Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 17, 2002, by and
among AP RES LLC, a Delaware limited liability company (the "Sponsor"), and
Cendant Corporation ("Cendant").
1. Introduction. Cendant, Cendant Real Estate Holdings Inc.
("Purchaser"), Apollo Investment Fund III, L.P., Apollo Overseas Partners
III, L.P. and Apollo (UK) Partners III, L.P. and the Sponsor have entered
into a Stock Purchase Agreement (the "Stock Purchase Agreement") pursuant
to which Purchaser will acquire the Sponsor Shares from the Sponsor in
exchange for the Closing Cendant Shares (as defined in the Stock Purchase
Agreement) and, if required, the Adjustment Amount (as defined in the Stock
Purchase Agreement), which may, at Purchaser's option, be paid in
Additional Cendant Shares (as defined in the Stock Purchase Agreement).
This Agreement shall become effective upon the issuance of the Cendant
Shares to the Sponsor pursuant to the Stock Purchase Agreement. Certain
capitalized terms used in this Agreement are defined in Section 3 hereof.
References to Sections shall be to sections of this Agreement.
2. Registration Under Securities Act, Etc.
2.1 Shelf Registration Statement.
(a) As promptly as practicable following the Closing
Date, Cendant shall use its reasonable efforts to file and cause to be
effective a registration statement on Form S-3 (or other form of
registration statement if Form S-3 is not available) for an offering of all
of the Registrable Securities to be made on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement") and thereafter shall use its reasonable efforts to keep the
Shelf Registration Statement effective and usable for the resale of
Registrable Securities until the date on which all Registrable Securities
so registered have been sold pursuant to the Shelf Registration Statement
(such date being referred to as the "Effectiveness Termination Date"). In
the event that Purchaser delivers the Additional Cendant Shares pursuant to
the Stock Purchase Agreement following the Closing Date, Cendant shall use
its reasonable efforts to amend the Shelf Registration Statement (or file a
new Shelf Registration Statement, if required, in which case all references
herein to the Shelf Registration Statement shall include such new Shelf
Registration Statement) as promptly as practicable following the delivery
of such Additional Cendant Shares to include such shares, unless such
Additional Cendant Shares were already included in the initial Shelf
Registration Statement (it being understood and agreed that Cendant may, at
its option, include in the initial Shelf Registration Statement an
estimated number of Additional Cendant Shares that may be issuable pursuant
to the Stock Purchase Agreement).
(b) Expenses. Cendant shall pay any Registration Expenses
in connection with the registration under Section 2.1(a).
(c) Effectiveness. Cendant shall not be required to keep
the Shelf Registration Statement effective during any period or periods (up
to a total of 90 days in any 12-month period) if the continued
effectiveness of the Shelf Registration Statement would require Cendant to
disclose a material financing, acquisition or other corporate development
and Cendant shall have determined that such disclosure is not in the best
interests of Cendant; provided, further, that the requirement to use
reasonable efforts to keep the Shelf Registration Statement effective shall
be extended one day for each day that Cendant allows the effectiveness of
the registration statement to lapse in reliance on the preceding proviso.
(d) Selection of Underwriters. At Cendant's option, any
sale of Registrable Securities pursuant to the Shelf Registration Statement
may be effected pursuant to an underwritten offering in accordance with
Section 2.3 hereof. If a registration pursuant to Section 2.1(a) involves
an underwritten offering, the underwriter or underwriters thereof shall be
selected by Cendant, provided that if the Sponsor reasonably object to the
qualifications of such underwriter or underwriters, Cendant may select one
or more underwriters other than the underwriter or underwriters to which
objection was so made. If Cendant elects to effect an underwritten
offering, Cendant will cooperate with such underwriter or underwriters in
reasonable and customary matters such as requesting "comfort" letters from
its accountants, making appropriate executives available for meetings with
investors and the underwriter or underwriters, and assisting the
underwriter or underwriters with their due diligence investigations.
2.2 Registration Procedures. If and whenever Cendant is
required to use its reasonable efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections
2.1(a), Cendant shall:
(i) subject to Section 2.1(c), prepare and file
with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement until the Effectiveness Termination Date;
(ii) furnish to the Sponsor such number of
conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424
under the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as the Sponsor may
reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities;
(iii) notify the Sponsor and the managing
underwriter or underwriters, if any, promptly and confirm such advice
in writing promptly thereafter:
(A) when the registration statement, the prospectus
or any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed, and, with
respect to the registration statement or any post-effective amendment
thereto, when the same has become effective;
(B) of any request by the Commission for amendments
or supplements to the registration statement or the prospectus or for
additional information;
(C) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement or
the initiation of any proceedings by any Person for that purpose;
(D) if at any time the representations and
warranties of Cendant made as contemplated by Section 2.3 below cease
to be true and correct; and
(E) of the receipt by Cendant of any notification
with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws
of any jurisdiction or the initiation or threat of any proceeding for
such purpose;
(iv) notify the Sponsor, at any time when a
prospectus relating to a registration statement is required to be
delivered under the Securities Act, upon Cendant's discovery that, or
upon the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made, and at the request of the Sponsor
promptly prepare and furnish to the Sponsor and each underwriter, if
any, a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made;
(v) use its reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the
registration statement at the earliest possible moment;
(vi) otherwise use its reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve months,
but not more than eighteen months, beginning with Cendant's first
full calendar quarter after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder, and will
furnish to each such seller prior to the filing thereof a copy of any
amendment or supplement to such registration statement or prospectus
and shall not file any thereof to which any such seller shall have
reasonably objected on the grounds that such amendment or supplement
does not comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder; and
(vii) take such other action that may be requested
by the Sponsor that are customary and reasonably required in
connection with the sale of Registrable Securities.
The Sponsor shall furnish Cendant such information regarding the
Sponsor and the distribution of the Registrable Securities as Cendant may
from time to time reasonably request in writing.
Cendant will not file any registration statement or amendment
thereto or any prospectus or any supplement thereto (excluding such
documents incorporated by reference which constitute required reports under
the Exchange Act) to which the Sponsor shall reasonably object, provided
that Cendant may file such document in a form required by law or upon the
advice of its counsel.
The Sponsor agrees by acquisition of the Registrable Securities
that, upon receipt of any notice from Cendant of the occurrence of any
event of the kind described in subdivisions (iii) and (iv) of this Section
2.2, the Sponsor will forthwith discontinue its disposition of Registrable
Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivisions (iii) and
(iv) of this Section 2.2 and, if so directed by Cendant, will deliver to
Cendant (at Cendant's reasonable expense) all copies, other than permanent
file copies, then in such holder's possession of the prospectus relating to
such Registrable Securities current at the time of receipt of such notice.
2.3 Underwritten Offerings. (a) In the event of an underwritten
offering pursuant to the Shelf Registration Statement, Cendant and the
Sponsor will enter into an underwriting agreement with such underwriters
for such offering, such agreement to be reasonably satisfactory in
substance and form to Cendant and the Sponsor, and to contain such
representations and warranties and such other terms as are generally
prevailing in agreements of such type, including, without limitation,
customary indemnities. The Sponsor will cooperate with Cendant in the
negotiation of the underwriting agreement and will give consideration to
the reasonable suggestions of Cendant regarding the form thereof. The
Sponsor shall be a party to such underwriting agreement. The Sponsor agrees
that it will complete and execute all questionnaires, agreements and other
documents (other than powers of attorney) reasonably required under the
terms of any underwriting arrangements; provided that any indemnity
required by the Sponsor shall not be greater in scope than the indemnity
provided in Section 2.4(b)(i).
(b) The Sponsor agrees by acquisition of the Registrable
Securities, if so required by the managing underwriter, not to sell, make
any short sale of, loan, grant any option for the purchase of, effect any
public sale or distribution of, make any sale or distribution pursuant to
Rule 144 (or any successor provision) under the Securities Act of or
otherwise dispose of any shares of Cendant common stock, during the period
of not more than 90 days after any underwritten registration of Cendant
common stock pursuant to Section 2.1 has become effective, except as part
of such underwritten registration or other sale pursuant to this Agreement,
if the Sponsor participates in such registration.
2.4 Indemnification.
(a) Indemnification by Cendant. In the event of any registration
of any securities of Cendant under the Securities Act, Cendant will, and
hereby agrees to, indemnify and hold harmless the Sponsor and any of its
affiliates, their respective directors and officers, each other Person who
participates as an underwriter in the offering or sale of such securities
and each other Person, if any, who controls such Sponsor or any such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which any of the
Sponsor or any such director or officer or underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are
based upon (x) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or
any amendment or supplement thereto, or (y) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and Cendant will
reimburse the Sponsor and each such director, officer, underwriter and
controlling person for any legal or any other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
liability, action or proceeding, provided that Cendant shall not be liable
in any such case to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement
in reliance upon and in conformity with written information furnished to
Cendant concerning the Sponsor through an instrument duly executed by any
of the Sponsor specifically stating that it is for use in the preparation
thereof, and provided, further, that Cendant shall not be liable to the
Sponsor, or its directors and officers, or to any underwriter or other
Person, if any, who controls the Sponsor or any such underwriter within the
meaning of the Securities Act, in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of (i) the Sponsor's failure to send or give a copy
of the final prospectus, as the same may be then supplemented or amended,
within the time required by the Securities Act to the Person asserting the
existence of an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus, (ii) the use of any final prospectus,
as amended or supplemented, by or on behalf of the Sponsor after such time
as the obligation of Cendant to keep the related registration statement
effective has expired, or (iii) any violation of any federal or state
securities laws, rules or regulations committed by the Sponsor (other than
any violation that arises out of or is based upon the circumstances
described in clause (x) or (y) above and as to which the Sponsor would
otherwise be entitled to indemnification hereunder). Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on behalf of the Sponsor or any such director, officer, underwriter or
controlling person and shall survive the transfer of such securities by the
Sponsor.
(b) Indemnification by the Sponsor. Cendant may require, as a
condition to including any Registrable Securities in any registration
statement filed pursuant to Section 2.1 of this Agreement that Cendant
shall have received an undertaking satisfactory to it from the prospective
seller of such Registrable Securities, to indemnify and hold harmless (in
the same manner and to the same extent as set forth in subdivision (a) of
this Section 2.4) Cendant, each director of Cendant, each officer of
Cendant, each other Person, if any, who controls Cendant within the meaning
of the Securities Act, each other Person who participates as an underwriter
in the offering or sale of such securities and each other Person, if any,
who controls such holder or any such underwriter within the meaning of the
Securities Act, with respect to (i) any statement or alleged statement in
or omission or alleged omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to Cendant concerning
the Sponsor through an instrument duly executed by the Sponsors
specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement, (ii) the use of any prospectus by or
on behalf of the Sponsor after Cendant has notified the Sponsor that such
prospectus contains an untrue statement of material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, (iii) the failure to send or deliver to a Person to
whom the Sponsor sells Registrable Securities at or prior to the written
confirmation of sale, a copy of the final prospectus or of the final
prospectus as then amended or supplemented, whichever is most recent, if
Cendant has previously furnished copies thereof to the Sponsor or its
representatives, or (iv) any violation by the Sponsor of any federal or
state securities law or rule or regulation thereunder (other than any
violation that arises out of or is based upon circumstances described in
clause (x) or (y) of Section 2.4(a) above and as to which the Sponsor is
entitled to indemnification thereunder). Any such indemnity shall remain in
full force and effect, regardless of any investigation made by or on behalf
of Cendant or any such director, officer or controlling person and shall
survive the transfer of such securities by the Sponsor. Notwithstanding the
foregoing, the indemnity obligation of the Sponsor pursuant to this Section
2.4(b) shall be limited to an amount equal to the total proceeds (before
deducting underwriting discounts and commissions and expenses) received by
such Sponsor for the sale of shares by such Sponsor in a registration
hereunder.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
2.4, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of
the commencement of such action, provided that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of
this Section 2.4, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying
party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to
the extent that the indemnifying party may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the consent of
the indemnified party, consent to entry of any judgment or enter into any
settlement of any such action which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified
party of a release from all liability, or a covenant not to xxx, in respect
to such claim or litigation. No indemnified party shall consent to entry of
any judgment or enter into any settlement of any such action the defense of
which has been assumed by an indemnifying party without the consent of such
indemnifying party.
(d) Indemnification Payments. The indemnification required by this
Section 2.4 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received
or expense, loss, damage or liability is incurred.
(e) Contribution. If the indemnification provided for in the
preceding subdivisions of this Section 2.4 is unavailable to an indemnified
party in respect of any expense, loss, claim, damage or liability referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such expense, loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative
fault of Cendant, on the one hand, and of the Sponsor or underwriter, as
the case may be, on the other, in connection with the statements or
omissions which resulted in such expense, loss, damage or liability. The
relative fault of Cendant on the one hand and of the Sponsor or
underwriter, as the case may be, on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission to state a material fact relates
to information supplied by Cendant, by the Sponsor or underwriter, as the
case may be, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission, provided that the foregoing contribution agreement shall not
inure to the benefit of any indemnified party if indemnification would be
unavailable to such indemnified party by reason of the provisions contained
in the first sentence of subdivision (a) of this Section 2.4, and in no
event shall the obligation of any indemnifying party to contribute under
this subdivision (f) exceed the amount that such indemnifying party would
have been obligated to pay by way of indemnification if the indemnification
provided for under subdivisions (a) or (b) of this Section 2.4 had been
available under the circumstances.
Cendant and the Sponsor agree that it would not be just and
equitable if contribution pursuant to this subdivision (e) were determined
by pro rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth in the preceding sentence and subdivision (c) of this
Section 2.4, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim.
Notwithstanding the provisions of this subdivision (e), no Sponsor
or underwriter shall be required to contribute any amount in excess of the
amount by which (i) in the case of any such holder, the net proceeds
received by such holder from the sale of Registrable Securities or (ii) in
the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to
the public exceeds, in any such case, the amount of any damages that such
holder or underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
3. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
Closing Date: As defined in the Stock Purchase Agreement.
Commission: The Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
Company: As defined in the introductory paragraph of this
Agreement.
Exchange Act: The Securities Exchange Act of 1934, or any similar
Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular Section of the Securities Exchange Act of 1934 shall include a
reference to the comparable Section, if any, of any such similar Federal
statute.
Person: A corporation, an association, a partnership, an
organization, business, an individual, a governmental or political
subdivision thereof or a governmental agency.
Registrable Securities: The Closing Cendant Shares (and, if
applicable, the Additional Cendant Shares) issued to the Sponsor pursuant
to the Stock Purchase Agreement and any securities issued or issuable with
respect to the Closing Cendant Shares (and if applicable, the Additional
Cendant Shares) by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or
other reorganization or otherwise. As to any particular Registrable
Securities, once issued such securities shall cease to be Registrable
Securities when (a) a registration statement with respect to the sale of
such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such
registration statement, (b) they shall have been distributed to the public
pursuant to Rule 144 (or any successor provision) under the Securities Act,
(c) they shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered
by Cendant and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any
similar state law then in force, (d) they shall have ceased to be
outstanding, or (e) returned to Cendant pursuant to the terms of the Stock
Purchase Agreement.
Registration Expenses: All expenses incident to Cendant's
performance of or compliance with Section 2, including, without limitation,
all registration, filing and NASD fees, all stock exchange listing fees,
all fees and expenses of complying with securities or blue sky laws, all
brokerage commissions, underwriting discounts and commissions and transfer
taxes, if any, all word processing, duplicating and printing expenses,
messenger and delivery expenses, the fees and disbursements of counsel for
Cendant and of its independent public accountants, including the expenses
of any special audits or "cold comfort" letters required by or incident to
such performance and compliance, the reasonable fees and disbursements of
counsel retained by the Sponsor in connection with the registration of any
Registrable Securities and the distribution of such shares and any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, but excluding any other out-of-pocket expenses of the Sponsor.
Securities Act: The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as
of the same shall be in effect at the time. References to a particular
Section of the Securities Act of 1933 shall include a reference to the
comparable Section, if any, of any such similar federal statute.
4. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended and
Cendant may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if Cendant shall have obtained
the written consent to such amendment, action or omission to act, of the
Sponsor. The Sponsor shall be bound by any consent authorized by this
Section 4, whether or not such Registrable Securities shall have been
marked to indicate such consent.
(b) Notices. Except as otherwise provided in this Agreement, all
notices, requests and other communications to any Person provided for
hereunder shall be in writing and shall be given to such Person (a) in the
case of the Sponsor, addressed to such party in the manner set forth in the
Stock Purchase Agreement or at such other address as such party shall have
furnished to Cendant in writing, or (b) in the case of Cendant, at 0 Xxxx
00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, to the attention of Xxxx
X. Xxxx, or at such other address, or to the attention of such other
officer, as Cendant shall have furnished to each holder of Registrable
Securities at the time outstanding. Each such notice, request or other
communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (ii) if given by any other means (including,
without limitation, by air courier), when delivered at the address
specified above, provided that any such notice, request or communication to
any holder of Registrable Securities shall not be effective until received.
(c) Assignment. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any
express assignment shall have been made, the provisions of this Agreement
which are for the benefit of the parties hereto other than Cendant shall
also be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities, subject to the provisions respecting the minimum
numbers or percentages of shares of Registrable Securities required in
order to be entitled to certain rights, or take certain actions, contained
herein.
(d) Descriptive Headings. The descriptive headings of the several
Sections and paragraphs of this Agreement are inserted for reference only
and shall not limit or otherwise affect the meaning hereof.
(e) Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the
laws of the State of New York without reference to the principles of
conflicts of laws (other than Sections 5-1401 and 5-1402 of the New York
General Obligations Law).
(f) Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but
all such counterparts shall together constitute one and the same
instrument.
(g) Entire Agreement. This Agreement embodies the entire agreement
and understanding between Cendant and each other party hereto relating to
the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter.
(h) Submission to Jurisdiction. Any legal action or proceeding
with respect to this Agreement may be brought in the courts of the State of
New York or of the United States of America for the Southern District of
New York, and, by execution and delivery of this Agreement, Cendant hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts and appellate
courts from any thereof. Each party hereby irrevocably consents to the
service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof to such party by
registered or certified mail, postage prepaid, return receipt requested, to
such party at its address specified in Section 5. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE TRIAL BY JURY, AND EACH OF THE PARTIES HEREBY IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING
IN SUCH RESPECTIVE JURISDICTIONS.
(i) Severability. If any provision of this Agreement, or the
application of such provisions to any Person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such
provision to Persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers hereunto duly
authorized as of the date first above written.
CENDANT CORPORATION
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President &
Corporate Secretary
AP RES LLC
By: Apollo Management, L.P,
its Manager
By: AIF III Management, Inc.,
its General Partner
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
