PHH CORPORATION
U.S. $3,000,000,000
Medium-Term Notes
DISTRIBUTION AGREEMENT
________, 1997
Credit Suisse 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 (the
"Company"), has filed with the Securities and Exchange Commission (the
"Commission"), and the Commission declared effective on _____________, 1996, a
registration statement on Form S-3 (Registration No. 333-_____, hereinafter
called the "Registration Statement"), covering up to U.S. $3,000,000,000
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,
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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. $3,000,000,000 (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 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
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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.
(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
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
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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 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
Underwriter. (a) Solicitations as Agent. On the basis of the representations and
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
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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.
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
-------- --------------------------
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
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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. 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
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
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
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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 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 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
hereof (subject to paragraph (b) above) shall be delivered at the office of
Milbank, Tweed, Xxxxxx & XxXxxx, 1 Xxxxx Manhattan Plaza, New York, New York, on
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 you
that:
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(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 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
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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 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, 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.
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(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 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.
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(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 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
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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
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such supplement as 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, that such
accountants need only furnish you a letter in compliance with SAS 71,
as appropriately modified, where
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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.
(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 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 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
solicit offers to purchase the Offered
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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 and subsequent to the date hereof and at each Closing
Time no stop-order suspending the effectiveness of the Registration
Statement shall have been issued and remain outstanding and no
proceedings 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
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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, (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.
-16-
(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 an 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 Milbank, Tweed, Xxxxxx & XxXxxx, 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.
(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
-17-
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 you or they, or any of you
or 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
-18-
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 or their 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 (i) corrected the alleged misstatement
or omission on which the asserted loss, claim, damage or liability was based and
(ii) 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.
(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
-19-
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 (which shall not be
unreasonably withheld). No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any action or claim
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
-20-
(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, 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
-21-
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) 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
-22-
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 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
-23-
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(a),
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:
Credit Suisse First Boston Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Short and Medium Term Finance
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Sachs & 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
-24-
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.
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
-25-
Confirmed and Accepted,
as of the date first
above-written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By _________________________
XXXXXXX, SACHS & CO.
By _________________________
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By _________________________
X.X. XXXXXX SECURITIES INC.
By _________________________
-26-
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)(ii) of the Distribution Agreement] will be required.]
[Agent(s)]
Accepted: By __________________________
PHH CORPORATION
By __________________________
-27-
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]
-28-
EXHIBIT B
PHH CORPORATION
Administrative Procedures
These Administrative Procedures relate to the Offered Securities defined in
the Distribution Agreement, dated _______ __, 1996 (the "Distribution
Agreement"), between PHH Corporation (the "Company") and Credit Suisse
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.
-29-
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 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.
-30-
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.
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,
-31-
(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:
(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
-32-
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:
Credit Suisse First Boston Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Short and Medium Term Finance
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. - 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
-00-
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.
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.
-34-
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 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:
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Credit Suisse 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 during the period when they were credited to the account of the
Company.
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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.
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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
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;
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(10) If a redeemable Book-Entry 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 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
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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:
(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.
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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 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
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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 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:
Credit Suisse First Boston Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Short and Medium Term Finance
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
-00-
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
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
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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
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
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
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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 Bureau
procedures, be cancelled and not immediately reassigned. If a withdrawal message
is processed with respect to
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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
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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 to
time, furnish the Trustee with a sufficient quantity of Offered Securities.
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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.
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