Exhibit 10.2
ISSUING AND PAYING AGENCY
AGREEMENT
This Agreement, dated as of March
30, 2005, is by and between Cendant Corporation (the
“Issuer” ) and JPMorgan Chase Bank (
“JPMorgan” ).
1.
APPOINTMENT AND
ACCEPTANCE
The Issuer hereby appoints JPMorgan
as its issuing and paying agent in connection with the issuance and
payment of certain short-term promissory notes of the Issuer (the
“Notes” ), as further described
herein, and JPMorgan agrees to act as such agent upon the terms and
conditions contained in this Agreement.
2.
COMMERCIAL PAPER
PROGRAMS
The Issuer may establish one or
more commercial paper programs under this Agreement by delivering
to JPMorgan a completed program schedule (the
“Program Schedule” ), with respect to
each such program. JPMorgan has given the Issuer a copy of
the current form of Program Schedule and the Issuer shall complete
and return its first Program Schedule to JPMorgan prior to or
simultaneously with the execution of this Agreement. In the event
that any of the information provided in, or attached to, a Program
Schedule shall change, the Issuer shall promptly inform JPMorgan of
such change in writing.
All Notes issued by the Issuer
under this Agreement shall be short-term promissory notes, exempt
from the registration requirements of the Securities Act of 1933,
as amended, as indicated on the Program Schedules, and from
applicable state securities laws. The Notes may be placed by
dealers (the “Dealers” ) pursuant to
Section 4 hereof. Notes shall be issued in either certificated or
book-entry form.
4.
AUTHORIZED
REPRESENTATIVES
The Issuer shall deliver to
JPMorgan a duly adopted corporate resolution from the
Issuer’s Board of Directors (or other governing body)
authorizing the issuance of Notes under each program established
pursuant to this Agreement and a certificate of incumbency, with
specimen signatures attached, of those officers, employees and
agents of the Issuer authorized to take certain actions with
respect to the Notes as provided in this Agreement (each such
person is hereinafter referred to as an “Authorized
Representative” ). Until JPMorgan receives any
subsequent incumbency certificates of the Issuer, JPMorgan shall be
entitled to rely on the last incumbency certificate delivered to it
for the purpose of determining the Authorized Representatives. The
Issuer represents and warrants that Cendant’s Treasurer and
Chief Financial Officer may appoint other officers and employees of
the Issuer (the “Delegates”) to issue instructions to
JPMorgan under this Agreement, and take other actions on the
Issuer’s behalf hereunder, provided that notice of the
appointment of each Delegate is delivered to JPMorgan in writing.
Each such appointment shall remain in effect unless and until
revoked by the Issuer in a written notice to JPMorgan.
If and when the Issuer intends to
issue certificated notes ( “Certificated
Notes” ), the Issuer and JPMorgan shall agree upon
the form of such Notes. Thereafter, the Issuer shall from time to
time deliver to JPMorgan adequate supplies of Certificated Notes
which will be in bearer form, serially numbered, and shall be
executed by the manual or facsimile signature of an Authorized
Representative. JPMorgan will acknowledge receipt of any supply of
Certificated Notes received from the Issuer, noting any exceptions
to the shipping manifest or transmittal letter (if any), and will
hold the Certificated Notes in safekeeping for the Issuer in
accordance with
JPMorgan’s customary
practices. JPMorgan shall not have any liability to the Issuer to
determine by whom or by what means a facsimile signature may have
been affixed on Certificated Notes, or to determine whether any
facsimile or manual signature is genuine, if such facsimile or
manual signature resembles the specimen signature attached to the
Issuer’s certificate of incumbency with respect to such
Authorized Representative. Any Certificated Note bearing the manual
or facsimile signature of a person who is an Authorized
Representative on the date such signature was affixed shall bind
the Issuer after completion thereof by JPMorgan, notwithstanding
that such person shall have ceased to hold his or her office on the
date such Note is countersigned or delivered by
JPMorgan.
The Issuer’s book-entry notes
( “Book-Entry Notes” ) shall not be
issued in physical form, but their aggregate face amount shall be
represented by a master note (the “Master
Note” ) in the form of Exhibit A executed by the
Issuer pursuant to the book-entry commercial paper program of The
Depository Trust Company ( “DTC” ).
JPMorgan shall maintain the Master Note in safekeeping, in
accordance with its customary practices, on behalf of Cede &
Co., the registered owner thereof and nominee of DTC. As long as
Cede & Co. is the registered owner of the Master Note, the
beneficial ownership interest therein shall be shown on, and the
transfer of ownership thereof shall be effected through, entries on
the books maintained by DTC and the books of its direct and
indirect participants. The Master Note and the Book-Entry Notes
shall be subject to DTC’s rules and procedures, as amended
from time to time. JPMorgan shall not be liable or responsible for
sending transaction statements of any kind to DTC’s
participants or the beneficial owners of the Book-Entry Notes, or
for maintaining, supervising or reviewing the records of DTC or its
participants with respect to such Notes. In connection with
DTC’s program, the Issuer understands that as one of the
conditions of its participation therein, it shall be necessary for
the Issuer and JPMorgan to enter into a Letter of Representations,
in the form of Exhibit B hereto, and for DTC to receive and accept
such Letter of Representations. In accordance with DTC’s
program, JPMorgan shall obtain from the CUSIP Service Bureau a
written list of CUSIP numbers for Issuer’s Book-Entry Notes,
and JPMorgan shall deliver such list to DTC. The CUSIP Service
Bureau shall bill the Issuer directly for the fee or fees payable
for the list of CUSIP numbers for the Issuer’s Book-Entry
Notes.
7.
ISSUANCE INSTRUCTIONS TO
JPMORGAN; PURCHASE PAYMENTS
The Issuer understands that all
instructions under this Agreement are to be directed to
JPMorgan’s Commercial Paper Operations Department. JPMorgan
shall provide the Issuer, or, if applicable, the Issuer’s
Dealers, with access to JPMorgan’s Money Market Issuance
System or other electronic means (collectively, the
“System” ) in order that JPMorgan may
receive electronic instructions for the issuance of Notes.
Electronic instructions must be transmitted in accordance with the
procedures furnished by JPMorgan to the Issuer or its Dealers in
connection with the System. These transmissions shall be the
equivalent to the giving of a duly authorized written and signed
instruction which JPMorgan may act upon without liability. In the
event that the System is inoperable at any time, an Authorized
Representative or a Delegate may deliver written, telephone or
facsimile instructions to JPMorgan, which instructions shall be
verified in accordance with any security procedures agreed upon by
the parties. JPMorgan shall incur no liability to the Issuer in
acting upon instructions believed by JPMorgan in good faith to have
been given by an Authorized Representative or a Delegate. In the
event that a discrepancy exists between a telephonic instruction
and a written confirmation, the telephonic instruction will be
deemed the controlling and proper instruction. JPMorgan may
electronically record any conversations made pursuant to this
Agreement, and the Issuer hereby consents to such recordings. All
issuance instructions regarding the Notes must be received by 1:00
P.M. New York time in order for the Notes to be issued or delivered
on the same day.
(a)
Issuance and Purchase of
Book-Entry Notes . Upon receipt of issuance instructions from the
Issuer or its Dealers with respect to Book-Entry Notes, JPMorgan
shall transmit such instructions to DTC and direct DTC to cause
appropriate entries of the Book-Entry Notes to be made in
accordance with DTC’s applicable rules, regulations and
procedures for book-entry commercial paper programs. JPMorgan shall
assign CUSIP numbers to the Issuer’s Book-Entry Notes to
identify the Issuer’s aggregate principal amount of
outstanding Book-Entry Notes in DTC’s system, together with
the aggregate unpaid interest (if any) on such Notes. Promptly
following DTC’s established settlement time on each issuance
date, JPMorgan shall access DTC’s system to verify whether
settlement has occurred with respect to the Issuer’s
Book-Entry Notes. Prior to the close of business on such business
day, JPMorgan shall deposit immediately available funds in the
amount of the proceeds due the Issuer (if any) to the
Issuer’s account at JPMorgan and designated in the applicable
Program Schedule (the “Account” ),
provided that JPMorgan has received DTC’s confirmation
that the Book-Entry Notes have settled in accordance with
DTC’s applicable rules, regulations and procedures. JPMorgan
shall have no liability to the Issuer whatsoever if any DTC
participant purchasing a Book-Entry Note fails to settle or delays
in settling its balance with DTC or if DTC fails to pe
