EXHIBIT 10.1
XXX XXXXXXXXXXX
$300,000,000
7.125% Senior Notes due 2009
Purchase Agreement
New York, New York
June 3, 2002
Xxxxxxx Xxxxx Barney Inc.
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
Fleet Securities, Inc.
X.X. Xxxxxx Securities Inc.
XxXxxxxx Investments Inc.
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
XXX Xxxxxxxxxxx, a corporation organized under the laws of Maryland (the
"Company"), proposes to issue and sell to the several parties named in Schedule
I hereto (the "Initial Purchasers"), $300,000,000 principal amount of its 7.125%
Senior Notes due 2009 (the "Securities"). The Securities are to be issued under
an indenture, dated as of June 1, 2002, between the Company and The Bank of New
York, as trustee (the "Trustee"), as supplemented by the Supplemental Indenture
No. 1 thereto, to be dated as of June 6, 2002 (as so supplemented, the
"Indenture").
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance on exemptions therefrom, including,
without limitation, the exemption provided by Section 4(2) of the Securities
Act, and in transactions under Regulation S of the Securities Act ("Regulation
S"). Pursuant to the terms of a Registration Rights Agreement to be entered into
between the Company and the Initial Purchasers (the "Registration Rights
Agreement"), the Company will agree to file with the Securities and Exchange
Commission (the "Commission"), and to use commercially reasonable efforts to
cause the Commission to declare effective, a registration statement with respect
to an issue of debt securities (the "Exchange Securities") identical in all
respects to the Securities and, upon becoming effective, to offer to the holders
of the Securities the opportunity to exchange their Securities for the Exchange
Securities (the "Exchange Offer"). In the event the Company is not permitted to
effect the Exchange Offer and in certain other circumstances, the Company will
agree to file a shelf registration statement (the "Shelf
Registration Statement") covering certain resales of the Securities and to use
commercially reasonable efforts to cause the Shelf Registration Statement to
become effective.
In connection with the sale of the Securities, the Company has prepared
a preliminary offering memorandum, dated May 30, 2002 (as amended or
supplemented to the date hereof, including any and all exhibits thereto and any
information incorporated by reference therein, the "Preliminary Offering
Memorandum"), and a final offering memorandum, dated June 3, 2002 (as amended or
supplemented to the date hereof including any and all exhibits thereto and any
information incorporated by reference therein, the "Final Offering Memorandum").
Each of the Preliminary Offering Memorandum and the Final Offering Memorandum
sets forth certain information concerning the Company and the Securities. The
Company hereby confirms that it has authorized the use of the Preliminary
Offering Memorandum and the Final Offering Memorandum, and any amendment or
supplement thereto, in connection with the offer and sale of the Securities by
the Initial Purchasers. Unless stated to the contrary, any references herein to
the terms "amend," "amendment" or "supplement" with respect to the Final
Offering Memorandum shall be deemed to refer to and include any information
filed under the Exchange Act subsequent to the date hereof which is incorporated
by reference therein.
1. Representations and Warranties. The Company represents and
warrants to each Initial Purchaser that:
(a) The Preliminary Offering Memorandum, on the date
thereof, did not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. On the date hereof and on the Closing Date (as defined in
Section 3 hereof), the Final Offering Memorandum did not, and will not
(and any amendment or supplement thereto, at the date thereof and at the
Closing Date, will not), contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company does not make any
representation or warranty as to the information contained in or omitted
from the Preliminary Offering Memorandum or the Final Offering
Memorandum, or any amendment or supplement thereto, in reliance upon and
in conformity with information furnished in writing to the Company by or
on behalf of the Initial Purchasers specifically for inclusion therein.
The statistical and market-related data included in the Preliminary
Offering Memorandum and the Final Offering Memorandum are based on or
derived from sources that the Company reasonably believes to be reliable
and accurate.
(b) The documents incorporated or deemed to be incorporated
by reference in the Preliminary Offering Memorandum and the Final
Offering Memorandum, when they were filed with the Commission, conformed
in all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and any further
documents so filed and incorporated or deemed to be incorporated by
reference in the Preliminary Memorandum and the Final Offering
Memorandum, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder, and when
read together with the other information in the Preliminary
Offering Memorandum or the Final Offering Memorandum, as the case may
be, at the time issued did not, and as of the Closing Date will not,
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(c) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest financial statements of the
Company included or incorporated by reference in the Final Offering
Memorandum, any material loss or interference with its business that is
material to the business of the Company and its subsidiaries taken as a
whole from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Final Offering Memorandum (exclusive of any amendment or supplement
thereto) and, since the respective dates as of which information is
given in the Final Offering Memorandum, there has not been any material
change in the capital stock or any material increase in the consolidated
short-term or long-term debt of the Company or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the business, properties, financial condition or
results of operations of the Company and its subsidiaries taken as a
whole, whether or not in the ordinary course of business (a "Material
Adverse Change"), otherwise than as set forth or contemplated in the
Final Offering Memorandum (exclusive of any amendment or supplement
thereto).
(d) The Company (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland,
(ii) has the requisite corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Final Offering Memorandum, (iii) is duly qualified as a foreign
corporation to transact business and is in good standing (with respect
to the jurisdictions which recognize such concept) in each other
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to qualify or to be in good standing would not
have a material adverse effect on the business, properties, financial
condition or results of operations of the Company and its subsidiaries
taken as a whole (a "Material Adverse Effect"). Each subsidiary of the
Company is a corporation, partnership, limited liability company or
business trust duly incorporated or organized, validly existing and in
good standing (to the extent the jurisdiction of its incorporation
recognizes such concept) under the laws of the jurisdiction of its
incorporation or organization, with the requisite power and authority to
own, lease and operate its properties and conduct its business as
described in the Final Offering Memorandum; each such subsidiary is duly
qualified as a foreign corporation or organization to transact business
and is in good standing (with respect to the jurisdictions which
recognize such concept) in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to qualify or to be
in good standing would not result in a Material Adverse Effect.
(e) The Company has outstanding equity capitalization as set
forth in the Final Offering Memorandum (except for subsequent issuances,
if any, pursuant to employee benefit plans or pursuant to the exercise
of convertible securities or options),
and all of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable. Except as otherwise disclosed in the Final Offering
Memorandum, all of the issued and outstanding capital stock or other
ownership interests of each subsidiary of the Company (i) have been duly
authorized and validly issued, (ii) are fully paid and non-assessable
and (iii) (except for shares necessary to qualify directors or to
maintain any minimum number of shareholders required by law) are owned
by the Company directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity
except as described in the Final Offering Memorandum and except for such
security interests, mortgages, pledges, liens, encumbrances, claims or
equities that are immaterial to the Company and its subsidiaries taken
as a whole.
(f) This Purchase Agreement has been duly authorized,
executed and delivered by the Company.
(g) The Registration Rights Agreement has been duly
authorized by the Company and at the Closing Date will have been duly
executed and delivered by the Company and will constitute a valid and
legally binding agreement of the Company, enforceable in accordance with
its terms except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles.
(h) The Securities and the Exchange Securities have been
duly authorized, and, when issued and delivered pursuant to this
Purchase Agreement and the Registration Rights Agreement, respectively,
the Securities and the Exchange Securities will have been duly executed,
issued and delivered and (assuming the due authentication thereof by the
Trustee) will constitute valid and legally binding obligations of the
Company and will be entitled to the benefits provided by the Indenture.
(i) The Indenture has been duly authorized by the Company
and, at the Closing Date, will have been duly executed and delivered by
the Company and will constitute a valid and legally binding agreement of
the Company, enforceable in accordance with its terms except as the same
may be limited by bankruptcy, insolvency, reorganization or other laws
of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles; the Indenture is in
a form that will permit it to be qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act").
(j) The Indenture and the Registration Rights Agreement
conform, and the Securities and the Exchange Securities will conform, to
the descriptions thereof contained in the Final Offering Memorandum.
(k) The issuance and sale of the Securities and the Exchange
Securities and the compliance by the Company with all of the provisions
of the Securities, the Exchange Securities, the Indenture, this Purchase
Agreement, the Registration Rights Agreement and the consummation of the
transactions herein and therein contemplated, will not (i) conflict with
or result in a breach or violation 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 of the property or assets of
the Company or any of its subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its subsidiaries is
subject, which would have a Material Adverse Effect or affect the
validity of the Securities or the Exchange Securities or the legal
authority of the Company to comply with the terms of the Securities, the
Exchange Securities, the Indenture, this Purchase Agreement or the
Registration Rights Agreement, (ii) result in any violation of the
provisions of the organizational documents of the Company or any of its
subsidiaries or (iii) result in any violation of any statute or any
order, rule or regulation of any court or governmental agency or body,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their properties which would have a Material
Adverse Effect or affect the validity of the Securities or the Exchange
Securities or the legal authority of the Company to comply with the
Securities, the Exchange Securities, the Indenture, this Purchase
Agreement or the Registration Rights Agreement.
(l) No consent, approval, authorization, order,
registration, filing or qualification of or with any court or
governmental agency or body, domestic or foreign, having jurisdiction
over the Company is required for the issuance and sale of the Securities
or the Exchange Securities or the consummation by the Company of the
other transactions contemplated by this Purchase Agreement, the
Registration Rights Agreement or the Indenture, except for (i) such
consents, approvals, authorizations, orders, registrations, filings or
qualifications which shall have been obtained or made prior to the
Closing Date, (ii) as may be required by the securities or blue sky laws
of the various states, the Securities Act, the Trust Indenture Act and
the securities laws of any jurisdiction outside the United States in
which the Securities or the Exchange Securities are offered or (iii)
such consents, approvals, authorizations, orders, registrations, filings
and/or qualifications which, if not obtained, would not have a Material
Adverse Effect or affect the validity of the Securities or the Exchange
Securities or the legal authority of the Company to comply with the
Securities, the Exchange Securities, the Indenture, this Purchase
Agreement or the Registration Rights Agreement.
(m) Other than as set forth in the Final Offering
Memorandum, (i) there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
which if determined adversely to the Company or such subsidiary, would
individually or in the aggregate, have a Material Adverse Effect or
which would materially and adversely affect the consummation of the
transactions contemplated under this Purchase Agreement, the
Registration Rights Agreement, the Indenture or the performance by the
Company of its obligations thereunder and (ii) to the Company's
knowledge no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(n) PricewaterhouseCoopers LLP, who have certified the
financial statements of the Company and its consolidated subsidiaries
included or incorporated by reference in
the Final Offering Memorandum, are independent public accountants with
respect to the Company as required by the Securities Act and the rules
and regulations of the Commission thereunder.
(o) The consolidated financial statements and schedules of
the Company and its consolidated subsidiaries included or incorporated
by reference into the Preliminary Offering Memorandum or the Final
Offering Memorandum, as applicable, present fairly in all material
respects the financial condition, results of operations and cash flows
of the Company as of the dates and for the periods indicated, comply as
to form with the applicable accounting requirements of the Securities
Act and have been prepared in conformity with generally accepted
accounting principles in the United States, applied on a consistent
basis throughout the periods involved (except as otherwise noted
therein); the selected financial data set forth under the caption
"Selected Financial Data" in such Offering Memorandum fairly present, on
the basis stated in such Offering Memorandum, the information included
therein.
(p) In the ordinary course of its business, the Company
periodically reviews the effect of applicable foreign, federal, state
and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws") on the
business, operations and properties of the Company and its subsidiaries,
in the course of which they identify and evaluate associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties); on the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not,
individually or in the aggregate, have a Material Adverse Effect, except
as set forth in or contemplated in the Final Offering Memorandum.
(q) Other than as set forth in, or in any document
incorporated by reference into, the Preliminary Offering Memorandum and
the Final Offering Memorandum: (i) the Company and its subsidiaries own
or have the right to use pursuant to license, sublicense, agreement, or
permission all patents, patent applications, trademarks, service marks,
trade names, copyrights, trade secrets, confidential information,
proprietary rights and processes ("Intellectual Property") used in the
business of the Company and its subsidiaries as described in, or in any
document incorporated by reference into, the Preliminary Offering
Memorandum and the Final Offering Memorandum and have taken all steps
reasonably necessary to secure assignments of such Intellectual Property
from their respective employees and contractors, except where the
failure to own, have the right to use or take such steps to secure
assignments of such Intellectual Property would not reasonably be
expected to have a Material Adverse Effect; (ii) to the Company's
knowledge, none of the technology employed by the Company or its
subsidiaries has been obtained or is being used by the Company or its
subsidiaries in violation of any contractual or fiduciary obligation
binding on the Company, its subsidiaries, or any of their respective
directors or executive officers or any of their respective employees or
consultants, except for such violations that would not reasonably be
expected to have a Material Adverse Effect; and (iii) the Company and
its subsidiaries have taken and will
maintain reasonable measures to prevent the unauthorized dissemination
or publication of their own confidential information, except where the
failure to take or maintain such measures would not reasonably be
expected to have a Material Adverse Effect. To the Company's knowledge,
neither the Company nor any of its subsidiaries has interfered with,
infringed upon, misappropriated, or otherwise come into conflict with
any Intellectual Property rights of third parties. The Company and its
subsidiaries have not received any charge, complaint, claim, demand, or
notice alleging any such interference, infringement, misappropriation,
or violation (including any claim that the Company or any of its
subsidiaries must license or refrain from using any intellectual
property rights of any third party) which, if the subject of any
unfavorable decision, ruling or finding would, individually or in the
aggregate, have a Material Adverse Effect.
(r) Neither the Company nor any of its affiliates
("Affiliates") (as the term is defined in Regulation D under the
Securities Act ("Regulation D")), nor any person acting on their behalf
has, directly or indirectly, made offers or sales of any security, or
solicited offers to buy any security, under circumstances that would
require the registration of the Securities under the Securities Act.
(s) Neither the Company nor any of its Affiliates, nor any
person acting on their behalf (other than the Initial Purchasers), has
engaged or will engage in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any
offer or sale of the Securities in the United States.
(t) The Securities are eligible for resale pursuant to Rule
144A under the Securities Act and will not be, at the Closing Date, of
the same class as securities listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S.
automated interdealer quotation system.
(u) None of the Company, any of its Affiliates, nor any
person acting on their behalf (other than the Initial Purchasers), has
engaged or will engage in any directed selling efforts (as that term is
defined in Regulation S) with respect to the Securities, and the Company
and its Affiliates and any person acting on their behalf (other than the
Initial Purchasers) have complied and will comply with the offering
restriction requirements of Regulation S.
(v) It is not necessary, in connection with the offer, sale
and delivery of the Securities to the Initial Purchasers under this
Purchase Agreement or in connection with the offer, initial resale and
delivery of the Securities by the Initial Purchasers in the manner
contemplated by this Purchase Agreement and the Final Offering
Memorandum, to register the Securities under the Securities Act or to
qualify the Indenture under the Trust Indenture Act, assuming that the
Initial Purchasers have not and will not breach Section 4 of this
Purchase Agreement.
(w) The Company is not, and upon the issuance and sale of
the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Final Offering Memorandum will
not be, 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.
(x) The Company has not taken, directly or indirectly, any
action designed to cause or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
Any certificate signed by any officer of the Company and
delivered to the Initial Purchasers or counsel for the Initial Purchasers in
connection with the offering of the Securities shall be deemed a representation
and warranty by the Company, as to matters covered thereby, to each Initial
Purchaser.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
hereby agrees to sell to the Initial Purchasers, and the Initial Purchasers,
upon the basis of the representations and warranties of the Company herein
contained, but subject to the conditions hereinafter stated, agree severally and
not jointly to purchase from the Company, the aggregate principal amount of
Securities set forth opposite their respective names on Schedule I hereto, at a
purchase price of 98.861% of the principal amount of the Securities plus accrued
interest, if any, from June 6, 2002 to the Closing Date (the "Purchase Price").
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 a.m., New York City time, on June 6, 2002, or at such
time on such later date (not later than June 13, 2002) as the Initial Purchasers
shall designate, which date and time may be postponed by agreement between the
Initial Purchasers and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made against payment by the
several Initial Purchasers of the purchase price thereof to or upon the order of
the Company by wire transfer payable in same-day funds to the account specified
by the Company. Delivery of the Securities shall be made through the facilities
of The Depository Trust Company, unless the Initial Purchasers shall otherwise
instruct.
4. Offering by Initial Purchasers. Each Initial Purchaser,
severally and not jointly, represents and warrants to and agrees with the
Company that:
(a) (i) It has not solicited offers for, or offered or sold,
and will not solicit offers for, or offer or sell, the Securities by any
form of general solicitation or general advertising (as those terms are
used in Regulation D) or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act and (ii) it has
solicited and will solicit offers for the Securities only from, and has
offered and sold, and will offer, sell and deliver the Securities only
to, persons it reasonably believes to be: (A) "qualified institutional
buyers" ("QIBs") as defined in Rule 144A under the Securities Act in
reliance on Rule 144A, and in connection with each such offer or sale,
it has taken or will take reasonable steps to ensure that the offeree or
purchaser of the Securities is aware that such offer or sale is being
made in reliance on Rule 144A, and (B) in the case of offers or sales
outside the United States, to persons other than U.S. persons ("Non-U.S.
Persons," which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis for
foreign beneficial owners (other than an estate or trust)) in reliance
on Regulation S.
(b) Each Initial Purchaser understands that the Securities
have not been and will not be registered under the Securities Act and
may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation
S under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act. Each Initial Purchaser
severally represents and agrees that, except as permitted by Section
4(a) above, it has offered and sold the Securities and will offer and
sell the Securities (i) as part of its distribution at any time and (ii)
otherwise until forty days after the later of the date upon which the
offering of the Securities commences and the Closing Date, only in
accordance with Rule 903 of Regulation S. Accordingly, neither the
Initial Purchasers, their affiliates nor any persons acting on their
behalf have engaged or will engage in any directed selling efforts with
respect to Securities sold hereunder pursuant to Regulation S, and the
Initial Purchasers, their affiliates and any person acting on their
behalf have complied and will comply with the offering restriction
requirements of Regulation S. Each Initial Purchaser severally agrees
that, at or prior to confirmation of a sale of Securities pursuant to
Regulation S it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
such Securities from it during the restricted period a confirmation or
notice to substantially the following effect:
"The securities covered hereby have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered and sold within the United States or to,
or for the account or benefit of, U.S. persons (i) as part of
their distribution at any time or (ii) otherwise until 40 days
after the later of the commencement of the offering and the
final closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meaning given to them by
Regulation S."
(c) Each Initial Purchaser represents and warrants to, and
agrees with, the Company that any sales of the Securities in the United
Kingdom shall only be made in conformity with the laws and regulations
thereof and that:
(i) It has not offered or sold and, prior to the
date six months after the date of issue of the Securities, will
not offer or sell any of the Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing, or disposing of investments (as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995,
as amended;
(ii) It has complied and will comply with all
applicable provisions of the Financial Services and Markets Xxx
0000 ("FSMA") with respect to anything
done by it in relation to the Securities in, from or otherwise
involving the United Kingdom; and
(iii) It has only communicated or caused to be
communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in
investment activity (within the meaning of Section 21 of FSMA)
received by it in connection with the issue or sale of the
Securities in circumstances in which Section 21(1) of FSMA does
not apply to the Company.
Terms used above in this Section 4 and not defined in this
Purchase Agreement have the meanings given to them by Regulation S.
5. Agreements. The Company agrees with each Initial Purchaser that:
(a) The Company will furnish to each Initial Purchaser and
to counsel for the Initial Purchasers, without charge, during the period
referred to in paragraph (c) below, as many copies of the Final Offering
Memorandum and any amendments and supplements thereto as they may
reasonably request.
(b) The Company will not amend or supplement the Final
Offering Memorandum, other than by filing documents under the Exchange
Act that are incorporated by reference therein, without the prior
written consent of the Initial Purchasers, which consent shall not be
unreasonably withheld; provided, however, that, prior to the completion
of the distribution of the Securities by the Initial Purchasers, (which
completion shall be determined by the Initial Purchasers (who shall
notify the Company of the completion date), but in no event later than
ninety (90) days following the date on which the Initial Purchasers
purchase the Securities hereunder), the Company will not file any
document under the Exchange Act that is incorporated by reference in the
Final Offering Memorandum unless, prior to such proposed filing, the
Company has furnished Xxxxxxx Xxxxx Xxxxxx Inc. and Banc One Capital
Markets, Inc. with a copy of such document for their review and comment
and the Company shall make any reasonable changes suggested by Xxxxxxx
Xxxxx Barney Inc. and/or Banc One Capital Markets, Inc. as long as such
changes are provided to the Company within a reasonable amount of time
given the circumstances of the Exchange Act filing and provided that
such changes are consistent with federal securities laws and
regulations. The Company will promptly advise the Initial Purchasers
when any document filed under the Exchange Act that is incorporated by
reference in the Final Offering Memorandum shall have been filed with
the Commission.
(c) If at any time prior to the completion of the sale of
the Securities by the Initial Purchasers (as determined by the Initial
Purchasers), any event occurs as a result of which the Final Offering
Memorandum, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
should be necessary to amend or supplement the Final Offering Memorandum
to comply with applicable law, the Company promptly (i) will notify the
Initial Purchasers of any such event; (ii) subject to the requirements
of
paragraph (b) of this Section 5, will prepare an amendment or supplement
that will correct such statement or omission or effect such compliance;
and (iii) will supply any supplemented or amended Final Offering
Memorandum to the several Initial Purchasers and counsel for the Initial
Purchasers without charge in such quantities as they may reasonably
request.
(d) The Company will arrange, if necessary, for the
qualification of the Securities for sale by the Initial Purchasers under
the laws of such jurisdictions as the Initial Purchasers may designate
and will maintain such qualifications in effect so long as required for
the sale of the Securities; provided that in no event shall the Company
be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not
now so subject. The Company will promptly advise the Initial Purchasers
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(e) The Company will not, and will not permit any of its
Affiliates to, resell any Securities that have been acquired by any of
them.
(f) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will, directly or indirectly, make
offers or sales of any security, or solicit offers to buy any security,
under circumstances that would require the registration of the
Securities under the Securities Act.
(g) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation D)
in connection with any offer or sale of the Securities in the United
States.
(h) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities
Act, the Company will, during any period in which it is not subject to
and in compliance with Section 13 or 15(d) of the Exchange Act or it is
not exempt from such reporting requirements pursuant to and in
compliance with Rule 12g3-2(b) under the Exchange Act, provide to each
holder of such restricted securities and to each prospective purchaser
(as designated by such holder) of such restricted securities, upon the
request of such holder or prospective purchaser, any information
required to be provided by Rule 144A(d)(4) under the Securities Act.
This covenant is intended to be for the benefit of the holders, and the
prospective purchasers designated by such holders, from time to time of
such restricted securities.
(i) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will engage in any directed selling
efforts with respect to the Securities, and each of them will comply
with the offering restrictions requirement of Regulation S. Terms used
in this paragraph have the meanings given to them by Regulation S.
(j) The Company will cooperate with the Initial Purchasers
and use commercially reasonable efforts to permit the Securities to be
eligible for clearance and settlement through The Depository Trust
Company.
(k) The Company will not from the date hereof through the
Closing Date, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx
Inc. and Banc One Capital Markets, Inc., offer, sell or contract to
sell, or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
Affiliate of the Company), directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company
(other than the Securities).
(l) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(m) The Company agrees to pay the costs and expenses
relating to the following matters: (i) the issuance of the Securities
and the fees of the Trustee; (ii) the preparation, printing or
reproduction of the Preliminary Offering Memorandum and Final Offering
Memorandum and each amendment or supplement to either of them; (iii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Preliminary Offering Memorandum and Final Offering Memorandum, and all
amendments or supplements to either of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iv) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (v) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of
the Securities; (vi) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses of
counsel for the Initial Purchasers relating to such registration and
qualification); (vii) the transportation and other expenses incurred by
or on behalf of the Company in connection with presentations to
prospective purchasers of the Securities; (viii) the fees and expenses
of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; and (ix) all
other costs and expenses of the Company incident to the performance by
the Company of its obligations hereunder; provided that, upon the
request of the Company, the Initial Purchasers shall provide reasonable
documentation with respect to expenses incurred by or on behalf of the
Initial Purchasers pursuant to this Agreement.
6. Conditions to the Obligations of the Initial Purchasers. The
obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein at the date hereof, the Closing Date and any settlement
date pursuant to Section 3 hereof, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) The Company shall have requested and caused Xxxxx Xxxxx
L.L.P., counsel for the Company, to furnish to the Initial Purchasers
their opinion, dated the Closing Date and addressed to the Initial
Purchasers, to the effect that:
(i) The Purchase Agreement has been duly authorized,
executed and delivered by the Company.
(ii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and
constitutes a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its
terms except as the same may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general principles of
equity and public policy (whether considered in a proceeding in
equity or at law).
(iii) The Securities have been duly authorized by all
necessary corporate action on the part of the Company, and have
been duly executed and delivered by the Company, and (assuming
the due authentication thereof by the Trustee) will constitute
valid and legally binding obligations of the Company and will be
entitled to the benefits provided by the Indenture except as the
same may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity and public
policy (whether considered in a proceeding in equity or at law);
and the Exchange Securities have been duly authorized by all
necessary corporate action on the part of the Company, and, when
issued and delivered pursuant to the Registration Rights
Agreement, will have been duly executed and delivered by the
Company, and (assuming the due authentication thereof by the
Trustee) will constitute valid and legally binding obligations
of the Company and will be entitled to the benefits provided by
the Indenture except as the same may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general principles of
equity and public policy (whether considered in a proceeding in
equity or at law).
(iv) The Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally
binding agreement of the Company, enforceable against the
Company in accordance with its terms except as the same may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity and public
policy (whether considered in a proceeding in equity or at law).
(v) The Indenture, the Registration Rights Agreement
and the Securities conform in all material respects to the
descriptions thereof contained in the Final Offering Memorandum.
(vi) No consent, approval, authorization, order,
registration, filing or qualification of or with any court or
governmental agency or body in the United States having
jurisdiction over the Company is required for the issuance and
sale of the Securities or the Exchange Securities or the
consummation by the Company of the other transactions
contemplated by the Purchase Agreement, the Registration Rights
Agreement or the Indenture, except such consents, approvals,
authorizations, orders, registrations, filings or qualifications
which shall have been obtained or made prior to the Closing Date
or as may be required by the securities or blue sky laws of the
various states, the Securities Act, the Trust Indenture Act and
the securities laws of any jurisdiction outside the United
States in which the Securities or the Exchange Securities are
offered.
(vii) Assuming the accuracy of the representations and
warranties and the compliance with the agreements and covenants
of the Company and each of the Initial Purchasers contained in
the Purchase Agreement, it is not necessary in connection with
the offer, sale and delivery of the Securities to the Initial
Purchasers under the Purchase Agreement or the initial resale of
such Securities by the Initial Purchasers in the manner
contemplated by the Purchase Agreement and the Final Offering
Memorandum to register the Securities under the Securities Act
or to qualify any indenture in respect of the Securities under
the Trust Indenture Act.
(viii) The Company is not, and upon the issuance and
sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Final Offering Memorandum will not be, 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.
(ix) The statements in the Final Offering Memorandum
under the caption "United States Federal Tax Consequences"
insofar as such statements constitute summaries of legal matters
fairly summarize in all material respects the matters referred
to therein.
Such counsel shall also state no facts came to their attention
which led them to believe that the Final Offering Memorandum as of its
date or as of the Closing Date (in each case, apart from the financial
statements and schedules, the notes thereto and the auditors' reports
thereon and other financial and accounting information contained or
incorporated by reference therein or omitted therefrom) contained any
untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not misleading.
In providing such opinions, such counsel shall be entitled to rely on
the opinions of the Company's counsel and certificates and documents
provided by the Company to such counsel and to the Initial Purchasers.
(b) The Company shall have requested and caused Xxxxxxxx
Xxxx, Senior Vice President and General Counsel of the Company, to
furnish to the Initial Purchasers his opinion, dated the Closing Date
and addressed to the Initial Purchasers, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Maryland, with power and authority to own,
lease and operate its properties and conduct its business as
described in the Final Offering Memorandum.
(ii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing (with
respect to the jurisdictions which recognize such concept) in
each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to qualify or to
be in good standing would not have a Material Adverse Effect.
(iii) The issuance and sale of the Securities and the
Exchange Securities and the compliance by the Company with all
of the provisions of the Securities, the Exchange Securities,
the Indenture, the Purchase Agreement and the Registration
Rights Agreement, and the consummation of the transactions
therein contemplated, will not (A) conflict with or result in a
breach or violation 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 of the
property or assets of the Company or any of its subsidiaries
pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its
subsidiaries is subject, which would have a Material Adverse
Effect or affect the validity of the Securities or the Exchange
Securities or the legal authority of the Company to comply with
the terms of the Securities, the Exchange Securities, the
Indenture, the Purchase Agreement or the Registration Rights
Agreement; (B) result in any violation of the provisions of the
organizational documents of the Company or any of its material
subsidiaries or (C) result in any violation of any statute or
any order, rule or regulation of any court or governmental
agency or body in the United States having jurisdiction over the
Company or any of its subsidiaries or any of their respective
properties which would have a Material Adverse Effect or affect
the validity of the Securities or the Exchange Securities or the
legal authority of the Company to comply with the Securities,
the Exchange Securities, the Indenture, the Purchase Agreement
or the Registration Rights Agreement.
(iv) Each subsidiary of the Company, other than those
subsidiaries which would not, individually or in the aggregate,
constitute a "significant subsidiary" as defined in Item 1-02(w)
of Regulation S-X (each a "Significant Subsidiary"), is a
corporation, partnership, limited liability company or business
trust duly incorporated or organized, validly existing and in
good standing (to the
extent the jurisdiction of its incorporation recognizes such
concept) under the laws of the jurisdiction of its incorporation
or organization, with the requisite power and authority to own,
lease and operate its properties and conduct its business as
described in the Final Offering Memorandum; each Significant
Subsidiary is duly qualified as a foreign corporation to
transact business and is in good standing (with respect to the
jurisdictions which recognize such concept) in each jurisdiction
in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business,
except where the failure to qualify or to be in good standing
would not result in a Material Adverse Effect; except as
otherwise disclosed in the Final Offering Memorandum or, with
respect to those subsidiaries for which the Company does not own
all of the outstanding capital stock or ownership interests in
such subsidiaries, as disclosed in an exhibit to the opinion
(which exhibit shall contain the percentage ownership interest
of the Company and/or its affiliates in each such subsidiary and
the ownership interest of the other party[ies] in each such
subsidiary), all of the issued and outstanding capital stock or
other ownership interests of each Significant Subsidiary of the
Company has been duly authorized and validly issued, is fully
paid and non-assessable and (except for shares necessary to
qualify directors or to maintain any minimum number of
shareholders required by law and/or shares of those subsidiaries
for which the Company does not own all of the outstanding
capital stock as described on an exhibit to the opinion) are
owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity except as described in the Final
Offering Memorandum and except for such security interests,
mortgages, pledges, liens, encumbrances, claims or equities that
are immaterial to the Company and its subsidiaries taken as a
whole.
(v) All of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable.
(vi) To the knowledge of such counsel, after
reasonable inquiry, other than as set forth in the Final
Offering Memorandum, (A) there are no legal or governmental
proceedings in the United States pending to which the Company or
any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which if
determined adversely to the Company or such subsidiary would,
individually or in the aggregate, have a Material Adverse Effect
or which would materially and adversely affect the consummation
of the transactions contemplated under the Purchase Agreement,
the Registration Rights Agreement or the Indenture or the
performance by the Company of its obligations thereunder; and
(B) no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(vii) The documents incorporated by reference in the
Final Offering Memorandum (other than the financial statements
and schedules, the notes thereto and the auditors' reports
thereon and the other financial and accounting information
contained or incorporated by reference therein or omitted
therefrom, as to which such counsel need express no opinion),
when they were filed with the
Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and such counsel has
no reason to believe that any of such documents (other than the
financial statements and schedules, the notes thereto and the
auditors' reports thereon and the other financial and accounting
information contained or incorporated by reference therein or
omitted therefrom, as to which such counsel need express no
opinion), when they were so filed, contained an untrue statement
of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the
circumstances under which they were made when such documents
were so filed, not misleading.
Such counsel shall also state that no facts came to his
attention which led him to believe that the Final Offering Memorandum as
of its date or as of the Closing Date (other than the financial
statements and schedules, the notes thereto and the auditors' reports
thereon and the other financial and accounting information contained or
incorporated by reference therein or omitted therefrom, as to which such
counsel need express no opinion) contained any 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, in light of
the circumstances under which they were made, not misleading.
(c) The Initial Purchasers shall have received from Mayer,
Brown, Xxxx & Maw, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date and addressed to the Initial
Purchasers, with respect to the issuance and sale of the Securities, the
Indenture, the Registration Rights Agreement, the Final Offering
Memorandum (as amended or supplemented at the Closing Date) and other
related matters as the Initial Purchasers 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.
(d) The Company shall have furnished to the Initial
Purchasers a certificate of the Company, signed by the Chief Financial
Officer and Treasurer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Final Offering Memorandum, any amendment or supplement to the Final
Offering Memorandum and this Agreement and that:
(i) the Company's outstanding equity capitalization
is as set forth in the Final Offering Memorandum (except for
subsequent issuances, if any, pursuant to employee benefit plans
or pursuant to the exercise of convertible securities or
options, and except for systematic purchases of the Company's
common stock by the Company since March 31, 2002, pursuant to
one of the Company's existing share repurchase programs);
(ii) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its part
to be performed or satisfied hereunder at or prior to the
Closing Date; and
(iii) since the date of the most recent financial
statements included in the Final Offering Memorandum (exclusive
of any amendment or supplement thereto), there has been no
material adverse change in the condition (financial or
otherwise), earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated by the Final Offering Memorandum
(exclusive of any amendment or supplement thereto).
(e) At the date hereof and at the Closing Date, the Company
shall have requested and caused PricewaterhouseCoopers LLP, the
Company's independent accountants, who have certified financial
statements included or incorporated by reference into the Final Offering
Memorandum, to furnish to the Initial Purchasers letters, dated
respectively as of the date hereof and as of the Closing Date, in form
and substance satisfactory to the Initial Purchasers, of the type
described in AICPA Statement on Auditing Standards No. 72.
References to the Final Offering Memorandum in this Section 6(e)
include any amendment or supplement thereto at the date of the
applicable letter.
(f) Subsequent to the date hereof or, if earlier, the dates
as of which information is given in the Final Offering Memorandum
(exclusive of any amendment or supplement thereto), there shall not have
been (i) any change or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 6; or (ii) any change, or
any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Offering Memorandum (exclusive
of any amendment or supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the
Initial Purchasers, so material and adverse as to make it impractical or
inadvisable to market the Securities as contemplated by the Final
Offering Memorandum (exclusive of any amendment or supplement thereto).
(g) Subsequent to the date hereof, there shall not have been
any decrease in the rating of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Securities Act) or any notice
given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Initial Purchasers such further information,
certificates and documents as the Initial Purchasers may reasonably
request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Initial Purchasers and counsel for the
Initial
Purchasers, this Agreement and all obligations of the Initial Purchasers
hereunder may be cancelled at, or at any time prior to, the Closing Date by the
Initial Purchasers. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the office of counsel for the Initial Purchasers, at Mayer, Brown,
Xxxx & Maw, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, on the
Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Initial Purchasers, the Company will reimburse the Initial
Purchasers severally through Xxxxxxx Xxxxx Barney on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities; provided that the Initial Purchasers provide the
Company with reasonable documentation evidencing such expenses.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser, the directors, officers, employees and agents of each
Initial Purchaser and each person who controls any Initial Purchaser
within the meaning of either the Securities Act or the Exchange 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
Securities Act, the Exchange 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 Preliminary Offering Memorandum, the
Final Offering Memorandum (or in any supplement or amendment thereto) or
any information provided by the Company to any holder or prospective
purchaser of Securities pursuant to Section 5(h) hereof, or in any
amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and agrees to reimburse each such indemnified party, as
incurred, 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 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 in the
Preliminary Offering Memorandum or the Final Offering Memorandum, or in
any amendment thereof or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Initial Purchasers specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees
to indemnify and hold harmless the Company, each of its directors, each
of its officers, and each person who controls the Company within the
meaning of either the Securities Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Initial
Purchaser, but only with reference to written information relating to
such Initial Purchaser furnished to the Company by or on behalf of such
Initial Purchaser specifically for inclusion in the Preliminary Offering
Memorandum or the Final Offering Memorandum (or in any amendment or
supplement thereto). This indemnity agreement will be in addition to any
liability which any Initial Purchaser may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the
cover page regarding the delivery of the Securities and, under the
heading "Plan of Distribution," (i) the first sentence in paragraph
three; (ii) the sentences related to concessions and reallowances; and
(iii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids in the Preliminary Offering Memorandum and
the Final Offering Memorandum, constitute the only information furnished
in writing by or on behalf of the Initial Purchasers for inclusion in
the Preliminary Offering Memorandum or the Final Offering Memorandum (or
in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under
this Section 8 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 8, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, 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; (iii)
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 the institution of such action; or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Initial Purchasers agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Initial Purchasers may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand
and by the Initial Purchasers on the other from the offering of the
Securities; provided, however, that in no case shall any Initial
Purchaser (except as may be provided in any agreement among the Initial
Purchasers relating to the offering of the Securities) be responsible
for any amount in excess of the purchase discount or commission
applicable to the Securities purchased by such Initial Purchaser
hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Initial
Purchasers shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company on the one hand and of the Initial Purchasers on the other
in connection with the statements or omissions which resulted in such
Losses, as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it,
and benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions in each case set
forth on the cover of the Final Offering Memorandum. Relative fault
shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Initial
Purchasers on the other, the intent of the parties and their relative
knowledge, information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Initial Purchasers agree that
it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not
take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Initial Purchaser within the
meaning of either the Securities Act or the Exchange Act and each
director, officer, employee and agent of an Initial Purchaser shall have
the same rights to contribution as such Initial Purchaser, and each
person who controls the Company within the meaning of either the
Securities Act or the Exchange Act and each officer and director of the
Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Initial Purchaser.
(a) If any Initial Purchaser shall default in its obligation
to purchase the Securities which it has agreed to purchase under this
Purchase Agreement, the Initial Purchasers may in their discretion
arrange for themselves or another party or other parties to purchase
such Securities on the terms contained herein. If within 36 hours after
such default by any Initial Purchasers the Initial Purchasers do not
arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of 36 hours within which to procure another
party or other parties satisfactory to the Initial Purchasers to
purchase such Securities on such terms. In the event that, within the
respective prescribed period, the Initial Purchasers notify the Company
that they have so arranged for the purchase of such Securities, or the
Company notifies the Initial Purchasers that it has so arranged for the
purchase of such Securities, the Initial Purchasers or the Company shall
have the right to postpone the Closing Date for such Securities for a
period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Final Offering Memorandum, or in
any other documents or arrangements. The term "Initial Purchaser" as
used in this Purchase Agreement shall include any person substituted
under this Section 9 with like effect as if such person had originally
been a party to this Purchase Agreement.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Initial Purchaser or Initial
Purchasers by the Initial Purchasers and the Company as provided in
subsection (a) above, the aggregate principal amount of such Securities
which remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of the Securities, then the Company shall have the
right to require each non-defaulting Initial Purchaser to purchase the
principal amount of Securities which such Initial Purchaser agreed to
purchase under this Purchase Agreement and, in addition, to require each
non-defaulting Initial Purchaser to purchase its pro rata share (based
on the principal amount of Securities which such Initial Purchaser
agreed to purchase as set forth on Schedule I to this Purchase
Agreement) of the Securities of such defaulting Initial Purchaser or
Initial Purchasers for which such arrangements have not been made;
provided, however, that nothing herein shall relieve a defaulting
Initial Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Initial Purchaser or Initial
Purchasers made by the Initial Purchasers or the Company as provided in
subsection (a) above, the aggregate principal amount of Securities which
remains unpurchased exceeds one-eleventh of the aggregate principal
amount of the Securities, as referred to in subsection (b) above, or if
the Company shall not exercise the right described in subsection (b)
above to require non-defaulting Initial Purchasers to purchase
Securities of a defaulting Initial Purchaser or Initial Purchasers, then
this Purchase Agreement shall thereupon terminate, without liability on
the part of any non-defaulting Initial Purchaser or the Company, except
for the expenses to be borne by the Company and the Initial Purchasers
as provided in Section 5(m) hereof and the indemnity and contribution
agreements in Section 8 hereof; provided, however, that nothing herein
shall relieve a defaulting Initial Purchaser from liability for its
default.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Initial Purchasers, by notice given to the
Company prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or the Nasdaq Stock
Market or trading in securities generally on the New York Stock Exchange or the
Nasdaq National Market shall have been suspended or limited or minimum prices
shall have been established on such Exchange or the Nasdaq National Market; (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities; or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Initial Purchasers, impracticable or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Offering Memorandum (exclusive of any amendment or
supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Initial Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Initial Purchasers or the Company
or any of the officers, directors or controlling persons referred to in Section
8 hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only if sent in accordance with this Section 12. Notices sent to the
Initial Purchasers shall be mailed, delivered or telefaxed to the Xxxxxxx Xxxxx
Xxxxxx General Counsel (fax no.: (000) 000-0000) and confirmed to the General
Counsel, Xxxxxxx Xxxxx Barney at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel and to Banc One Capital Markets, Inc. (fax no.: (312)
000-0000) and confirmed to Banc One Capital Markets, Inc. at 0 Xxxx Xxx Xxxxx,
Xxxxx XX 0-0000, Xxxxxxx, XX 00000 Attention: Investment Grade Securities.
Notices sent to the Company shall be mailed, delivered or telefaxed and
confirmed to it at 0000 Xxxxx Xxxxxxxxx Xxxx., Xxxxxx, Xxxx 00000 (fax no. (937)
000-0000), Attention: General Counsel/Notices.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and,
except as expressly set forth in Section 5(h) hereof, no other person will have
any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
[Signatures on next page]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company and the several Initial Purchasers.
Very truly yours,
XXX XXXXXXXXXXX
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX XXXXXX INC.
BANC ONE CAPITAL MARKETS, INC.
BNY CAPITAL MARKETS, INC.
FLEET SECURITIES, INC.
X.X. XXXXXX SECURITIES INC.
XXXXXXXX INVESTMENTS INC.
By: XXXXXXX XXXXX BARNEY INC.
By /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Managing Director
For itself and the other several Initial
Purchasers
SCHEDULE I
Principal Amount of
Securities
Initial Purchasers to Be Purchased
------------------ -------------------
Xxxxxxx Xxxxx Xxxxxx Inc.................................. $ 150,000,000
Banc One Capital Markets, Inc............................. 90,000,000
Fleet Securities, Inc..................................... 21,000,000
X.X. Xxxxxx Securities Inc................................ 21,000,000
BNY Capital Markets, Inc.................................. 9,000,000
XxXxxxxx Investments Inc., a KeyCorp company.............. 9,000,000
Total............................................ $ 300,000,000
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