EXHIBIT 10.1
COMMERCIAL PAPER DEALER AGREEMENT
4(2) PROGRAM
between
Global Marine Inc., as Issuer
and
Xxxxxxx Xxxxx Money Markets Inc., as Dealer
Concerning Notes to be issued pursuant to
an Issuing and Paying Agency Agreement
dated as of July 27, 1999 between the
Issuer and Citibank, N.A., as Issuing and
Paying Agent
DATED AS OF
July 27, 1999
COMMERCIAL PAPER DEALER AGREEMENT
4(2) Program
This agreement ("Agreement") sets forth the
understandings between the Issuer and the Dealer in
connection with the issuance and sale by the Issuer of its
short-term promissory notes through the Dealer (the
"Notes").
Certain terms used in this Agreement are defined in
Section 6 hereof.
The Addendum to this Agreement, and any Annexes or
Exhibits described in this Agreement or such Addendum, are
hereby incorporated into this Agreement and made fully a
part hereof.
Section 1. OFFERS, SALES AND RESALES OF NOTES
1.1 While (i) the Issuer has and shall have no
obligation to sell the Notes to the Dealer or to permit the
Dealer to arrange any sale of the Notes for the account of
the Issuer, and (ii) the Dealer has and shall have no
obligation to purchase the Notes from the Issuer or to
arrange any sale of the Notes for the account of the Issuer,
the parties hereto agree that in any case where the Dealer
purchases Notes from the Issuer, or arranges for the sale of
Notes by the Issuer, such Notes will be purchased or sold by
the Dealer in accordance with Section 1.6, and in reliance
on the representations, warranties, covenants and agreements
of the Issuer contained herein or made pursuant hereto and
on the terms and conditions and in the manner provided
herein.
1.2 So long as this Agreement shall remain in effect,
and in addition to the limitations contained in Section 1.7
hereof, the Issuer shall not, without the consent of the
Dealer, offer, solicit or accept offers to purchase, or
sell, any Notes except (a) in transactions with one or more
dealers which may from time to time after the date hereof
become dealers with respect to the Notes by executing with
the Issuer one or more agreements which contain provisions
substantially identical to Section 1 of this Agreement, of
which the Issuer hereby undertakes to provide the Dealer
prompt notice or (b) in transactions with the other dealers
listed on the Addendum hereto, which are executing
agreements with the Issuer which contain provisions
substantially identical to Section 1 of this Agreement
contemporaneously herewith. In no event shall the Issuer
offer, solicit or accept offers to purchase, or sell, any
Notes directly on its own behalf in transactions with
persons other than broker-dealers as specifically permitted
in this Section 1.2.
1.3 The Notes shall be in a minimum denomination or
minimum amount, whichever is applicable, of $250,000 or
integral multiples of $1,000 in excess thereof, will bear
such interest rates, if interest bearing, or will be sold at
such discount from their face amounts, as shall be agreed
upon by the Dealer and the Issuer, shall have a maturity not
exceeding 270 days from the date of issuance (exclusive of
days of grace) and shall not contain any provision for
extension, renewal or automatic "rollover."
1.4 The authentication, delivery and payment of the
Notes shall be effected in accordance with the Issuing and
Paying Agency Agreement and the Notes shall be either
individual bearer physical certificates or represented by
book-entry Notes registered in the name of DTC or its
nominee in the form or forms annexed to the Issuing and
Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the
terms of the purchase of any Note by the Dealer or the sale
of any Note arranged by the Dealer (including, but not
limited to, agreement with respect to the date of issue,
purchase price, principal amount, maturity and interest rate
(in the case of interest-bearing Notes) or discount thereof
(in the case of Notes issued on a discount basis), and
appropriate compensation for the Dealer's services
hereunder) pursuant to this Agreement, the Issuer shall
cause such Note to be issued and delivered in accordance
with the terms of the Issuing and Paying Agency Agreement
and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to the
Issuer. Except as otherwise agreed, in the event that the
Dealer is acting as an agent and a purchaser shall either
fail to accept delivery of or make payment for a Note on the
date fixed for settlement, the Dealer shall promptly notify
the Issuer, and if the Dealer has theretofore paid the
Issuer for the Note, the Issuer will promptly return such
funds to the Dealer against its return of the Note to the
Issuer, in the case of a certificated Note, and upon notice
of such failure in the case of a book-entry Note. If such
failure occurred for any reason other than default by the
Dealer, the Issuer shall reimburse the Dealer on an
equitable basis for the Dealer's loss of the use of such
funds for the period such funds were credited to the
Issuer's account.
1.6 All offers and sales of the Notes by the Issuer
shall be effected pursuant to the exemption from the
registration requirements of the Securities Act provided by
Section 4(2) thereof. The Dealer and the Issuer hereby
establish and agree to observe the following procedures in
connection with offers, sales and subsequent resales or
other transfers of the Notes:
(a) Offers and sales of the Notes by or through
the Dealer shall be made only to the following types of
investors: (i) investors reasonably believed by the
Dealer to be Institutional Accredited Investors , (ii)
non-bank fiduciaries or agents that will be purchasing
Notes for one or more accounts, each of which is an
Institutional Accredited Investor , and (iii) Qualified
Institutional Buyers.
(b) Resales and other transfers of the Notes by
the holders thereof shall be made only in accordance
with the restrictions in the legends described in
clause (e) below, and to the extent such resale is made
to or through the Dealer, the Dealer will comply with
the provisions of such legend and this Section 1.6.
(c) No general solicitation or general
advertising shall be used in connection with the
offering of the Notes. Without limiting the generality
of the foregoing, without the prior written approval of
the Dealer, the Issuer shall not issue any press
release or place or publish any "tombstone" or other
advertisement relating to the Notes; and without the
prior written approval of the Issuer, the Dealer shall
not issue any press release or place or publish any
"tombstone" or other advertisement relating to the
Notes.
(d) No sale of Notes to any one purchaser shall
be for less than $250,000 principal or face amount, and
no Note shall be issued in a smaller principal or face
amount. If the purchaser is a non-bank fiduciary
acting on behalf of others, each person for whom such
purchaser is acting must purchase at least $250,000
principal or face amount of Notes.
(e) Offers and sales of the Notes by the Issuer
hereunder shall be made in accordance with Rule 506
under the Securities Act, and shall be subject to the
restrictions described in the legend appearing on
Exhibit A hereto. A legend substantially to the effect
of such Exhibit A shall appear as part of the Private
Placement Memorandum used in connection with offers and
sales of Notes hereunder, as well as on each individual
certificate representing a Note and each Master Note
representing book-entry Notes offered and sold pursuant
to this Agreement.
(f) The Dealer shall furnish or shall have
furnished to each purchaser of Notes a copy of the
then-current Private Placement Memorandum unless such
purchaser has previously received a copy of the Private
Placement Memorandum as then in effect. The Private
Placement Memorandum shall expressly state that any
person to whom Notes are offered shall have an
opportunity to ask questions of, and receive
information from, the Issuer and the Dealer and shall
provide the names, addresses and telephone numbers of
the persons from whom information regarding the Issuer
may be obtained.
(g) The Issuer agrees, for the benefit of the
Dealer and each of the holders and prospective
purchasers from time to time of the Notes that, if at
any time the Issuer shall not be subject to Section 13
or 15(d) of the Exchange Act, the Issuer will furnish,
upon request and at its expense, to the Dealer and to
holders and prospective purchasers of Notes information
required by Rule 144A(d)(4)(i) in compliance with Rule
144A(d).
(h) In the event that any Note offered or to be
offered by Dealer would be ineligible for resale under
Rule 144A, the Issuer shall immediately notify Dealer
(by telephone, confirmed in writing) of such fact and
shall promptly prepare and deliver to Dealer an
amendment or supplement to the Private Placement
Memorandum describing the Notes that are ineligible,
the reason for such ineligibility and any other
relevant information relating thereto.
(i) The Issuer represents that it is not
currently issuing commercial paper in the United States
market in reliance upon the exemption provided by
Section 3(a)(3) of the Securities Act. In the event
the Issuer determines to issue commercial paper in the
United States market in reliance on such exemption, the
Issuer agrees that (a) the proceeds from the sale of
the Notes will be segregated from the proceeds of the
sale of any such commercial paper by being placed in a
separate account; (b) the Issuer will institute
appropriate corporate procedures to ensure that the
offers and sales of notes issued by the Issuer pursuant
to the Section 3(a)(3) exemption are not integrated
with offerings and sales of Notes hereunder; and (c)
the Issuer will comply with each of the requirements of
Section 3(a)(3) of the Act in selling commercial paper
or other short-term debt securities other than the
Notes in the United States.
1.7 The Issuer hereby represents and warrants to the
Dealer, in connection with offers, sales and resales of
Notes, as follows:
(a) The Issuer hereby confirms to the Dealer that
(except as permitted by Section 1.6(i)) within the
preceding six months neither the Issuer nor any person
other than the Dealer or the other dealers referred to
in Section 1.2 hereof acting on behalf of the Issuer
has offered or sold any Notes, or any substantially
similar security of the Issuer (including, without
limitation, any such substantially similar security
issued by the Issuer pursuant to a medium-term note
program), to, or solicited offers to buy any such
security from, any person other than the Dealer or the
other dealers referred to in Section 1.2 hereof. The
Issuer also agrees that, as long as the Notes are being
offered for sale by the Dealer and the other dealers
referred to in Section 1.2 hereof as contemplated
hereby and until at least six months after the offer of
Notes hereunder has been terminated, neither the Issuer
nor any person other than the Dealer or the other
dealers referred to in Section 1.2 hereof (except as
contemplated by Section 1.2 hereof) will offer the
Notes or any substantially similar security of the
Issuer for sale to, or solicit offers to buy any such
security from, any person other than the Dealer and the
other dealers referred to in Section 1.2 hereof (except
to the extent any of the foregoing would not cause the
offer and sale of the Notes by the Issuer to be
integrated with other offers and sales so as no longer
to come within the exemption provided by Section 4(2)
of the Securities Act and Rule 506 thereunder), it
being understood that such agreement is made with a
view to bringing the offer and sale of the Notes within
the exemption provided by Section 4(2) of the
Securities Act and Rule 506 thereunder and shall
survive any termination of this Agreement. The Issuer
hereby represents and warrants that it has not taken or
omitted to take, and will not take or omit to take, any
action that would cause the offering and sale of Notes
hereunder to be integrated with any other offering of
securities, whether such offering is made by the Issuer
or some other party or parties under circumstances that
would cause the offering and sale of the Notes by the
Issuer to fail to be exempt under Section 4(2) of the
Securities Act and Rule 506 thereunder.
(b) The Issuer represents and agrees that the
proceeds of the sale of the Notes are not currently
contemplated to be used for the purpose of buying,
carrying or trading securities within the meaning of
Regulation T and the interpretations thereunder by the
Board of Governors of the Federal Reserve System. In
the event that the Issuer determines to use such
proceeds for the purpose of buying, carrying or trading
securities, whether in connection with an acquisition
of another company or otherwise, the Issuer shall give
the Dealer at least two business days' prior written
notice to that effect. The Issuer shall also give the
Dealer prompt notice of the actual date that it
commences to purchase securities with the proceeds of
the Notes. Thereafter, to the extent necessary to
comply with Regulation T and the interpretations
thereunder, the Dealer will sell such Notes only to
offerees it reasonably believes to be QIBs or to QIBs
it reasonably believes are acting for other QIBs, in
each case in accordance with Rule 144A.
1.8 The Dealer agrees from time to time upon request
of the Issuer to inform the Issuer whether it is holding
Notes purchased from the Issuer that it has not yet sold or
Notes that have been sold and subsequently repurchased by
the Dealer (specifying in which category each Note so held
belongs) and the amount, issue date, maturity and interest
rate, if applicable, of each such Note. Upon request of the
Issuer, the Dealer shall resell to the Issuer any such Notes
specified by the Issuer at a price equal to (a) the
principal amount thereof plus accrued and unpaid interest
thereon, in the case of an interest-bearing Note, or (b) the
face amount thereof discounted on a ratable basis based on
the Issuer's market rate reflecting the remaining period
until maturity in relation to the original term, in the case
of such Note issued on a discount basis.
Section 2. REPRESENTATIONS AND WARRANTIES OF ISSUER
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly incorporated,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all the requisite
power and authority to execute, deliver and perform its
obligations under the Notes, this Agreement and the Issuing
and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency
Agreement have been duly authorized, executed and delivered
by the Issuer and constitute legal, valid and binding
obligations of the Issuer enforceable against the Issuer in
accordance with their terms subject to applicable
bankruptcy, insolvency and similar laws affecting creditors'
rights generally, and subject, as to enforceability, to
general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law),
and except insofar as rights to indemnification and
contribution may be limited by applicable law.
2.3 The Notes have been duly authorized, and when
issued and delivered against pa;yment therefor, as provided
in the Issuing and Paying Agency Agreement, will be duly and
validly issued and delivered and will constitute legal,
valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity
or at law).
2.4 Assuming compliance by the Dealer with the
procedures applicable to it set forth in Section 1, the
offer and sale of Notes in the manner contemplated hereby do
not require registration of the Notes under the Securities
Act, pursuant to the exemption from registration contained
in Section 4(2) thereof, and no indenture in respect of the
Notes is required to be qualified under the Trust Indenture
Act of 1939, as amended.
2.5 The Notes will rank at least PARI PASSU with all
other unsecured and unsubordinated indebtedness of the
Issuer.
2.6 Assuming compliance by the Dealer with the
procedures set forth in Section 1, no consent or action of,
or filing or registration with, any governmental or public
regulatory body or authority, including the SEC, is required
to authorize, or is otherwise required in connection with
the execution, delivery or performance of, this Agreement,
the Notes or the Issuing and Paying Agency Agreement, except
as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Notes, and except for the requirement that the Issuer file
with the SEC a notice on Form D in accordance with Rule 503
under the Securities Act and such amendments thereto as Rule
503 may require.
2.7 Neither the execution and delivery of this
Agreement and the Issuing and Paying Agency Agreement, nor
the issuance and delivery of the Notes in accordance with
the Issuing and Paying Agency Agreement, nor the fulfillment
of or compliance with the terms and provisions hereof or
thereof by the Issuer, will (i) result in the creation or
imposition of any mortgage, lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets
of the Issuer, or (ii) violate or result in a breach or an
event of default under any of the terms of the Issuer's
charter documents or by-laws, any contract or instrument to
which the Issuer is a party or by which it or its property
is bound, or any law or regulation, or any order, writ,
injunction or decree of any court or government
instrumentality, to which the Issuer is subject or by which
it or its property is bound, which breach or event of
default would reasonably be expected to have a material
adverse effect on the financial condition or results of
operations of the Issuer and its subsidiaries taken as a
whole, or the ability of the Issuer to perform its
obligations under this Agreement, the Notes or the Issuing
and Paying Agency Agreement.
2.8 Except as may be set forth in the Company
Information of which the Dealer has been specifically
advised, there is no litigation or governmental proceeding
pending, or to the knowledge of the Issuer threatened,
against or affecting the Issuer or any of its subsidiaries
which would reasonably be expected to result in a material
adverse change in the financial condition or results of
operations of the Issuer and its subsidiaries taken as a
whole, or the ability of the Issuer to perform its
obligations under this Agreement, the Notes or the Issuing
and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an
entity "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the
Company Information contains any untrue statement of a
material fact or omits 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, provided that the Issuer makes no
representation or warranty as to the Dealer Information.
2.11 Each (a) issuance of Notes by the Issuer hereunder
and (b) amendment or supplement of the Private Placement
Memorandum shall be deemed a representation and warranty by
the Issuer to the Dealer, as of the date thereof, that, both
before and after giving effect to such issuance and after
giving effect to such amendment or supplement, (i) the
representations and warranties given by the Issuer set forth
above in this Section 2 remain true and correct on and as of
such date as if made on and as of such date, (ii) in the
case of an issuance of Notes, the Notes being issued on such
date have been duly and validly issued and constitute legal,
valid and binding obligations of the Issuer, enforceable
against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity
or at law), (iii) in the case of an issuance of Notes, since
the date of the most recent Private Placement Memorandum (as
most recently amended or supplemented, including by
incorporation of or reference to Company Information
therein), there has been no material adverse change in the
financial condition or results of operations of the Issuer
and its subsidiaries taken as a whole which has not been
disclosed to the Dealer in writing, and (iv) the Issuer is
not in default of any of its obligations under the Notes.
Section 3. Covenants and Agreements of Issuer
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but
in any event prior to any subsequent issuance of Notes
hereunder) of any amendment to, modification of, or waiver
with respect to, the Notes or the Issuing and Paying Agency
Agreement, including a complete copy of any such amendment,
modification or waiver.
3.2 The Issuer shall, whenever it shall have received
notice of any downgrading or any announced review for
potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating
organization which has published a rating of the Notes,
promptly, and in any event prior to any subsequent issuance
of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such change, development, or
occurrence.
3.3 The Issuer shall from time to time furnish to the
Dealer copies of all material provided by the Issuer to any
national securities exchange (excluding routine press
releases), regarding (i) the Issuer's operations and
financial condition, (ii) the due authorization and
execution of the Notes, and (iii) the Issuer's ability to
pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer
may reasonably request to ensure that each offer and each
sale of the Notes will comply with any applicable state Blue
Sky laws; PROVIDED, that the Issuer shall not be obligated
to file any general consent to service of process or to
qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or subject itself to taxation
in respect of doing business in any jurisdiction in which it
is not otherwise so subject.
3.5 The Issuer shall not issue Notes hereunder until
the Dealer shall have received (a) an opinion of counsel to
the Issuer, addressed to the Dealer, satisfactory in form
and substance to the Dealer, (b) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (c) a
copy of resolutions adopted by the Board of Directors of the
Issuer, satisfactory in form and substance to the Dealer and
certified by the Secretary or similar officer of the Issuer,
authorizing execution and delivery by the Issuer of this
Agreement the Issuing and Paying Agency Agreement and the
Notes and consummation by the Issuer of the transactions
contemplated hereby and thereby, (d) prior to the issuance
of any Notes represented by a book-entry note registered in
the name of DTC or its nominee, a copy of the executed
Letter of Representations among the Issuer, the Issuing and
Paying Agent and DTC and (e) such other certificates,
opinions, letters and documents as the Dealer shall have
reasonably requested.
3.6 The Issuer shall reimburse the Dealer for all of
the Dealer's reasonable and documented out-of-pocket
expenses related to this Agreement, including expenses
incurred in connection with its preparation and negotiation,
and the transactions contemplated hereby (including, but not
limited to, the printing and distribution of the Private
Placement Memorandum), and, if applicable, for the
reasonable and documented fees and out-of-pocket expenses of
the Dealer's counsel.
Section 4. DISCLOSURE
4.1 The Private Placement Memorandum and its contents
(other than the Dealer Information) shall be the sole
responsibility of the Issuer. The Private Placement
Memorandum shall contain a statement expressly offering an
opportunity for each prospective purchaser to ask questions
of, and receive answers from, the Issuer concerning the
offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire
without unreasonable effort or expense.
4.2 The Issuer agrees promptly to furnish the Dealer
the Company Information upon or promptly following the time
it is filed with the SEC or otherwise becomes publicly
available.
4.3 Unless the Issuer has determined, based on most
recent inquiry to the Dealer under Section 1.8 that the
Dealer is not holding any Notes purchased from the Issuer
that it has not yet sold and that the Issuer has not
subsequent to such inquiry issued any additional Notes, the
Issuer agrees, upon the occurrence of any event relating to
or affecting the Issuer that would cause the Private
Placement Memorandum to include an untrue statement of a
material fact or to omit to state a material fact necessary
to make the statements contained therein, in light of the
circumstances under which they are made, not misleading,
promptly to (unless the Issuer promptly purchases from the
Dealer all such Notes so held pursuant to Section 1.8)
supplement or amend the Private Placement Memorandum
(including through documents incorporated by reference or
referred to therein) so that the Private Placement
Memorandum, as amended or supplemented, shall not contain an
untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained
therein, in light of the circumstances under which they are
made, not misleading, and the Issuer shall make such
supplement or amendment available to the Dealer.
Section 5. INDEMNIFICATION AND CONTRIBUTION
5.1 The Issuer will indemnify and hold harmless the
Dealer, and each individual, corporation, partnership,
trust, association or other entity controlling the Dealer,
within the meaning of Section 15 of the Securities Act
(hereinafter the "Indemnitees"), against any and all
liabilities, penalties, suits, causes of action, losses,
damages, claims, costs and expenses (including, without
limitation, reasonable fees and disbursements of counsel) or
judgments of whatever kind or nature (each a "Claim"),
imposed upon, incurred by or asserted against the
Indemnitees arising out of or based upon (i) any allegation
that the Private Placement Memorandum, the Company
Information or any information provided by the Issuer to the
Dealer included (as of any relevant time of offer or sale of
Notes by the Issuer) or includes an untrue statement of a
material fact or omitted (as of any relevant time of offer
or sale of Notes by the Issuer) or omits to state any
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading or (ii) arising out of or based upon the breach
by the Issuer of any agreement, covenant or representation
made in or pursuant to this Agreement. This indemnification
shall not apply to the extent that the Claim arises out of
or is based upon Dealer Information.
5.2 Provisions relating to claims made for
indemnification under this Section 5 are set forth on
Exhibit B to this Agreement.
5.3 In order to provide for just and equitable
contribution in circumstances in which the indemnification
provided for in this Section 5 is held to be unavailable or
insufficient to hold harmless the Indemnitees, although
applicable in accordance with the terms of this Section 5,
the Issuer shall contribute to the aggregate costs incurred
by the Dealer in connection with any Claim in the proportion
of the respective economic interests of the Issuer and the
Dealer; provided, however, that such contribution by the
Issuer shall be in an amount such that the aggregate costs
incurred by the Dealer do not exceed the aggregate of the
commissions and fees earned by the Dealer hereunder with
respect to the issue or issues of Notes to which such Claim
relates. The respective economic interests shall be
calculated by reference to the aggregate proceeds to the
Issuer of the Notes issued hereunder and the aggregate
commissions and fees earned by the Dealer hereunder.
Section 6. DEFINITIONS
6.1 "Claim" shall have the meaning set forth in
Section 5.1.
6.2 "Company Information" at any given time shall mean
the Private Placement Memorandum together with, to the
extent applicable, (i) the Issuer's most recent report on
Form 10-K filed with the SEC and each report on Form 10-Q or
8-K filed by the Issuer with the SEC since the most recent
Form 10-K, (ii) the Issuer's most recent annual audited
financial statements and each interim financial statement or
report prepared subsequent thereto, if not included in item
(i) above, (iii) the Issuer's and its affiliates' other
publicly available recent reports, including, but not
limited to, any publicly available filings or reports
provided to their respective shareholders, and (iv) any
information prepared or approved by the Issuer for
dissemination to investors or potential investors in the
Notes.
6.3 "Dealer Information" shall mean material
concerning the Dealer and provided by the Dealer in writing
expressly for inclusion in the Private Placement Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities
Exchange Act of 1934, as amended.
6.6 "Indemnitee" shall have the meaning set forth in
Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an
institutional investor that is an accredited investor within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act and that has such knowledge and experience in
financial and business matters that it is capable of
evaluating and bearing the economic risk of an investment in
the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and
loan association or other institution, as defined in Section
3(a)(5)(A) of the Securities Act, whether acting in its
individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean
the issuing and paying agency agreement described on the
cover page of this Agreement, as such agreement may be
amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party
designated as such on the cover page of this Agreement, as
issuing and paying agent under the Issuing and Paying Agency
Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a
fiduciary or agent other than (a) a bank, as defined in
Section 3(a)(2) of the Securities Act, or (b) a savings and
loan association, as defined in Section 3(a)(5)(A) of the
Securities Act.
6.11 "Private Placement Memorandum" shall mean offering
materialsprepared in accordance with Section 4 (including
materials referred to therein or incorporated by reference
therein) provided to purchasers and prospective purchasers
of the Notes, and shall include amendments and supplements
thereto which may be prepared from time to time in
accordance with this Agreement (other than any amendment or
supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" (or "QIB") shall
have the meaning assigned to that term in Rule 144A under
the Securities Act.
6.13 "Rule 144A" shall mean Rule 144A under the
Securities Act.
6.14 "SEC" shall mean the U.S. Securities and Exchange
Commission.
6.15 "Securities Act" shall mean the U.S. Securities
Act of 1933, as amended.
Section 7. GENERAL
7.1 Unless otherwise expressly provided herein, all
notices under this Agreement to parties hereto shall be in
writing and shall be effective when received at the address
of the respective party set forth in the Addendum to this
Agreement.
7.2 This Agreement shall be governed by and construed
in accordance with the laws of the State of New York,
without regard to its conflict of laws provisions.
7.3 The Issuer agrees that any suit, action or
proceeding brought by the Issuer against the Dealer in
connection with or arising out of this Agreement or the
Notes or the offer and sale of the Notes shall be brought
solely in the United States federal courts located in the
borough of Manhattan or the courts of the State of New York
located in the Borough of Manhattan. EACH OF THE DEALER AND
The Issuer waives its right to trial by jury in any suit,
action or proceeding with respect to this Agreement or the
transactions contemplated hereby.
7.4 This Agreement may be terminated, at any time, by
the Issuer, upon one business day's prior notice to such
effect to the Dealer, or by the Dealer upon one business
day's prior notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of
the Issuer under Sections 3.7, 5 and 7.3 hereof or the
respective representations, warranties, agreements,
covenants, rights or responsibilities of the parties made or
arising prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party
hereto without the written consent of the other party;
provided, however, that the Dealer may assign its rights
and obligations under this Agreement to any wholly owned
direct or indirect subsidiary of the Dealer or of its
ultimate parent.
7.6 This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were
upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date and year first above
written.
GLOBAL MARINE INC.,
AS ISSUER
By: /s/ W. Xxxx Xxxxx
Name: W. Xxxx Xxxxx
Title: Sr. Vice Pres.,
Chief Financial Officer &
Treasurer
XXXXXXX XXXXX MONEY
MARKETS INC.,
AS DEALER
By: /s/ X. Xxxxxx Xxxxxx
Name: X. Xxxxxx Xxxxxx
Title:
ADDENDUM
1. The other dealers referred to in clause (b) of Section
1.2 of the Agreement is Xxxxxxx, Sachs & Co.
2. The addresses of the respective parties for purposes of
notices under Section 7.1 are as follows:
For the Issuer:
Address: 000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: W. Xxxx Xxxxx, Senior Vice President
Chief Financial Officer and Treasurer
Telephone number: (000) 000-0000
Fax number: (000) 000-0000
For the Dealer:
Address: World Financial Center -
Xxxxx Xxxxx
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Product Management - CP
Telephone number: (000) 000-0000
Fax number: (000) 000-0000
EXHIBIT A
FORM OF LEGEND FOR
PRIVATE PLACEMENT MEMORANDUM AND NOTES
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY OTHER APPLICABLE SECURITIES
LAW, AND OFFERS AND SALES THEREOF MAY BE MADE
ONLY IN COMPLIANCE WITH AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS. BY ITS ACCEPTANCE OF A NOTE, THE
PURCHASER WILL BE DEEMED TO REPRESENT THAT IT
HAS BEEN AFFORDED AN OPPORTUNITY TO
INVESTIGATE MATTERS RELATING TO THE ISSUER AND
THE NOTES, THAT IT IS NOT ACQUIRING SUCH NOTE
WITH A VIEW TO ANY DISTRIBUTION THEREOF AND
THAT IT IS EITHER (A) AN INSTITUTIONAL
INVESTOR THAT IS AN ACCREDITED INVESTOR
WITHIN THE MEANING OF RULE 501(a) UNDER THE
ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR" )
AND THAT EITHER IS PURCHASING NOTES FOR ITS
OWN ACCOUNT, IS A U.S. BANK (AS DEFINED IN
SECTION 3(a)(2) OF THE ACT) OR A SAVINGS AND
LOAN ASSOCIATION OR OTHER INSTITUTION (AS
DEFINED IN SECTION 3(a)(5)(A) OF THE ACT)
ACTING IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY
OR IS A FIDUCIARY OR AGENT (OTHER THAN A U.S.
BANK OR SAVINGS AND LOAN) PURCHASING NOTES FOR
ONE OR MORE ACCOUNTS EACH OF WHICH IS SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR; OR (B) A
QUALIFIED INSTITUTIONAL BUYER ("QIB") WITHIN
THE MEANING OF RULE 144A UNDER THE ACT WHICH
IS ACQUIRING NOTES FOR ITS OWN ACCOUNT OR FOR
ONE OR MORE ACCOUNTS, EACH OF WHICH IS A QIB
AND WITH RESPECT TO EACH OF WHICH THE
PURCHASER HAS SOLE INVESTMENT DISCRETION; AND
THE PURCHASER ACKNOWLEDGES THAT IT IS AWARE
THAT THE SELLER MAY RELY UPON THE EXEMPTION
FROM THE REGISTRATION PROVISIONS OF SECTION 5
OF THE ACT PROVIDED BY RULE 144A. BY ITS
ACCEPTANCE OF A NOTE, THE PURCHASER THEREOF
SHALL ALSO BE DEEMED TO AGREE THAT ANY RESALE
OR OTHER TRANSFER THEREOF WILL BE MADE ONLY
(A) IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE ACT, EITHER (1) TO THE ISSUER OR TO
XXXXXXX XXXXX MONEY MARKETS INC. OR ANOTHER
PERSON DESIGNATED BY THE ISSUER AS A PLACEMENT
AGENT FOR THE NOTES (COLLECTIVELY, THE
"PLACEMENT AGENTS"), NONE OF WHICH SHALL HAVE
ANY OBLIGATION TO ACQUIRE SUCH NOTE, (2)
THROUGH A PLACEMENT AGENT TO AN INSTITUTIONAL
ACCREDITED INVESTOR OR A QIB , OR (3) TO A QIB
IN A TRANSACTION THAT MEETS THE REQUIREMENTS
OF RULE 144A AND (B) IN MINIMUM AMOUNTS OF
$250,000.
EXHIBIT B
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
(a) Except as provided in paragraph (b), the Issuer
agrees to reimburse each Indemnitee for all expenses
(including reasonable fees and disbursements of internal and
external counsel) as they are incurred by it in connection
with investigating or defending any loss, claim, damage,
liability or action in respect of which it is entitled to
indemnification under Section 5 of the Agreement (whether or
not it is a party to any such proceedings).
(b) Promptly after receipt by an Indemnitee of notice of
the existence of a Claim, such Indemnitee will, if a claim
in respect thereof is to be made against the Issuer, notify
the Issuer in writing of the existence thereof; provided
that the omission so to notify the Issuer will not relieve
it from any liability which it may have hereunder unless and
except to the extent it did not otherwise learn of such
Claim and the Issuer is prejudiced thereby (it being
understood that any resulting relief from liability shall be
limited to the amount of any documented losses due to such
failure to give notice). In case any such Claim is made
against any Indemnitee and it notifies the Issuer of the
existence thereof, the Issuer will be entitled to
participate therein, and to the extent that it may elect by
written notice delivered to the Indemnitee, to assume the
defense thereof, with counsel reasonably satisfactory to
such Indemnitee; provided that if the defendants in any such
Claim include both the Indemnitee and the Issuer and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them, the Issuer shall not have the right to direct
the defense of such Claim on behalf of such Indemnitee, and
the Indemnitee shall have the right to select separate
counsel to assert such legal defenses on behalf of such
Indemnitee. Upon receipt of notice from the Issuer to such
Indemnitee of the Issuer's election so to assume the defense
of such Claim and approval by the Indemnitee of counsel, the
Issuer will not be liable to such Indemnitee for expenses
incurred thereafter by the Indemnitee in connection with the
defense thereof (other than reasonable costs of
investigation) unless (i) the Indemnitee shall have employed
separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the
Issuer shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel in the
jurisdiction in which any Claim is brought), approved by the
Dealer, representing all Indemnitees ), (ii) the Issuer
shall not have employed counsel reasonably satisfactory to
the Indemnitee to represent the Indemnitee within a
reasonable time after notice of existence of the Claim or
(iii) the Issuer has authorized in writing the employment of
counsel for the Indemnitee. The indemnity, reimbursement
and contribution obligations of the Issuer hereunder shall
be in addition to any other liability the Issuer may
otherwise have to an Indemnitee and shall be binding upon
and inure to the benefit of any successors, assigns, heirs
and personal representatives of the Issuer and any
Indemnitee. The Issuer agrees that without the Dealer's
prior written consent, it will not settle, compromise or
consent to the entry of any judgment in any Claim in respect
of which indemnification has been or could have been sought
by an Indemnitee under the indemnification provision of the
Agreement, unless such settlement, compromise or consent
includes an unconditional release of such Indemnitee from
all liability arising out of such Claim.
