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.
3.
NOTES
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.
5.
CERTIFICATED NOTES
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.
6.
BOOK-ENTRY NOTES
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 perform in any respect.
(b)
Issuance and Purchase of Certificated Notes
. Upon
receipt of issuance instructions with respect to Certificated
Notes, JPMorgan shall: (a) complete each Certificated Note as to
principal amount, date of issue, maturity date, place of payment,
and rate or amount of interest (if such Note is interest bearing)
in accordance with such instructions; (b) countersign each
Certificated Note; and (c) deliver each Certificated Note in
accordance with the Issuer’s instructions, except as
otherwise set forth below. Whenever JPMorgan is instructed to
deliver any Certificated Note by mail, JPMorgan shall strike from
the Certificated Note the word “Bearer,” insert as
payee the name of the person so designated by the Issuer and effect
delivery by mail to such payee or to such other person as is
specified in such instructions to receive the Certificated Note.
The Issuer understands that, in accordance with the custom
prevailing in the commercial paper market, delivery of
Certificat
