,
or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or
decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and
all estates and property, real, personal or mixed, and to
be appointed as such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State
of Delaware or elsewhere; and whenever this Corporation
is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon
it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake
or be called upon to perform, or for the assumption of
any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other
securities, obligations, contracts and evidences of
indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or
of the Government of the United States, or of any state,
territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect,
receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in
respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys
of the Corporation upon such securities and in such
manner as it may think fit and proper, and from time to
time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the
property held or owned by the Corporation, and to sell
and pledge such bonds, as and when the Board of Directors
shall determine, and in the promotion of its said
corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate
or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to
the same extent as natural persons might or could do, and
in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association
or corporation, and to pay for the same in cash, stock of
this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the
property so purchased; to conduct in any lawful manner
the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts
of every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw,
make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any
of its operations and businesses, without restriction to
the same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and
in any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said
paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock,
par value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock,
par value $1.00 per share (hereinafter referred to as
"Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock shall
be alike in every particular, except that there may be different
dates from which dividends, if any, thereon shall be cumulative,
if made cumulative. The voting powers and the preferences and
relative, participating, optional and other special rights of each
such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series
at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board
of Directors of the Corporation is hereby expressly granted
authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of a particular series of Preferred Stock,
the voting powers and the designations, preferences and relative,
optional and other special rights, and the qualifications,
limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or
decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the
Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred
Stock of such series shall be paid, the extent of the
preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or
series of the same or other class of stock and whether
such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock
of such series to convert the same into or exchange the
same for, shares of any other class or classes or of any
series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall
be subject to redemption, and the redemption price or
prices and the time or times at which, and the terms and
conditions on which, Preferred Stock of such series may
be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale
of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the
Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as
a series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation
if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or
under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
all the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed
in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall
be entitled to receive such dividends as may be declared from time
to time by the Board of Directors.
(2) After distribution in full of the preferential
amount, if any, (fixed in accordance with the provisions
of section (b) of this Article FOURTH), to be distributed
to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the
Corporation, the holders of the Common Stock shall be
entitled to receive all of the remaining assets of the
Corporation, tangible and intangible, of whatever kind
available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held
by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b)
of this Article FOURTH, each holder of Common Stock shall
have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other securities of the Corporation
shall have any preemptive right to purchase or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or
other securities convertible into or exchangeable for stock of the
Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued
stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to
such persons, firms, corporations or associations, whether such
holders or others, and upon such terms as may be deemed advisable
by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences
and rights of each other series of Preferred Stock shall, in each
case, be as fixed from time to time by the Board of Directors in
the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such of the
series of Preferred Stock as are from time to time outstanding
shall not be required for the issuance by the Board of Directors
of any other series of Preferred Stock whether or not the powers,
preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock
adopted pursuant to section (b) of this Article FOURTH that the
consent of the holders of a majority (or such greater proportion
as shall be therein fixed) of the outstanding shares of such
series voting thereon shall be required for the issuance of any or
all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series
of Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of
Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the term
of any director at the time in office, and provided further, that
the number of directors constituting the whole Board shall be
twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting.
Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the
directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the
By-Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed,
as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations
which are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should
so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any action
is specifically denied.
SIXTH: - The Directors shall choose such officers, agents and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time to
time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional
By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the books
of the Company outside of the State of Delaware at such places as
may be from time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required
by law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii)
any other corporation (whether or not itself an
Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter
defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested
Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of
$1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder, or any
Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or
that some lesser percentage may be specified, by law or in any agreement
with any national securities exchange or otherwise.
(2) The term "business combination" as used in
this Article FIFTEENTH shall mean any
transaction which is referred to in any one or
more of clauses (A) through (E) of paragraph 1
of the section (a).
(b) The provisions of section (a) of this Article
FIFTEENTH shall not be applicable to any particular
business combination and such business combination shall
require only such affirmative vote as is required by law
and any other provisions of the Charter or Act of
Incorporation or By-Laws if such business combination has
been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote on
such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at
any time within two years prior thereto beneficially
owned by any Interested Stockholder, and such assignment
or succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned
person or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares
of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and
duty to determine for the purposes of this Article
FIFTEENTH on the basis of information known to them, (1)
the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate
of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business
combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except to the extent
such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with
respect to any act or omission occurring prior to the
time of such repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or
at such other date, time, or place as may be designated by resolution by
the Board of Directors.
Section 2. Special meetings of all stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before said
meeting, at his last known address, a written or printed notice fixing the
time and place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined,
shall constitute a quorum at all meetings of stockholders for the
transaction of any business, but the holders of a small number of shares
may adjourn, from time to time, without further notice, until a quorum is
secured. At each annual or special meeting of stockholders, each
stockholder shall be entitled to one vote, either in person or by proxy,
for each share of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as determined
herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any
person who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of
the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority of
the directors.
Section 7. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in the
time or place of any regular meeting, stating the time and place of such
meeting, which shall be mailed not less than two days before the time of
holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect the
successor who shall hold office for the remainder of the full term of the
class of directors in which the vacancy occurred, and until such director's
successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President
who may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may
appoint at any time such other committees and elect or appoint such other
officers as it may deem advisable. The Board of Directors may also elect at
such meeting one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be
in charge of such of the departments or divisions of the Company as it may
deem advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed
of not more than nine members who shall be selected by the Board of
Directors from its own members and who shall hold office during the
pleasure of the Board.
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact all
business for and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of the
Chairman of the Executive Committee or at the call of the Chairman of the
Board of Directors. The majority of its members shall be necessary to
constitute a quorum for the transaction of business. Special meetings of
the Executive Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its next
meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the Company,
and shall direct the disposal of the same, in accordance with such rules
and regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the affairs
and business of the Company by its directors and officers as contemplated
by these By-Laws any two available members of the Executive Committee as
constituted immediately prior to such disaster shall constitute a quorum of
that Committee for the full conduct and management of the affairs and
business of the Company in accordance with the provisions of Article III of
these By-Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available for the
transaction of its business, such Executive Committee shall also be
empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at
such time, of a minimum of two members of such Executive Committee, any
three available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the foregoing provisions of this Section. This By-Law shall
be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose,
and any provisions of these By-Laws (other than this Section) and any
resolutions which are contrary to the provisions of this Section or to the
provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim
Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its
affairs and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of
not more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of Directors
and who shall hold office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust funds, in
all matters, however, being subject to the approval of the Board of
Directors.
(C) The Trust Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members or at the call of its
chairman. A majority of its members shall be necessary to constitute a
quorum for the transaction of business.
(D) Minutes of each meeting of the Trust
Committee shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power
to appoint Committees and/or designate officers or employees of the Company
to whom supervision over the investment of trust funds may be delegated
when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of
five members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall hold
office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to the
approval of the Board of Directors; it shall consider all matters brought
to its attention by the officer in charge of the Audit Division, review all
reports of examination of the Company made by any governmental agency or
such independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or with
respect to any other matters pertaining to auditing the Company as it shall
deem desirable.
(C) The Audit Committee shall meet whenever
and wherever the majority of its members shall deem it to be proper for the
transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be
composed of not more than five (5) members who shall be selected by the
Board of Directors from its own members who are not officers of the Company
and who shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in
general advise upon all matters of policy concerning the Company brought to
its attention by the management and from time to time review the management
of the Company, major organizational matters, including salaries and
employee benefits and specifically shall administer the Executive Incentive
Compensation Plan.
(C) Meetings of the Compensation Committee may
be called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director
may be elected by the Board of Directors as an associate director, to serve
during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all
matters brought to the Board, with the exception that he would have no
right to vote. An associate director will be eligible for appointment to
Committees of the Company, with the exception of the Executive Committee,
Audit Committee and Compensation Committee, which must be comprised solely
of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any
member of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers
and shall perform such duties as the Board of Directors may from time to
time confer and direct. He shall also exercise such powers and perform such
duties as may from time to time be agreed upon between himself and the
President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of
Directors at which the Chairman of the Board shall not be present and shall
have such further authority and powers and shall perform such duties as the
Board of Directors or the Chairman of the Board may from time to time
confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute or assigned to him by the Board of Directors. In the absence of the
Chairman of the Board the President shall have the powers and duties of the
Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and
shall at all times exercise general supervision over the interest, affairs
and operations of the Company and perform all duties incident to his
office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them
by the Board of Directors, the Executive Committee, the Chairman of the
Board or the President and by the officer in charge of the department or
division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition
to the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed
well in advance of the scheduled date of any other meeting. He shall have
custody of the corporate seal and shall affix the same to any documents
requiring such corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and
of all the transactions of the Company. He shall have general supervision
of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and
perform such other duties as may be assigned to him from time to time by
the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times
a report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller
and such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be
in charge of the Audit Division of the Company with such title as the Board
of Directors shall prescribe, shall report to and be directly responsible
only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge of
the Audit Division.
Section 10. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined
from time to time by the Board of Directors, who shall ex officio hold the
office Assistant Secretary of this Company and who may perform such duties
as may be prescribed by the officer in charge of the department or division
to whom they are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of
the Company and a transfer book shall be kept in which all transfers of
stock shall be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an Assistant
Secretary, and the seal of the corporation shall be engraved thereon. Each
certificate shall recite that the stock represented thereby is
transferrable only upon the books of the Company by the holder thereof or
his attorney, upon surrender of the certificate properly endorsed. Any
certificate of stock surrendered to the Company shall be cancelled at the
time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of
Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to
fix in advance a record date for the determination of the stockholders
entitled to notice of, and to vote at, any meeting of stockholders and any
adjournment thereof, or entitled to receive payment of any dividend, or to
any allotment or rights, or to exercise any rights in respect of any
change, conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection
with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power
and authority to attest and affix the corporate seal of the Company to any
and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business
of this Company or in acting as executor, administrator, guardian, trustee,
agent or in any other fiduciary or representative capacity by any and every
method of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of Directors
or the Executive Committee, and any and all such instruments shall have the
same force and validity as though expressly authorized by the Board of
Directors and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable
honoraria or fees for attending meetings of the Board of Directors as the
Board of Directors may from time to time determine. Directors and associate
directors who serve as members of committees, other than salaried employees
of the Company, shall be paid such reasonable honoraria or fees for
services as members of committees as the Board of Directors shall from time
to time determine and directors and associate directors may be employed by
the Company for such special services as the Board of Directors may from
time to time determine and shall be paid for such special services so
performed reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or
may hereafter be amended, any person who was or is made or is threatened to
be made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding")
by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or
of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses
incurred in defending any proceeding in advance of its final disposition,
provided, however, that the payment of expenses incurred by a Director or
officer in his capacity as a Director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an
undertaking by the Director or officer to repay all amounts advanced if it
should be ultimately determined that the Director or officer is not
entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment
of expenses, under this Article X is not paid in full within ninety days
after a written claim therefor has been received by the Corporation the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of the Charter or
Act of Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the
foregoing provisions of this Article X shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all
the members of the Board of Directors then in office.
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and
savings banks with state publication requirements. It has
not been approved by any state banking authorities. Refer
to your appropriate state banking authorities for your
state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ----------------------------------------- --------------
Name of Bank City
in the State of DELAWARE, at the close of business on June 30, 1999.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins...................................207,947
Interest-bearing balances................................................................. 0
Held-to-maturity securities.................................................................... 37,680
Available-for-sale securities................................................................1,598,933
Federal funds sold and securities purchased under agreements to resell.........................180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,237,557
LESS: Allowance for loan and lease losses. . . . . . 70,233
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve....................4,167,324
Assets held in trading accounts......................................................................0
Premises and fixed assets (including capitalized leases).......................................141,415
Other real estate owned......................................................................... 922
Investments in unconsolidated subsidiaries and associated companies..............................1,227
Customers' liability to this bank on acceptances outstanding.........................................0
Intangible assets............................................................................... 5,179
Other assets...................................................................................104,101
Total assets.................................................................................6,445,094
LIABILITIES
Deposits:
In domestic offices..........................................................................4,574,509
Noninterest-bearing . . . . . . . . 992,436
Interest-bearing. . . . . . . . . . 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase.................... 344,719
Demand notes issued to the U.S. Treasury........................................................83,802
Trading liabilities (from Schedule RC-D).............................................................0
Other borrowed money:..........................................................................///////
With original maturity of one year or less............................................860,000
With original maturity of more than one year...........................................43,000
Bank's liability on acceptances executed and outstanding.............................................0
Subordinated notes and debentures....................................................................0
Other liabilities (from Schedule RC-G)....................................................... 80,279
Total liabilities............................................................................5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................................0
Common Stock.......................................................................................500
Surplus (exclude all surplus related to preferred stock)........................................62,118
Undivided profits and capital reserves.........................................................412,409
Net unrealized holding gains (losses) on available-for-sale securities........................(16,242)
Total equity capital...........................................................................458,785
Total liabilities, limited-life preferred stock, and equity capital..........................6,445,094
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CENDANT CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 06-0918165
(State of incorporation) (I.R.S. employer identification no.)
9 Sylvan Way
Parsippany, New Jersey 07054
(Address of principal executive offices) (Zip Code)
Guarantees and backup undertakings of Cendant
Corporation in connection with Preferred
Securities of Cendant Capital V
by Cendant Corporation
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe
each affiliation:
Based upon an examination of the books and records of
the trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington
Trust Company to commence business and the
authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington
Trust Company.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Wilmington Trust Company, a corporation
organized and existing under the laws of Delaware, has duly caused this
Statement of Eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Wilmington and State of
Delaware on the 10th day of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/Joseph B. Feil By: /s/ Bruce L. Bisson
--------------------- -------------------------
Assistant Secretary Name: Bruce L. Bisson
Title: Vice President
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939,
as amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 10, 1999 By: /s/ Bruce L. Bisson
----------------------------
Name: Bruce L. Bisson
Title: Vice President
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate
the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and
the name of which company was changed to "WILMINGTON TRUST Company" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been
from time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of
Delaware, does hereby alter and amend its Charter or Act of Incorporation
so that the same as so altered and amended shall in its entirety read as
follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is WILMINGTON
TRUST COMPANY whose address is Rodney Square North, in said City.
In addition to such principal office, the said corporation
maintains and operates branch offices in the City of Newark, New
Castle County, Delaware, the Town of Newport, New Castle County,
Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle
County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware
Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other
branch offices or places of business as may be authorized from
time to time by the agency or agencies of the government of the
State of Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court
of law or equity and to make and use a common seal, and
alter the seal at pleasure, to hold, purchase, convey,
mortgage or otherwise deal in real and personal estate
and property, and to appoint such officers and agents as
the business of the Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of
the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of
money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all
the powers, rights, privileges and franchises incident to
a corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or
any estate or interests therein, and to guarantee the
holder of such property, real or personal, against any
claim or claims, adverse to his interest therein, and to
prepare and give certificates of title for any lands or
premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management
of funds, and the purchase, sale, management and disposal
of property of all descriptions, and to prepare and
execute all papers which may be necessary or proper in
such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other
personal property of every sort and kind, from executors,
administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries,
and from all other persons and individuals, and from all
corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of
any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state,
municipality, body politic, corporation, association or
person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of
any contract or agreement, and the fidelity of persons
holding places of responsibility or trust; to become
surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations,
or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or
decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and
all estates and property, real, personal or mixed, and to
be appointed as such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State
of Delaware or elsewhere; and whenever this Corporation
is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon
it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake
or be called upon to perform, or for the assumption of
any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other
securities, obligations, contracts and evidences of
indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or
of the Government of the United States, or of any state,
territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect,
receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in
respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys
of the Corporation upon such securities and in such
manner as it may think fit and proper, and from time to
time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the
property held or owned by the Corporation, and to sell
and pledge such bonds, as and when the Board of Directors
shall determine, and in the promotion of its said
corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate
or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to
the same extent as natural persons might or could do, and
in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association
or corporation, and to pay for the same in cash, stock of
this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the
property so purchased; to conduct in any lawful manner
the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts
of every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw,
make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any
of its operations and businesses, without restriction to
the same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and
in any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said
paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock,
par value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock,
par value $1.00 per share (hereinafter referred to as
"Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock shall
be alike in every particular, except that there may be different
dates from which dividends, if any, thereon shall be cumulative,
if made cumulative. The voting powers and the preferences and
relative, participating, optional and other special rights of each
such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series
at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board
of Directors of the Corporation is hereby expressly granted
authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of a particular series of Preferred Stock,
the voting powers and the designations, preferences and relative,
optional and other special rights, and the qualifications,
limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or
decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the
Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred
Stock of such series shall be paid, the extent of the
preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or
series of the same or other class of stock and whether
such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock
of such series to convert the same into or exchange the
same for, shares of any other class or classes or of any
series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall
be subject to redemption, and the redemption price or
prices and the time or times at which, and the terms and
conditions on which, Preferred Stock of such series may
be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale
of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the
Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as
a series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation
if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or
under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
all the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed
in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall
be entitled to receive such dividends as may be declared from time
to time by the Board of Directors.
(2) After distribution in full of the preferential
amount, if any, (fixed in accordance with the provisions
of section (b) of this Article FOURTH), to be distributed
to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the
Corporation, the holders of the Common Stock shall be
entitled to receive all of the remaining assets of the
Corporation, tangible and intangible, of whatever kind
available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held
by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b)
of this Article FOURTH, each holder of Common Stock shall
have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other securities of the Corporation
shall have any preemptive right to purchase or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or
other securities convertible into or exchangeable for stock of the
Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued
stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to
such persons, firms, corporations or associations, whether such
holders or others, and upon such terms as may be deemed advisable
by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences
and rights of each other series of Preferred Stock shall, in each
case, be as fixed from time to time by the Board of Directors in
the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such of the
series of Preferred Stock as are from time to time outstanding
shall not be required for the issuance by the Board of Directors
of any other series of Preferred Stock whether or not the powers,
preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock
adopted pursuant to section (b) of this Article FOURTH that the
consent of the holders of a majority (or such greater proportion
as shall be therein fixed) of the outstanding shares of such
series voting thereon shall be required for the issuance of any or
all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series
of Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of
Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the term
of any director at the time in office, and provided further, that
the number of directors constituting the whole Board shall be
twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting.
Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the
directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the
By-Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed,
as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations
which are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should
so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any action
is specifically denied.
SIXTH: - The Directors shall choose such officers, agents and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time to
time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional
By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the books
of the Company outside of the State of Delaware at such places as
may be from time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required
by law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii)
any other corporation (whether or not itself an
Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter
defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested
Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of
$1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder, or any
Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or
that some lesser percentage may be specified, by law or in any agreement
with any national securities exchange or otherwise.
(2) The term "business combination" as used in
this Article FIFTEENTH shall mean any
transaction which is referred to in any one or
more of clauses (A) through (E) of paragraph 1
of the section (a).
(b) The provisions of section (a) of this Article
FIFTEENTH shall not be applicable to any particular
business combination and such business combination shall
require only such affirmative vote as is required by law
and any other provisions of the Charter or Act of
Incorporation or By-Laws if such business combination has
been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote on
such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at
any time within two years prior thereto beneficially
owned by any Interested Stockholder, and such assignment
or succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned
person or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares
of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and
duty to determine for the purposes of this Article
FIFTEENTH on the basis of information known to them, (1)
the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate
of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business
combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except to the extent
such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with
respect to any act or omission occurring prior to the
time of such repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or
at such other date, time, or place as may be designated by resolution by
the Board of Directors.
Section 2. Special meetings of all stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before said
meeting, at his last known address, a written or printed notice fixing the
time and place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined,
shall constitute a quorum at all meetings of stockholders for the
transaction of any business, but the holders of a small number of shares
may adjourn, from time to time, without further notice, until a quorum is
secured. At each annual or special meeting of stockholders, each
stockholder shall be entitled to one vote, either in person or by proxy,
for each share of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as determined
herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any
person who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of
the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority of
the directors.
Section 7. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in the
time or place of any regular meeting, stating the time and place of such
meeting, which shall be mailed not less than two days before the time of
holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect the
successor who shall hold office for the remainder of the full term of the
class of directors in which the vacancy occurred, and until such director's
successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President
who may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may
appoint at any time such other committees and elect or appoint such other
officers as it may deem advisable. The Board of Directors may also elect at
such meeting one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be
in charge of such of the departments or divisions of the Company as it may
deem advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed
of not more than nine members who shall be selected by the Board of
Directors from its own members and who shall hold office during the
pleasure of the Board.
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact all
business for and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of the
Chairman of the Executive Committee or at the call of the Chairman of the
Board of Directors. The majority of its members shall be necessary to
constitute a quorum for the transaction of business. Special meetings of
the Executive Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its next
meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the Company,
and shall direct the disposal of the same, in accordance with such rules
and regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the affairs
and business of the Company by its directors and officers as contemplated
by these By-Laws any two available members of the Executive Committee as
constituted immediately prior to such disaster shall constitute a quorum of
that Committee for the full conduct and management of the affairs and
business of the Company in accordance with the provisions of Article III of
these By-Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available for the
transaction of its business, such Executive Committee shall also be
empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at
such time, of a minimum of two members of such Executive Committee, any
three available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the foregoing provisions of this Section. This By-Law shall
be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose,
and any provisions of these By-Laws (other than this Section) and any
resolutions which are contrary to the provisions of this Section or to the
provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim
Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its
affairs and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of
not more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of Directors
and who shall hold office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust funds, in
all matters, however, being subject to the approval of the Board of
Directors.
(C) The Trust Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members or at the call of its
chairman. A majority of its members shall be necessary to constitute a
quorum for the transaction of business.
(D) Minutes of each meeting of the Trust
Committee shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power
to appoint Committees and/or designate officers or employees of the Company
to whom supervision over the investment of trust funds may be delegated
when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of
five members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall hold
office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to the
approval of the Board of Directors; it shall consider all matters brought
to its attention by the officer in charge of the Audit Division, review all
reports of examination of the Company made by any governmental agency or
such independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or with
respect to any other matters pertaining to auditing the Company as it shall
deem desirable.
(C) The Audit Committee shall meet whenever
and wherever the majority of its members shall deem it to be proper for the
transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be
composed of not more than five (5) members who shall be selected by the
Board of Directors from its own members who are not officers of the Company
and who shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in
general advise upon all matters of policy concerning the Company brought to
its attention by the management and from time to time review the management
of the Company, major organizational matters, including salaries and
employee benefits and specifically shall administer the Executive Incentive
Compensation Plan.
(C) Meetings of the Compensation Committee may
be called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director
may be elected by the Board of Directors as an associate director, to serve
during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all
matters brought to the Board, with the exception that he would have no
right to vote. An associate director will be eligible for appointment to
Committees of the Company, with the exception of the Executive Committee,
Audit Committee and Compensation Committee, which must be comprised solely
of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any
member of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers
and shall perform such duties as the Board of Directors may from time to
time confer and direct. He shall also exercise such powers and perform such
duties as may from time to time be agreed upon between himself and the
President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of
Directors at which the Chairman of the Board shall not be present and shall
have such further authority and powers and shall perform such duties as the
Board of Directors or the Chairman of the Board may from time to time
confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute or assigned to him by the Board of Directors. In the absence of the
Chairman of the Board the President shall have the powers and duties of the
Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and
shall at all times exercise general supervision over the interest, affairs
and operations of the Company and perform all duties incident to his
office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them
by the Board of Directors, the Executive Committee, the Chairman of the
Board or the President and by the officer in charge of the department or
division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition
to the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed
well in advance of the scheduled date of any other meeting. He shall have
custody of the corporate seal and shall affix the same to any documents
requiring such corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and
of all the transactions of the Company. He shall have general supervision
of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and
perform such other duties as may be assigned to him from time to time by
the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times
a report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller
and such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be
in charge of the Audit Division of the Company with such title as the Board
of Directors shall prescribe, shall report to and be directly responsible
only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge of
the Audit Division.
Section 10. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined
from time to time by the Board of Directors, who shall ex officio hold the
office Assistant Secretary of this Company and who may perform such duties
as may be prescribed by the officer in charge of the department or division
to whom they are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of
the Company and a transfer book shall be kept in which all transfers of
stock shall be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an Assistant
Secretary, and the seal of the corporation shall be engraved thereon. Each
certificate shall recite that the stock represented thereby is
transferrable only upon the books of the Company by the holder thereof or
his attorney, upon surrender of the certificate properly endorsed. Any
certificate of stock surrendered to the Company shall be cancelled at the
time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of
Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to
fix in advance a record date for the determination of the stockholders
entitled to notice of, and to vote at, any meeting of stockholders and any
adjournment thereof, or entitled to receive payment of any dividend, or to
any allotment or rights, or to exercise any rights in respect of any
change, conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection
with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power
and authority to attest and affix the corporate seal of the Company to any
and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business
of this Company or in acting as executor, administrator, guardian, trustee,
agent or in any other fiduciary or representative capacity by any and every
method of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of Directors
or the Executive Committee, and any and all such instruments shall have the
same force and validity as though expressly authorized by the Board of
Directors and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable
honoraria or fees for attending meetings of the Board of Directors as the
Board of Directors may from time to time determine. Directors and associate
directors who serve as members of committees, other than salaried employees
of the Company, shall be paid such reasonable honoraria or fees for
services as members of committees as the Board of Directors shall from time
to time determine and directors and associate directors may be employed by
the Company for such special services as the Board of Directors may from
time to time determine and shall be paid for such special services so
performed reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or
may hereafter be amended, any person who was or is made or is threatened to
be made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding")
by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or
of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses
incurred in defending any proceeding in advance of its final disposition,
provided, however, that the payment of expenses incurred by a Director or
officer in his capacity as a Director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an
undertaking by the Director or officer to repay all amounts advanced if it
should be ultimately determined that the Director or officer is not
entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment
of expenses, under this Article X is not paid in full within ninety days
after a written claim therefor has been received by the Corporation the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of the Charter or
Act of Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the
foregoing provisions of this Article X shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all
the members of the Board of Directors then in office.
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and
savings banks with state publication requirements. It has
not been approved by any state banking authorities. Refer
to your appropriate state banking authorities for your
state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ----------------------------------------- --------------
Name of Bank City
in the State of DELAWARE, at the close of business on June 30, 1999.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins...................................207,947
Interest-bearing balances................................................................. 0
Held-to-maturity securities.................................................................... 37,680
Available-for-sale securities................................................................1,598,933
Federal funds sold and securities purchased under agreements to resell.........................180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,237,557
LESS: Allowance for loan and lease losses. . . . . . 70,233
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve....................4,167,324
Assets held in trading accounts......................................................................0
Premises and fixed assets (including capitalized leases).......................................141,415
Other real estate owned......................................................................... 922
Investments in unconsolidated subsidiaries and associated companies..............................1,227
Customers' liability to this bank on acceptances outstanding.........................................0
Intangible assets............................................................................... 5,179
Other assets...................................................................................104,101
Total assets.................................................................................6,445,094
LIABILITIES
Deposits:
In domestic offices..........................................................................4,574,509
Noninterest-bearing . . . . . . . . 992,436
Interest-bearing. . . . . . . . . . 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase.................... 344,719
Demand notes issued to the U.S. Treasury........................................................83,802
Trading liabilities (from Schedule RC-D).............................................................0
Other borrowed money:..........................................................................///////
With original maturity of one year or less............................................860,000
With original maturity of more than one year...........................................43,000
Bank's liability on acceptances executed and outstanding.............................................0
Subordinated notes and debentures....................................................................0
Other liabilities (from Schedule RC-G)....................................................... 80,279
Total liabilities............................................................................5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................................0
Common Stock.......................................................................................500
Surplus (exclude all surplus related to preferred stock)........................................62,118
Undivided profits and capital reserves.........................................................412,409
Net unrealized holding gains (losses) on available-for-sale securities........................(16,242)
Total equity capital...........................................................................458,785
Total liabilities, limited-life preferred stock, and equity capital..........................6,445,094
FORM OF
RIGHTS AGREEMENT
BETWEEN
CENDANT CORPORATION
AND
BANK ONE TRUST COMPANY, N.A.
RIGHTS TO PURCHASE NEW FELINE PRIDES
, 1999
RIGHTS AGREEMENT
This RIGHTS AGREEMENT (the "Agreement") is dated as of
1999, between Cendant Corporation, a Delaware corporation (the "Company"),
and The First National Bank of Chicago, a national banking association, as
Rights Agent and Transfer Agent (the "Rights Agent" and the "Transfer
Agent").
RECITALS
WHEREAS, the Company has entered a certain Stipulation and
Agreement of Compromise and Settlement dated as of March 17, 1999 (the
"Settlement Agreement") under which the Company is obligated to issue up to
29,161,474 Rights (the "Rights") entitling each holder thereof to two New
FELINE PRIDES for every three Rights delivered with two Current FELINE
PRIDES; and
WHEREAS, the Rights Agent, at the request of the Company, has
agreed to act as the agent of the Company in connection with the issuance,
registration, transfer, exchange and exercise of the Rights;
NOW, THEREFORE, in consideration of the premises and mutual
agreements herein set forth, the parties hereto agree as follows:
AGREEMENT
1. Certain Definitions
For purposes of this Agreement, the following terms have the
meanings indicated:
(a) "Current FELINE PRIDES" mean the Income PRIDES ("Current
Income PRIDES") and Growth PRIDES ("Current Growth PRIDES") that were
issued pursuant to a prospectus and prospectus supplement, dated February
23, 1998, and February 24, 1998, respectively.
(b) "New FELINE PRIDES" mean the new Income PRIDES (the "New
Income PRIDES") and new Growth PRIDES (the "New Growth PRIDES") to be
issued pursuant to the Settlement Agreement. Each new Income PRIDES will
consist of a purchase contract (a "Purchase Contract") to purchase shares
of common stock of the Company, $.01 par value per share (collectively, the
"Common Stock") and a trust originated preferred security equal to $50 (the
"Preferred Security") representing a preferred undivided beneficial
interest in the assets of Cendant Capital II, a statutory business trust
formed under the Business Trust Act of the State of Delaware (the "Delaware
Business Trust Act"). Each New Growth PRIDES will consist of a Purchase
Contract and a 1/20 interest in a U.S. Treasury Security maturing on
February 15, 2001, with a face amount at maturity of $1,000 (a "Treasury
Security").
(c) "Additional FELINE PRIDES" mean the additional Income PRIDES
(the "Additional Income PRIDES") and additional Growth PRIDES (the
"Additional Growth PRIDES") to be issued pursuant to the Settlement
Agreement. Each Additional Income PRIDES will consist of a Purchase
Contract and a Preferred Security. Each Additional Growth PRIDES will
consist of a Purchase Contract and a Treasury Security.
(d) "Special FELINE PRIDES" mean the special Income PRIDES (the
"Special Income PRIDES") and special Growth PRIDES (the "Special Growth
PRIDES") to be issued pursuant to the Settlement Agreement. Each Special
Income PRIDES will consist of a Purchase Contract and a trust originated
preferred security equal to $50 representing a preferred undivided
beneficial interest in the assets of Cendant Capital III, Cendant Capital
IV and Cendant Capital V, each a statutory business trust formed under the
Business Trust Act of the State of Delaware (the "Delaware Business Trust
Act"). Each Special Growth PRIDES will consist of a Purchase Contract and
a Treasury Security.
(e) "FELINE PRIDES" shall mean, as the context requires, the
Current FELINE PRIDES, Additional FELINE PRIDES and Special FELINE PRIDES.
(f) "Income PRIDES" shall mean, as the context requires, the
Current Income PRIDES, Additional Income PRIDES and Special Income PRIDES.
(g) "Growth PRIDES" shall mean, as the context requires, the
Current Growth PRIDES, Additional Growth PRIDES and Special Growth PRIDES.
(h) "Distribution Date" means the date of distribution of the
Rights, which will be no later than five (5) business days from the date on
which each and all of the conditions in Section VI of the Settlement
Agreement, set forth in Exhibit B hereof, have been satisfied.
2. Appointment of Rights Agent.
The Company hereby appoints the Rights Agent to act as agent for
the Company in accordance with the instructions hereinafter set forth; and
the Rights Agent hereby accepts such appointment, upon the terms and
conditions hereinafter set forth.
3. Amount Issued.
Pursuant to the Settlement Agreement and subject to the provisions
of this Agreement, the Company shall issue up to 29,161,474 transferable
Rights enabling each holder thereof to exchange two Current, Additional or
Special FELINE PRIDES and three Rights for two New FELINE PRIDES.
4. Form of Rights Certificates.
The Rights shall be evidenced by certificates (the "Rights
Certificates") to be delivered pursuant to this Agreement, in registered
form only. The Rights Certificates and the forms of election to exchange
and of assignment to be printed on the reverse thereof shall be in
substantially the form set forth in Exhibit A hereto together with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Agreement, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with any law or with any rules
made pursuant thereto or with any rules of any securities exchange, any
agreement between the Company and any holder of a Right, or as may,
consistently herewith, be determined by the officers executing such Rights
Certificates, as evidenced by their execution of such Rights Certificates.
5. Execution of Rights Certificates.
Rights Certificates shall be signed on behalf of the Company by its
Chairman, President, a Vice President or its Treasurer and attested by its
Secretary or Assistant Secretary. If the Rights Agent manually
countersigns such Rights Certificates on behalf of the Company, each such
signature upon the Rights Certificates may be in the form of a facsimile
signature of the current or any future Chairman, President, Vice President,
Treasurer, Secretary or Assistant Secretary and may be imprinted or
otherwise reproduced on the Rights Certificates and for that purpose the
Company may adopt and use the facsimile signature of any person who shall
have been Chairman, President, Vice President, Treasurer, Secretary or
Assistant Secretary, notwithstanding the fact that at the time the Rights
Certificates shall be delivered or disposed of, such person shall have
ceased to hold such office.
If any officer of the Company who shall have signed any of the
Rights Certificates shall cease to be such officer before the Rights
Certificates so signed shall have been delivered by the Rights Agent or
disposed of by the Company, such Rights Certificates nevertheless may be
delivered or disposed of as though such person had not ceased to be such
officer of the Company; and any Rights Certificate may be signed on behalf
of the Company by any person who, at the actual date of the execution of
such Rights Certificate, shall be a proper officer of the Company to sign
such Rights Certificate, notwithstanding that on the date of the execution
of this Agreement any such person was not such officer.
6. Issue of Rights Certificates.
As soon as practicable after the Distribution Date, the Rights
Agent will send by first-class, insured, postage prepaid mail, to each
person set forth on the list provided by the Company, at the address of
such holder as shown on the records of the Company, a Rights Certificate,
evidencing the number of Rights set forth on such list. As of and after
the Distribution Date, the Rights will be evidenced solely by such Rights
Certificates.
7. Registration of Rights Certificate
The Rights Certificates shall be numbered and shall be registered
in a register (the "Rights Register") to be maintained by the Rights Agent.
The Company and the Rights Agent may deem and treat the registered holder
of a Rights Certificate as the absolute owner thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for the
purpose of any exercise thereof or any distribution to the holder thereof
and for all other purposes, and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary.
8. Registration of Transfers and Exchanges.
Until the Close of Business on the Expiration Date (as hereinafter
defined), the Rights Agent shall from time to time register the transfer of
any outstanding Rights Certificates in the Rights Register, upon surrender
of such Rights Certificates, duly endorsed, and, if not surrendered by or
on behalf of an Original Holder of Rights Certificates accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Rights Agent, duly signed by the registered holder or holders thereof or by
the duly appointed legal representative thereof or by a duly authorized
attorney, such signature to be guaranteed by an "eligible guarantor
institution" as defined under Rule 17Ad-15 promulgated under the Securities
Exchange Act of 1934, as amended. Upon any such registration of transfer, a
new Rights Certificate shall be issued to the transferee.
Rights Certificates may be exchanged at the option of the holder or
holders thereof, when surrendered to the Rights Agent at its offices or
agency maintained in [ ] (or at such other offices or
agencies as may be designated by the Agent) for the purpose of exchanging,
transferring and exercising the Rights, (a "Rights Agent Office,") or at
the offices of any successor Rights Agent as provided in Section 20 hereof,
for another Rights Certificate or other Rights Certificates of like tenor
and representing in the aggregate a like number of Rights.
9. Duration and Exercise of Rights; Rights Price.
(a) The Rights shall expire at 5:00 p.m. Eastern Standard Time
(the "Close of Business") on February 14, 2001 (the "Expiration Date").
Until the Close of Business on the Expiration Date, the Rights may be
exercised on any business day. After the Close of Business on the
Expiration Date, the Rights will become void and of no value and all
related Company obligations shall expire.
(b) (i) Subject to the terms of this Agreement, each holder of
Rights shall have the right, from the time the Rights are distributed
until the Close of Business on the Expiration Date, to purchase from the
Company upon exercise of three Rights, for a consideration consisting of
two Income PRIDES, two New Income PRIDES, upon surrender to the Company,
at the principal office of the Rights Agent, of the instruments
specified in paragraph (c) below. In order to exercise Rights, the
record owner of the Rights and the Income PRIDES tendered in connection
therewith must be identical.
(ii) Notwithstanding the foregoing, no holder of Rights will
be entitled to exercise such Rights for New Growth PRIDES unless (i)
such holder received Rights as part of the original distribution of
the Rights, as evidenced by its inclusion on the list supplied by the
Company pursuant to Section 6 and the number of Rights to be exercised
for New Growth PRIDES doe not exceed, together with all other Rights
so exercised by such holder, the number of Rights originally
distributed to such holder or (ii) the Company otherwise agrees. If a
holder of Rights who is not entitled to exercise Rights for Growth
PRIDES attempts to so exercise Rights, the Rights certificate shall be
returned to such holder as soon as practicable with a notice of
rejection.
(c) A Rights holder shall exercise such holder's right to exchange
Rights and Current FELINE PRIDES for New FELINE PRIDES:
(i) by depositing with the Rights Agent at the Rights Agent
Office the Rights Certificate evidencing such Rights with the form of
election to purchase on the reverse thereof duly completed and signed
by the registered holder or holders thereof or by the duly appointed
legal representative thereof or by a duly authorized attorney. Such
signature shall be guaranteed in the manner described in Section 8
hereof unless (1) the form of Election provides that the New FELINE
PRIDES are to be delivered directly to the record owner of those
Rights, or (2) the Rights Certificate is submitted for the account of
a member firm of a registered national securities exchange or a member
of the National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or correspondent in
the United States, and
(ii) by depositing with the Rights Agent at a Rights Agent
Office the FELINE PRIDES certificate representing the requisite amount
of FELINE PRIDES or by effecting a book entry transfer of the
requisite amount of FELINE PRIDES;
(d) Once a Rights holder exercises such holder's Rights, such
exercise may not be revoked.
(e) The Rights evidenced by a Rights Certificate shall be
exercisable, at the election of the registered holder thereof, in whole or
in part from time to time up to an aggregate amount equal to the number of
Rights specified in the Rights Certificate. If less than all of the Rights
evidenced by a Rights Certificate surrendered upon the exercise of Rights
are exercised at any time prior to the Expiration Date, a new Rights
Certificate or Certificates shall be issued for the number of Rights
evidenced by the Rights Certificate so surrendered that have not been
exercised.
(f) The Rights Agent shall account promptly to the Company with
respect to Rights exercised.
(g) If either the number of Rights being exercised is not
specified on a Rights Certificate, or the number of FELINE PRIDES is not
sufficient to pay the full aggregate consideration for all New FELINE
PRIDES stated to be subscribed for, the Rights holder will be deemed to
have exercised the maximum number of Rights that could be exercised for the
consideration delivered by such Rights holder. If the consideration
delivered by the Rights holder exceeds the aggregate consideration for the
number of Rights evidenced by the Rights Certificate(s) delivered by such
Rights holder, the consideration will be applied to subscribe for New
FELINE PRIDES up to the maximum payment required for use of all evidenced
Rights. Any excess consideration remaining after the foregoing allocation
will be returned to the Rights holder.
(h) The consideration for the New FELINE PRIDES shall be paid as
follows: (i) if the registered holder of Rights Certificates uses Current
FELINE PRIDES as part of the consideration for the New FELINE PRIDES, the
consideration shall be paid directly to the Rights Agent; (ii) if the
registered holder of Rights Certificates uses Additional or Special FELINE
PRIDES as part of the consideration for the New FELINE PRIDES, the
consideration shall be paid to Merrll Lynch & Co., as broker-dealer, which
shall forward such consideration to the Rights Agent. In either case, the
Rights Agent shall deliver the New FELINE PRIDES directly to such
registered holder of Rights Certificates.
(i) The Company covenants that all New FELINE PRIDES issued upon
exercise of the Rights will, upon issuance in accordance with the terms of
this Agreement, be fully paid and nonassessable and free from all liens,
charges and security interests created by or imposed upon the Company with
respect to the issuance thereof.
10. Cancellation of Rights.
If the Company shall purchase or otherwise acquire Rights, the
Rights Certificates representing such Rights shall thereupon be delivered
to the Rights Agent and be canceled by it and retired. The Rights Agent
shall cancel all Rights Certificates surrendered for exchange,
substitution, transfer or exercise in whole or in part.
11. Payment of Taxes.
The Company shall pay all documentary stamp taxes attributable to
the initial issuance of Rights, New FELINE PRIDES, Additional FELINE PRIDES
and Special FELINE PRIDES; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issue of any Rights Certificates or any
certificates for New FELINE PRIDES, Additional FELINE PRIDES or Special
FELINE PRIDES in a name other than the registered Holder of a Rights
Certificate surrendered upon the exercise of a Right, and the Company shall
not be required to issue or deliver such certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the
Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid or adequate
provision has been made for the payment thereof.
12. Mutilated or Missing Rights Certificates.
If any of the Rights Certificates shall be mutilated, lost, stolen
or destroyed, the Company may in its discretion issue, and the Rights Agent
shall deliver, in exchange and substitution for and upon cancellation of
the mutilated Rights Certificate, or in lieu of and substitution for the
Rights Certificate lost, stolen or destroyed, a new Rights Certificate of
like tenor and representing an equivalent number of Rights, but only upon
receipt of evidence satisfactory to the Company and the Rights Agent of
such loss, theft or destruction of such Rights Certificate and indemnity or
bond, if requested, also satisfactory to them. Applicants for such
substitute Rights Certificates shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company or the
Rights Agent may prescribe.
13. Transfer, Split up, Combination and Exchange of Rights Certificate.
At any time after the close of business on the Distribution Date,
and at or prior to the close of business on the Expiration Date, any Rights
Certificate or Rights Certificates may be transferred, split up, combined
or exchanged for another Rights Certificate or Rights Certificates,
entitling the registered holder to exchange such Rights Certificate or
Rights Certificates for the number of New FELINE PRIDES evidenced by such
Rights Certificate or Rights Certificates. Any registered holder desiring
to transfer, split up, combine or exchange any Rights Certificate shall
make such request in writing delivered to the Rights Agent, and shall
surrender the Rights Certificate or Rights Certificates to be transferred,
split up, combined or exchanged at the principal office of the Rights
Agent. Thereupon the Rights Agent shall deliver to the Persons entitled
thereto the Rights Certificate or Rights Certificates, as the case may be,
as so requested. The Company may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with
any transfer, split up, combination or exchange of Rights Certificates.
14. Registration of New FELINE PRIDES, Additional FELINE PRIDES
and Special FELINE PRIDES.
The Company has filed with the SEC registration statements for the
New FELINE PRIDES, the Additional FELINE PRIDES and Special FELINE PRIDES
on Forms S-3, each of which have been or will be declared effective. The
Company will use its best efforts to keep the registration statements
continuously effective from the date hereof through the Close of Business
ten (10) business days following the Expiration Date. So long as any
unexpired Rights remain outstanding, the Company will take all necessary
action to obtain and keep effective any and all permits, consents and
approvals of government agencies and authorities and to make filings under
federal and state securities acts and laws, which may be or become
necessary in connection with the issuance, sale, transfer and delivery of
the Rights Certificates, the exercise of the Rights and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of Rights.
15. Furnishing Prospectus to Registered Holders of Rights Certificates
The Rights Agent, on behalf of the Company, will furnish a copy
of the prospectus included as part of the registration statement for the
New FELINE PRIDES to (1) any person to whom Rights shall have been issued
pursuant to the terms hereof, on or before the delivery of such Rights, and
(2) every exercising registered holder of Rights Certificates with, or
prior to, the delivery of the New FELINE PRIDES; provided, however, that,
if such holder has been previously provided a prospectus, the Rights Agent
will not be obligated to provide a prospectus to such holder. The Company
will supply the Rights Agent with sufficient copies of the prospectus to
perform its delivery duties as provided for in this Section 15.
The Rights Agent will also make available appropriately signed and
countersigned New FELINE PRIDES upon the exchange of such Rights for the
New FELINE PRIDES.
16. Merger, Consolidation or Change of Name of Rights Agent.
Any corporation into which the Rights Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Rights
Agent shall be a party, or any corporation succeeding to the shareholder
services business of the Rights Agent, shall be the successor to the Rights
Agent hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights Agent
under the provisions of Section 20.
17. Rights Agent.
The Rights Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, by all of which the
Company and the holders of Rights Certificates, by their acceptance
thereof, shall be bound:
(a) The Rights Agent shall not be responsible for any failure of
the Company to comply with any of the covenants contained in this Agreement
or in the Rights Certificates to be complied with by the Company nor shall
it at any time be under any duty or responsibility to any holder of a Right
to make or cause to be made any adjustment in the number of New FELINE
PRIDES issuable upon exercise of any Rights, or in the consideration for
the Additional FELINE PRIDES or Special FELINE PRIDES (except as instructed
by the Company)
(b) The Company agrees to indemnify the Rights Agent and save it
harmless against any and all losses, liabilities and expenses, including
judgments, costs and reasonable counsel fees and expenses, for anything
done or omitted by the Rights Agent arising out of or in connection with
this Agreement except as a result of its negligence or bad faith.
(c) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered
all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or
performing the provisions of this Agreement.
(d) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the Chairman, the President, any Vice President, the Controller, the
Treasurer or an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer or in good faith reliance upon any
statement signed by any one of such officers of the Company with respect to
any fact or matter (unless other evidence in respect thereof is herein
specifically prescribed) which may be deemed to be conclusively proved and
established by such signed statement.
18. Change of Rights Agent.
If the Rights Agent shall resign (such resignation to become
effective not earlier than sixty (60) days after the giving of written
notice thereof to the Company and the registered holders of Rights
Certificates) or shall become incapable of acting as Rights Agent or if the
Board of Directors of the Company shall by resolution remove the Rights
Agent (such removal to become effective not earlier than thirty (30) days
after the filing of a certified copy of such resolution with the Rights
Agent and the giving of written notice of such removal to the registered
holders of Rights Certificates), the Company shall appoint a successor to
the Rights Agent. If the Company shall fail to make such appointment within
a period of thirty (30) days after such removal or after it has been so
notified in writing of such resignation or incapacity by the Rights Agent
or by the registered holder of a Rights Certificate (in the case of
incapacity), then the registered holder of any Rights Certificate may apply
to any court of competent jurisdiction for the appointment of a successor
to the Rights Agent. Pending appointment of a successor to the Rights
Agent, either by the Company or by such court, the duties of the Rights
Agent shall be carried out by the Company. Any successor Rights Agent,
whether appointed by the Company or by such court, shall be a bank or trust
company, in good standing, incorporated under the laws of any state or of
the United States of America. As soon as practicable after appointment of
the successor Rights Agent, the Company shall cause written notice of the
change in the Rights Agent to be given to each of the registered holders of
the Rights Certificates at such holder's address as appears on the Rights
Register. After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed. The former
Rights Agent shall deliver and transfer to the successor Rights Agent any
property at the time held by it hereunder and execute and deliver, at the
expense of the Company, any further assurance, conveyance, act or deed
necessary for the purpose. Failure to give any notice provided for in this
Section 20 or any defect therein, shall not affect the legality or validity
of the removal of the Rights Agent or the appointment of a successor Rights
Agent, as the case may be.
19. Rights of Action.
All rights of action in respect of this Agreement are vested in the
respective registered holders of the Rights Certificates; and any
registered holder of any Rights Certificate without the consent of the
Rights Agent or of the holder of any other Rights Certificate, may, on his
own behalf and for his own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company to enforce, or otherwise
act in respect of, his right to exercise the Rights evidenced by such
Rights Certificate in the manner provided in such Rights Certificate in
this Agreement. Without limiting the foregoing or any remedies available
to the holders of Rights, it is specifically acknowledged that the holders
of Rights would not have an adequate remedy at law for any breach of this
Agreement and shall be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened violations of
the obligations hereunder of any Person subject to this Agreement. Holders
of Rights shall be entitled to recover the reasonable costs and expenses,
including attorney's fees, incurred by them in any action to enforce the
provisions of this Agreement.
20. Right holder Not Deemed a Stockholder.
Nothing contained in this Agreement or in any of the Rights
Certificates shall be construed as conferring upon the holders thereof the
right to vote or to receive dividends or to consent or to receive notice as
stockholders in respect of the meetings of stockholders or for the election
of directors of the Company or any other matter, or any rights whatsoever
as stockholders of the Company.
21. Notices to Company and Rights Agent.
Any notice or demand authorized by this Agreement to be given or
made by the Rights Agent or by any registered holder of any Rights
Certificate to or on the Company shall be sufficiently given or made if
sent by mail, first-class or registered, postage prepaid, addressed (until
another address is filed in writing by the Company with the Rights Agent),
as follows:
Cendant Corporation
9 West 57th Street
37th Floor
New York, New York 10019
Attention: [ ]
If the Company shall fail to maintain such office or agency or
shall fail to give such notice of any change in the location thereof,
presentation may be made and notices and demands may be served at the
principal office of the Rights Agent.
Any notice pursuant to this Agreement to be given by the Company or
by any registered holder of any Rights Certificate to the Rights Agent
shall be sufficiently given if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Rights Agent
with the Company), as follows:
First National Bank of Chicago
1 North State Street
9th Floor
Chicago, Illinois 60670-0126
Attention: [ ]
The Rights Agent maintains a Rights Agent Office at .
22. Supplements and Amendments.
The Company and the Rights Agent may from time to time supplement
or amend this Agreement without approval of any holders of Right
Certificates in order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein or (iii) to change or
supplement the provisions hereunder in any manner which shall not adversely
affect the interests of the holders of Rights Certificates. Upon the
delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the
terms of this Section 24, the Rights Agent shall execute such supplement or
amendment unless the Rights Agent shall have determined in good faith that
such supplement or amendment would adversely affect its interests under
this Agreement. Any supplement or amendment of this Rights Agreement shall
be in writing and signed on behalf of the Company and the Rights Agent.
23. Successors.
All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
24. Termination.
This Agreement shall terminate on the Close of Business on a date
which is fifteen business days after the Expiration Date. Upon termination
of this Agreement, the Rights Agent shall retain all canceled Rights
Certificates and related documentation as required by applicable law.
25. Governing Law.
This Agreement and each Rights Certificate issued hereunder shall
be deemed to be a contract made under the laws of the State of New York and
for all purposes shall be construed in accordance with the internal laws of
the State of New York without regard to principles of conflict of law or
choice of laws of the State of New York or any other jurisdiction which
would cause the application of any laws other than of the State of New
York.
26. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to any person
or corporation other than the Company, the Rights Agent and the registered
holders of the Rights Certificates any legal or equitable right, remedy or
claim under this Agreement, and this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered
holders of the Rights Certificates.
27. Counterparts.
This Agreement may be executed in a number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
28. Headings.
The headings of sections of this Agreement have been inserted for
convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF the parties hereto have caused this Rights
Agreement to be executed and delivered as of the day and year first above
written.
CENDANT CORPORATION
By: ________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: ___________________________
Name:
Title:
Exhibit A
Form of Rights Certificate
Certificate No. - ____________ Rights
NOT EXERCISABLE AFTER FEBRUARY 14, 2001
Rights Certificate
CENDANT CORPORATION
This certifies that ------------------------, or its registered
assigns, is the registered owner of the number of Rights set forth above,
each of which entitles the owner thereof, subject to the terms, provisions
and conditions of the Rights Agreement dated as of ,
1999, (the "Rights Agreement") between Cendant Corporation, a Delaware
corporation (the "Company"), and the First National Bank of Chicago, as
rights agent (the "Rights Agent"), to exchange at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and
prior to 5:00 P.M. (New York time) on February 14, 2001, at the principal
office of the Rights Agent in [ ], three Rights combined with two
Income PRIDES or two Growth (as such terms are defined in the Rights
Agreement) for two New Income PRIDES or two New Growth PRIDES, as the case
may be (as such terms are defined in the Rights Agreement), or integral
multiples thereof, upon presentation and surrender of this Rights
Certificate with the appropriate Form of Election to exchange duly
executed.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions
and conditions are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby made.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the principal office of the Rights Agent,
may be exchanged for another Rights Certificate or Rights Certificates of
like tenor and date evidencing Rights entitling the holder to exchange such
Rights Certificate or Rights Certificates for a like aggregate number of
New FELINE PRIDES as the Rights evidenced by the Rights Certificate or
Rights Certificates surrendered. In the event that this Rights Certificate
is exercised, the holder hereof shall be entitled to receive this Rights
Certificate duly marked to indicate that such exercise has occurred as set
forth in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled
to vote or receive dividends or be deemed for any purpose to be the holder
of New FELINE PRIDES or of any other securities of the Company which may at
any time be issuable on the exercise hereof, nor shall anything contained
in the Rights Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or, to receive notice of meetings or other actions
affecting shareholders (except as provided in the Rights Agreement), until
the Right or Rights evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Agreement.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of , 1999.
ATTEST: [Seal] CENDANT CORPORATION
______________________ By: ________________________
Name: Name:
Title: Title:
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer
the Rights Certificate.)
FOR VALUE RECEIVED --------------------------------------------------------
hereby sells, assigns and transfers unto --------------------------
(Please print name and address of transferee) -----------------------------
this Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocable constitute and appoint ---------------
------------- Attorney, to transfer the within Rights Certificate on the
books of the within-named Company, with full power of substitution.
Dated: ----------------------------
_____________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an eligible guarantor institution (a bank,
stock broker, savings and loan association or credit union with membership
in an approved signature guarantee medallion program) pursuant to Rule
17Ad-15 of the Securities Exchange Act of 1934.
FORM OF ELECTION TO EXCHANGE
(To be executed if holder desires to exercise the Rights Certificate
pursuant to Sections 9, 10 or 11 of the Rights Agreement)
TO CENDANT CORPORATION:
The undersigned hereby irrevocably elects to exercise
Rights represented by this Rights Certificate to exchange
FELINE PRIDES for New FELINE PRIDES issuable upon the exercise of the
Rights and requests that certificates for such New FELINE PRIDES be issued
in the name of and delivered to:
______________________________________________________________________
(Please insert social security or other identifying number)
______________________________________________________________________
(Please print name and address)
______________________________________________________________________
The Rights Certificate indicating the balance, if any, of such
Rights which may still be exercised pursuant to Sections 9, 10 or 11 of the
Rights Agreement shall be returned to the undersigned unless such person
requests that the Rights Certificate be registered in the name of and
delivered to:
______________________________________________________________________
Please insert social security or other identifying number
(complete only if Rights Certificate is to be registered in a name other
than the undersigned)
______________________________________________________________________
(Please print name and address)
______________________________________________________________________
Date: _________________
__________________
Signature
Signature Guaranteed:
Signatures must be guaranteed, if required under Sections 9, 10 or 11 of
the Rights Agreement, by an eligible guarantor institution (a bank, stock
broker, savings and loan association or credit union with membership in an
approved signature guarantee medallion program) pursuant to Rule 17Ad-15 of
the Securities Exchange Act of 1934.
