Exhibit 1.1
SELLING AGENT AGREEMENT
by and among
PHH Corporation
and the
Agents named herein
May 30, 2002
May 30, 2002
To the Agents listed on
the signature page hereto.
PHH Corporation, a Maryland corporation (the "Company") proposes to
issue and sell up to $500,000,000 aggregate principal amount of its PHH
InterNotes(R) due nine months or more from date of issue (the "Notes"). The
Notes are to be issued pursuant to an indenture dated as of November 6, 2000, as
amended and supplemented (the "Indenture"), between the Company and Bank One
Trust Company, N.A. (the "Trustee"). The terms of the Notes are described in the
Prospectus referred to below.
Subject to the terms and conditions contained in this Agreement, the
Company hereby (1) appoints each of you as agent of the Company ("Agent") for
the purpose of soliciting offers to purchase the Notes and each of you hereby
agree to use your reasonable best efforts to solicit offers to purchase Notes
upon terms acceptable to the Company at such times and in such amounts as the
Company shall from time to time specify and in accordance with the terms hereof,
and after consultation with Incapital LLC (the "Purchasing Agent") and (2)
agrees that whenever the Company determines to sell Notes pursuant to this
Agreement, such Notes shall be sold pursuant to a Terms Agreement (as defined
herein) relating to such sale in accordance with the provisions of Section V
hereof between the Company and the Purchasing Agent, with the Purchasing Agent
purchasing such Notes as principal for resale to other Agents or dealers (the
"Selected Dealers"), each of whom will purchase as principal. The Company
reserves the right to enter into agreements substantially identical hereto with
other agents.
I.
The Company has filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-3 (File No. 333-46434) covering
up to $3,000,000,000 aggregate principal amount of the Company's debt securities
and the offering thereof, from time to time, in accordance with Rule 415 under
the Securities Act of 1933, as amended (the "1933 Act"). Such registration
statement has been declared effective by the SEC, and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Such registration statement and the prospectus filed pursuant
to Rule 424 under the 1933 Act, including all documents incorporated therein by
reference, as from time to time amended or supplemented, including any Pricing
Supplement (as defined herein), are referred to herein as the "Registration
Statement" and the "Prospectus," respectively.
II.
The Agents' obligations hereunder are subject to the following
conditions:
(a) On the date hereof, the Agents shall have received the following
legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents:
(1) The opinion of Piper, Marbury, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special
Maryland counsel to the Company, to the effect that:
(i) The Company is a corporation duly incorporated and existing
under and by virtue of the laws of the State of Maryland and is in
good standing with the State Department of Assessments and Taxation
of Maryland;
(ii) The Company has the corporate power to conduct its business
substantially as described in the Prospectus;
(iii) This Agreement and the Indenture have been duly authorized
by the Company;
(iv) The Notes have been duly authorized by the Company;
(v) Neither the issuance and sale of the Notes, the consummation
of any other of the transactions contemplated by this Agreement nor
the compliance with the terms thereof will violate any provision of
the charter or the Bylaws of the Company, each as amended to date.
(2) The opinion of ▇▇▇▇ ▇. ▇▇▇▇, Executive Vice President, Law and
Corporate Secretary of the Company (or any deputy or associate general
counsel to the Company), to the effect that:
(i) The Company is qualified or licensed to do business as a
foreign corporation in any jurisdiction that the Company is required
to be so qualified or licensed, except to the extent that the
failure to be so qualified would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(ii) This Agreement has been duly executed and delivered by the
Company, to the extent such execution and delivery are matters of
New York law;
(iii) Assuming due authorization by the parties thereto, the
Indenture has been duly executed and delivered by the Company, to
the extent such execution and delivery are matters of New York law,
and constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, and
the Notes, when the terms of the Notes have been established and
when the Notes have been executed, authenticated and delivered in
accordance with the provisions of the Indenture against payment of
the consideration therefore, will constitute valid and binding
obligations of the Company entitled to the benefits of the
Indenture, subject as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of creditors
now or hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies;
(iv) The Registration Statement has become effective under the
1933 Act and to the knowledge of such counsel no stop order
suspending the
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effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened; the
Registration Statement, the Prospectus and each amendment thereof or
supplement thereto (other than the financial statements and other
financial and statistical information contained therein or
incorporated by reference therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the applicable requirements of the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the
respective rules thereunder;
(v) The execution or delivery of this Agreement, the Notes or
the Indenture, the consummation of the transactions herein or
therein contemplated, or compliance with the terms, conditions or
provisions of any such instruments, will not contravene 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 known to such counsel and to
which the Company is a party or is bound or to which any of its
assets or properties are subject, or any order, applicable law, rule
or regulation applicable to the Company of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Company or over its assets or result in the
encumbrance upon the assets or properties of the Company (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);
(vi) To the best of my knowledge, there are no suits or claims
threatened or pending against the Company in any court or before or
by any governmental body which would have a materially adverse
effect on the business of the Company or its financial position on a
consolidated basis, except as set forth or contemplated by the
Registration Statement and the Prospectus; and
(vii) No authorization, consent or order for any regulatory
board, agency or instrumentality having jurisdiction over the
Company or its respective properties (other than registration under
the 1933 Act or qualification under state securities or "blue sky"
laws) is necessary to authorize the execution, delivery and
performance of the Indenture by the Company or the issuance and sale
of the Notes.
Such counsel shall also state that although he has not
independently verified, is not passing upon and assumes no
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, counsel has no
reason to believe that the Registration Statement, as of the later
of its effective date or the date of the Company's most recent
Annual Report on Form 10-K, contained an untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of the Prospectus
Supplement and as of the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact necessary
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in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except
that such counsel need express no opinion or belief with respect to
the financial statements, schedules and other financial and
statistical data included therein or excluded therefrom or the
exhibits to the Registration Statement, including the Form T-1.
(3) The opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ and ▇▇▇▇ LLP,
special counsel to the Agents, with respect to the issuance and sale of
the Notes, the Indenture, the Registration Statement, including the
form of final prospectus included therein (together with any supplement
thereto), this Agreement and the form and sufficiency of all
proceedings taken in connection with the authorization, sale and
delivery of the Notes, all of which shall be satisfactory in all
respects to the Agents and other related matters as the Agents may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters. Such counsel shall also state that although
they have not independently verified, are not passing upon and assume
no responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, such counsel has no
reason to believe that the Registration Statement, as of the later of
its effective date or the date of the Company's most recent Annual
Report on Form 10-K, contained an untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus Supplement and as of the
date hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading, except that such counsel need express
no opinion or belief with respect to the financial statements,
schedules and other financial information included therein or excluded
therefrom or the exhibits to the Registration Statement, including the
Form T-1.
(b) On the date hereof, the Agents shall have received a certificate of
any Senior Vice President or Treasurer or any other authorized officer of the
Company satisfactory to the Agents, dated as of the date hereof, to the effect
that the signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that to the best of their
knowledge (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in the condition, financial or otherwise, earnings or business
affairs of the Company and its subsidiaries considered as one enterprise,
whether or not arising from transactions in the ordinary course of business,
except as set forth or contemplated in the Prospectus, as supplemented or
amended, (ii) the other representations and warranties of the Company contained
in this Agreement are true and correct in all material respects with the same
force and effect as though expressly made at and as of the date of such
certificate, (iii) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the date of such certificate, (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened by the SEC and (v) no
litigation or proceeding shall be threatened or pending to restrain or enjoin
the issuance or delivery of the Notes, or which in any way affects the validity
of the Notes, except that the foregoing does not apply to (i) statements or
omissions in the
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Registration Statement or Prospectus based upon written information furnished to
the Company by any of you or the Trustee 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 the Trustee, except statements or
omissions in such Statement made in reliance upon information furnished in
writing to the Trustee by or on behalf of the Company for use therein.
(c) On the date hereof and at the times specified herein, the Agents
shall have received a letter from Deloitte & Touche LLP ("Deloitte & Touche")
dated as of the date hereof (or such other date as specified herein), signed by
Deloitte & Touche, substantially identical to the proposed form of such letter
heretofore delivered to each of you.
(d) On the date hereof and on each Settlement Date (as defined herein)
with respect to any purchase of Notes by the Purchasing Agent, counsel to the
Agents shall have been furnished with such documents and opinions as such
counsel may reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of Notes as herein contemplated, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, contained herein; and
all proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be satisfactory in form and substance to the
Purchasing Agent and to counsel to the Agents.
The obligations of the Purchasing Agent to purchase Notes as
principal, both under this Agreement and under any Terms Agreement, are subject
to the conditions that (i) no litigation or proceeding shall be threatened or
pending to restrain or enjoin the issuance or delivery of the Notes, or which in
any way questions or affects the validity of the Notes, (ii) no stop order
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceedings for such purpose shall be pending before or threatened by the
SEC and (iii) there shall have been no material adverse change in the
consolidated financial condition of the Company and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement and the Prospectus
(exclusive of any supplement thereto since the date of the Terms Agreement),
each of which conditions shall be met on the date of the Terms Agreement and on
the corresponding Settlement Date. Further, if specifically called for by any
written agreement by the Purchasing Agent, including a Terms Agreement, to
purchase Notes as principal, the Purchasing Agent's obligations hereunder and
under such agreement, shall be subject to such additional conditions, including
those set forth in clauses (a), (b) and (c) above, as agreed to by the parties,
each of which such agreed conditions shall be met on the corresponding
Settlement Date.
III.
In further consideration of your agreements herein contained, the
Company covenants as follows:
(a) The Company will notify the Agents immediately of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the filing of
any supplement to the Prospectus or
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any document to be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus (other than with respect to the Company's Annual
Report on Form 10-K and the Company's Quarterly Reports on Form 10-Q), (iii) the
receipt of any comments from the SEC with respect to the Registration Statement
or the Prospectus (other than with respect to a document filed with the SEC
pursuant to the 1934 Act which will be incorporated by reference in the
Registration Statement and the Prospectus), (iv) any request by the SEC for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information relating thereto (other than such a
request with respect to a document filed with the SEC pursuant to the 1934 Act
which will be incorporated by reference in the Registration Statement and the
Prospectus), and (v) the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) The Company will give the Agents notice of its intention to file or
prepare any additional registration statement with respect to the registration
of additional Notes or any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (other than an amendment or supplement
providing solely for a change in the interest rates or maturity dates of Notes
or similar changes or an amendment or supplement effected by the filing of a
document with the SEC pursuant to the ▇▇▇▇ ▇▇▇) and, upon request, will furnish
the Agents with copies of any such registration statement or amendment or
supplement proposed to be filed or prepared a reasonable time in advance of such
proposed filing or preparation, as the case may be, and will not file any such
registration statement or amendment or supplement in a form as to which the
Agents or your counsel reasonably object.
(c) The Company will deliver to the Agents without charge, a copy of
(i) the Indenture, (ii) the Registration Statement (as originally filed) and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus
other than exhibits to the Company's Annual Report on Form 10-K and the
Company's Quarterly Reports on Form 10-Q) and (iii) a certified copy of the
corporate authorization of the issuance and sale of the Notes. The Company will
furnish to the Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as the Agents are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes under the Act.
(d) The Company will prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a pricing supplement with
respect to such Notes in substantially the form attached as Exhibit D (a
"Pricing Supplement") and will file such Pricing Supplement with the SEC
pursuant to Rule 424(b) under the 1933 Act not later than the close of business
on the second business day after the date on which such Pricing Supplement is
first used.
(e) Except as otherwise provided in subsection (i) of this Section, if
at any time during the term of this Agreement any event shall occur or condition
exist as a result of which it is necessary, in the reasonable opinion of your
counsel or counsel for the Company, to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue
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statement of a material fact or omit to state any material fact necessary in
order to make the statements therein not misleading in light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
or if it shall be necessary, in the reasonable opinion of either such counsel,
to amend or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
immediate notice shall be given, and confirmed in writing, to the Agents to
cease the solicitation of offers to purchase the Notes and to cease sales of any
Notes by the Purchasing Agent, and the Company will promptly prepare and file
with the SEC such amendment or supplement, whether by filing documents pursuant
to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
(f) As soon as practicable, the Company will make generally available
to its security holders an earnings statement or statements that will satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will endeavor to qualify the Notes for offering and
sale under the applicable securities laws of such states and other jurisdictions
of the United States as the Agents may designate and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; PROVIDED, HOWEVER, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company will promptly
advise the Agents of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any such state
or jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(h) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file within the prescribed time all
documents required to be filed with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the 1934 Act.
(i) The Company shall not be required to comply with the provisions of
subsection (e) of this Section or the provisions of Sections VII(b), (c) and (d)
during any period from the time (i) the Agents have suspended solicitation of
purchases of the Notes pursuant to a direction from the Company and (ii) the
Agents shall not then hold any Notes as principal as part of a distribution of
the Notes purchased from the Purchasing Agent to the time the Company shall
determine that solicitation of purchases of the Notes should be resumed or shall
subsequently agree for the Purchasing Agent to purchase Notes as principal.
IV.
(a) The Agents propose to solicit offers to purchase the Notes upon the
terms and conditions set forth herein and in the Prospectus and upon the terms
communicated to the Agents from time to time by the Company or the Purchasing
Agent, as the case may be. For the purpose of such solicitation the Agents will
use the Prospectus as then amended or supplemented which
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has been most recently distributed to the Agents by the Company, and the Agents
will solicit offers to purchase only as permitted or contemplated thereby and
herein and will solicit offers to purchase the Notes only as permitted by the
1933 Act and the applicable securities laws or regulations of any jurisdiction.
The Company reserves the right, in its sole discretion, to suspend solicitation
of offers to purchase the Notes commencing at any time for any period of time or
permanently. Upon receipt of instructions (which may be given orally) from the
Company, the Agents will suspend promptly solicitation of offers to purchase
until such time as the Company has advised the Agents that such solicitation may
be resumed.
Unless otherwise instructed by the Company, the Agents are
authorized to solicit offers to purchase the Notes only in denominations of
$1,000 or more (in multiples of $1,000). The Agents are not authorized to
appoint subagents or to engage the services of any other broker or dealer in
connection with the offer or sale of the Notes without the consent of the
Company. Unless otherwise instructed by the Company, the Purchasing Agent shall
communicate to the Company, orally or in writing, each offer to purchase Notes.
The Company shall have the sole right to accept offers to purchase Notes and may
reject any proposed offers to purchase Notes as a whole or in part. Each Agent
shall have the right, in its discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part, and any such rejection shall
not be deemed a breach of its agreements contained herein. The Company agrees to
pay the Purchasing Agent, as consideration for soliciting offers to purchase
Notes pursuant to a Terms Agreement, a concession in the form of a discount
equal to the percentages of the initial offering price of each Note actually
sold as set forth in Exhibit A hereto (the "Concession"); PROVIDED, HOWEVER,
that the Company and the Purchasing Agent may agree also to a Concession greater
than or less than the percentages set forth on Exhibit A hereto. The actual
aggregate Concession with respect to each tranche of Notes will be set forth in
the related Pricing Supplement. The Purchasing Agent and the other Agents or
Selected Dealers will share the above-mentioned Concession in such proportions
as they may agree.
Unless otherwise authorized by the Company, all Notes shall be sold
to the public at a purchase price not to exceed 100% of the principal amount
thereof, plus accrued interest, if any. Such purchase price shall be set forth
in the confirmation statement of the Agent or Selected Dealer responsible for
such sale and delivered to the purchaser along with a copy of the Prospectus (if
not previously delivered) and Pricing Supplement.
(b) Procedural details relating to the issue and delivery of, and the
solicitation of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit B (the "Procedures"), as
amended from time to time. Unless otherwise provided in a Terms Agreement, the
provisions of the Procedures shall apply to all transactions contemplated
hereunder. The Agents and the Company each agree to perform the respective
duties and obligations specifically provided to be performed by each in the
Procedures as amended from time to time. The Procedures may only be amended by
written agreement of the Company and the Agents.
(c) The Company, the Purchasing Agent and each Agent acknowledges and
agrees, and each Selected Dealer will be required to acknowledge and agree, that
the Notes are being offered for sale in the United States only.
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V.
Each sale of Notes shall be made in accordance with the terms of
this Agreement and a separate agreement in substantially the form attached as
Exhibit C (a "Terms Agreement") to be entered into which will provide for the
sale of such Notes to, and the purchase and reoffering thereof, by the
Purchasing Agent as principal. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Notes by the Purchasing Agent. The
offering of Notes by the Company hereunder and the Purchasing Agent's agreement
to purchase Notes pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations, warranties and agreements of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall describe the Notes to be purchased
pursuant thereto by the Purchasing Agent as principal, and may specify, among
other things, the principal amount of Notes to be purchased, the interest rate
or formula and maturity date or dates of such Notes, the interest payment dates,
if any, the net proceeds to the Company, the initial public offering price at
which the Notes are proposed to be reoffered, and the time and place of delivery
of and payment for such Notes (the "Settlement Date"), whether the Notes provide
for a Survivor's Option, whether the Notes are redeemable or repayable and on
what terms and conditions, and any other relevant terms. In connection with the
resale of the Notes purchased, without the consent of the Company, the Agents
are not authorized to appoint subagents or to engage the service of any other
broker or dealer, nor may you reallow any portion of the Concession paid to you.
Terms Agreements, each of which shall be substantially in the form of Exhibit C
hereto, or as otherwise agreed to between the Company and the Purchasing Agent,
may take the form of an exchange of any standard form of written
telecommunication between the Purchasing Agent and the Company.
VI.
(a) The Company represents and warrants to the Agents as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (including any purchase by the Purchasing Agent as principal,
pursuant to a Terms Agreement or otherwise), as of each Settlement Date, and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (other than any Current Report on Form 8-K
relating exclusively to the issuance of debt securities under the Registration
Statement or filed solely for the purpose of disclosure under Item 9 thereof)
(each of the times referenced above being referred to herein as a
"Representation Date") as follows:
(i) The Company meets the requirements for use of
Form S-3 under the 1933 Act and has filed with the SEC the
Registration Statement, which has been declared effective. No
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened.
(ii) The Registration Statement and the Prospectus,
on their respective dates of effectiveness and filing did, and
as of the applicable Representation Date
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will, conform in all material respects to the requirements of
the 1933 Act, the Trust Indenture Act and the respective rules
and regulations (the "Rules and Regulations") of the SEC; as
of the respective dates of their effectiveness and filing,
neither the Registration Statement or 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 required to be stated therein or necessary in
order to make the statements therein not misleading or, in the
case of the Prospectus, in 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 the Trustee
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 the
Trustee, except statements or omissions in such Statement made
in reliance upon information furnished in writing to the
Trustee by or on behalf of the Company for use therein.
(iii) 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.
(iv) The execution or delivery of this Agreement, the
Notes or the Indenture, the consummation of the transactions
herein or therein contemplated, or compliance with the terms,
conditions or provisions of any such instruments, will not
violate the charter or By-Laws of the Company, nor contravene
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 is a party or is bound or to
which any of its assets or properties are subject, or any
order, applicable law, rule or regulation applicable to the
Company of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company or over its assets or result in the encumbrance upon
the assets or properties of the Company (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).
(v) This Agreement has been duly authorized, executed
and delivered on behalf of the Company and is a valid and
binding agreement of the Company enforceable in accordance
with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting the
rights of creditors now or hereafter in effect, and to
equitable principles that may limit the right to specific
enforcement of remedies, and except insofar as the
enforceability of the indemnity and contribution provisions
contained in this Agreement may be limited by federal and
state securities laws);
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(vi) The Notes have been duly authorized and, when
authenticated as contemplated by the Indenture and delivered
and paid for in accordance with this Agreement, will have been
duly executed, authenticated, issued and delivered and will
constitute valid and binding obligations of the Company
enforceable in accordance with their terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance
or other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies) and will
be entitled to the benefits provided by the Indenture.
(vii) The Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act, as applicable, and constitutes
a valid and binding instrument of the Company enforceable
against the Company in accordance with its terms (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance
or other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies).
(viii) 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 which is required for, or the
absence of which would materially affect, the issue and sale
of the Notes as contemplated by this Agreement or the
execution, delivery or performance of the Indenture, except
such as have been obtained and made under the 1933 Act , the
Trust Indenture Act and such as may be required under state
securities laws. (ix) All financial statements of the Company
provided to the Agent(s) by the Company (including those
incorporated by reference 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.
(x) There are no suits or claims threatened or
pending against the Company in any court or before or by any
governmental body which would have a materially adverse effect
on the business of the Company or its financial position on a
consolidated basis, except as set forth or contemplated by the
Registration Statement and the Prospectus.
(xi) The Company has complied with all provisions of
section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida).
(b) Any certificate signed by any director or officer of the Company
and delivered to the Purchasing Agent or to counsel for the Purchasing Agent in
connection with an offering of Notes or the sale of Notes to the Purchasing
Agent as principal shall be deemed a representation and warranty by the Company
to the Agents as to the matters covered thereby on the date of such certificate.
11
(c) All representations, warranties, covenants and agreements of the
Company contained in this Agreement or in certificates of officers of the
Company submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Agent or any
controlling person of any Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
VII.
(a) Each acceptance by the Company of an offer for the purchase of
Notes, and each delivery of Notes to the Purchasing Agent pursuant to a sale of
Notes to the Purchasing Agent, shall be deemed to be an affirmation that the
representations and warranties of the Company made to the Agents in this
Agreement and in any certificate theretofore delivered pursuant hereto are true
and correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the Purchasing Agent of the Note or Notes relating to
such acceptance or sale, as the case may be, as though made at and as of each
such time (and it is understood that such representations and warranties shall
relate to the Registration Statement and Prospectus as amended and supplemented
to each such time).
(b) Each time:
(i) the Company accepts a Terms Agreement requiring such
certificate;
(ii) the Company files an Annual Report on Form 10-K or a
Quarterly Report on Form 10-Q with the SEC that is incorporated by
reference into the Prospectus;
(iii) the Company files a Current Report on Form 8-K required
by Item 2 of Form 8-K with the SEC that is incorporated by
reference into the Prospectus; or
(iv) if required by the Agents after the Registration
Statement or Prospectus has been amended or supplemented in an
instance other then set forth in (ii) or (iii) above (other than by
an amendment or supplement providing solely for interest rates,
maturity dates or other terms of Notes or similar changes or an
amendment or supplement which relates exclusively to an offering of
securities other than the Notes),
the Company shall furnish or cause to be furnished to the Agents a
certificate of any Senior Vice President or Treasurer or any other
authorized officer of the Company satisfactory to the Agents (an
"Authorized Officer") dated the date specified in the applicable Terms
Agreement or dated the date of filing with the SEC of such supplement
or document or the date of effectiveness of such amendment, as the case
may be, in form satisfactory to the Agents to the effect that the
statements contained in the certificate referred to in Section II(b)
hereof which was last furnished to the Agents are true and
12
correct as of the date specified in the applicable Terms Agreement or
at the time of such filing, amendment or supplement, as the case may
be, as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of
such certificate, a certificate of the same tenor as the certificate
referred to in said Section II(b), modified as necessary to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
(c) Each time:
(i) the Company accepts a Terms Agreement requiring such
opinion;
(ii) the Company files an Annual Report on Form 10-K or a
Quarterly Report on Form 10-Q with the SEC that is incorporated by
reference into the Prospectus; or
(iii) if required by the Agents after:
(A) the Company files a Current Report on Form 8-K
required by Item 2 of Form 8-K with the SEC that is
incorporated by reference into the Prospectus; or
(B) the Registration Statement or Prospectus has been
amended or supplemented in an instance other then set
forth in (ii) above (other than by an amendment or
supplement providing solely for interest rates,
maturity dates or other terms of the Notes or similar
changes or an amendment or supplement which relates
exclusively to an offering of securities other than
the Notes),
the Company shall furnish or cause to be furnished forthwith to the
Agents and your counsel the written opinion of ▇▇▇▇ ▇. ▇▇▇▇, Executive
Vice President, Law and Corporate Secretary of the Company, or other
counsel satisfactory to the Agents, dated the date specified in the
applicable Terms Agreement or dated the date of filing with the SEC of
such supplement or document or the date of effectiveness of such
amendment, as the case may be, in form and substance satisfactory to
the Agents, of the same tenor as the opinions referred to in Section
II(a)(2) hereof, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such opinions; or, in lieu of such opinions,
counsel last furnishing such opinions to the Agents shall furnish the
Agents with a letter substantially to the effect that the Agents may
rely on such last opinion to the same extent as though it was dated the
date of such letter authorizing reliance (except that statements in
such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such letter authorizing reliance.
13
(d) Each time:
(i) the Company accepts a Terms Agreement requiring such
comfort letter;
(ii) the Company files an Annual Report on Form 10-K or a
Quarterly Report on Form 10-Q with the SEC that is incorporated by
reference into the Prospectus; or
(iii) if required by the Agents after:
(A) the Company files a Current Report on Form 8-K
required by Item 2 of Form 8-K with the SEC that is
incorporated by reference into the Prospectus; or
(B) the Registration Statement or Prospectus has been
amended or supplemented to include additional
financial information required to be set forth or
incorporated by reference into the Prospectus under
the terms of Item 11 of Form S-3 under the 1933 Act,
the Company shall cause Deloitte & Touche to furnish the Agents a
letter, dated the date specified in the applicable Terms Agreement or
dated the date of effectiveness of such amendment, supplement or
document filed with the SEC, as the case may be, in form satisfactory
to the Agents, of the same tenor as the letter referred to in Section
II(c) hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter and
with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting
records of the Company; PROVIDED, HOWEVER, that if the Registration
Statement or the Prospectus is amended or supplemented solely to
include financial information as of and for a fiscal quarter, Deloitte
& Touche may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement. With regard to
such letter issued pursuant to paragraph (ii) of this section in
connection with the filing of the Company's Quarterly Report on Form
10-Q, Deloitte & Touche need not include the certain procedures on
certain financial information as described in paragraph 8 of their
letter dated May 30, 2002. If any other information included therein is
of an accounting, financial or statistical nature, the Agents may
request procedures be performed with respect to such other information.
If Deloitte & Touche is willing to perform and report on the requested
procedures, such letter should cover such other information. Any letter
required to be provided by Deloitte & Touche hereunder shall be
provided within 10 business days of the filing of the Annual Report on
Form 10-K or Quarterly Report on Form 10-Q, as the case may be, within
a reasonable time of a request made pursuant to subparagraph (iii)
hereof or on the date specified in an applicable Terms Agreement.
14
VIII.
(a) The Company agrees to indemnify and hold harmless each Agent and
each person who controls any Agent within the meaning of either the 1933 Act or
the 1934 Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the 1933 Act,
the 1934 Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or arise out of or
are based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus, or any
amendment or supplement thereof, or arise out of or are based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, HOWEVER, that (i) the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such Agent specifically for use in connection with the preparation
thereof, or arises out of or is based upon statements in or omissions from that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the Trust
Indenture Act, and (ii) such indemnity with respect to the Prospectus shall not
inure to the benefit of any Agent (or any person controlling such Agent) from
whom the person asserting any such loss, claim, damage or liability purchased
the Notes which are the subject thereof if the Agent failed to deliver a copy of
the Prospectus as amended or supplemented to such person in connection with the
sale of such Notes excluding documents incorporated therein by reference at or
prior to the written confirmation of the sale of such Notes to such person in
any case where such delivery is required by the 1933 Act and the untrue
statement or omission of a material fact contained in the Prospectus was
corrected in the Prospectus as amended or supplemented. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Agent severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement and each person who controls the Company within the
meaning of either the 1933 Act or the 1934 Act, to the same extent as the
foregoing indemnity from the Company to each Agent, but only with reference to
written information relating to such Agent furnished to the Company by or on
behalf of such Agent specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Agent may otherwise have. Counsel shall be
designated by the Agent with the consent of the Company (which shall not be
unreasonably withheld). The Company acknowledges that the name of such Agent
appearing on the front cover of the Prospectus, the name of such Agent appearing
in the Summary section of the Prospectus on page 3 and the entire first
paragraph with the exception of the last sentence, the first and second sentence
of the second paragraph, the
15
entire third and fourth paragraph, the entire fifth paragraph with respect to
the Agents, and the sixth paragraph, all under the Section "Plan of
Distribution" in the Prospectus constitute the only information furnished in
writing by or on behalf of such Agent for inclusion in the documents referred to
in the foregoing indemnity .
(c) Promptly after receipt by an indemnified party under this Section
VIII of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Section VIII, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party except to the
extent, if any, that such failure materially prejudices the indemnifying party.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and, to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; PROVIDED,
HOWEVER, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section VIII for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Agents in the case of paragraph (a),
representing the indemnified parties under paragraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). 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.
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section VIII is
due in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on the grounds of policy or otherwise, the Company
and the Agents shall contribute to the aggregate losses,
16
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which the
Company and one or more of the Agents may be subject in such proportion so that
each Agent is responsible for that portion represented by the percentage that
the total commissions and underwriting discounts received by such Agent bears to
the total sales price from the sale of Notes sold to or through the Agents to
the date of such liability, and the Company is responsible for the balance.
However, if the allocation provided by the foregoing sentence is not permitted
by applicable law, the Company and the Agents shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Company and one or more of the Agents may be subject in such proportion to
reflect the relative fault of the Company on the one hand and the Agents on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault of the parties 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
relates to information supplied by the Company or such Agent, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Agents agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Agents were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to above in this paragraph (d).
Notwithstanding anything to the contrary contained herein, (i) in no case shall
an Agent be responsible for any amount in excess of the commissions and
underwriting discounts received by such Agent in connection with the Notes from
which such losses, liabilities, claims, damages and expenses arise and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
VIII, each person who controls any Agent within the meaning of the 1933 Act
shall have the same rights to contribution as such Agent, and each person who
controls the Company within the meaning of either the 1933 Act or the 1934 Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the provisions of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
IX.
The Company may elect to suspend or terminate the offering of Notes
under this Agreement at any time; the Company also (as to any one or more of the
Agents) or any Agent (as to itself) may terminate the appointment and
arrangements described in this Agreement. Upon
17
receipt of instructions from the Company, the Purchasing Agent shall suspend or
terminate the participation of any Selected Dealer under the Master Selected
Dealer Agreement attached hereto as Exhibit E. Such actions may be taken, in the
case of the Company, by giving prompt written notice of suspension to all of the
Agents and by giving not less than 5 days' written notice of termination to the
affected party and the other parties to this Agreement, or in the case of an
Agent, by giving not less than 5 days' written notice of termination to the
Company and except that, if at the time of termination an offer for the purchase
of Notes shall have been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto shall not yet have
occurred, the Company shall have the obligations provided herein with respect to
such Note or Notes. The Company shall promptly notify the other parties in
writing of any such termination.
The Purchasing Agent may, and, upon the request of an Agent with
respect to any Notes being purchased by such Agent shall, terminate any
agreement hereunder by the Purchasing Agent to purchase such Notes, immediately
upon notice to the Company at any time at or prior to the Settlement Date
relating thereto, (i) if there has been, since the date of such agreement or
since the respective dates as of which information is given in the Registration
Statement or Prospectus (exclusive of any amendment or supplement thereto since
the date of such agreement), any material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of the Company
and its subsidiaries considered as one enterprise, or (ii) if there shall have
occurred, since the date of such agreement, any outbreak or material escalation
of hostilities or other national or international calamity or crisis, financial
or otherwise, the effect of which is such as to make it, in the sole judgment of
the Purchasing Agent or such Agent, impracticable to market the Notes or enforce
contracts for the sale of the Notes, or (iii) if, since the date of such
agreement, trading in any securities of the Company has been suspended by the
SEC or a national securities exchange, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange shall have 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 SEC or any other governmental authority, or a material
disruption has occurred in securities settlement or clearance services in the
United States, (iv) if there shall have come to the Purchasing Agent's or such
Agent's attention any facts that would cause the Purchasing Agent or such Agent
to believe that the Prospectus, at the time it was required to be delivered to a
purchaser of Notes, included 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 the time of such delivery, not
misleading, (v) if the rating assigned by any nationally recognized securities
rating agency to any debt securities of the Issuer as of the date of any
agreement by the Purchasing Agent or such Agent to purchase Notes as principal
shall have been lowered since that date or if any such rating agency shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any debt securities of the Issuer or (vi)
if, since the date of such agreement, a banking moratorium shall have been
declared by either Federal or New York authorities.
Any Terms Agreement shall be subject to termination in your absolute
discretion on the terms set forth or incorporated by reference therein. The
termination of this Agreement shall not require termination of any agreement by
the Purchasing Agent to purchase Notes as
18
principal, and the termination of any such agreement shall not require
termination of this Agreement.
If this Agreement is terminated, Section III(f), the second
paragraph of Section IV(a), Section VIII, Section XII and Section XIII hereof
shall survive and shall remain in effect; provided that if at the time of
termination of this Agreement an offer to purchase Notes has been accepted by
the Company but the time of delivery to the Purchasing Agent of such Notes has
not occurred, the provisions of all of Section III, Section IV(b) and Section V
shall also survive until time of delivery.
In the event a proposed offering is not completed according to the
terms of this Agreement, an Agent will be reimbursed by the Company only for
out-of-pocket accountable expenses actually incurred.
X.
Except as otherwise specifically provided herein, all statements,
requests, notices and advices hereunder shall be in writing, or by telephone if
promptly confirmed in writing, and if to an Agent shall be sufficient in all
respects if delivered in person or sent by telex, facsimile transmission
(confirmed in writing), or registered mail to such Agent at its address, telex
or facsimile number set forth on Annex A hereto and if to the Company shall be
sufficient in all respects if delivered or sent by telex, facsimile transmission
(confirmed in writing) or registered mail to the Company at the address
specified below. All such notices shall be effective on receipt.
If to the Company:
PHH Corporation
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ Vice President and Assistant
Treasurer with a copy to the Treasurer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section.
19
XI.
This Agreement shall be binding upon the Agents and the Company, and
inure solely to the benefit of the Agents and the Company and any other person
expressly entitled to indemnification hereunder and the respective personal
representatives, successors and assigns of each, and no other person shall
acquire or have any rights under or by virtue of this Agreement.
XII.
This Agreement shall be governed by and construed in accordance with
the substantive laws of the State of New York. Each party to this Agreement
irrevocably agrees that any legal action or proceeding against it arising out of
or in connection with this Agreement or for recognition or enforcement of any
judgment rendered against it in connection with this Agreement may be brought in
any Federal or New York State court sitting in the County of New York, New York,
and, by execution and delivery of this Agreement, such party hereby irrevocably
accepts and submits to the jurisdiction of each of the aforesaid courts in
person, generally and unconditionally with respect to any such action or
proceeding for itself and in respect of its property, assets and revenues. Each
party hereby also irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of venue of any
such action or proceeding brought in any such court and any claim that any such
action or proceeding has been brought in an inconvenient forum.
XIII.
If this Agreement is executed by or on behalf of any party, such
person hereby states that at the time of the execution of this Agreement he has
no notice of revocation of the power of attorney by which he has executed this
Agreement as such attorney.
The Company will pay the following expenses incident to the
performance of its obligations under this Agreement, including: (i) the
preparation and filing of the Registration Statement; (ii) the preparation,
issuance and delivery of the Notes; (iii) the fees and disbursements of the
Company's auditors, of the Trustee and its counsel and of any paying or other
agents appointed by the Company; (iv) the printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration Statement and the
Prospectus; (v) the reasonable fees and disbursements of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Agents; (vi) if the Company lists Notes on a
securities exchange, the costs and fees of such listing; (vii) the fees and
expenses, if any, including the reasonable fees and disbursements of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.; (viii) the cost of providing
CUSIP or other identification numbers for the Notes; (ix) all reasonable
expenses (including fees and disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP) in connection with "Blue Sky" qualifications; and (x) any fees charged
by rating agencies for the rating of the Notes.
20
This Agreement may be executed by each of the parties hereto in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument. Facsimile signatures shall be deemed original
signatures.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
21
If the foregoing is in accordance with your understanding, please
sign and return to us a counterpart hereof, and upon acceptance hereof by you,
this letter and such acceptance hereof shall constitute a binding agreement
between the Company and you.
Very truly yours,
PHH CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President and
Corporate Secretary
Confirmed and accepted
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
INCAPITAL LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Member
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & CO., INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director, Taxable Fixed Income
22
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
UBS PAINEWEBBER INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
FIRST UNION SECURITIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managaing Director
23
ANNEX A
AGENT CONTACT INFORMATION
-------------------------
Banc of America Securities LLC
Bank of America Corporate Center
NC1-007-08-17
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Incapital LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Global Transaction Management Group
4 World Financial ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
24
Prudential Securities Incorporated
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/4556
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Medium-Term Note Department
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
UBS PaineWebber Inc.
Taxable Fixed Income Department
Attention: Corporate Desk
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
UBS PaineWebber Inc.
Transaction Management Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
First Union Securities, Inc.
Wachovia Securities
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
25
EXHIBIT A
DEALER AGENT PROGRAM
--------------------
The following Concessions are payable as a percentage of the non-discounted
Price to Public of each Note sold through the Purchasing Agent.
9 months to less than 23 months.... 0.200%
23 months to less than 35 months.... 0.400%
35 months to less than 47 months.... 0.625%
47 months to less than 59 months.... 0.750%
59 months to less than 71 months.... 1.000%
71 months to less than 83 months.... 1.100%
83 months to less than 95 months.... 1.200%
95 months to less than 107 months... 1.300%
107 months to less than 119 months.. 1.400%
119 months to less than 131 months.. 1.500%
131 months to less than 143 months.. 1.600%
143 months to less than 179 months.. 1.750%
179 months to less than 239 months.. 2.000%
239 months to less than 360 months.. 2.500%
360 months or greater............... 3.000%
A-1
EXHIBIT B
PHH Corporation
$500,000,000
PHH INTERNOTES(R)
DUE FROM NINE MONTHS OR MORE FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
PHH InterNotes(R), Due from nine months or more from date of issue are offered
on a continuing basis by PHH Corporation. The Notes will be offered by Incapital
LLC (the "Purchasing Agent"), Banc of America Securities LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Co., Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Prudential
Securities Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, Inc., UBS PaineWebber Inc. and
First Union Securities, Inc., (collectively, the "Agents") (collectively, the
"Agents") pursuant to a Selling Agent Agreement among the Company and the Agents
dated as of the date hereof (the "Selling Agent Agreement") and one or more
terms agreements substantially in the form attached to the Selling Agent
Agreement as Exhibit C (each a "Terms Agreement"). The Notes are being resold by
the Purchasing Agent (and by any Agent that purchases them from the Purchasing
Agent) (i) directly to customers of the Agents or (ii) to selected
broker-dealers (the "Selected Dealers") for distribution to their customers
pursuant to a Master Selected Dealer Agreement (a "Dealers Agreement") attached
to the Selling Agent Agreement as Exhibit E. The Agents have agreed to use their
reasonable best efforts to solicit purchases of the Notes. The Notes will rank
equally with each other series of debt securities issued in accordance with the
Indenture and with all our other present and future unsecured and unsubordinated
indebtedness and have been registered with the Securities and Exchange
Commission (the "SEC"). The Bank One Trust Company is the trustee (the
"Trustee") under the Indenture dated as of November 6, 2000, as amended from
time to time, between the Company and the Trustee (the "Indenture") covering the
Notes. Pursuant to the terms of the Indenture, Bank One Trust Company also will
serve as authenticating agent and paying agent.
Each tranche of Notes will be issued in book-entry only form ("Notes") and
represented by one or more fully registered global notes without coupons (each,
a "Global Note") held by the Trustee, as agent for The Depository Trust
Corporation ("DTC") and recorded in the book-entry system maintained by DTC.
Each Global Note will have the annual interest rate, maturity and other terms
set forth in the relevant Pricing Supplement (as defined in the Selling Agent
Agreement). Owners of beneficial interests in a Global Note will be entitled to
physical delivery of Notes issued in certificated form equal in principal amount
to their respective beneficial interests only upon certain limited circumstances
described in the Indenture.
Administrative procedures and specific terms of the offering are explained
below. Administrative and record-keeping responsibilities will be handled for
the Company by its Treasury Department. The Company will advise the Agents and
the Trustee in writing of those persons handling administrative responsibilities
with whom the Agents and the Trustee are to communicate regarding offers to
purchase Notes and the details of their delivery.
B-1
Notes will be issued in accordance with the administrative procedures set forth
herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the Indenture, the Selling Agent
Agreement or the Prospectus and the Pricing Supplement (together, the
"Prospectus"), the relevant provisions of the Notes, the Indenture, the Selling
Agent Agreement and the Prospectus shall control. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Selling Agent Agreement, the Prospectus in the form most recently filed with the
SEC pursuant to Rule 424 of the 1933 Act, or in the Indenture.
ADMINISTRATIVE PROCEDURES FOR NOTES
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated __________, 2002 and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated __________, 2002
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). The procedures set forth below may be modified in
compliance with DTC's then-applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the "Maturity Date")
not less than nine months after the date of delivery
by the Company of such Note. Notes will mature on any
date selected by the initial purchaser and agreed to
by the Company. "Maturity" when used with respect to
any Note, means the date on which the outstanding
principal amount of such Note becomes due and payable
in full in accordance with its terms, whether at its
Maturity Date or by declaration of acceleration, call
for redemption, repayment or otherwise.
Issuance: All Notes having the same terms will be represented
initially by a single Global Note. Each Global Note
will be dated and issued as of the date of its
authentication by the Trustee.
Each Global Note will bear an original issue date
(the "Original Issue Date"). The Original Issue Date
shall remain the same for all Notes subsequently
issued upon transfer, exchange or substitution of an
original Note regardless of their dates of
authentication.
Identification The Company has received from the CUSIP Service
Numbers: Bureau (the CUSIP Service Bureau") of Standard &
Poor's Corporation ("Standard & Poor's") one series
of CUSIP numbers consisting of approximately [900
CUSIP] numbers for future assignment to Global Notes.
The Company will provide the Purchasing Agent, DTC
and the Trustee with a list of such CUSIP numbers. On
B-2
behalf of the Company, the Purchasing Agent will
assign CUSIP numbers as described below under
Settlement Procedure "B". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that
the Company has assigned to Global Notes. The Company
will reserve additional CUSIP numbers when necessary
for assignment to Global Notes and will provide the
Purchasing Agent, the Trustee and DTC with the list
of additional CUSIP numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes will
be issued only in fully registered form without
coupons. Each Global Note will be registered in the
name of Cede & Co., as nominee for DTC, on the Note
Register maintained under the Indenture by the
Trustee. The beneficial owner of a Note (or one or
more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC
(with respect to such Note, the "Participants") to
act as agent or agents for such owner in connection
with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such beneficial owner of such
Note in the account of such Participants. The
ownership interest of such beneficial owner in such
Note will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in
DTC.
Transfers: Transfers of interests in a Global Note will be
accomplished by book entries made by DTC and, in
turn, by Participants (and in certain cases, one or
more indirect participants in DTC) acting on behalf
of beneficial transferors and transferees of such
interests.
Exchanges: The Trustee, at the Company's request, may deliver to
DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (a) the
CUSIP numbers of two or more Global Notes outstanding
on such date that represent Notes having the same
terms or (except that Issue Dates need not be the
same) and for which interest, if any, has been paid
to the same date and which otherwise constitute Notes
of the same series and tenor under the Indenture, (b)
a date, occurring at least 30 days after such written
notice is delivered and at least 30 days before the
next Interest Payment Date, if any, for the related
Notes, on which such Global Notes shall be exchanged
for a single replacement Global Note; and (c) a new
CUSIP number, obtained from the Company, to be
assigned to Such replacement Global Note. Upon
receipt of such a notice, DTC will send to its
participants (including the Issuing Agent) and the
Trustee a written reorganization notice to the effect
that such exchange will occur on such date. Prior to
the specified exchange date, the Trustee will deliver
to the CUSIP Service Bureau written notice setting
forth such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP
numbers of the Global Notes to be exchanged will no
longer be valid. On the specified exchange date, the
Trustee will exchange such Global Notes for a single
Global Note bearing the new CUSIP number and the
CUSIP numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Notes to
be exchanged exceed $500,000,000 in aggregate
principal or face amount, one replacement Global Note
will be authenticated and issued to represent each
$500,000,000 of principal or face amount of the
exchanged Global Notes and an additional Global Note
will be authenticated and issued to represent any
remaining principal amount of such Global Notes (See
"Denominations" below).
Denominations: Unless otherwise agreed by the Company, Notes will be
issued in denominations of $1,000 or more (in
multiples of $1,000). Global Notes will be
denominated in principal or face amounts not in
excess of $500,000,000 or any other limit set by the
DTC (the "Permitted Amount"). If one or more Notes
having an aggregate principal or face amount in
excess of the Permitted Amount would, but for the
preceding sentence, be represented by a single Global
Note, then one Global Note will be issued to
represent each Permitted Amount principal or face
amount of such Note or Notes and an additional Global
Note will be Issued to represent any remaining
principal amount of such Note or Notes. In such case,
each of the Global Notes representing such Note or
Notes shall be assigned the same CUSIP number.
Issue Price: Unless otherwise specified in an applicable
Pricing Supplement, each Note will be issued at the
percentage of principal amount specified in the
Prospectus relating to such Note.
Interest: GENERAL. Each Note will bear interest at a fixed
rate. Interest on each Note will accrue from the
Issue Date of such Note for the first interest period
and from the most recent Interest Payment Date to
which interest has been paid for all subsequent
interest periods. Except as set forth hereafter, each
payment of interest on a Note will include interest
accrued to, but excluding, as the case may be, the
Interest Payment Date or the date of Maturity (other
than a Maturity Date of a Note occurring on the 31st
day
B-4
of a month in which case such payment of interest
will include interest accrued to but excluding the
30th day of such month). Any payment of principal,
premium or interest required to be made on a day that
is not a Business Day (as defined below) may be made
on the next succeeding Business Day and no interest
shall accrue as a result of any such delayed payment.
Each pending deposit message described under
Settlement Procedure "C" below will be routed to
Standard & Poor's Corporation, which will use the
message to include certain information regarding the
related Notes in the appropriate daily bond report
published by Standard & Poor's Corporation.
Each Note will bear interest from, and including, its
Issue Date at the rate per annum set forth thereon
and in the applicable Pricing Supplement until the
principal amount thereof is paid, or made available
for payment, in full. Unless otherwise specified in
the applicable Pricing Supplement, interest on each
Note will be payable either monthly, quarterly,
semi-annually or annually on each Interest Payment
Date and at Maturity (or on the date of redemption or
repayment if a Note is repurchased by the Company
prior to maturity pursuant to mandatory or optional
redemption or repayment provisions or the Survivor's
Option). Interest will be payable to the person in
whose name a Note is registered at the close of
business on the Regular Record Date next preceding
each Interest Payment Date; provided, however,
interest payable at Maturity, on a date of redemption
or repayment or in connection with the exercise of
the Survivor's Option will be payable to the person
to whom principal shall be payable.
Any payment of principal, and premium, if any, or
interest required to be made on a Note on a day which
is not a Business Day need not be made on such day,
but may be made on the next succeeding Business Day
with the same force and effect as if made on such
day, and no additional interest shall accrue as a
result of such delayed payment. Unless otherwise
specified in the applicable Pricing Supplement, any
interest on the Notes will be computed on the basis
of a 360-day year of twelve 30-day months. The
interest rates the Company will agree to pay on
newly-issued Notes are subject to change without
notice by the Company from time to time, but no such
change will affect any Notes already issued or as to
which an offer to purchase has been accepted by the
Company.
B-5
The Interest Payment Dates for a Note that provides
for monthly interest payments shall be the fifteenth
day of each calendar month, commencing in the
calendar month that next succeeds the month in which
the Note is issued. In the case of a Note that
provides for quarterly interest payments, the
Interest Payment Dates shall be the fifteenth day of
each third month, commencing in the third succeeding
calendar month following the month in which the Note
is issued. In the case of a Note that provides for
semi-annual interest payments, the Interest Payment
dates shall be the fifteenth day of each sixth month,
commencing in the sixth succeeding calendar month
following the month in which the Note is issued. In
the case of a Note that provides for annual interest
payments, the Interest Payment Date shall be the
fifteenth day of every twelfth month, commencing in
the twelfth succeeding calendar month following the
month in which the Note is issued. The Regular Record
Date with respect to any Interest Payment Date shall
be the first day of the calendar month in which such
Interest Payment Date occurred, except that the
Regular Record Date with respect to the final
Interest Payment Date shall be the final Interest
Payment Date.
Each payment of interest on a Note shall include
accrued interest from and including the Issue Date or
from and including the last day in respect of which
interest has been paid (or duly provided for), as the
case may be, to, but excluding, the Interest Payment
Date or Maturity Date, as the case may be.
Calculation of Interest: Interest on the Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve 30-day months. (Examples of interest
calculations are as follows: October 1, 1998 to April
1, 1999 equals 6 months and 0 days, or 180 days; the
interest paid equals 180/360 times the annual rate of
interest times the principal amount of the Note. The
period from December 3, 1998 to April 1, 1999 equals
3 months and 28 days, or 118 days; the interest
payable equals 118/360 times the annual rate of
interest times the principal amount of the Note.)
Business Day: "Business Day" means, unless otherwise specified in
the applicable Pricing Supplement, any weekday that
is (1) not a legal holiday in New York, New York and
(2) not a day on which banking institutions in New
York, New York are authorized or required by law or
regulation to be closed.
B-6
Payments of Principal
and Interest: PAYMENTS OF PRINCIPAL AND INTEREST. Promptly after
each Regular Record Date, the Trustee will deliver to
the Company and DTC a written notice specifying by
CUSIP number the amount of interest, if any, to be
paid on each Global Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with a Maturity Date) and the total of
such amounts. DTC will confirm the amount payable on
each Global Note on such Interest Payment Date by
reference to the daily bond reports published by
Standard & Poor's. On such Interest Payment Date, the
Company will pay to the Trustee, and the Trustee in
turn will pay to DTC, such total amount of interest
due (other than on the Maturity Date), at the times
and in the manner set forth below under "Manner of
Payment." If any Interest Payment Date for any Note
is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and
no interest shall accrue on such payment for the
period from and after such Interest Payment Date.
PAYMENTS ON THE MATURITY DATE. On or about the first
Business Day of each month, the Trustee will deliver
to the Company and DTC a written list of principal,
premium, if any, and interest to be paid on each
Global Note representing Notes maturing or subject to
redemption (pursuant to a sinking fund or otherwise)
or repayment ("Maturity") in the following month. The
Trustee, the Company and DTC will confirm the amounts
of such principal, premium, if any, and interest
payments with respect to each Global Note on or about
the fifth Business Day preceding the Maturity Date of
such Global Note. On the Maturity Date, the Company
will pay to the Trustee, and the Trustee in turn will
pay to DTC, the principal amount of such Global Note,
together with interest and premium, if any, due on
such Maturity Date, at the times and in the manner
set forth below under "Manner of Payment." If the
Maturity Date of any Global Note is not a Business
Day, the payment due on such day shall be made on the
next succeeding Business Day and no interest shall
accrue on such payment for the period from and after
such Maturity Date. Promptly after payment to DTC of
the principal and interest due on the Maturity Date
of such Global Note and all other Notes represented
by such Global Note, the Trustee will cancel and
destroy such Global Note in accordance with the
Indenture and so advise the Company.
MANNER OF PAYMENT. The total amount of any principal,
premium, if any, and interest due on Global Notes on
any Interest Payment Date or at Maturity shall be
paid by the
B-7
Company to the Trustee in immediately available funds
on such date. The Company will make such payment on
such Global Notes to an account specified by the
Trustee. Prior to 10:00 a.m., New York City time, on
the date of Maturity or as soon as possible
thereafter, the Trustee will make payment to DTC in
accordance with existing arrangements between DTC and
the Trustee, in funds available for immediate use by
DTC, each payment of interest, principal and premium,
if any, due on a Global Note on such date. On each
Interest Payment Date (other than on the Maturity
Date) the Trustee will pay DTC such interest payments
in same-day funds in accordance with existing
arrangements between the Trustee and DTC. Thereafter,
on each such date, DTC will pay, in accordance with
its SDFS operating procedures then in effect, such
amounts in funds available for immediate use to the
respective Participants with payments in amounts
proportionate to their respective holdings in
principal amount of beneficial interest in such
Global Note as are recorded in the book-entry system
maintained by DTC. Neither the Company nor the
Trustee shall have any direct responsibility or
liability for the payment by DTC of the principal of,
or premium, if any, or interest on, the Notes to such
Participants.
WITHHOLDING TAXES. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Note will be determined and withheld by
the Participant, indirect participant in DTC or other
person responsible for forwarding payments and
materials directly to the beneficial owner of such
Note.
Procedure for Rate
Setting and Posting: The Company and the Agents will discuss, from time to
time, the aggregate principal amounts of, the
Maturities, the Issue Price and the interest rates to
be borne by Notes that may be sold as a result of the
solicitation of orders by the Agents. If the Company
decides to set interest rates borne by any Notes in
respect of which the Agents are to solicit orders
(the setting of such interest rates to be referred to
herein as "Posting") or if the Company decides to
change interest rates previously posted by it, it
will promptly advise the Agents of the prices and
interest rates to be posted.
The Purchasing Agent will assign a separate CUSIP
number for each tranche of Notes to be posted, and
will so advise and notify the Company and the Trustee
of said assignment by telephone and/or by telecopier
or other form of electronic transmission. The
Purchasing Agent will include the assigned CUSIP
number
B-8
on all Posting notices communicated to the Agents and
Selected Dealers.
Offering of Notes: In the event that there is a Posting, the Purchasing
Agent will communicate to each of the Agents and
Selected Dealers the aggregate principal amount and
Maturities of, along with the interest rates to be
borne by, each tranche of Notes that is the subject
of the Posting. Thereafter, the Purchasing Agent,
along with the other Agents and the Selected Dealers,
will solicit offers to purchase the Notes
accordingly.
Purchase of Notes by
the Purchasing Agent: The Purchasing Agent will, no later than 12:00 noon
(New York City time) on the seventh day subsequent to
the day on which such Posting occurs, or if such
seventh day is not a Business Day on the preceding
Business Day, or on such other Business Day and time
as shall be mutually agreed upon by the Company and
the Agents (any such day, a "Trade Day"), (i)
complete, execute and deliver to the Company a Terms
Agreement that sets forth, among other things, the
amount of each tranche that the Purchasing Agent is
offering to purchase or (ii) inform the Company that
none of the Notes of a particular tranche will be
purchased by the Purchasing Agent.
Acceptance and
Rejection of Orders: Unless otherwise agreed by the Company and the
Agents, the Company has the sole right to accept
orders to purchase Notes and may reject any such
order in whole or in part. Unless otherwise
instructed by the Company, the Purchasing Agent will
promptly advise the Company by telephone of all
offers to purchase Notes received by it, other than
those rejected by it in whole or in part in the
reasonable exercise of its discretion. No order for
less than $1,000 principal amount of Notes will be
accepted.
Upon receipt of a completed and executed Terms
Agreement from the Purchasing Agent, the Company will
(i) promptly execute and return such Terms Agreement
to the Purchasing Agent or (ii) inform the Purchasing
Agent that its offer to purchase the Notes of a
particular tranche has been rejected, in whole or in
part. The Purchasing Agent will thereafter promptly
inform the other Agents and participating Selected
Dealers of the action taken by the Company.
B-9
Preparation of Pricing
Supplement: If any offer to purchase a Note is accepted by or on
behalf of the Company, the Company will provide a
Pricing Supplement (substantially in the form
attached to the Selling Agent Agreement as Exhibit D)
reflecting the terms of such Note and will have filed
such Pricing Supplement with the SEC in accordance
with the applicable paragraph of Rule 424(b) under
the 1933 Act. The Company shall use its reasonable
best efforts to send such Pricing Supplement by email
or telecopy to the Purchasing Agent and the Trustee
by 3:00 p.m. (New York City Time) on the applicable
Trade Day. The Purchasing Agent shall use its
reasonable best efforts to send such Pricing
Supplement and the Prospectus by email or telecopy or
overnight express (for delivery by the close of
business on the applicable Trade Day, but in no event
later than 11:00 a.m. New York City time, on the
Business Day following the applicable Trade Date) to
each Agent (or other Selected Dealer) which made or
presented the offer to purchase the applicable Note
and the Trustee at the following applicable address:
IF TO BANC OF AMERICA SECURITIES LLC, TO:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO INCAPITAL LLC, TO:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & CO., INC., TO:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
B-10
IF TO ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED, TO:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Production Technologies
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Prospectus Operations/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇/5/6
email: ▇▇▇▇▇▇▇▇@▇▇▇.▇▇.▇▇.▇▇▇
----------------------
IF TO PRUDENTIAL SECURITIES INCORPORATED, TO:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
IF TO ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC., TO:
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Brooklyn Army Terminal
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO UBS PAINEWEBBER INC., TO:
Taxable Financial Income Department
Attention: Corporate Desk
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO FIRST UNION SECURITIES, INC. TO:
First Union Securities, Inc.
Wachovia Securities
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
B-11
AND IF TO THE TRUSTEE, TO:
Bank One Trust Company, N.A.
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
For record keeping purposes, one copy of each Pricing
Supplement, as so filed, shall also be mailed or
telecopied to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
AND TO:
Banc of America Securities LLC
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Each such Agent (or Selected Dealer), in turn,
pursuant to the terms of the Selling Agent Agreement
and the Master Selected Dealer Agreement, will cause
to be delivered a copy of the Prospectus and the
applicable Pricing Supplement to each purchaser of
Notes from such Agent or Selected Dealer.
Outdated Pricing Supplements and the Prospectuses to
which they are attached (other than those retained
for files) will be destroyed.
Delivery of Confirmation
and Prospectus to Purchaser
by Presenting Agent: Subject to "Suspension of Solicitation; Amendment or
Supplement" below, the Agents will deliver a
Prospectus and Pricing Supplement as herein described
with respect to each Note sold by it.
B-12
For each offer to purchase a Note accepted by or on
behalf of the Company, the Purchasing Agent will
confirm in writing with each Agent or Selected Dealer
the terms of such Note, the amount being purchased by
such Agent or Selected Dealer and other applicable
details described above and delivery and payment
instructions, with a copy to the Company.
In addition, the Purchasing Agent, other Agent or
Selected Dealer, as the case may be, will deliver to
investors purchasing the Notes the Prospectus
(including the Pricing Supplement) in relation to
such Notes prior to or simultaneously with delivery
of the confirmation of sale or delivery of the Note.
Settlement: The receipt of immediately available funds by the
Company in payment for Notes and the authentication
and issuance of the Global Note representing such
Notes shall constitute "Settlement" with respect to
such Note. All orders accepted by the Company will be
settled within one to three Business Days pursuant to
the timetable for Settlement set forth below, unless
the Company and the purchaser agree to Settlement on
a later date, and shall be specified upon acceptance
of such offer; provided, however, in all cases the
Company will notify the Trustee on the date issuance
instructions are given.
Settlement Procedures: In the event of a purchase of Notes by any Agent, as
agent, appropriate Settlement details, if different
from those set forth below, will be set forth in the
applicable Terms Agreement to be entered into between
such Agent and the Company pursuant to the Selling
Agent Agreement. Settlement Procedures with regard to
each Note sold by an Agent, as principal for the
Company, shall be as follows:
A. After the acceptance of an offer by the Company
with respect to a Note, the Purchasing Agent
will communicate the following details of the
terms of such offer (the "Note Sale
Information") to the Company by telephone
confirmed in writing or by facsimile
transmission or other acceptable written means:
1. Principal amount of the purchase;
2. Interest Rate per annum;
3. Interest Payment Frequency;
4. Settlement Date;
B-13
5. Maturity Date;
6. Price to Public;
7. Purchasing Agent's commission determined
pursuant to Section IV(a) of the Selling
Agent Agreement;
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the Company
or repayable by the Noteholder, such of
the following as are applicable:
(i) The date on and after which such
Note may be redeemed/repaid (the
"Redemption/Repayment Commencement
Date"),
(ii) Initial redemption/repayment price
(% of par), and
(iii) Amount (% of par) that the initial
redemption/repayment price shall
decline (but not below par) on each
anniversary of the
Redemption/Repayment Commencement
Date;
11. Whether the Note has a Survivor's Option;
12. If a Discount Note, the total amount of
original issue discount, the yield to
maturity and the initial accrual period
of original issue discount;
13. DTC Participant Number of the institution
through which the customer will hold the
beneficial interest in the Global Note;
and
14. Such other terms as are necessary to
complete the applicable form of Note.
B-14
B. The Company will confirm the previously
assigned CUSIP number to the Global Note
representing such Note and then advise the
Trustee and the Purchasing Agent by telephone
(confirmed in writing at any time on the same
date) or by telecopier or other form of
electronic transmission of the information
received in accordance with Settlement
Procedure "A" above, the assigned CUSIP number
and the name of the Purchasing Agent. Each such
communication by the Company will be deemed to
constitute a representation and warranty by the
Company to the Trustee and the Agents that (i)
such Note is then, and at the time of issuance
and sale thereof will be, duly authorized for
issuance and sale by the Company; (ii) such
Note, and the Global Note representing such
Note, will conform with the terms of the
Indenture; and (iii) upon authentication and
delivery of the Global Note representing such
Note, the aggregate principal amount of all
Notes issued under the Indenture will not
exceed the aggregate principal amount of Notes
authorized for issuance at such time by the
Company.
C. The Trustee will communicate to DTC and the
Purchasing Agent through DTC's Participant
Terminal System, a pending deposit message
specifying the following Settlement
information:
1. The information received in accordance
with Settlement Procedure "A".
2. The numbers of the participant accounts
maintained by DTC on behalf of the
Trustee and the Purchasing Agent.
3. The initial Interest Payment Date for
such Note, number of days by which such
date succeeds the related DTC record date
(which term means the Regular Record
Date), and if then calculated, the amount
of interest payable on such Initial
Interest Payment Date (which amount shall
have been confirmed by the Trustee).
4. The CUSIP number of the Global Note
representing such Notes.
5. The frequency of interest.
B-15
6. Whether such Global Note represents any
other Notes issued or to be issued (to
the extent then known).
D. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
E. The Trustee will complete and deliver a Global
Note representing such Note in a form that has
been approved by the Company, the Agents and
the Trustee.
F. The Trustee will authenticate the Global Note
representing such Note and maintain possession
of such Global Note.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Trustee's participant account and credit such
Note to the participant account of the
Purchasing Agent maintained by DTC and (ii)
debit the settlement account of the Purchasing
Agent and credit the settlement account of the
Trustee maintained by DTC, in an amount equal
to the price of such Note less the Purchasing
Agent's commission. The entry of such a deliver
order shall be deemed to constitute a
representation and warranty by the Trustee to
DTC that (a) the Global Note representing such
Note has been issued and authenticated and (b)
the Trustee is holding such Global Note
pursuant to the Certificate Agreement.
H. The Purchasing Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Purchasing Agent's participant account and
credit such Note to the participant accounts of
the Participants to whom such Note is to be
credited maintained by DTC and (ii) debit the
settlement accounts of such Participants and
credit the settlement account of the Purchasing
Agent maintained by DTC, in an amount equal to
the price of the Note less the agreed upon
commission so credited to their accounts.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
B-16
J. The Trustee will credit to an account of the
Company maintained at Bank of America, N.A.
funds available for immediate use in an amount
equal to the amount credited to the Trustee's
DTC participant account in accordance with
Settlement Procedure "G".
K. The Trustee will send a copy of the Global Note
representing such Note by first-class mail to
the Company.
L. Each Agent and Selected Dealer will confirm the
purchase of each Note to the purchaser thereof
either by transmitting to the Participant to
whose account such Note has been credited a
confirmation order through DTC's Participant
Terminal System or by mailing a written
confirmation to such purchaser. In all cases
the Prospectus as most recently amended or
supplemented must accompany or precede such
confirmation.
M. Each Business Day, the Trustee will send to the
Company a statement setting forth the principal
amount of Notes outstanding as of that date
under the Indenture and setting forth the CUSIP
number(s) assigned to, and a brief description
of, any orders which the Company has advised
the Trustee but which have not yet been
settled.
Settlement Procedures
Timetable: In the event of a purchase of Notes by the Purchasing
Agent, as principal, appropriate Settlement details,
if different from those set forth below will be set
forth in the applicable Terms Agreement to be entered
into between the Purchasing Agent and the Company
pursuant to the Selling Agent Agreement.
Settlement Procedures "A" through "M" 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 4:00 p.m. on the Trade Day.
B 5:00 p.m. on the Trade Day.
C 2:00 p.m. on the Business Day
before the Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
B-17
F 12:30 a.m. on the Settlement Date.
G-H 2:00 p.m. on the Settlement Date.
I 4:45 p.m. on the Settlement Date.
▇-▇ 5:00 p.m. on the Settlement Date.
M Weekly or at the request of the
Company.
NOTE: The Prospectus as most recently amended or
supplemented must accompany or precede any written
confirmation given to the customer (Settlement
Procedure "L"). Settlement Procedure "I" is subject
to extension in accordance with any extension Fedwire
closing deadlines and in the other events specified
in the SDFS operating procedures in effect on the
Settlement Date.
If Settlement of a Note is rescheduled or cancelled,
the Trustee will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 2:00 p.m., New York
City time, on the Business Day immediately preceding
the scheduled Settlement Date.
B-18
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note pursuant to Settlement
Procedure "G", the Trustee may deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to the participant account of the
Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant
account contains Notes having the same terms and
having a principal amount that is at least equal to
the principal amount of such Note to be debited. If
withdrawal messages are processed with respect to all
the Notes issued or to be issued represented by a
Global Note, the Trustee will cancel such Global Note
in accordance with the Indenture, make appropriate
entries in its records and so advise the Company. The
CUSIP number assigned to such Global Note shall, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If
withdrawal messages are processed with respect to one
or more, but not all, of the Notes represented by a
Global Note, the Trustee will exchange such Global
Note for two Global Notes, one of which shall
represent such Notes and shall be cancelled
immediately after issuance, and the other of which
shall represent the remaining Notes previously
represented by the surrendered Global Note and shall
bear the CUSIP number of the surrendered Global Note.
If the purchase price for any Note is not timely paid
to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including
an indirect participant in DTC, acting on behalf of
such purchaser), such Participants and, in turn, the
related Agent may enter SDFS deliver orders through
DTC's participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "G"
and "H", respectively. Thereafter, the Trustee will
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 Agent in the performance of its
obligations hereunder or under the Selling Agent
Agreement, the Company will reimburse the Agent on an
equitable basis for its reasonable out-of-pocket
accountable expenses actually incurred and loss of
the use of funds during the period when they were
credited to the account of the Company.
B-19
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note, DTC 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 Notes that were to have been represented by a
Global Note, the Trustee will provide, in accordance
with Settlement Procedures "D" and "E", for the
authentication and issuance of a Global Note
representing the other Notes to have been represented
by such Global Note and will make appropriate entries
in its records.
Procedure for
Rate Changes: Each time a decision has been reached to change
rates, the Company will promptly advise the Agents of
the new rates, who will forthwith suspend
solicitation of purchases of Notes at the prior
rates. The Agents may telephone the Company with
recommendations as to the changed interest rates.
Suspension of Solicitation
Amendment or Supplement: Subject to the Company's representations, warranties
and covenants contained in the Selling Agent
Agreement, the Company may instruct the Agents to
suspend at any time for any period of time or
permanently, the solicitation of orders to purchase
Notes. Upon receipt of such instructions (which may
be given orally), each Agent will forthwith suspend
solicitation until such time as the Company has
advised it that solicitation of purchases may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly
advise the Agents and the Trustee whether such orders
may be settled and whether copies of the Prospectus
as in effect at the time of the suspension may be
delivered in connection with the settlement of such
orders. The Company will have the sole responsibility
for such decision and for any arrangements which may
be made in the event that the Company determines that
such orders may not be settled or that copies of such
Prospectus may not be so delivered.
B-20
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will
promptly advise the Agents and furnish the Agents and
the Trustee with the proposed amendment or supplement
and with such certificates and opinions as are
required, all to the extent required by and in
accordance with the terms of the Selling Agent
Agreement. Subject to the provisions of the Selling
Agent Agreement, the Company may file with the
Commission any supplement to the Prospectus relating
to the Notes. The Company will provide the Agents and
the Trustee with copies of any such supplement, and
confirm to the Agents that such supplement has been
filed with the SEC.
Trustee Not to Risk Funds: Nothing herein shall be deemed to
require the Trustee to risk or expend its own funds
in connection with any payment to the Company, or the
Agents or the purchasers, it being understood by all
parties that payments made by the Trustee to either
the Company or the Agents shall be made only to the
extent that funds are provided to the Trustee for
such purpose.
Advertising Costs: The Company shall have the sole right to
approve the form and substance of any advertising an
Agent may initiate in connection with such Agent's
solicitation to purchase the Notes. The expense of
such advertising will be solely the responsibility of
such Agent, unless otherwise agreed to by the
Company.
B-21
EXHIBIT C
TERMS AGREEMENT
_________, 2002
PHH Corporation
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President and Treasurer
The undersigned agrees to purchase the following aggregate principal amount of
PHH InterNotes(R):
$------------
The terms of such PHH InterNotes(R) shall be as follows: CUSIP Number:
__________
Interest Rate: _____%
Maturity Date: __________
Price to Public: __________
Agent's Concession: ___%
Net Proceeds to Issuer: _________
Settlement Date, Time and Place: __________
Survivor's Option: __________
Interest Payment Frequency: __________
Optional Redemption/Repayment, if any: __________
Initial Redemption/Repayment Date[s]: __________
Redemption/Repayment Price: Initially ___% of Principal Amount and declining by
___% of the Principal Amount on each anniversary of the Initial
Redemption/Repayment Date until the Redemption/Repayment Price is 100% of the
Principal Amount.
Supplemental Indenture No. 1 and Supplemental Indenture No. 3 shall apply
to the PHH InterNotes(R)issued pursuant to this Terms Agreement.
[Any other terms and conditions agreed to by the Purchasing Agent and the
Company]
INCAPITAL LLC
By: __________________________
Title: _______________________
ACCEPTED
PHH CORPORATION
By: __________________________
Title: _______________________
C-1
Exhibit D
FORM OF PRICING SUPPLEMENT
Pricing Supplement Dated: ___________ Rule 424(b)(3)
(To Prospectus Dated November 1, 2000) File No. 333-46434
Pricing Supplement No. ______________
$500,000,000
PHH CORPORATION
PHH INTERNOTES(R)
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
-----------------------------------------------------------------
Trade Date:
-----------------------------------
Issue Date:
-----------------------------------
Joint Lead Managers:
--------------------
Agents:
---------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------------------
CUSIP AGGREGATE PRICE CONCESSION NET SENIOR OR INTEREST
PRINCIPAL TO PROCEEDS SUBORDINATED RATE
AMOUNT PUBLIC TO ISSUER
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
INTEREST MATURITY SURVIVOR'S REDEMPTION OR REDEMPTION/
PAYMENT DATE OPTION REPAYMENT REPAYMENT TERMS
FREQUENCY YES/NO
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Supplemental Indenture No. 1 and Supplemental Indenture No. 3 shall apply
to the PHH InterNotes(R)issued pursuant to this Pricing Supplement.
Other Terms:
------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
▇-▇
▇-▇
EXHIBIT E
MASTER SELECTED DEALER AGREEMENT
--FirstName--
--Company--
--Address1--
--Address2--
--City--, --State-- --Postal--
Dear Selected Dealer:
In connection with public offerings of securities after the date
hereof for which we are acting as manager of an underwriting syndicate or are
otherwise responsible for the distribution of securities to the public by means
of an offering of securities for sale to selected dealers, you may be offered
the right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. APPLICABILITY OF THIS AGREEMENT. The terms and conditions of this
Agreement shall be applicable to any public offering of securities
("Securities"), pursuant to a registration statement filed under the Securities
Act of 1933 (the "Securities Act"), or exempt from registration thereunder
(other than a public offering of Securities effected wholly outside the United
States of America), wherein Incapital LLC clearing through BNY Clearing
Services, LLC (the "Account") (acting for its own Account or for the account of
any underwriting or similar group or syndicate) is responsible for managing or
otherwise implementing the sale of the Securities to selected dealers ("Selected
Dealers") and has expressly informed you that such terms and conditions shall be
applicable. Any such offering of Securities to you as a Selected Dealer is
hereinafter called an "Offering". In the case of any Offering where we are
acting for the account of any underwriting or similar group or syndicate
("Underwriters"), the terms and conditions of this Agreement shall be for the
benefit of, and binding upon, such Underwriters, including, in the case of any
Offering where we are acting with others as representatives of Underwriters,
such other representatives.
2. CONDITIONS OF OFFERING; ACCEPTANCE AND PURCHASES. Any Offering:
(i) will be subject to delivery of the Securities and their acceptance by us and
any other Underwriters; (ii) may be subject to the approval of all legal matters
by counsel and the satisfaction of other conditions, and (iii) may be made on
the basis of reservation of Securities or an allotment against subscription. We
will advise you by electronic mail, facsimile or other form of written
communication ("Written Communication", which term, in the case of any Offering
described in Section 3(a) or 3(b) hereof, may include a prospectus or offering
circular) of the particular method and supplementary terms and conditions
(including, without limitation, the information as to prices and offering date
referred to in Section 3(c) hereof) of any Offering in which you are invited to
participate. To the extent such supplementary terms and conditions are
inconsistent with any provision herein, such terms and conditions shall
supersede any such provision. Unless
E-1
otherwise indicated in any such Written Communication, acceptances and other
communications by you with respect to an Offering should be sent to Incapital
LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (Fax: (312)
▇▇▇-▇▇▇▇). We reserve the right to reject any acceptance in whole or in part.
Unless notified otherwise by us, Securities purchased by you shall be paid for
on such date as we shall determine, on one day's prior notice to you, by
certified or official bank check, in an amount equal to the Public Offering
Prices (as hereinafter defined) or, if we shall so advise you, at such Public
Offering Price less the Concession (as hereinafter defined), payable in New York
Clearing House funds to the order of BNY Clearing Services, LLC clearing for the
account of Incapital LLC, against delivery of the Securities. If Securities are
purchased and paid for at such Public Offering Price, such Concession will be
paid after the termination of the provisions of Section 3(c) hereof with respect
to such Securities. Notwithstanding the foregoing, unless notified otherwise by
us, payment for and delivery of Securities purchased by you shall be made
through the facilities of The Depository Trust Company, if you are a member,
unless you have otherwise notified us prior to the date specified in a Written
Communication to you from us or, if you are not a member, settlement may be made
through a correspondent who is a member pursuant to instructions which you will
send to us prior to such specified date.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) REGISTERED OFFERINGS. In the case of any Offering of Securities
that are registered under the Securities Act ("Registered Offering"), we shall
provide you with such number of copies of each preliminary prospectus and of the
final prospectus relating thereto as you may reasonably request for the purposes
contemplated by the Securities Act and the Securities Exchange Act of 1934 (the
"Exchange Act") and the applicable rules and regulations of the Securities and
Exchange Commission thereunder. You represent and warrant that you are familiar
with Rule 15c2-8 under the Exchange Act relating to the distribution of
preliminary and final prospectuses and agree that you will comply therewith. You
agree to make a record of your distribution of each preliminary prospectus and,
when furnished with copies of any revised preliminary prospectus, you will, upon
our request, promptly forward copies thereof to each person to whom you have
theretofore distributed a preliminary prospectus. You agree that in purchasing
Securities in a Registered Offering you will rely upon no statement whatsoever,
written or oral, other than the statements in the final prospectus delivered to
you by us. You will not be authorized by the issuer or other seller of
Securities offered pursuant to a prospectus or by any Underwriter to give any
information or to make any representation not contained in the prospectus in
connection with the sale of such Securities.
(b) OFFERINGS PURSUANT TO OFFERING CIRCULAR. In the case of any
Offering of Securities, other than a Registered Offering, which is made pursuant
to an offering circular or other document comparable to a prospectus in a
Registered Offering, we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular relating
thereto as you may reasonably request. You agree that you will comply with the
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no statements
whatsoever, written or oral, other than the statements in the final offering
circular delivered to you by us. You will not be authorized by the issuer or
other seller of
Securities offered pursuant to an offering circular or by any Underwriter to
give any information or to make any representation not contained in the offering
circular in connection with the sale of such Securities.
(c) OFFER AND SALE TO THE PUBLIC. With respect to any Offering of
Securities, we will inform you by a Written Communication of the public offering
price, the selling concession, the reallowance (if any) to dealers and the time
when you may commence selling Securities to the public. After such public
offering has commenced, we may change the public offering price, the selling
concession and the reallowance to dealers. The offering price, selling
concession and reallowance (if any) to dealers at any time in effect with
respect to an Offering are hereinafter referred to, respectively, as the "Public
Offering Price", the "Concession" and the "Reallowance". With respect to each
Offering of Securities, until the provisions of this Section 3(c) shall be
terminated pursuant to Section 4 hereof, you agree to offer Securities to the
public at no more than the Public Offering Price. If so notified by us, you may
sell Securities to the public at a lesser negotiated price than the Public
Offering Price, but in an amount not to exceed the "Concession." If a
Reallowance is in effect, a reallowance from the Public Offering Price not in
excess of such Reallowance may be allowed as consideration for services rendered
in distribution to dealers who are actually engaged in the investment banking or
securities business, who execute the written agreement prescribed by section
24(c) of Article III of the Rules of Fair Practice of the National Association
of Securities Dealers, Inc. (the "NASD") and who are either members in good
standing of the NASD or foreign banks, dealers or institutions not eligible for
membership in the NASD who represent to you that they will promptly reoffer such
Securities at the Public Offering Price and will abide by the conditions with
respect to foreign banks, dealers and institutions set forth in Section 3(e)
hereof.
(d) OVER-ALLOTMENT; STABILIZATION; UNSOLD ALLOTMENTS. We may, with
respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree that,
upon our request at any time and from time to time prior to the termination of
the provisions of Section 3(c) hereof with respect to any Offering, you will
report to us the amount of Securities purchased by you pursuant to such Offering
which then remain unsold by you and will, upon our request at any such time,
sell to us for our account or the account of one or more Underwriters such
amount of such unsold Securities as we may designate at the Public Offering
Price less an amount to be determined by us not in excess of the Concession. If,
prior to the later of (i) the termination of the provisions of Section 3(c)
hereof with respect to any Offering or (ii) the covering by us of any short
position created by us in connection with such Offering for our account or the
account of one or more Underwriters, we purchase or contract to purchase for our
account or the account of one or more Underwriters in the open market or
otherwise any Securities purchased by you under this Agreement as part of such
Offering, you agree to pay us on demand an amount equal to the Concession with
respect to such Securities (unless you shall have purchased such Securities
pursuant to Section 2 hereof at the Public Offering Price in which case we shall
not be obligated to pay such Concession to you pursuant to Section 2) plus
transfer taxes and broker's commissions or dealer's ▇▇▇▇-up, if any, paid in
connection with such purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually engaged in
the investment banking or securities business and either a member in good
standing of the NASD or,
if you are not such a member, you are a foreign bank, dealer or institution not
eligible for membership in the NASD which agrees to make no sales within the
United States, its territories or its possessions or to persons who are citizens
thereof or residents therein, and in making other sales to comply with the
NASD's interpretation with respect to free riding and withholding. You further
represent, by your participation in an Offering, that you have provided to us
all documents and other information required to be filed with respect to you,
any related person or any person associated with you or any such related person
pursuant to the supplementary requirements of the NASD's interpretation with
respect to review of corporate financing as such requirements relate to such
Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a Concession, discount or other allowance is received or
granted, (1) you will comply with the provisions of section 24 of Article III of
the NASD's Rules of Fair Practice and (2) if you are a non-NASD member broker or
dealer in a foreign country, you will also comply (a), as though you were an
NASD member, with the provisions of sections 8 and 36 thereof and (b) with
section 25 thereof as that section applies to a non-NASD member broker or dealer
in a foreign country.
You further agree that, in connection with any purchase of
securities from us that is not otherwise covered by the terms of this Agreement
(whether we are acting as manager, as a member of an underwriting syndicate or a
selling group or otherwise), if a selling Concession, discount or other
allowance is granted to you, clauses (1) and (2) of the preceding paragraph will
be applicable.
(f) RELATIONSHIP AMONG UNDERWRITERS AND SELECTED DEALERS. We may buy
Securities from or sell Securities to any Underwriter or Selected Dealer and,
without consent, the Underwriters (if any) and the Selected Dealers may purchase
Securities from and sell Securities to each other at the Public Offering Price
less all or any part of the Concession. Unless otherwise specified in a separate
agreement between you and us, this agreement does not authorize you to act as
agent for: (i) us; (ii) any Underwriter; (iii) the issuer; or (iv) other seller
of any Securities in offering Securities to the public or otherwise. Neither we
nor any Underwriter shall be under any obligation to you except for obligations
assumed hereby or in any Written Communication from us in connection with any
Offering. Nothing contained herein or in any Written Communication from us shall
constitute the Selected Dealers an association or partners with us or any
Underwriter or with one another. If the Selected Dealers, among themselves or
with the Underwriters, should be deemed to constitute a partnership for Federal
income tax purposes, then you elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986 and
agree not to take any position inconsistent with that election. You authorize
us, in our discretion, to execute and file on your behalf such evidence of that
election as may be required by the Internal Revenue Service. In connection with
any Offering, you shall be liable for your proportionate amount of any tax,
claim, demand or liability that may be asserted against you alone or against one
or more Selected Dealers participating in such Offering, or against us or the
Underwriters, based upon the claim that the Selected Dealers, or any of them,
constitute an association, an unincorporated business or other entity,
including, in each case, your proportionate amount of any expense incurred in
defending against any such tax, claim, demand or liability.
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(g) BLUE SKY LAWS. Upon application to us, we shall inform you as to
any advice we have received from counsel concerning the jurisdictions in which
Securities have been qualified for sale or are exempt under the securities or
blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
(h) COMPLIANCE WITH LAW. You agree that in selling Securities
pursuant to any Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities) you will comply with all applicable
laws, rules and regulations, including the applicable provisions of the
Securities Act and the Exchange Act, the applicable rules and regulations of the
Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, the applicable rules and regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules
and regulations specified in Section 3(b) hereof.
Furthermore, you acknowledge and agree that certain Offerings of
Securities (i) may be made in the United States only and/or (ii) may be
offerings of Securities of an affiliate of a United States bank but are not
savings accounts, deposits or other obligations of any such bank and would not
be guaranteed by such bank or insured by the Federal Deposit Insurance
Corporation or any other governmental agency.
4. TERMINATION, SUPPLEMENTS AND AMENDMENTS. This Agreement shall
continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented or
amended by us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to any Offering to
which this Agreement applies after the date of such supplement or amendment.
Each reference to "this Agreement" herein shall, as appropriate, be to this
Agreement as so amended and supplemented. The terms and conditions set forth in
Section 3(c) hereof with regard to any Offering will terminate at the close of
business on the 30th day after the commencement of the public offering of the
Securities to which such Offering relates, but in our discretion may be extended
by us for a further period not exceeding 30 days and in our discretion, whether
or not extended, may be terminated at any earlier time.
5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
6. GOVERNING LAW. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary terms
and conditions with respect to such Offering as may be contained in any Written
Communication from us to you in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of
Illinois.
Please confirm by signing and returning to us the enclosed copy of
this Agreement that your subscription to, or your acceptance of any reservation
of, any Securities pursuant to an Offering shall constitute (i) acceptance of
and agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 4 hereof)
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together with and subject to any supplementary terms and conditions contained in
any Written Communication from us in connection with such Offering, all of which
shall constitute a binding agreement between you and us, individually or as
representative of any Underwriters, (ii) confirmation that your representations
and warranties set forth in Section 3 hereof are true and correct at that time,
(iii) confirmation that your agreements set forth in Sections 2 and 3 hereof
have been and will be fully performed by you to the extent and at the times
required thereby and (iv) in the case of any Offering described in Section 3(a)
and 3(b) hereof, acknowledgment that you will request and have received from us
sufficient copies of the final prospectus or offering circular, as the case may
be, with respect to such Offering in order to comply with your undertakings in
Section 3(a) or 3(b) hereof.
Very truly yours,
INCAPITAL LLC
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Member
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CONFIRMED: ______________________, 20___
--Company--
By: ______________________________________
Name: ____________________________________
(Print name)
Title: ___________________________________
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