EXHIBIT 1.1
PHH CORPORATION
(a Maryland corporation)
6.000% Notes due 2008
7.125% Notes due 2013
UNDERWRITING AGREEMENT
February 13, 2003
PHH CORPORATION
(a Maryland corporation)
6.000% Notes due 2008
7.125% Notes due 2013
UNDERWRITING AGREEMENT
February 13, 2003
To the Underwriters named in Schedules I and II
Ladies and Gentlemen:
PHH Corporation, a Maryland corporation (the "Company"), proposes to
issue and sell to the underwriters named in Schedules I and II (the
"Underwriters") the principal amount of certain of its debt securities
specified in Schedules I and II (the "Securities") on the terms and conditions
stated herein and in Schedule III. The Securities will be issued pursuant to
an indenture, dated as of November 6, 2000 (the "Base Indenture," such Base
Indenture as supplemented by Supplemental Indenture No. 1, dated as of
November 6, 2000, and Supplemental Indenture No. 3, dated as of May 30, 2002,
being referred to herein as the "Indenture"), between the Company and Bank One
Trust Company, N.A., as trustee (the "Trustee").
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Registration No.
333-46434), covering up to $3,000,000,000 aggregate principal amount of its
debt securities (including the 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 was declared effective
by the Commission on November 3, 2000 and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). As
provided in Section 3(a), a prospectus supplement reflecting the terms of the
Securities, the terms of the offering thereof and the other matters set forth
therein will be filed pursuant to Rule 424 under the 1933 Act. Such prospectus
supplement, in the form first filed after the date hereof pursuant to Rule
424, is herein referred to as the "Prospectus Supplement". Such registration
statement, as amended at the date hereof, together with any registration
statements filed by the Company pursuant to Rule 462(b) under the 1933 Act,
including the exhibits thereto and the documents incorporated by reference
therein, is herein called the "Registration Statement", and the base
prospectus included therein relating to all offerings of debt securities under
the Registration Statement, as supplemented by the Prospectus Supplement, is
herein called the "Prospectus", except that, if such base prospectus is
amended or supplemented on or prior to the date on which the Prospectus
Supplement is first filed pursuant to Rule 424, the term "Prospectus" shall
refer to the base prospectus, as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by
reference therein.
You have advised us that you and the other Underwriters, acting
severally and not jointly, desire to purchase the Securities and that you have
been authorized by the other Underwriters to execute this Underwriting
Agreement (the "Agreement") on their behalf.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to and agrees with each
Underwriter that:
(i) On the original effective date of the Registration Statement, on
the effective date of the most recent post-effective amendment
thereto, if any, and on the date of the filing by the Company of any
annual report on Form 10-K after the original filing of the
Registration Statement, the Registration Statement complied in all
material respects with the requirements of the 1933 Act and the rules
and regulations of the Commission there under (the "1933 Act
Regulations"), the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; on the date hereof and at the
Closing Time (as defined below), the Registration Statement, and any
amendments thereof, and the Prospectus, and any amendments thereof
and supplements thereto, comply and will comply in all material
respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations, and neither
the Registration Statement nor any amendments thereof include or will
include an untrue statement of a material fact or omit or will omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and neither the
Prospectus, nor any amendments thereof and supplements thereto,
include or will include an untrue statement of a material fact or
omit or will omit to state any 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; provided,
however, that the Company makes no representations or warranties as
to statements or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Underwriter expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated by reference in the Prospectus, at
the time they were filed with the Commission, complied in all
material respects with the requirements of the 1934, and the rules
and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in
the Prospectus, do not and will not, on the date hereof and at the
Closing Time, include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(iii) The accountants (individually an "Accountant" and together the
"Accountants"), who have reported upon the audited financial
statements and schedules included or incorporated by reference in the
Registration Statement, are each independent public accountants as
required by the 1933 Act and the 1933 Act Regulations with respect to
(i) the Company and (ii) each corporation whose financial statements
have been included in the Registration Statement for each of the
years reported on by the Accountants.
(iv) 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 and has the corporate power to conduct the businesses
presently being conducted by it and as described in the Prospectus.
The Company is qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which
it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would
not have a material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its consolidated subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect").
(v) Each significant subsidiary (as such term is defined in clauses
(1) and (2) of Rule 1-02(w) of Regulation S-X promulgated under the
Securities Act), if any, of the Company (each, a "Significant
Subsidiary") is duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its incorporation with
corporate power and corporate authority under such laws to own, lease
and operate its properties and conduct its business. Each Significant
Subsidiary is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to
the extent that the failure to so qualify or be in good standing
would not have a Material Adverse Effect. Except as otherwise stated
in the Registration Statement and Prospectus, all of the outstanding
shares of capital stock of each Significant Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable
and are owned by the Company, directly or through one or more
Significant Subsidiaries, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind
(each, a "Lien"), except for such Liens as are not, individually or
in the aggregate, material to the Company and its Significant
Subsidiaries, considered as one enterprise.
(vi) Neither the Company nor any of its Significant Subsidiaries is
in violation of its charter or by-laws. None of the Company or any of
its Significant Subsidiaries is in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, note, lease, loan or
credit agreement or any other agreement or instrument (the
"Agreements and Instruments") to which the Company or any of its
Significant Subsidiaries is a party or by which any of them may be
bound, or to which any of the property or assets of the Company or
any Significant Subsidiary is subject, or in violation of any
applicable law, rule or regulation or any judgment, order or decree
of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their respective properties or
assets, which violation or default would, singly or in the aggregate,
have a Material Adverse Effect.
(vii) The execution and delivery by the Company of this Agreement and
the Indenture, the issuance and delivery of the Securities, the
consummation by the Company of the transactions concerning the
Securities contemplated herein and in the Registration Statement and
compliance by the Company with the terms of this Agreement and the
Indenture, have, in each case, been duly authorized by all necessary
corporate action on the part of the Company and do not and will not
result in any violation of the charter or by-laws of the Company,
each as amended to date, and do not and will not conflict with, or
result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary under (A) any Agreement or Instrument to
which the Company or any subsidiary is a party or by which it may be
bound or to which any of its properties may be subject (except for
such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect or (B) any
existing applicable law, rule, regulation (other than state
securities, foreign securities or Blue Sky laws, rules and
regulations), judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their
respective properties (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a
Material Adverse Effect).
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
(ix) The sale and issuance of the Securities have been duly
authorized by the Company. When executed, authenticated, issued and
delivered in the manner provided for in the Indenture and sold and
paid for as provided herein, the Securities will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof may be
limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law); the Securities will
conform in all material respects to the description thereof in the
Prospectus.
(x) The Indenture has been duly authorized, executed and delivered by
the Company, has been duly qualified under the 1939 Act and
constitutes the valid and binding obligation of the Company
enforceable in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity), and will conform in all material respects to the description
thereof in the Prospectus. The Indenture complies in all material
respects with the requirements of the 1939 Act and the 1939 Act
Regulations.
(xi) Except (i) as may be required under the 1933 Act, the 1939 Act
and the rules and regulations promulgated thereunder and (ii) as
required by the state or foreign securities or "blue sky" laws, no
authorization, approval, consent, order, registration or
qualification of or with any court or governmental authority or
agency is required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, or for the due
execution, delivery or performance of the Indenture by the Company,
except such as have been obtained and made under the federal
securities laws.
(xii) The consolidated financial statements included or incorporated
by reference in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the
consolidated financial position of the Company and its consolidated
subsidiaries as at the dates indicated and the results of their
operations for the periods specified. Except as otherwise stated
therein, such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The financial
statement schedules, if any, included or incorporated by reference in
the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial
data included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements incorporated by reference in the
Registration Statement. The pro forma financial statements, if any,
and related notes thereto included or incorporated by reference in
the Prospectus present fairly the information shown therein, have
been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and have
been properly compiled on the pro forma bases described therein, and
the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(xiii) Except as otherwise disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the Company
or any of its Significant Subsidiaries that is required to be
disclosed in the Prospectus or that might reasonably be expected to
result in a Material Adverse Effect, or that might reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement.
(xiv) All of the outstanding shares of capital stock of the Company
have been authorized and validly issued and are fully paid and
non-assessable; no holder thereof is or will be subject to personal
liability by reason of being such a holder.
(xv) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus and except as otherwise
stated therein, (A) there has been no material adverse change and no
development with respect to the Company that would result in a
Material Adverse Effect, (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those
arising in the ordinary course of business, that are material with
respect to the Company and its subsidiaries, considered as one
enterprise, and (C) except for regular dividends on the common stock
in amounts per share that are consistent with past practice or the
applicable charter document or supplement thereto, respectively,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(xvi) There are no contracts or documents which are required to be
described in the Registration Statement or the Prospectus which have
not been so described and filed as required.
(xvii) The Company and each Significant Subsidiary owns, or is
licensed to use, all trademarks, tradenames, service marks,
copyrights, patents and other intellectual property material to its
business, and the use thereof by the Company and each Significant
Subsidiary does not infringe upon the rights of any other person,
except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
(xviii) The Company and each Significant Subsidiary have complied and
are currently complying in all material respects with the rules and
regulations of the United States Federal Trade Commission and the
comparable laws, rules and regulations of each state or state agency
applicable to the franchising business of the Company and such
Significant Subsidiary in each state in which the Company or such
Significant Subsidiary is doing business. The Company and each
Significant Subsidiary have complied and are currently complying in
all material respects with the Federal Real Estate Settlement
Procedures Act and the real estate brokerage laws, rules and
regulations of each state or state agency in each state in which the
Company or such Significant Subsidiary is doing business.
(xix) Neither the Company nor any of its Significant Subsidiaries has
taken or will take, directly or indirectly, any action designed to,
or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Securities.
(xx) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(b) Any certificate signed by any director or officer of the Company
and delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby on the date of such certificate.
Section 2. Purchase and Sale. (a) On the basis of the representations and
warranties herein contained (except as may be otherwise specified in Schedule
III) and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price to the
Underwriters set forth in Schedule III, the principal amount of Securities set
forth opposite the name of such Underwriter in Schedules I and II.
(b) Payment of the purchase price for, and delivery of, the
Securities shall be made at the date, time and location specified in Schedule
III, or at such other date, time or location as shall be agreed upon by the
Company and the Underwriters, or as shall otherwise be provided in Section 11
(such date and time of payment and delivery being herein called the "Closing
Time"). Unless otherwise specified in Schedule III, payment shall be made to
the Company by you by wire or bank transfer of same day funds payable to the
account of the Company, against delivery to you for the respective accounts of
the several Underwriters of the Securities. Such Securities shall be in such
authorized denominations and registered in such names as you may request in
writing at least two full business days before the Closing Time. Such
Securities, which may be in temporary form, will be made available in New York
City for examination and packaging by you not later than 10:00 A.M. on the
business day prior to the Closing Time.
(c) It is understood that each Underwriter has authorized you, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities that it has agreed to purchase. You,
individually and not as Representatives, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Underwriter whose payments shall not have been received by the Closing Time.
Section 3. Certain Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement that complies with the 1933 Act
and the 1933 Act Regulations and that sets forth the principal amount of the
Securities and their terms not otherwise specified in the Indenture, the name
of each Underwriter participating in the offering and the principal amount of
the Securities that each severally has agreed to purchase, the name of each
Underwriter, if any, acting as representative of the Underwriters in
connection with the offering, the price at which the Securities are to be
purchased by the Underwriters from the Company, any initial public offering
price, any selling concession and reallowance any delayed delivery
arrangements and such other information as you and the Company deem
appropriate in connection with the offering of the Securities. The Company
will promptly transmit copies of the Prospectus Supplement to the Commission
for filing pursuant to Rule 424 under the 1933 Act and will furnish to the
Underwriters as many copies of the Prospectus as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities any event shall occur
or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare
and file with the Commission, subject to Section 3(f), such amendment or
supplement as may be necessary to correct such untrue statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements.
(c) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, the Company will,
subject to Section 3(f), file all documents required to be filed with the
Commission pursuant to Section 13, Section 14 or Section 15(d) of the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(d) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, the Company will
inform you of its intention to file any amendment to the Registration
Statement or any supplement or revision to the Prospectus, whether pursuant to
the 1933 Act, the 1934 Act or otherwise; and the Company will furnish you with
copies of any such amendment or supplement at a reasonable time in advance of
filing; and will not file any such documents to which the Underwriters or
their counsel shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, the Company will
notify you immediately, and confirm the notice in writing, (i) of the
effectiveness of any post-effective amendment to the Registration Statement,
(ii) of the filing of any supplement to the Prospectus, (iii) of the receipt
of any comments from the Commission with respect to the Registration
Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by
the Commission for any amendment to the Registration Statement or any
supplement to the Prospectus or for additional information relating thereto or
to any document incorporated by reference in the Prospectus and (v) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the institution or
threatening of any proceeding for any of such purposes. The Company will use
every reasonable effort to prevent the issuance of any such stop order or of
any order suspending such qualification and, if any such order is issued, to
promptly obtain the lifting thereof.
(f) The Company has furnished or will, upon request, furnish to you,
without charge, one signed copy of the Registration Statement (as originally
filed), of any Rule 462(b) Registration Statement, and of all amendments
thereto, whether filed before or after the Registration Statement became
effective (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference
therein) (through the end of the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities) and
conformed copies of all consents and certificates of experts, as you may
reasonably request.
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as you may
designate; 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 or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. The Company will
file such statements and reports as may be required by the laws of each
jurisdiction in which the Securities have been qualified as above provided.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days (or 90 days, in the case of
a period that is also the Company's fiscal year) after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations), covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(i) During the period beginning on the date hereof and continuing to
and including the Closing Time, the Company will not, directly or indirectly,
offer for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result in
the disposition by any person at any time in the future of) any debt
securities of or guaranteed by the Company which are substantially similar to
the Securities without the prior consent of the Underwriters.
Section 4. Payment of Expenses. The Company will pay and bear all costs and
expenses incident to the performance of its obligations under this Agreement,
including, without limitation, (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, any preliminary prospectus supplements and
the Prospectus and any amendments or supplements thereto, and the cost of
furnishing copies thereof to the Underwriters, (b) the printing and
distribution of this Agreement, any agreement among Underwriters, the
Indenture, and such other documents as may be required in connection with the
offering purchase, sale and delivery of the Securities, (c) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Securities under the applicable
securities laws, (f) any fees charged by rating agencies for rating the
Securities, (g) the reasonable fees and disbursements of counsel in connection
with the Blue Sky survey and (h) the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee, in connection
with the Indenture and the Securities.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 10(a)(i), the Company shall reimburse the
Underwriters for all of their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters, incurred by
them in connection with the public offering of the Securities.
Section 5. Conditions of the Underwriters' Obligations. Except as otherwise
provided in Schedule III hereto, the obligations of the several Underwriters
to purchase and pay for the Securities that they have respectively agreed to
purchase hereunder are subject to (i) the accuracy of the representations and
warranties of the Company contained herein or in certificates of the Company's
officers delivered pursuant to the provisions hereof, (ii) the performance by
the Company of its obligations hereunder, (iii) the delivery to the
Underwriters at the Closing Time by the Company of all of the Securities and
(iv) the following further conditions:
(a) The Registration Statement has become effective, including any
Rule 462(b) Registration Statement, and at the Closing Time, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or, to the knowledge of the Company, shall be
contemplated by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel for the Underwriters.
(b) At the Closing Time, you shall have received a signed opinion of
Xxxx X. Xxxx, Executive Vice President, Law and Corporate Secretary of the
Company, a signed opinion of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special
counsel for the Company, a signed opinion of Xxxxx Xxxxxxx LLP, special
Maryland counsel to the Company, each dated as of the Closing Time, in form
and substance reasonably satisfactory to counsel for the Underwriters as set
forth on Exhibits A, B and C attached hereto.
Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company, as the case may be, and certificates
of public officials; provided that such certificates have been delivered to
the Underwriters.
In giving the opinions referred to in above, such counsel may rely,
as to all matters governed by the laws of jurisdictions other than those in
which they are expert, upon opinions of other counsel who shall be counsel
reasonably satisfactory to counsel for the Underwriters, in which case the
opinion shall state that they believe you and they are justified and entitled
to so rely.
(c) At the Closing Time, you shall have received the favorable
opinion of Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, dated as of the
Closing Time.
(d) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and the
1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and
the 1939 Act Regulations, the Company shall have complied in all material
respects with Rule 430A (if it shall have elected to rely thereon) and (A) the
Registration Statement, as it may then be amended or supplemented, shall not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and (B) the Prospectus, as it may be amended or supplemented,
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, (ii) there
shall not have been, since the respective dates as of which information is
given in the Registration Statement, any material adverse change in the
condition, financial or otherwise, earnings, business affairs or business
prospects of the Company and its Significant Subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business,
financial or otherwise, (iii) no action, suit or proceeding shall be pending
or, to the knowledge of the Company, threatened against the Company or any
Significant Subsidiary that would be required to be set forth in the
Prospectus other than as set forth therein and no proceedings shall be pending
or, to the knowledge of the Company, threatened against the Company or any
Significant Subsidiary before or by any federal, state or other commission,
board or administrative agency wherein an unfavorable decision, ruling or
finding would materially adversely affect the financial condition, earnings,
business affairs or business prospects of the Company and its Significant
Subsidiaries, considered as one enterprise, other than as set forth in the
Prospectus, (iv) the Company shall have complied in all material respects with
all agreements and satisfied in all material respects all conditions included
herein on its part to be performed and satisfied at or prior to the Closing
Time and (v) the other representations and warranties of the Company set forth
in Section 1(a) shall be accurate as though expressly made at and as of the
Closing Time. At the Closing Time, you shall have received a certificate of
the President or an Executive Vice President and the Chief Financial Officer
of the Company, dated as of the Closing Time, to such effect.
(e) You shall have received a letter or letters from Deloitte &
Touche LLP at the date hereof in form and substance reasonably satisfactory to
the Underwriters, and a letter or letters to be delivered at the Closing Time
reaffirming the statements made in each such letter or letters, except that
the inquiries and procedures specified therein shall have been carried out to
a specified date not more than three business days prior to the Closing Time.
(f) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Time, there shall not have been any decrease in rating
accorded any of the Company's securities, including the Securities, by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the 1933 Act Regulations, and no
such organization shall have publicly announced that it has under surveillance
or review, without indicating an improvement, in its rating of the Securities
or any securities of the Company.
(g) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated and the matters referred to
in Section 5(c) and in order to evidence the accuracy and completeness of any
of the representations, warranties or statements of the Company, the
performance of any of the covenants of the Company, or the fulfillment of any
of the conditions herein contained; and all proceedings taken by the Company
at or prior to the Closing Time in connection with the authorization, issuance
and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to you and to counsel for the Underwriters.
(h) If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled,
this Agreement may be terminated by you on notice to the Company at any time
at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4
herein. Notwithstanding any such termination, the provisions of Sections 6, 7,
8 and 9 shall remain in effect.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter, as the case
may be, within the meaning of Section 15 of the 1933 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including all
documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of an untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus supplement or
the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred, including
fees and disbursements of counsel chosen by you, reasonably incurred
in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
(iv) provided, however, that this indemnity agreement does not apply
to any loss, liability, claim, damage or expense to the extent
arising out of an untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto); and provided,
further, however, that the foregoing indemnification with respect to
any preliminary prospectus supplement shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or
liabilities purchased any of the Securities if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter to such person, if such is
required by the 1933 Act, at or prior to the written confirmation of
the sale of such Securities to such person and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise
to such loss, claim, damage or liability. The Company and the
Underwriters acknowledge that the following statements set forth in
the Prospectus Supplement constitute the only information furnished
in writing by or on behalf of the Underwriters for inclusion in the
Prospectus Supplement: (a) the statements set forth in last paragraph
of the cover page regarding delivery of the Securities, (b) the
statements set forth in the second sentence of the first paragraph on
page i with respect to the Underwriters only, and (c) under the
heading "Underwriting" (x) the sentences related to concessions and
reallowances, (y) the paragraph related to stabilization, syndicate
covering transactions and penalty bids, and (z) the fourth paragraph
immediately following the table showing the underwriting discounts
and commission.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act, and of Section 20 of the 1934 Act, from
and against any and all loss, liability, claim, damage and expense described
in the indemnity agreement in Section 6(a), as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Underwriter
through you expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Underwriters
and such control persons of Underwriters, such firm shall be designated in
writing by the Underwriters. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject
matter of such proceeding.
Section 7. Contribution. If the indemnification provided for in Sections 6(a)
and 6(b) is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, then each indemnifying party
under such paragraph (it being understood that an indemnifying party is one
who would have had an obligation to provide indemnification pursuant to
Section 6 had such indemnification been enforceable), in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect (A) the
relative benefits received by the Underwriters, and (B) that the Company is
responsible for the balance or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the allocation referred to in clause (i) above but also
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and of the
Underwriters on the other hand 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 by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective number of Securities they have purchased hereunder, and not
joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 7 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
For purposes of this Section 7, each director and officer of each Underwriter,
and each person, if any, who controls each Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contributions as each Underwriter, and each director and officer of
the Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution at the
Company.
Section 8. Representations, Warranties and Agreements to Survive Delivery. The
representations, warranties, indemnities, agreements and other statements of
the Company or its officers set forth in or made pursuant to this Agreement
will remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company, any Underwriter or any
person who controls the Company or any Underwriter within the meaning of
Section 15 of the 1933 Act and will survive delivery of and payment for the
Securities.
Section 9. Termination of Agreement.
(a) You may terminate this Agreement, by notice to the Company, at
any time at or prior to the Closing Time (i) if there has been, since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the financial condition, earnings,
business affairs or business prospects of the Company and its Significant
Subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business or (ii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
your judgment, impracticable to market the Securities or enforce contracts for
the sale of the Securities or (iii) if trading in any securities of the
Company has been suspended by the Commission, the New York Stock Exchange or
any other exchange or quotation system on which securities of the Company are
listed, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange or in the over-the-counter market has been suspended,
or minimum or maximum prices for trading have been fixed, or maximum ranges
for prices for securities have been required, by such exchange or by order of
the Commission or any other governmental authority, or (iv) if a banking
moratorium has been declared by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4 herein. Notwithstanding any such
termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time to purchase the Securities that it
or they are obligated to purchase (the "Defaulted Securities"), you shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, you have not
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased pursuant to this Agreement, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligation proportions bear to the underwriting
obligation proportions (as defined below) of all non-defaulting Underwriters,
or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
pursuant to this Agreement, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Time or the Delivery Date, as applicable for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered, mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed as set forth in Schedules I and II. Notices to
the Company shall be directed to it at 0 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, attention of Xxxx X. Xxxx, Executive Vice President, Law and Corporate
Secretary.
Section 12. Parties. This Agreement is made solely for the benefit of the
several Underwriters, the Company and, to the extent expressed, any person who
controls the Company or any of the Underwriters within the meaning of Section
15 of the 1933 Act, and the directors of the Company, its officers who have
signed the Registration Statement, and their respective executors,
administrators, successors and assigns and, subject to the provisions of
Section 11, no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser, as such purchaser, from any Underwriter of the Securities. If there
are two or more Underwriters, all of their obligations hereunder are several
and not joint.
Section 13. Governing Law and Time. This Agreement shall be governed by the
laws of the State of New York. Specified times of the day refer to New York
City time.
Section 14. Counterparts. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
Section 15. Headings. All headings of the sections and subparts thereof of
this Agreement are for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
PHH CORPORATION
By: /s/ Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President,
Law and Corporate Secretary
Confirmed and Accepted, as of the
date first above written:
BANC OF AMERICA SECURITIES LLC.
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Principal
BARCLAYS CAPITAL INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
For themselves and the other Underwriters
named in Schedules I and II hereto
SCHEDULE I
to Underwriting Agreement dated
February 13, 2003
PHH CORPORATION
Principal Amount of 6.000%
Underwriter Notes Purchased
----------- ---------------
Banc of America Securities LLC $ 140,000,000
Barclays Capital Inc. 140,000,000
Credit Lyonnais Securities (USA) Inc. 20,666,667
Daiwa Securities SMBC Europe Limited 20,666,667
Greenwich Capital Markets, Inc. 20,666,667
Scotia Capital (USA) Inc. 20,666,667
Wachovia Securities, Inc. 20,666,667
Xxxxxxx, Xxxxx & Co. 16,666,665
----------
Total $ 400,000,000
SCHEDULE II
to Underwriting Agreement dated
February 13, 2003
PHH CORPORATION
Principal Amount of 7.125%
Underwriter Notes Purchased
----------- ---------------
Banc of America Securities LLC $ 210,000,000
Barclays Capital Inc. 210,000,000
Credit Lyonnais Securities (USA) Inc. 36,000,000
Daiwa Securities SMBC Europe Limited 36,000,000
Greenwich Capital Markets, Inc. 36,000,000
Scotia Capital (USA) Inc. 36,000,000
Wachovia Securities, Inc. 36,000,000
----------
Total $ 600,000,000
SCHEDULE III
to Underwriting Agreement
dated February 13, 2003
PHH CORPORATION
6.000% Notes due 2008
Principal amount to be issued: $400,000,000
Interest rate: 6.000% per annum, payable semiannually
Interest accrues from: February 19, 2003
Date of maturity: March 1, 2008
Redemption provisions: Make-whole of T + 45 bps
Sinking fund requirements: None.
Initial public offering price: 99.590% of the principal amount plus
accrued interest from the date of
issuance of the Securities.
Purchase price: 98.990% of the principal amount plus
accrued interest from the date of
issuance of the Securities to the date
of delivery (payable in same day funds)
Closing date, time and location: February 19, 2003, 9:00 a.m., New York
City time, Shearman & Sterling, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx XX 00000
7.125% Notes due 2013
Principal amount to be issued: $600,000,000
Interest rate: 7.125% per annum, payable semiannually
Interest accrues from: February 19, 2003
Date of maturity: March 1, 2013
Redemption provisions: Make-whole of T + 50 bps
Sinking fund requirements: None.
Initial public offering price: 99.333% of the principal amount plus
accrued interest from the date of
issuance of the Securities.
Purchase price: 98.683% of the principal amount plus
accrued interest from the date of
issuance of the Securities to the date
of delivery (payable in same day funds)
Closing date, time and location: February 19, 2003, 9:00 a.m., New York
City time, Shearman & Sterling, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx XX 00000
Exhibit A
FORM OF OPINION OF XXXX X. XXXX, EXECUTIVE PRESIDENT,
LAW AND CORPORATE SECRETARY OF THE COMPANY
Based upon and subject to the limitations, qualifications, exceptions and
assumptions set forth above, I am of the opinion that:
(i) The Company is qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect.
(ii) Each Significant Subsidiary (as such term is defined in clauses
(1) and (2) of Rule 1-02(w) of Regulation S-X promulgated under the 1933
Act) is duly organized and is validly existing and in good standing under
the laws of the jurisdiction of its incorporation with corporate power
and corporate authority under such laws to own, lease and operate its
properties and conduct its business. Each Significant Subsidiary is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases property
of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a Material Adverse Effect.
Except as otherwise stated in the Prospectus, all of the outstanding
shares of capital stock of each Significant Subsidiary have been duly
authorized and validly issued and are fully paid and non-assessable and
are owned by the Company, directly or through one or more Significant
Subsidiaries, free and clear of any Lien, except for such Liens as are
not, individually or in the aggregate, material to the Company and its
Significant Subsidiaries, considered as one enterprise.
(iii) Each of the documents incorporated by reference in the
Registration Statement and the Prospectus at the time they were filed or
last amended (other than the financial statements and the notes thereto,
the financial schedules, and any other financial data included or
incorporated by reference therein, as to which I need express no belief),
complied as to form in all material respects with the requirements of the
1934 Act and the 1934 Act Rules and Regulations, as applicable.
(iv) This Agreement has been duly executed and delivered by the
Company to the extent such execution and delivery are matters of New York
law.
(v) The offer of the Securities as contemplated herein and in the
Registration Statement and the Prospectus, the execution, delivery and
performance of this Agreement, the Indenture and the Securities, and the
consummation of the transactions contemplated herein, therein and in the
Registration Statement and Prospectus (including the issuance and sale of
the Securities and the use of proceeds from the sale of the Securities as
described in the Registration Statement and Prospectus under the caption
"Use of Proceeds") and compliance by the Company with its obligations
hereunder and thereunder, do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
Significant Subsidiary pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Significant Subsidiary or any of
their assets, properties, or operations (except for such violations that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
any Significant Subsidiary.
(vi) There are no statutes required to be described in or
incorporated by reference in the Registration Statement and the
Prospectus that are not described or incorporated by reference; and there
are no legal or governmental proceedings pending or, to my knowledge,
threatened that are required to be disclosed or incorporated by reference
in the Registration Statement and Prospectus, other than those disclosed
or incorporated by reference therein.
(vii) There are no contracts, indentures, mortgages, agreements,
notes, leases or other instruments required to be described or referred
to or incorporated by reference in the Registration Statement and the
Prospectus other than those described or referred to or incorporated by
reference therein; and the descriptions thereof or references thereto are
true and correct in all material respects.
I have participated in conferences with officers and other representatives of
the Company, representatives of the independent accountants of the Company and
you and your counsel at which the contents of the Prospectus and related
matters were discussed, and nothing has come to my attention that causes me to
believe that the Registration Statement, on the original effective date of the
Registration Statement, on the date of the filing of any annual report on Form
10-K or Form 10-K/A after the filing of the Registration Statement, or on the
date of this Agreement, contained or contains an untrue statement of a
material fact or omitted or omits to state material fact necessary, in light
of the circumstances under which they were made, to make the statements
therein not misleading, or that the Prospectus, or any amendment or supplement
thereto, at the time the Prospectus Supplement was issued or at 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 I express no opinion or belief with respect to the
financial statements, schedules and other financial or statistical data
included or incorporated by reference therein or excluded therefrom.
Exhibit B
FORM OF OPINION OF XXXXXXX, ARPS, SLATE, XXXXXXX & XXXX LLP
Based upon and subject to the limitations, qualifications, exceptions and
assumptions set forth above, we are of the opinion that:
(i) The Indenture has been executed and delivered by the Company to
the extent such execution and delivery are governed by New York law, and
constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the extent
enforcement thereof might be limited by (i) applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered sought in equity or at law);
(ii) This Agreement has been duly executed and delivered by the
Company to the extent such execution and delivery are governed by New
York law;
(iii) The Securities, when duly authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms and will be entitled to the benefits of the Indenture,
except to the extent enforcement thereof might be limited by (i)
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered sought in equity or
at law);
(iv) The statements included in the Registration Statement and the
Prospectus under the captions "Description of Notes," insofar as such
statements purport to summarize certain provisions of the documents
referred to therein, fairly summarize such provisions in all material
respects;
(v) The statements set forth in the Base Prospectus under the
captions "Description of the Debt Securities," insofar as such statements
purport to summarize certain provisions of the documents referred to
therein, fairly summarize such provisions in all material respects;
(vi) The Registration Statement, as of the date of filing of the
Company's Annual Report on Form 10-K for the year ended December 31,
2001, and the Prospectus, as of the date of the Prospectus Supplement,
appeared on their face to be appropriately responsive in all material
respects to the requirements of the 1933 Act and the Rules and
Regulations, except that in each case we do not express any opinion as to
the financial statements and schedules and other financial data included
or incorporated by reference therein or excluded therefrom, or the
exhibits to the Registration Statement, including the Statement of
Eligibility on Form T-1, and, except to the extent expressly stated in
paragraphs (iv) and (v) above, we do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus;
(vii) The execution, delivery and performance of this Agreement, the
Securities or the Indenture does not require any authorization, approval,
consent, order, registration or qualification of any court or
governmental authority or agency to be made or obtained by the Company;
and
(viii) The Company is not and, solely after giving effect to the
offering and the sale of the Securities and the application of the
proceeds thereof described in the Registration Statement and Prospectus,
will not be subject to registration and regulation as an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
In addition, in connection with the preparation of the Registration Statement
and the Prospectus, we have participated in conferences with officers and
representatives of the Company, in-house counsel for the Company,
representatives of the independent accountants of the Company, and you and
your counsel at which conferences the contents of the Registration Statement
and the Prospectus and related matters were discussed. We did not participate
in the preparation of the documents filed by the Company pursuant to the 1934
Act and incorporated by reference into the Prospectus as of the Closing Time
but have, however, reviewed such documents and discussed the business and
affairs of the Company with officers and other representatives of the Company.
Although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Prospectus and we have made no independent check or verification thereof,
other than to the extent specified in paragraphs (iv) and (v) above, on the
basis of the foregoing, no facts have come to our attention that have led us
to believe that the Registration Statement, as of the date of the Company's
Annual Report on Form 10-K for the year ended December 31, 2001, 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 the light of the circumstances under which
they were made not misleading, except that we express no opinion or belief
with respect to the financial statements, schedules and other financial data
included or incorporated by reference therein or excluded therefrom or the
exhibits to the Registration Statement.
Exhibit C
FORM OF OPINION OF XXXXX XXXXXXX LLP
Based upon and subject to the limitations, qualifications,
exceptions and assumptions set forth above, we are of the opinion 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 under the caption
"Business";
(iii) The execution, delivery and performance by the Company of this
Agreement and the Indenture have been duly authorized by the Company;
(iv) The sale and issuance of the Securities have been duly
authorized by the Company; and
(v) Neither the sale and issuance of the Securities, 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.
