Exhibit 1
PHH CORPORATION
U.S. $2,000,000,000
Medium-Term Notes
DISTRIBUTION AGREEMENT
________, 1995
CS First Boston Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Section 1. Introductory. PHH Corporation, a Maryland corporation
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(the "Company"), has filed with the Securities and Exchange Commission (the
"Commission"), and the Commission declared effective on _____________, 1995, a
registration statement on Form S-3 (Registration No. 33-_____, hereinafter
called the "Registration Statement"), covering up to U.S. $2,000,000,000
aggregate principal amount of the Company's debt securities (the
"Securities"). Any reference herein to the term "Registration Statement" shall
be deemed to refer, unless the context otherwise indicates, to the
Registration Statement, including the form of final prospectus, financial
statements and other documents included or incorporated by reference therein
and all exhibits included therein, as from time to time amended, and the term
"Prospectus" shall be deemed to refer collectively, unless the context
otherwise indicates, to the final prospectus in the form filed with the
Commission pursuant to Rule 424(b) under the Securities Act of 1933 (the
"Act") and each prospectus as supplemented mailed to the Commission pursuant
to Rule 424(c) under the Act, including documents incorporated by reference
therein, as from time to time amended or supplemented (exclusive of any
supplements relating solely to Securities that are not
Offered Securities as hereinafter defined). The Securities will be issued
under one or more indentures (the "Indentures") identified and described in
the Registration Statement between the Company and one or more commercial
banks, as trustees (the "Trustees"). One class of Securities that the Company
is authorized to issue under the Indentures is Medium-Term Notes (the "Offered
Securities"). Without limitation on the Company's right to sell all other
classes of Securities through underwriters (which may include any or all of
you) or dealers, or directly to one or more institutional investors, or
through agents (which may include any or all of you), and without limitation
on the Company's right to sell Offered Securities through other agents as
provided in Section 3(a) hereof, the Company confirms its agreement with you
with respect to the issue and sale by the Company of up to U.S. $2,000,000,000
(or the equivalent in foreign currency or currency units) principal amount of
the Offered Securities issued under the Indentures, subject to reduction as a
result of the concurrent sale of other Securities of the Company.
Section 2. Representations and Warranties of the Company. The
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Company represents and warrants to each of you, as of the date hereof, as of
the Closing Time hereinafter referred to and as of the times referred to in
Sections 4(k) and 4(l) (in each case the "Representation Date"), as follows:
(a) The Registration Statement and the Prospectus, on their
respective dates of effectiveness and filing did, and as of the applicable
Representation Date will, conform in all material respects to the requirements
of the Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
rules and regulations (the "Rules and Regulations") of the Commission; as of the
respective dates of their effectiveness and filing, neither the Registration
Statement nor the Prospectus did, nor as of the applicable Representation Date
will, include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph do not apply to (i)
statements or omissions in the Registration Statement or the Prospectus based
upon written information furnished to the Company by any of you or any of the
Trustees expressly for use therein or (ii) that part of the Registration
Statement that constitutes the Statement of Eligibility under the Trust
Indenture Act on Form T-1 of any Trustee, except statements or omissions in such
Statement made in reliance upon information furnished in writing to such Trustee
by or on behalf of the Company for use therein.
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(b) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of Maryland and has full
power and authority to conduct the businesses presently being conducted by it.
(c) Neither the execution or delivery of this Agreement, the Offered
Securities or the Indentures, the consummation of the transactions herein or
therein contemplated, nor compliance with the terms, conditions or provisions of
any such instruments, will result in a breach or violation of any of the terms
and provisions of, or constitute (with due notice or lapse of time, or both) a
default under, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any material subsidiary of the Company is a
party or by which it or any of its assets is bound, any statute, the charter or
by-laws of the Company or any material subsidiary or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any material subsidiary or over its assets (except, no
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representation, warranty or agreement is being made in this paragraph as to the
Blue Sky or securities laws of any State of the United States or the District of
Columbia, the Commonwealth of Puerto Rico or foreign jurisdictions).
(d) This Agreement has been duly authorized, executed and delivered
on behalf of the Company and is a valid and legally binding agreement of the
Company enforceable in accordance with its terms (except as the same may be
limited by bankruptcy, insolvency, reorganization or other laws relating to or
affecting creditors' rights generally); the Offered Securities have been duly
authorized and, when authenticated as contemplated by the applicable Indenture
or Indentures and delivered and paid for in accordance with this Agreement, will
have been duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company enforceable in accordance
with their terms (except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights
generally) and will be entitled to the benefits provided by the applicable
Indenture or Indentures.
(e) There is no consent, approval, authorization, order, registration
or qualification of or with any court or any regulatory authority or other
governmental body having jurisdiction over the Company or any material
subsidiary which is required for, or the absence of which would materially
affect, the issue and sale of the Offered Securities as
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contemplated by this Agreement or the execution, delivery or performance of
the Indentures, except the registration under the Act of the Offered
Securities, the qualification of the Indentures under the Trust Indenture Act
and such consents, approvals, authorizations, registrations or qualifications
as may be required under the securities or "Blue Sky" laws of any jurisdiction
in connection with the offering of the Offered Securities by the Company and
the Agent in the manner contemplated hereby.
(f) All financial statements of the Company provided to the Agent(s)
by the Company (including those contained in the Registration Statement) fairly
present the financial condition of the Company in all material respects and
have been prepared in conformity with U.S. generally accepted accounting
principles.
(g) The Company has complied with all provisions of section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
Section 3. Solicitations as Agent; Purchases as Principal or Under-
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writer. (a) Solicitations as Agent. On the basis of the representations and
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warranties herein contained, but subject to the terms and conditions herein
set forth, each of you will use your best efforts to solicit offers to
purchase the Offered Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented. You are hereinafter sometimes
referred to in your capacity as agents, individually as an "Agent" and
collectively as the "Agents". The Company reserves the right, and may submit
offers, to purchase and sell Offered Securities directly to the public on its
own behalf in jurisdictions in which it is authorized to do so. In addition,
after notice to each of the Agents, the Company may appoint any additional
agent to solicit and receive offers to purchase Offered Securities from the
Company upon the terms and conditions set forth in the Prospectus, provided
that any such additional agent is made a party to this Agreement or executes a
distribution agreement substantially identical to this Agreement.
Each Agent further undertakes that in connection with the distribution
of Offered Securities denominated in any foreign currency or currency unit, it
will comply with the further restrictions in respect of offers and sales of
Offered Securities so denominated set forth in Exhibit C hereto.
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The Company agrees to pay each Agent a commission for each Offered
Security sold, the purchase of which is solicited by such Agent, as follows:
Commission as a Percentage
Maturity of Principal Amount
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9 months to less than 1 year .125%
1 year to less than 18 months .150
18 months to less than 2 years .200
2 years to less than 3 years .250
3 years to less than 4 years .350
4 years to less than 5 years .450
5 years to less than 6 years .500
6 years to less than 7 years .550
7 years to less than 10 years .600
10 years to less than 15 years .625
15 years to less than 20 years .700
20 years to 30 years .750
More than 30 years to 40 years To be negotiated
The authorized denominations of Offered Securities denominated in a
currency or currency unit other than United States dollars shall be the
equivalent, as determined by the Market Exchange Rate (as defined herein) for
such currency or currency unit on the business day immediately preceding the
trade date for such Offered Securities, of U.S. $1,000 (rounded down to an
integral multiple of 1,000 units of such currency or currency unit), and any
larger amount that is an integral multiple of 1,000 units of such currency or
currency unit. The authorized denominations of Offered Securities denominated
in United States dollars shall be U.S. $1,000 and any larger amount that is an
integral multiple of U.S. $1,000. The Agents shall communicate to the Company,
orally or in writing, each offer to purchase Offered Securities other than
those rejected by the Agents. The Company shall have the sole right to accept
offers to purchase the Offered Securities and may reject any such offer in whole
or in part.
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The Agents shall have the right to reject any offer to purchase the Offered
Securities in whole or in part, and any such rejection shall not be deemed a
breach of their agreements contained herein.
The "Market Exchange Rate" on a given date for a given foreign
currency means the noon buying rate in New York City for cable transfers in such
currency as certified for customs purposes by the Federal Reserve Bank of New
York on such date; provided, however, that in the case of European Currency
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Units, Market Exchange Rate means the rate of exchange determined by the Council
of European Communities (or any successor thereto) as published on such date or
the most recently available date in the Official Journal of the European
Communities (or any successor publication).
(b) Purchases as Principal or Underwriter. Each sale of Offered
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Securities to any or all of you as principal or underwriter for resale to others
shall be made in accordance with the terms of this Agreement and a separate
agreement to be entered into between us which will provide for the sale of such
Offered Securities to, and the purchase and reoffering thereof by, any or all of
you. Each such separate agreement is herein referred to as a "Terms Agreement".
Your commitment to purchase Offered Securities pursuant to any Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
currency denomination, principal amount and maturity of Offered Securities to
be purchased by you pursuant thereto, the price to be paid to the Company for
such Offered Securities, the initial public offering price, if any, at which
the Offered Securities are proposed to be reoffered, the time and place of
delivery of and payment for such Offered Securities, and any provisions
relating to rights of, and default by, any purchasers acting together with you
in the reoffering of the Offered Securities. To the extent required, such
Terms Agreement shall also specify any requirements for opinions of counsel,
officer's certificates and letters from KPMG Peat Marwick or other independent
certified public accountant of national standing pursuant to Section 5 hereof.
Terms Agreements, each of which shall be substantially in the form of Exhibit
A hereto, may take the form of an exchange of any standard form of written
communication (including a written confirmation of an oral agreement) between
the Company and each of you participating in the sale referred to therein,
including by telecopy or telex. If agreed to by the Company and any one or
more Agents, such Agents may purchase Offered Securities as principal pursuant
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to the procedures for documentation and settlement applicable to agency sales.
The Agents may utilize a selling or dealer group in connection with the resale
of the Offered Securities.
(c) Procedures. Certain administrative functions are set forth in
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the Medium-Term Note Administrative Procedures (the "Procedure"), attached
hereto as Exhibit B. You and the Company agree to perform the respective duties
and obligations specifically provided to be performed by each of them herein and
in the Procedure, as amended from time to time. The Procedure may only be
amended by written agreement of all the parties hereto.
(d) Delivery. The documents required to be delivered by Section 5
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hereof (subject to paragraph (b) above) shall be delivered at the office of
Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the
date hereof, and at the delivery time specified in each Terms Agreement (each
called a "Closing Time").
Section 4. Covenants of the Company. The Company covenants with
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you that:
(a) The Company will make no amendment or supplement (other than by
an amendment or supplement in the form previously agreed to by the parties
providing solely for a change in the interest rates or maturities offered
in the Offered Securities, or for a change in the currency in which the
Offered Securities are denominated, chosen from among currencies that have
previously been described in the Prospectus (a "Pricing Supplement")) to
the Registration Statement or the Prospectus, whether by the filing of
documents incorporated by reference in whole or in part into the
Registration Statement or the Prospectus or otherwise, or make any change
in the form of final prospectus prior to the time it is first filed with
the Commission pursuant to Rule 424(b) under the Act, prior to having
furnished each of you a reasonable opportunity to review the same and which
shall not have been disapproved by you; the Company will advise each of you
promptly of the filing and effectiveness of any amendment to the
Registration Statement or the filing of any amendment or supplement (other
than a Pricing Supplement) to the Prospectus (including the filing and
effectiveness of any document incorporated by reference in whole or in part
into the Registration Statement or the Prospectus), and of the institution
by the Commission of any stop-order proceedings in respect
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of the Registration Statement, and will use its best efforts to prevent
the issuance of any such stop-order and to obtain as soon as possible its
lifting, if issued.
(b) If at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act any event occurs as a
result of which the Registration Statement or Prospectus would include an
untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if, in your reasonable
opinion or in the reasonable opinion of the Company, it is necessary at any
time to amend or supplement the Registration Statement or Prospectus
(including any document incorporated by reference in whole or part therein)
to comply with the Act, the Company promptly will notify you, or you shall,
as the case may be, suspend solicitation of offers to purchase Offered
Securities and, if so notified by the Company, you shall forthwith suspend
such solicitation and cease using the Prospectus; the Company will promptly
prepare and file with the Commission an amendment or supplement to such
Registration Statement or Prospectus (or to such document incorporated by
reference therein) which will correct such statement or omission or effect
such compliance and will supply such amended or supplemented Prospectus or
document to each of you in such quantities as you may reasonably request;
and if such amendment or supplement or document, and any documents,
certificates and opinions furnished to each of you pursuant to paragraph
(i) below in connection with the preparation or filing of such amendment or
supplement, are satisfactory in all respects to you, you will, upon the
filing of such amendment or supplement or document with the Commission or
effectiveness of an amendment to the Registration Statement, resume your
respective obligation to solicit offers to purchase Offered Securities
hereunder.
(c) As soon as practicable, the Company will make generally available
to its securityholders an earnings statement or statements that will
satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(d) The Company will furnish to each of you copies of all amendments
of and supplements (other than Pricing Supplements, copies of which need
only be furnished to the Agents involved in the sale of the Offered
Securities to which such Pricing Supplements relates) to the Registration
Statement and the Prospectus, as soon as
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available and in such quantities as you reasonably request.
(e) The Company will take such action as you may request in order to
qualify the Offered Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as you may request; provided, however,
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that in no event shall the Company be obligated to subject itself to
taxation or to qualify to do business in any jurisdiction where it is not
now so subject or qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the offering
or sale of the Offered Securities, in any jurisdiction where it is not now
so subject.
(f) So long as any Offered Security is outstanding, the Company will
furnish to each of you, as soon as practicable after the end of each fiscal
year, a balance sheet and statement of income of the Company as at the end
of and for such fiscal year in reasonable detail and reported on by
independent public accountants. The Company will furnish to each of you as
soon as practicable after the end of each quarterly fiscal period (except
for the last quarterly fiscal period of each fiscal year), a balance sheet
and statement of income of each of the Company as at the end of such period
and for the fiscal year to date, certified by either the Chief Financial
Officer or Chief Accounting Officer of the Company. So long as the Company
has active subsidiaries, such financial statements will be furnished on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated.
(g) The Company shall furnish to each of you as soon as practicable
following the filing of any amendment or supplement (other than a Pricing
Supplement) to the Registration Statement or Prospectus (including the
filing of any document incorporated by reference in whole or in part into
the Registration Statement or Prospectus), a certificate of (i) the
Chairman of the Board, the President, any Executive Vice President or any
Vice President and (ii) the Vice President and Treasurer, the Vice
President and Controller or any other Vice President of the Company to the
effect that, at the date of such certificate, neither the Registration
Statement nor the Prospectus includes any untrue statement of a material
fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the foregoing does not apply
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to (i) statements or omissions in the Registration Statement or
Prospectus based upon written information furnished to the Company by any
of you or any of the Trustees expressly for use therein or (ii) that part
of the Registration Statement that constitutes the Statement of
Eligibility under the Trust Indenture Act on Form T-1 of any Trustee,
except statements or omissions in such Statement made in reliance upon
information furnished in writing to such Trustee by or on behalf of the
Company for use therein.
(h) The Company shall furnish to each of you (i) forthwith after the
Company is required to file the same with the Commission, copies of its
annual reports and quarterly reports on Forms 10-K and 10-Q, respectively,
its proxy statements and of any other information, documents and reports
that the Company is required to file with the Commission pursuant to
Section 13, 14 or Section 15(d) of the Securities Exchange Act of 1934 or
with the New York Stock Exchange, Inc., or any other national securities
exchange on which any security of the Company is listed and (ii) at the
earliest time the Company makes the same available to others, copies of
annual reports and other financial reports of the Company furnished or made
available to the public generally.
(i) The Company shall furnish to each of you such documents,
certificates of officers of the Company and opinions of counsel for the
Company relating to the business, operations and affairs of the Company,
the Registration Statement, the Prospectus (including any amendments or
supplements thereto), the Indenture, the Offered Securities, this
Agreement, the Procedure and the performance by the Company and you of our
respective obligations hereunder and thereunder as you may from time to
time and at any time prior to the termination of this Agreement reasonably
request.
(j) The Company shall pay all expenses incident to the performance of
its obligations under this Agreement, including the fees and disbursements
of its accountants, the cost of printing and delivery of the Registration
Statement, the Prospectus (including all amendments and supplements
thereto) and the Indentures, the costs of preparing, printing, packaging
and delivering the Offered Securities, the fees and disbursements of the
Trustees and the fees of any agency that rates the Offered Securities, the
reasonable fees of your counsel, and will reimburse you from time to time
for all reasonable out-of-pocket expenses incurred by you, including
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in connection with the offering and sale of the Offered Securities and the
qualification of the Offered Securities for sale and determination of
eligibility for investment of the Offered Securities under the securities
or Blue Sky laws of such jurisdictions as you designate and any advertising
expenses connected with the offering and sale of Offered Securities.
(k) Each acceptance by the Company of an offer to purchase Offered
Securities and each delivery of Offered Securities in any sale made to, or
pursuant to an offer solicited by, you will be deemed to be an affirmation
to any Agent that solicited such offer or purchased such Offered Securities
that the representations and warranties of the Company contained in
Sections 2(a) through 2(e) are true and correct at the time of such
acceptance or delivery, as though made at and as of such time, and a
representation and warranty to any Agent that solicited such offer or
purchased such Offered Securities that neither the Registration Statement
nor the Prospectus includes any untrue statement of a material fact or
omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that the foregoing does not apply to (i) statements or
omissions in the Registration Statement or the Prospectus based upon
written information furnished to the Company by any of you or any of the
Trustees expressly for use therein or (ii) that part of the Registration
Statement that constitutes the Statement of Eligibility under the Trust
Indenture Act on Form T-1 of any Trustee, except statements or omissions
in such Statement made in reliance upon information furnished in writing
to such Trustee by or on behalf of the Company for use therein.
(l) Each time that the Registration Statement or the Prospectus
(including any portion of any document incorporated by reference in whole
or part into either), is amended or supplemented (other than by a Pricing
Supplement), the Company will deliver or cause to be delivered forthwith to
each of you a certificate of the officers of the Company as specified in
Section 4(g), dated the date of the effectiveness of such amendment or the
date of filing of such supplement, in form reasonably satisfactory to you,
to the effect that the statements contained in the certificate referred to
in Section 5(c)(ii) that was last furnished to you (either pursuant to
Section 5(c)(ii) or this Section 4(l)) are true and correct at the time of
the effectiveness of such amendment or the filing of such supplement as
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though made at and as of such time or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in Section
5(c)(ii) dated the effective date of such amendment or the date of filing
of such supplement.
(m) Each time that the Registration Statement or the Prospectus,
including any portion of any document incorporated by reference in whole or
part into either, is amended or supplemented (other than by a Pricing
Supplement), and except for an amendment or supplement occasioned by the
incorporation by reference of proxy materials of the Company or reports of
the Company on Form 10-K, Form 10-Q or Form 8-K, in which case the written
opinion furnished by the Company referred to hereafter shall be that of the
General Counsel or Assistant General Counsel of the Company), the Company
shall furnish or cause to be furnished forthwith to each of you a written
opinion of Piper & Marbury L.L.P., or other counsel for the Company
acceptable to the Agents, dated the date of the effectiveness of such
amendment or the date of filing of such supplement or the filing of such
document incorporated by reference into the Registration Statement or the
Prospectus, in form satisfactory to you, relating to the Registration
Statement and the Prospectus.
(n) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information, whether by incorporation by reference in whole or in part or
otherwise, the Company shall cause KPMG Peat Marwick L.L.P., or other
independent certified public accountants of national standing, forthwith to
furnish to each of you a letter, dated the date of the effectiveness of
such amendment or the date of filing of such supplement, in form
satisfactory to you, of the same tenor as the letter referred to in Section
5(d) with such changes as may be necessary to reflect the amended or
supplemental financial information included in the Registration Statement
and the Prospectus and the other financial information of the Company
available within five days of the date of such letter; provided, however,
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that such accountants need only furnish you a letter in compliance with SAS
71, as appropriately modified, where such amendment or supplement or
document incorporated by reference only sets forth unaudited quarterly
financial information contained in the Company's Quarterly Report on Form
10-Q.
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(o) Between the date of any Terms Agreement and the settlement date
with respect to the Offered Securities covered thereby, the Company will
not, without the prior consent of each of you that is a party to such
Terms Agreement, offer or sell, or enter into any agreement to sell, any
debt securities of the Company, other than (i) borrowings under the
Company's revolving credit agreements and lines of credit and (ii)
issuances of the Company's commercial paper.
(p) The Company shall offer to any person who has agreed to purchase
Offered Securities as a result of an offer to purchase solicited by any of
you the right to refuse to purchase and pay for such Offered Securities if,
on the related settlement date fixed pursuant to the Procedure, (i) the
condition set forth in Section 5(a) hereof shall not be satisfied, (ii) the
condition set forth in clause (a) of the last sentence of Section 5 hereof
shall not be satisfied or (iii) if any of the events set forth in clause
(ii) or clause (iii) of the second sentence of Section 9 hereof shall have
occurred (it being understood that, for purposes of this paragraph (p),
the judgment of such person shall be substituted for the judgment of the
Agent with respect to the matters referred to in clause (ii) of the second
sentence of Section 9 hereof, and that the Agent shall have no duty or
obligation to exercise its judgment on behalf of such person). This
paragraph (p) shall not affect any other right of any person who has agreed
to purchase Offered Securities to refuse to purchase and pay for such
Offered Securities that arises under any other provision of this Agreement.
Section 5. Conditions of Obligations. Your several obligations to
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solicit offers to purchase the Offered Securities as Agent(s) and your
obligations to purchase Offered Securities pursuant to any Terms Agreement or
otherwise will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the
statements of the Company's officers made in each certificate furnished
pursuant to the provisions hereof, to the performance and observance by the
Company of all covenants and agreements herein contained on its part to be
performed and observed and to the following additional conditions precedent:
(a) At the date hereof and at each Closing Time no stop-order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings
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for that purpose shall have been instituted or, to your knowledge or the
knowledge of the Company, threatened or contemplated by the Commission.
(b) At the date hereof and at each Closing Time if called for by the
applicable Terms Agreement, each of you (or, with respect to a Closing Time
called for by any Terms Agreement, each of you that is a party to such
Terms Agreement) shall have received an opinion, dated, as applicable,
either the date hereof or such Closing Time, of Piper & Marbury L.L.P., or
other counsel for the Company acceptable to the Agents (or in the case of
any Closing Time other than the date hereof, the opinion of the General
Counsel or Assistant General Counsel of the Company), substantially
identical to the proposed form of their opinion heretofore delivered to
each of you.
(c) (i) At the date hereof and at each Closing Time subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus (except as set forth in or contemplated by the
Registration Statement and the Prospectus), the Company shall not have
incurred any material liabilities or obligations, direct or contingent, or
entered into any material transactions not in the ordinary course of
business, nor shall there have been any material decrease in the
stockholders' equity or any material increase in the long-term debt of the
Company or any material adverse change in the condition, financial or
otherwise, or in the earnings, affairs or business prospects of the
Company, whether or not arising in the ordinary course of business.
(ii) At the date hereof and at each Closing Time if called for by the
applicable Terms Agreement, each of you (or, with respect to a Closing Time
called for by any Terms Agreement, each of you that is a party to such
Terms Agreement) shall have received a certificate, dated, as applicable,
the date hereof or such Closing Time, signed by the officers of the Company
specified in Section 4(g), certifying that, to the best of their knowledge
after reasonable investigation, the statements made in the immediately
preceding paragraph (i) are accurate and to the effect that (A) no stop-
order suspending the effectiveness of the Registration Statement has been
issued, and no proceedings for that purpose have been instituted or, to the
knowledge of such officers, are threatened or contemplated by the
Commission, (B) the Registration Statement and the Prospectus conform in
all material respects to the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations,
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(C) neither the Registration Statement nor the Prospectus contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
foregoing does not apply to (i) statements or omissions in the
Registration Statement or the Prospectus made in reliance upon
information furnished in writing to the Company by any of you or on your
behalf or on behalf of any of the Trustees expressly for use therein or
(ii) that part of the Registration Statement that constitutes the
Statement of Eligibility under the Trust Indenture Act on Form T-1 of any
Trustee, except statements or omissions in such Statement made in reliance
upon information furnished in writing to such Trustee by or on behalf of
the Company for use therein, and (D) the representations and warranties
of the Company included in Sections 2(a) through 2(e) are, as of the
Closing Time, accurate in all material respects and the Company has
performed and observed all covenants and agreements herein contained on
its part to be performed and observed prior to the Closing Time.
(d) At the date hereof, and at each Closing Time if called for by the
applicable Terms Agreement, each of you (or, with respect to a Closing Time
called for by any Terms Agreement, each of you that is a party to such
Terms Agreement) shall have received a letter, dated as of the Closing
Time, signed by KPMG Peat Marwick or other independent certified public
accountant of national standing, substantially identical to the proposed
form of such letter heretofore delivered to each of you.
(e) At the date hereof and at each Closing Time if called for by the
applicable Terms Agreement, each of you (or with respect to a Closing Time
called for by any Terms Agreement, each of you that is a party to such
Terms Agreement) shall have received an opinion, dated such date, of
Messrs. Wachtell, Lipton, Xxxxx & Xxxx, or other counsel selected by the
Agents, with respect to the Company, the Offered Securities, the
Registration Statement, including the form of final prospectus included
therein, this Agreement and the form and sufficiency of all proceedings
taken in connection with the authorization, sale and delivery of the
Offered Securities, all of which shall be satisfactory in all respects to
you, and the Company shall have furnished to your counsel such documents as
such counsel may reasonably request for the purpose of enabling them to
render such opinion.
-15-
(f) At the date hereof and at each Closing Time if called for by the
applicable Terms Agreement, the Company shall have furnished to each of you
(or, with respect to a Closing Time called for by any Terms Agreement, each
of you that is a party to such Terms Agreement) such further information
and documents as you may have reasonably requested.
(g) There shall not have occurred any change, or any development
involving a prospective change, involving currency exchange rates,
exchange controls, taxation or similar matters that in your respective
judgments makes it impracticable or inadvisable to proceed with your
solicitation of offers to purchase the Offered Securities denominated in
the affected currency or currencies, or your purchase of such Offered
Securities from the Company as principal; provided, however, that any such
-------- -------
change or development shall not affect your respective obligations with
respect to Offered Securities denominated in any currency not so affected.
Your respective obligations to purchase Offered Securities pursuant to
any Terms Agreement (or as contemplated by the last sentence of Section 3(b)
hereof) will be subject to the following further conditions: (a) the rating
assigned by any nationally recognized securities rating agency to any debt
securities of the Company as of the date of the applicable Terms Agreement shall
not have been lowered since that date nor shall any such organization have
publicly announced that it has under surveillance or review, with possible
negative implications, its ratings of any debt securities of the Company and (b)
there shall not have come to your attention any facts that would cause you to
believe that the Prospectus, at the time it was required to be delivered to a
purchaser of the Offered Securities, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such time, not
misleading.
Section 6. Indemnification. (a) The Company shall indemnify and
---------------
hold harmless each of you, each of your partners, directors, officers and
employees and each person, if any, who controls you within the meaning of
Section 15 of the Act against any and all losses, claims, damages, and
liabilities, joint or several (including any investigation, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
they, or any
-16-
of them, may become subject under the Act, the Securities Exchange Act of 1934
or other Federal or state law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement or the
Prospectus, or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to (i) untrue
statements or omissions or alleged untrue statements or omissions in such
preliminary prospectus, the Registration Statement or the Prospectus, based
upon written information furnished to the Company by any of you expressly for
use therein or (ii) that part of the Registration Statement that constitutes
the Statement of Eligibility under the Trust Indenture Act on Form T-1 of any
Trustee, except untrue statements or omissions or alleged untrue statements or
omissions in such Statement made in reliance upon information furnished in
writing to such Trustee by or on behalf of the Company for use therein;
provided, however, that the aforesaid indemnity agreement with respect to the
-------- -------
Registration Statement and the Prospectus shall not inure to your benefit (if
the person asserting any such loss, claim, damage or liability purchased the
Offered Securities which are the subject thereof through you), or to the benefit
of any person controlling you, if the Company shall have furnished an amendment
or supplement to the Prospectus to you prior to the time a written confirmation
of the sale of such Offered Securities was sent or given to the person asserting
such loss, claim, damage, liability or action for which indemnification is
sought, and the Prospectus as so supplemented or amended was not sent or given
to such person at or prior to the written confirmation of the sale of such
Offered Securities to such person.
(b) Each Agent shall indemnify and hold harmless the Company, each
person, if any, who controls the Company within the meaning of Section 15 of the
Act, each director of the Company and each officer of the Company who signs the
Registration Statement or any amendment thereto to the same extent as the
foregoing indemnity from the Company to you but only insofar as such losses,
claims, damages or liabilities arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which was made in
any preliminary prospectus, the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by such Agent expressly for use therein.
-17-
(c) Any party which proposes to assert the right to be indemnified
under this Section 6 shall, promptly after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which a claim is
to be made against an indemnifying party under paragraph (a) or (b) of this
Section 6, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served, but the
omission so to notify such indemnifying party of any such action, suit or
proceeding shall not relieve it from any liability which it may have to any
indemnified party otherwise than under paragraph (a) or (b) of this Section 6.
In case any such action, suit or proceeding is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that
it wishes, jointly with any other indemnifying party, similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not except with the consent of the indemnified party be counsel to
the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses, other than reasonable costs of investigation subsequently
incurred by such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any such action,
but the fees and expenses of such counsel will be at the expense of such
indemnified party unless (i) the employment of counsel by such indemnified party
has been authorized by the indemnifying party, (ii) the indemnified party shall
have reasonably concluded that there may be a conflict of interest between the
indemnifying party and the indemnified party in the conduct of the defense of
such action (in which case the indemnifying party shall not have the right to
direct the defense of such action on behalf of the indemnified party) or (iii)
the indemnifying party has not in fact employed counsel to assume the defense of
such action, in any of which events such fees and expenses shall be borne by the
indemnifying party. An indemnifying party shall not be liable for any
settlement of any action or claim effected without its consent.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses,
-18-
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and each of you on the other from the offering of the
Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and each of you on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each of you on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Offered Securities
(before deducting expenses) received by the Company bear to the total
commissions or discounts received by each of you in respect thereof. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Company on the one hand or by you on
the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and you agree that it would not be just and equitable if contribution pursuant
to this subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include 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
subsection (d), no Agent shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities purchased by or
through such Agent were sold exceeds the amount of any damages which such
Agent has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
-19-
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Agents' obligations to
contribute pursuant to this Section 6(d) are several, in proportion to the
respective principal amounts of Offered Securities purchased or sold by each
of such Agents, and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls you
within the meaning of the Act; and your obligations under this Section 6 shall
be in addition to any liability which you may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company within the meaning of the
Act.
Section 7. Position of the Agent(s). In soliciting purchases of
------------------------
the Offered Securities, each Agent is acting solely as agent for the Company,
and not as principal. Each Agent shall make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase
Offered Securities has been solicited by such Agent and accepted by the
Company, but such Agent shall not have any liability to the Company in the
event any such purchase is not consummated for any reason.
Section 8. Representations and Indemnities to Survive Delivery. Your
---------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements and those of the Company or its officers set forth in or made
pursuant to this Agreement shall remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any of you or on behalf of the Company or any of its officers or directors or
any controlling person, and will survive each delivery of and payment for any of
the Offered Securities.
Section 9. Termination. This Agreement may be terminated at any
-----------
time (i) by the Company with respect to any Agent by giving written notice of
such termination to such Agent or (ii) by any Agent, as to the rights and
obligations of such Agent only, by giving written notice to the Company. Any
Agent that is a party to any Terms Agreement may also terminate such Terms
Agreement (or other obligation to purchase Offered Securities as principal as
contemplated by the penultimate sentence of Section 3(b) hereof), immediately
upon notice to the Company, at any time prior to the Closing Time relating
thereto (i) if there has been, since the respective
-20-
dates as of which information is given in the Registration Statement and
Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one enterprise,
or in the earnings, affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States, or of any other country in the
currency of which the Offered Securities are denominated, is such as to make
it, in the judgment of such Agent, impracticable to market the Offered
Securities or enforce contracts for the sale of the Offered Securities, or
(iii) if trading in any securities of the Company has been suspended by the
Commission or a national securities exchange, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority,
or if a banking moratorium has been declared by either Federal or New York
State authorities or by authorities in any other country in the currency of
which the Offered Securities are denominated. In the event of such termination
by the Company, the Company and any Agent as to which this Agreement has been
terminated shall have no liability or other obligation to each other, and in
the event of such termination by an Agent, such Agent and the Company shall
have no further liability or obligation to each other, in each case except as
provided in the first sentence of the third paragraph of Section 3, Section
4(c), Section 4(j), Section 6 and Section 8 and except that, if at the time of
termination (i) an offer to purchase any of the Offered Securities has been
accepted by the Company but the time of delivery to the purchaser or its agent
of the Offered Security or Offered Securities relating thereto has not
occurred or (ii) any Agent shall own any of the Offered Securities which were
bought by such Agent as principal with the intention of reselling them, the
Company's obligations provided in Sections 4(k) through 4(n) and, in the
circumstances described in clause (ii), all obligations of the Company
relating to such Agent's ability to resell such Offered Securities, shall not
be terminated.
Section 10. Notices. All communications hereunder will be in
-------
writing and, if sent to you, will be mailed, delivered or telegraphed and
confirmed in duplicate originals to:
-21-
CS First Boston Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Credit Control--Medium Term Notes
Telecopy: (000) 000-0000
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: MTN Product Management
Telecopy: (000) 000-0000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Desk
Telecopy: (000) 000-0000
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 00000 XxXxxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxx 00000, Attention
of Vice President and Treasurer.
Section 11. Parties. This Agreement will inure to the benefit of
-------
and be binding upon each of the parties hereto and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or is
to be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons,
directors, officers and employees referred to in Section 6, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole exclusive benefit of the
parties hereto and their respective successors and said controlling persons
and said directors, officers and employees, and for the benefit of no other
person, firm or corporation. No purchaser of any Offered Securities through
any Agent will be deemed to be a successor by reason merely of such purchase.
Section 12. Governing Law. This Agreement will be governed by and
-------------
construed in accordance with the laws of the State of New York.
-22-
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Company and you in accordance with its terms.
Very truly yours,
PHH CORPORATION
By
-----------------------------
Vice President and Treasurer
Confirmed and Accepted,
as of the date first
above-written:
CS FIRST BOSTON CORPORATION
By
--------------------------
XXXXXXX, SACHS & CO.
BY
--------------------------
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By
--------------------------
X.X. XXXXXX SECURITIES INC.
By
--------------------------
-23-
EXHIBIT A
PHH CORPORATION
(A Maryland corporation)
Medium-Term Notes
TERMS AGREEMENT
[Date]
PHH Corporation
00000 XxXxxxxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: __________________
Re: Distribution Agreement for Above-Mentioned Securities
Pursuant to the Distribution Agreement dated _________ __, 1995
between PHH Corporation (the "Company") and [Agent(s)], the undersigned agrees
to purchase the Company's Medium-Term Notes having the principal amounts
(denominated in the respective currencies), maturities, interest rates and other
terms set forth in Schedule I hereto.
[The opinions referred to in Sections 5(b) and 5(e) of the
Distribution Agreement, the accountants' letter referred to in Section 5(d) of
the Distribution Agreement [and the officer's certificate referred to in Section
5(c) of the Distribution Agreement] will be required.]
[Agent(s)]
Accepted: By
PHH CORPORATION -----------------------------
---------------
By
--------------------------
Schedule I
Principal Discount Initial
Amount (as % of Public
Maturity Settlement and Interest Principal Offering
Date Date Currency Rate Amount) Price Trustee
-------- ---------- --------- -------- ---------- -------- -------
A.
B.
C.
D.
E.
F.
G.
H.
Time of delivery
Place of delivery
[Other terms]
[Closing date]
EXHIBIT B
PHH CORPORATION
Administrative Procedures
-------------------------
These Administrative Procedures relate to the Offered Securities
defined in the Distribution Agreement, dated _______ __, 1995 (the "Distribution
Agreement"), between PHH Corporation (the "Company") and CS First Boston
Corporation, Xxxxxxx, Sachs & Co., Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and X.X. Xxxxxx Securities Inc. (together, the
"Agents"), to which this Administrative Procedure is attached as Exhibit B.
Defined terms used herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as amended or
supplemented, or the applicable Indenture. As used in these Administrative
Procedures, the "Indenture" refers to the Indenture pursuant to which the
subject Offered Securities are issued and the "Trustee" refers to the Trustee
under such Indenture.
The procedures to be followed with respect to the settlement of sales
of Offered Securities directly by the Company to purchasers solicited by an
Agent, as agent, are set forth below. The terms and settlement details related
to a purchase of Offered Securities by an Agent, as principal, from the Company
will be set forth in a Terms Agreement pursuant to the Distribution Agreement,
unless the Company and such Agent otherwise agree as provided in Section 3(b) of
the Distribution Agreement, in which case the procedures to be followed in
respect of the settlement of such sale will be as set forth below. An Agent, in
relation to a purchase of an Offered Security by a purchaser solicited by such
Agent, is referred to herein as the "Selling Agent" and, in relation to a
purchase of an Offered Security by such Agent as principal other than pursuant
to a Terms Agreement, as the "Purchasing Agent."
The Company will advise each Agent in writing of those persons with
whom such Agent is to communicate regarding offers to purchase Offered
Securities and the related settlement details.
Each Offered Security will be issued only in fully registered form and
will be represented by either a global security (a "Global Security") delivered
to the Trustee, as agent for The Depository Trust Company (the "Depositary") and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable
B-1
Pricing Supplement. An owner of a Book-Entry Security will not be entitled to
receive a certificate representing such a Security, except as provided in the
Indenture.
Certificated Securities will be issued in accordance with the
Administrative Procedure set forth in Part I hereof, and Book-Entry Securities
will be issued in accordance with the Administrative Procedure set forth in Part
II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
B-2
Communication of Sale Information to
Company by Selling Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and the
initial interest payment date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified
Currency;
(5) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
(10) If a redeemable Certificated Security, such of the following as
are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption
Commencement Date;
(11) If a Floating Rate Certificated Security, such of the following
as are applicable:
B-3
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates, and
(xi) Calculation Agent;
(12) Name, address and taxpayer identification number of the
registered owner(s);
(13) Denomination of certificates to be delivered at settlement; and
(14) Name of the Trustee.
Preparation of Pricing Supplement by Company
If the Company accepts an offer to purchase a Certificated Security,
it will prepare a Pricing Supplement. The Company will supply at least ten
copies of such Pricing Supplement to the Selling Agent or Purchasing Agent, as
the case may be, not later 3:00 p.m., New York City time, on the second business
day following the date of acceptance of such offer, or if the Company and the
purchaser agree to settlement on the date of such acceptance, not later than
noon, New York City time, on such date. The Company will arrange to have ten
Pricing Supplements filed with the Commission not later than the close of
business of the Commission on the fifth business day following the date on which
such Pricing Supplement is first used.
Pricing Supplements will be delivered to the Selling Agent or
Purchasing Agent as follows:
B-4
CS First Boston Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Sachs & Co
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
MTN Desk Assistant
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx Xxxxx & Co. - Tritech Services
0 Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxx 000
Xxxxxxxxxx, XX 00000
Attn: Final Prospectus Unit/Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000/26/27
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center, Xxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: MTN Product Management
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Medium-Term Note Desk
Telecopy: (000) 000-0000
Delivery of Confirmation and Prospectus to
Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such Purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Certificated Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Certificated Security.
B-5
Date of Settlement:
All offers solicited by a Selling Agent or made by a Purchasing Agent
and accepted by the Company will be settled on a date (the "Settlement Date")
which is the fifth business day after the date of acceptance of such offer,
unless the Company and the purchaser agree to settlement (a) on any other
business day after the acceptance of such offer or (b) with respect to an
offer accepted by the Company prior to 10:00 a.m., New York City time, on the
date of such acceptance.
Instruction from Company to Trustee for Preparation of Certificated
Securities:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means.
The Company will instruct the Trustee by facsimile transmission or
other acceptable written means to authenticate and deliver the Certificated
Securities no later than 2:15 p.m., New York City time, on the Settlement Date.
Such instruction will be given by the Company prior to 3:00 p.m., New York City
time, on the business day prior to the Settlement Date unless the Settlement
Date is the date of acceptance by the Company of the offer to purchase
Certificated Securities in which case such instruction will be given by the
Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by
Trustee and Receipt of Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser
solicited by an Agent, the Trustee will, by 2:15 p.m., New York City time, on
the Settlement Date, deliver the Certificated Securities to the Selling Agent
for the benefit of the purchaser or such Certificated Securities against
delivery by the Selling Agent of a receipt therefor. On the Settlement Date the
Selling Agent will deliver payment for such Certificated Securities in
immediately available funds to the Company in an amount equal to the issue price
of the Certificated Securities less the Selling Agent's commission; provided
that the Selling Agent reserves the right to withhold payment for which it has
not received funds from the
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purchaser. The Company shall not use any proceeds advanced by a Selling Agent
to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing
Agent, the Trustee will, by 2:15 p.m., New York City time, on the Settlement
Date, deliver the Certificated Securities to the Purchasing Agent against
delivery of payment for such Certificated Securities in immediately available
funds to the Company in an amount equal to the issue price of the Certificated
Securities less the Purchasing Agent's discount.
Certified Securities will be delivered to the Agents as follows:
CS First Boston Corporation
Five Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Bond Operations
Telephone: (000) 000-0000
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
Money Market Clearance - MTNs
One Liberty Plaza
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx Xxxx/Xxx Xxxx
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment
to the Selling Agent for a Certificated Security, the Selling Agent will
promptly notify the Trustee and the Company thereof by telephone (confirmed in
writing) or by facsimile transmission or other acceptable written means. The
Selling Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an adequate basis for its loss of
the use of funds
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during the period when they were credited to the account of the Company.
The Trustee will cancel the Certificated Security in respect of which
the failure occurred, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the Certificated Security.
PART II: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
------------------------------------------------------------
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to the Depositary, dated the
date hereof, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary (the "Certificate Agreement"), and its obligations as a
participant in the Depositary, including the Depositary's Same Day Funds
Settlement System ("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by the maturity of Book-Entry Securities that may
be sold as a result of the solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities for an offering period
("posting"). If the Company decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Offered Securities, other
than those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in part. Each Agent also
may make offers to the Company to purchase Book-Entry Securities as a Purchasing
Agent. The Company will have the sole right to accept offers to purchase Book-
Entry Securities and may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or
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rejection of an offer to purchase Book-Entry Securities. If the Company
accepts an offer to purchase Book-Entry Securities, it will confirm such
acceptance in writing to the Selling Agent or Purchasing Agent, as the case
may be, and the Trustee.
Communication of Sale Information to the Company by
Selling Agent and Settlement Procedures:
A. After the acceptance of an offer by the Company, the Selling
Agent or Purchasing Agent, as the case may be, will communicate promptly, but in
no event later than the time set forth under "Settlement Procedure Timetable"
below, the following details of the terms of such offer (the "Sale Information")
to the Company by telephone (confirmed in writing) or by facsimile transmission
or other acceptable written means:
(1) Principal amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and the
initial interest payment date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified
Currency (it being understood that currently the Depositary
accepts deposits of Global Securities denominated in U.S.
dollars only);
(5) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(8) Net Proceeds to the Company;
(9) Settlement Date;
(10) If a redeemable Book-Entry Security, such of the following as
are applicable:
(i) Redemption Commencement Date,
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(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption
Commencement Date;
(11) If a Floating Rate Book-Entry Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates, and
(xi) Calculation Agent; and
(12) Name of the Trustee.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, the Company will communicate such Sale Information to the
Trustee by facsimile transmission or other acceptable written means. The
Company will assign a CUSIP number to the Global Security representing such
Book-Entry Security and then advise the Trustee and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Corporation:
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(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the Participant account maintained by the Depositary
on behalf of the Selling Agent or Purchasing Agent, as the case
may be;
(5) The interest payment period;
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for
the Depositary's purposes (which, in the case of Floating Rate
Offered Securities which reset weekly shall be the date five
calendar days immediately preceding the applicable Interest
Payment Date and in the case of all other Book-Entry Securities
shall be the Regular Record Date, as defined in the Offered
Security) and, if calculable at that time, the amount of
interest payable on such Interest Payment Date per $1,000
principal amount.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the
Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i)
debit such Book-Entry Security to the Trustee's participant account and credit
such Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission or discount, as applicable. The entry of such a deliver order shall
constitute a representation and warranty by the Trustee to the Depositary that
(a) the Global Security representing such Book-Entry Security has been issued
and authenticated
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and (b) the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary (i) to
debit such Book-Entry Security to such Agent's participant account and credit
such Book-Entry Security to the participant accounts of the Participants with
respect to such Book-Entry Security and (ii) to debit the settlement accounts of
such Participants and credit the settlement account of such Agent for an amount
equal to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in accordance
with SDFS operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer
to an account of the Company previously specified by the Company to the Trustee
funds available for immediate use in the amount transferred to the Trustee in
accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a statement
setting forth the principal amount of Book-Entry Securities outstanding as of
that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security
to the purchaser either by transmitting to the Participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or
the Trustee, promptly furnish to the Company or the Trustee a list of the names
and addresses of the Participants for whom the Depositary has credited Book-
Entry Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it
will prepare a Pricing Supplement reflecting the terms of such Book-Entry
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies of such Pricing Supplement, not later
than 3:00 p.m., New York City time, on the second
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Business Day following the receipt of the Sale Information, or if the Company
and the purchaser agree to settlement on the Business Day following the date
of acceptance, not later than noon, New York City time, on such date. The
Company will arrange to have ten Pricing Supplements filed with the Commission
not later than the close of business of the Commission on the fifth Business
Day following the date on which such Pricing Supplement is first used.
Pricing Supplements will be delivered to the Selling Agent or
Purchasing Agent as follows:
CS First Boston Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
MTN Desk Assistant
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X'Xxxxxxx,
MTN Desk Assistant
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx Xxxxx & Co. - Tritech Services
0 Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxx 000
Xxxxxxxxxx, XX 00000
Attn: Final Prospectus Unit/Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000/26/27
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center, Xxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: MTN Product Management
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Medium Term Note Desk
Telecopy: (000) 000-0000
B-13
Delivery of Confirmation and Prospectus
to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Book-Entry Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment
for a Book-Entry Security and the authentication and issuance of the Global
Security representing such Book-Entry Security shall constitute "settlement"
with respect to such Book-Entry Security. All orders accepted by the Company
will be settled on the fifth Business Day pursuant to the timetable for
settlement set forth below unless the Company and the purchaser agree to
settlement on another day which shall be no earlier than the next Business Day.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by an Agent, as agent,
and accepted by the Company for settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "I" set forth above shall be
completed as soon as possible but not later than the respective times (New York
City time) set forth below:
Settlement
Procedure Time
---------- ----
A 5:00 p.m. on the Business Day following
the acceptance of an offer by
the Company or 10:00 a.m. on
the Business Day prior to the
settlement date, whichever is
earlier
Settlement
Procedure Time
---------- ----
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
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D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I 5:00 p.m. on settlement date
If a sale is to be settled more than one Business Day after the sale
date, Settlement Procedures "B" and "C" shall be completed as soon as
practicable but not later than 2:00 p.m. on the first Business Day after the
sale date. If the initial interest rate for a Floating Rate Book-Entry Security
has not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the second Business Day before
the settlement date. Settlement Procedure "H" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the settlement
date.
If settlement of a Book-Entry Security is rescheduled or cancelled,
the Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal
System, as soon as practicable a withdrawal message instructing the Depositary
to debit such Book-Entry Security to the Trustee's participant account,
provided that the Trustee's participant account contains a principal amount of
the Global Security representing such Book-Entry Security that is at least
equal to the principal amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Securities represented by a
Global Security, the Trustee will xxxx such Global Security "cancelled", make
appropriate entries in the Trustee's records and send such cancelled Global
Security to the Company. The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service
B-15
Bureau procedures, be cancelled and not immediately reassigned. If a
withdrawal message is processed with respect to one or more, but not all, of
the Book-Entry Securities represented by a Global Security, the Trustee will
exchange such Global Security for two Global Securities, one of which shall
represent such Book-Entry Security or Securities and shall be cancelled
immediately after issuance and the other of which shall represent the
remaining Book-Entry Securities previously represented by the surrendered
Global Security and shall bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Security is not timely paid
to the Participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security "free" to the
Trustee's participant account and shall notify the Company and the Trustee
thereof. Thereafter, the Trustee will (i) immediately notify the Company of
such order and the Company shall transfer to such Agent funds available for
immediate use in an amount equal to the price of such Book-Entry Security which
was transferred to the Company in accordance with Settlement Procedure I, and
(ii) deliver the withdrawal message and take the related actions described in
the preceding paragraph. If such failure shall have occurred for any reason
other than default by the applicable Agent to perform its obligations hereunder
or under the Distribution Agreement, the Company will reimburse such Agent on an
equitable basis for the loss of its use of funds during the period when the
funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, the Depositary may take any actions in accordance with
its SDFS operating procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the Book-Entry Securities to
have been represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "D" for the authentication and issuance of
a Global Security representing the other Book-Entry Securities to have been
represented by such Global Security and will make appropriate entries in its
records. The Company will, from time
B-16
to time, furnish the Trustee with a sufficient quantity of Offered Securities.
B-17
EXHIBIT C
Restrictions on Sale of
Medium-Term Notes
No Offered Securities denominated in a currency other than United
States dollars will be sold or offered for sale in the country issuing such
currency.
C-1
