Exhibit 1(a)
CONSTELLATION ENERGY GROUP, INC.
UNSECURED DEBT SECURITIES
FORM OF PURCHASE AGREEMENT
INCLUDING
STANDARD PURCHASE PROVISIONS
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CONSTELLATION ENERGY GROUP, INC.
Unsecured Debt Securities
PURCHASE AGREEMENT
[Date]
Constellation Energy Group, Inc.
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
Referring to the Unsecured Debt Securities of Constellation Energy Group,
Inc. (the "Company") covered by the registration statement on Form S-3 (No.
333-________), (such registration statement, including (i) the prospectus
included therein, dated _________________, as supplemented by a prospectus
supplement dated ____________ in the form first filed under Rule 424(b) (such
prospectus as so supplemented, including each document incorporated by reference
therein is hereinafter called the "Prospectus") and (ii) all documents filed as
part thereof or incorporated by reference therein, together with any
registration statement increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the Securities Act
of 1933, as amended, are hereinafter collectively called the "Registration
Statement") on the basis of the representations, warranties and agreements
contained in this Agreement, but subject to the terms and conditions herein set
forth, the purchaser or purchasers named in Schedule A hereto (the "Purchasers")
agree to purchase, severally, and the Company agrees to sell to the Purchasers,
severally, the respective principal amounts of the Company's ___________ Series,
due ____________having the terms described below (the "Purchased Notes") set
forth opposite the name of each Purchaser on Schedule A hereto.
The price at which the Purchased Notes shall be purchased from the Company
by the Purchasers shall be ______% of the principal amount plus accrued
interest, if any, from _____________. The initial public offering price shall be
_____% of the principal amount plus accrued interest, if any, from
____________________. The Purchased Notes will be offered by the
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Purchasers as set forth in the Prospectus Supplement relating to such Purchased
Notes.
The Purchased Notes will have the following terms:
Fixed Interest rate (if applicable): ______ % per annum
(accruing from ______)
Floating Interest Rate (if applicable):
Interest Rate Basis: ___________________
Spread: ___________________
Spread Multiplier: ___________________
Index Maturity: ___________________
Initial Interest Rate: ___________________
Maximum Interest Rate: ___________________
Minimum Interest Rate: ___________________
Interest Reset Dates: ___________________
Interest Determination Dates: ___________________
Calculation Agent: ___________________
Interest Payment Dates: ___________________
Stated Maturity: ___________________
Redeemable by the Redemption Prices
Company on or after: (% of Principal Amount):
_______________ ___________________
_______________ ___________________
_______________ ___________________
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Subject to Repurchase by
the Company at the option of Repurchase Prices
the holder on: (% of Principal Amount):
_______________ _________________
_______________ _________________
_______________ _________________
The "Closing Date" shall be: _________________
The place to which the
Purchased Notes may be
checked, packaged and
delivered shall be: _________________
Notices to the Purchasers shall be sent to the following address(es)
or telecopier number(s):
If we are acting as Representative(s) for the several Purchasers named in
Schedule A hereto, we represent that we are authorized to act for such several
Purchasers in connection with the transactions contemplated in this Agreement,
and that, if there are more than one of us, any action under this Agreement
taken by any of us will be binding upon all the Purchasers.
All of the provisions contained in the document entitled "Constellation
Energy Group, Inc. Standard Purchase Provisions", a copy of which has been
previously furnished to us, are hereby incorporated by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein.
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If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Purchasers in
accordance with its terms.
Very truly yours,
[Firm Name]
By
---------------------------------
Title:
-----------------------------
Acting on behalf of and as
Representative(s) of the
several Purchasers named in
Schedule A hereto.*
The foregoing Purchase
Agreement is hereby confirmed
as of the date first above
written
CONSTELLATION ENERGY GROUP, INC.
By
-------------------------------
Title:
---------------------------
---------------------------------
* To be deleted if the Purchase Agreement is not executed by one or more
Purchasers acting as Representative(s) of the Purchasers for purposes of
this Agreement.
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SCHEDULE A
Name of Purchaser Amount
----------------- ------
--------------
Total $
==============
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CONSTELLATION ENERGY GROUP, INC.
STANDARD PURCHASE PROVISIONS
From time to time, Constellation Energy Group, Inc., a Maryland
corporation ("Company") may enter into purchase agreements that provide for the
sale of designated securities to the purchaser or purchasers named therein. The
standard provisions set forth herein may be incorporated by reference in any
such purchase agreement ("Purchase Agreement"). The Purchase Agreement,
including the provisions incorporated therein by reference, is herein sometimes
referred to as "this Agreement." Unless otherwise defined herein, terms defined
in the Purchase Agreement are used herein as therein defined.
1. Introductory. The Company proposes to issue and sell from time to
time its Unsecured Debt Securities ("Notes") registered under the registration
statement referred to in Section 2(a). The Notes will be issued under an
Indenture, dated as of March 29, 1999, between the Company and The Bank of New
York as Trustee as supplemented by the Supplemental Indentures dated as of
January 24, 2003 (the "Indenture"). The Notes will be sold to the Purchasers for
resale in accordance with the terms of the offering determined at the time of
the sale. The Notes involved in any such offering are hereinafter referred to as
the "Purchased Notes," and the firm or firms, as the case may be, which agree to
purchase the same are hereinafter referred to as the "Purchasers" of such
Purchased Notes. The terms "you" and "your" refer to those Purchasers who sign
the Purchase Agreement either on behalf of themselves only or on behalf of
themselves and as representatives of the several Purchasers named in Schedule A
thereto, as the case may be.
2. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each Purchaser that:
(a) A registration statement on Form S-3 (No. 333-________) covering
$2 billion maximum aggregate offering price of the securities of the
Company (including the Purchased Notes), including a prospectus has been
filed with the Securities and Exchange Commission ("Commission") and has
become effective. The terms Registration Statement and Prospectus shall
have the meanings ascribed to them in the Purchase Agreement.
(b) The Registration Statement conforms in all respects to the
requirements of the Securities Act of 1933, as amended ("Act"), and the
pertinent published rules and regulations of the Commission thereunder ("33
Act Rules and Regulations") and the Trust Indenture Act of 1939, as amended
("Trust Indenture Act"), and does not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, except
that the foregoing does not apply to statements or omissions in such
document based upon
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written information furnished to the Company by any Purchaser specifically
for use therein. The documents incorporated by reference in the
Registration Statement or the Prospectus pursuant to Item 12 of Form S-3 of
the Act, at the time they were filed with the Commission, complied in all
material respects with the requirements of the Securities Exchange Act of
1934, as amended ("Exchange Act"), and the pertinent published rules and
regulations thereunder ("Exchange Act Rules and Regulations"). Any
additional documents deemed to be incorporated by reference in the
Prospectus will, when they are filed with the Commission, comply in all
material respects with the requirements of the Exchange Act and the
Exchange Act Rules and Regulations and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3. Delivery and Payment. The Company will deliver the Purchased
Notes to you for the accounts of the Purchasers, at the offices of the Trustee
(at the place specified in the Purchase Agreement) against payment of the
purchase price by wire transfer to an account specified by the Company or by
certified or official bank check or checks in same day or New York or Baltimore
Clearing House funds drawn to the order of the Company, at the office of the
Company, 000 X. Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxx, at the time set
forth in this Agreement or at such other time not later than seven full business
days thereafter as you and the Company determine, such time being herein
referred to as the "Closing Date." The Purchased Notes to be delivered will be
in definitive fully registered form registered in such denominations, of $1,000
or multiples thereof, and in such names as you request in writing not later than
3:00 p.m., New York Time, on the third full business day prior to the Closing
Date, or, if no such request is received, in the names of the respective
Purchasers in the amounts agreed to be purchased by them pursuant to this
Agreement. The Company shall make the Purchased Notes available for checking and
packaging at the offices of the Trustee (at the place specified in the Purchase
Agreement) prior to the Closing Date and, unless prevented from doing so by
circumstances beyond its control, not later than 2:00 p.m., New York Time, on
the business day next preceding the Closing Date. If you request that any
Purchased Notes be issued in a name or names other than that of the Purchaser
agreeing to purchase such Purchased Notes hereunder, the Company shall not be
obligated to pay any transfer taxes resulting therefrom. The Notes may also be
represented by a permanent global Note or Notes, registered in the name of The
Depository Trust Company, as depositary (the "Depositary"), or a nominee of the
Depositary (each such Note represented by a permanent global Note being referred
to herein as a "Book-Entry Note"). Beneficial interests in Book-Entry Notes will
only be evidenced by, and transfers thereof will only be effected through,
records maintained by the Depositary's participants.
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4. Offering by the Purchasers. The several Purchasers propose to
offer the Purchased Notes for sale to the public as set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees with
the several Purchasers that:
(a) It will promptly cause the Prospectus to be filed with the
Commission as required by Rule 424.
(b) For as long as a prospectus relating to the Purchased Notes is
required to be delivered under the Act, if any event relating to or
affecting the Company or of which the Company shall be advised in writing
by the Purchasers shall occur which, in the Company's opinion, should be
set forth in a supplement or amendment to the Prospectus in order either to
make the Prospectus comply with the requirements of the Act or which would
require the making of any change in the Prospectus so that as thereafter
delivered to purchasers such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading, the Company will promptly amend or
supplement the Prospectus by either (i) preparing and filing with the
Commission supplement(s) or amendment(s) to the Prospectus, or (ii) making
an appropriate filing pursuant to the Exchange Act, which will supplement
or amend the Prospectus so that, as supplemented or amended, the Prospectus
when the Prospectus is delivered to a purchaser will comply with the Act
and will not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
Prior to any such filing, the Company shall give oral notice to the
Purchasers.
(c) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including at the option of the Company Rule 158).
(d) The Company will furnish to you copies of the following
documents, in each case as soon as available after filing and in such
quantities as you reasonably request (i) the Registration Statement
relating to the Notes as originally filed and all pre-effective amendments
thereto (at least one of which will be signed and will include all exhibits
except those incorporated by reference to previous
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filings with the Commission); (ii) each prospectus relating to the
Purchased Notes; and (iii) during the time when a prospectus relating to
the Purchased Notes is required to be delivered under the Act, all
post-effective amendments and supplements to the Registration Statement or
Prospectus, respectively (except supplements relating to securities that
are not Purchased Notes).
(e) The Company will take such action as the Purchasers may
reasonably request to obtain the qualification of the Purchased Notes for
sale and the determination of their eligibility for investment under the
laws of such jurisdictions as you designate and will continue such
qualifications in effect so long as required for the distribution,
provided, however, that the Company shall not be required to qualify as a
foreign corporation or to file any consent to service of process under the
laws of any jurisdiction or to comply with any other requirements deemed by
the Company to be unduly burdensome.
(f) During the period of five years after the Closing Date, the
Company will furnish to you, and upon request, to each of the other
Purchasers (unless such reports are available electronically on the
Securities and Exchange Commission's website or the Company's website): (i)
as soon as practicable after the end of each fiscal year, a copy of its
annual report to shareholders for such year, (ii) as soon as available, a
copy of each report or definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to shareholders, and (iii)
from time to time, such other information concerning the Company as you may
reasonably request.
(g) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, and will reimburse the Purchasers for
any expenses (including Blue Sky fees not exceeding $6,000 and
disbursements of counsel) incurred by them in connection with qualification
of the Purchased Notes for sale and determination of their eligibility for
investment under the laws of such jurisdictions as you designate and the
printing or reproduction of memoranda relating thereto, for any filing fees
charged by investment rating agencies for the rating of the Purchased
Notes, for any expenses incurred in connection with listing the Purchased
Notes on a national securities exchange and for expenses incurred in
distributing prospectuses to the Purchasers, except that if this Agreement
is terminated by the Purchasers under Section 6(c) hereof, the Company
shall not be obligated to reimburse the Purchasers for any of the foregoing
expenses.
(h) The Company will not offer or sell any of its other debt
securities which are substantially similar to the
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Purchased Notes prior to ten business days after the Closing Date, without
the consent of the Purchasers.
(i) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) and the Company shall at the time of filing either pay to
the Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
6. Conditions of the Obligations of the Purchasers. The obligations
of the several Purchasers to purchase and pay for the Purchased Notes will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) Subsequent to the signing of this Agreement, you shall have
received a letter of PricewaterhouseCoopers LLP, dated the Closing Date,
confirming that they are independent public accountants within the meaning
of the Act and the 33 Act Rules and Regulations, and stating in effect
that:
(i) In their opinion, the consolidated financial statements
and supporting schedules audited by them which are included in the
Company's Form 10-K dated ____("Form 10-K"), which is incorporated by
reference in the Registration Statement comply in form in all material
respects with the applicable accounting requirements of the Act and
the 33 Act Rules and Regulations and the Exchange Act and the Exchange
Act Rules and Regulations;
(ii) On the basis of procedures specified in such letter (but
not an audit in accordance with generally accepted auditing
standards), including reading the minutes of meetings of the
shareholders, the Board of Directors and the Executive Committee of
the Company since the end of the year covered by the Form 10-K as set
forth in the minute books through a specified date not more than five
days prior to the Closing Date, performing procedures specified in
Statement on Auditing Standards No. 71, Interim Financial Information,
on the unaudited interim consolidated financial statements of the
Company incorporated by reference in the Registration Statement, if
any, and reading the latest available unaudited interim consolidated
financial statements of the Company, and making inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters as to whether the latest available financial
statements not incorporated by reference in the Registration Statement
are prepared on a basis
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substantially consistent with that of the audited consolidated
financial statements incorporated in the Registration Statement,
nothing has come to their attention that has caused them to believe
that (1) any unaudited consolidated financial statements incorporated
by reference in the Registration Statement do not comply in form in
all material respects with the applicable requirements of the Act and
the 33 Act Rules and Regulations and the Exchange Act and the Exchange
Act Rules and Regulations or any material modifications should be made
to those unaudited consolidated financial statements for them to be in
conformity with generally accepted accounting principles; (2) at the
date of the latest available balance sheet not incorporated by
reference in the Registration Statement there was any change in the
capital stock, change in long-term debt or decrease in consolidated
net assets or common shareholders' equity as compared with the amounts
shown in the latest balance sheet incorporated by reference in the
Registration Statement or for the period from the closing date of the
latest income statement incorporated by reference in the Registration
Statement to the closing date of the latest available income statement
read by them there were any decreases, as compared with the
corresponding period of the previous year, in operating revenues,
operating income, net income, or in earnings per share of common stock
except in all instances for changes or decreases that the Registration
Statement discloses have occurred or may occur, or which are described
in such letter; or (3) at a specified date not more than five days
prior to the Closing Date, there was any change in the capital stock
or long-term debt of the Company or, at such date, there was any
decrease in net assets of the Company as compared with amounts shown
in the latest balance sheet incorporated by reference in the
Registration Statement, or for the period from the closing date of the
latest income statement incorporated by reference in the Registration
Statement to a specified date not more than five days prior to the
Closing Date, there were any decreases as compared with the
corresponding period of the previous year, in operating revenues,
operating income, net income or in earnings applicable to common
stock, except in all cases for changes or decreases which the
Registration Statement discloses have occurred or may occur, or which
are described in such letter; and
(iii) Certain specified procedures have been applied to certain
financial or other statistical information (to the extent such
information was obtained from the general accounting records of the
Company) set forth or incorporated by reference in the Registration
Statement and that such procedures have not revealed any disagreement
between the financial and statistical
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information so set forth or incorporated by reference in the
Registration Statement and the underlying general accounting records
of the Company, except as described in such letter.
(b) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted, or to the
knowledge of the Company or you, shall be contemplated by the Commission,
and if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have been filed and shall have become
effective in accordance with Rule 462(b).
(c) Subsequent to the date of this Agreement, (i) there shall not
have occurred any change or any development involving a prospective change
not contemplated by the Prospectus as of the date of this Agreement in or
affecting particularly the business or properties of the Company which, in
the judgment of a majority in interest of the Purchasers including you,
materially impairs the investment quality of the Purchased Notes, (ii) no
rating of any of the Company's debt securities shall have been lowered by
any "nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g) and (iii) trading
in securities generally on the New York Stock Exchange shall not have been
suspended nor limited, other than a temporary suspension in trading to
provide for an orderly market, nor shall minimum prices have been
established on such Exchange, a banking moratorium shall not have been
declared either by New York State or Federal authorities and there shall
not have occurred an outbreak or escalation of major hostilities in which
the United States is involved or other substantial national or
international calamity or crisis (including one caused by a terrorist act),
the effect of which on the financial markets of the United States is such
as to make it, in your judgment, impracticable to market the Purchased
Notes.
(d) intentionally left blank
(e) You shall have received an opinion, dated the Closing Date, of a
counsel for the Company to the effect that:
(i) The Company, Baltimore Gas and Electric Company (BGE),
Constellation Generation Group, LLC (CGG), and Constellation
Enterprises, Inc. (CEI) have been duly incorporated or formed, and are
validly existing as corporations or a limited liability company, as
the case may be, in good standing under the laws of the State of
Maryland, with power and authority (corporate and other) to own their
respective properties and conduct their respective businesses as
described in the Prospectus;
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and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which the
conduct of its business or the ownership of its properties requires
such qualification and the failure to do so would have a material and
adverse impact on its financial condition;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and is a valid instrument, legally binding on
the Company and enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, or other laws affecting the
enforcement of creditors' rights and by general principles of equity;
(iii) The issuance and sale of the Purchased Notes have been
duly authorized by all necessary corporate action of the Company. The
Purchased Notes (assuming that they have been duly authenticated by
the Trustee or a duly designated Authentication Agent under the
Indenture, which fact counsel need not verify by an inspection of the
Purchased Notes), have been duly issued and constitute legal, valid,
and binding obligations of the Company enforceable in accordance with
their terms, and are entitled to the benefits provided by the
Indenture except as such enforceability or entitlement may be limited
by bankruptcy, insolvency, or other laws affecting the enforcement of
creditors' rights and by general principles of equity;
(iv) The Registration Statement has become effective under the
Act and, (a) to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act; (b) the Registration Statement
(as of its effective date) and the Prospectus (as of the date of the
Purchase Agreement ) and any amendments or supplements thereto, as of
their respective dates, appeared to comply as to form in all material
respects with the requirements of Form S-3 under the Act and the 33
Act Rules and Regulations and the Trust Indenture Act; (c) such
counsel has no reason to believe that either the Registration
Statement or the Prospectus, or any such amendment or supplement, as
of such respective dates or as of the Closing Date, 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 statement
therein not misleading; (d) the descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate and fairly
present the information required to be shown; (e) and such counsel
does not know
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of any legal or governmental proceedings required to be described in
the Prospectus which are not described as required, or of any
contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described or filed as required;
it being understood that such counsel, in addressing the matters
covered in this paragraph (iv) need express no opinion as to the
financial statements or other financial and statistical information
contained in the Registration Statement or the Prospectus or
incorporated therein or attached as an exhibit thereto or as to the
Statement of Eligibility and Qualification on Form T-l of the Trustee
under the Indenture.
(v) Counsel knows of no approval of any regulatory authority
which is legally required for the valid offering, issuance, sale and
delivery of the Purchased Notes by the Company under this Agreement
(except that such opinion need not pass upon the requirements of state
securities acts);
(vi) To the best of such counsel's knowledge and belief, the
consummation of the transactions contemplated in this Agreement and
the compliance by the Company with all the terms of the Indenture did
not and will not result in a breach of any of the terms and provisions
of, or constitute a default under, the Company's Charter or By-Laws or
any indenture, mortgage or deed of trust or other agreement or
instrument to which the Company is a party;
(vii) [Each of] this Agreement [and the Interest Calculation
Agency Agreement] has been duly authorized, executed and delivered by
the Company;
(viii) The Indenture is duly qualified under the Trust Indenture
Act;
(ix) The issuance, sale and delivery of the Purchased Notes as
contemplated by this Agreement are not subject to the approval of the
Securities and Exchange Commission under the provisions of the Public
Utility Holding Company Act of 1935 (the "1935 Act"); and
(x) The statements set forth in the Prospectus under the
caption "Description of the Debt Securities," and on the cover page of
the Prospectus insofar as they purport to constitute a summary of the
terms of the Indenture and the Purchased Notes, are accurate and fair
summaries of the matters set forth therein.
(f) The Purchasers shall have received from Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Purchasers, an opinion dated the
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Closing Date, with respect to the matters referred to in paragraph 6(e)
subheadings (ii), (iii), (iv)b, (v), (vii), (viii) and (x) and such other
matters as the Purchasers shall reasonably request and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass on such matters.
In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx may rely, as to the
incorporation of the Company, all other matters governed by the laws of the
State of Maryland, and the applicability of the 1935 Act, upon the opinion of
Counsel for the Company referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers, counsel and other representatives of
the Company, representatives of the independent public accountants for the
Company and representatives of the Purchasers at which the contents of the
Registration Statement and the Prospectus and related matters were discussed;
and, although such counsel is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus (except as to the matters
referred to in their opinion rendered pursuant to subheading (x) above), on the
basis of the foregoing (relying as to materiality to a large extent upon the
opinions of officers, counsel and other representatives of the Company), no
facts have come to the attention of such counsel which lead such counsel to
believe that either the Registration Statement (as of its effective date) or the
Prospectus (as of the date of this Agreement and as of the Closing Date), and
any subsequent amendments or supplements thereto, as of their respective dates,
and as of the Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make such statements therein not misleading (it being understood that such
counsel need make no comment with respect to the financial statements and other
financial and statistical data included in the Registration Statement or
Prospectus or incorporated therein or as to the Statement of Eligibility and
Qualification on Form T-l of the Trustee under the Indenture).
(g) You shall have received a certificate of the Chairman of the
Board, President or any Vice President and a principal financial or
accounting officer of the Company, dated the Closing Date, in which such
officers shall state, to the best of their knowledge after reasonable
investigation, and relying on opinions of counsel to the extent that legal
matters are involved, that the representations and warranties of the
Company in this Agreement are true and correct in all material respects,
that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Date, that no stop order suspending the effectiveness of the
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Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission, and that,
subsequent to the date of the most recent financial statements set forth or
incorporated by reference in the Prospectus, there has been no material
adverse change in the financial position or in the financial results of
operation of the Company except as set forth or contemplated in the
Prospectus.
(h) The Company will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
In case any such condition shall not have been satisfied, this
Agreement may be terminated by you upon notice in writing or by telecopy to the
Company without liability or obligation on the part of the Company or any
Purchaser, except as set forth in Section 10 hereof.
7. Conditions of the Obligations of the Company. The obligations of
the Company to sell and deliver the Purchased Notes are subject to the following
condition precedent:
Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or you, shall be contemplated by the Commission.
If any such condition shall not have been satisfied, then the
Company shall be entitled, by notice in writing or by telecopy to you, to
terminate this Agreement without any liability on the part of the Company
or any Purchaser, except as set forth in Section 10 hereof.
8. Indemnification.
(a) The Company will indemnify and hold harmless each Purchaser and
each person, if any, who controls any Purchaser within the meaning of the
Act or the Exchange Act against any losses, claims, damages or liabilities,
joint or several, to which such Purchaser or such controlling person may
become subject, under the Act 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 any material
fact contained in the Registration Statement or the Prospectus (or any
amendment or supplement thereto), or any related preliminary prospectus 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 not misleading; and will reimburse each Purchaser
and each such controlling person for any legal or other expenses
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reasonably incurred by such Purchaser or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable
to such Purchaser or controlling person in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in any such documents in reliance upon and in conformity with
written information furnished to the Company by such Purchaser or such
controlling person specifically for use therein; and provided, further,
that the Company shall not be liable to any Purchaser under the indemnity
agreement in this subsection (a) with respect to any preliminary prospectus
to the extent that any such loss, claim, damage or liability of such
Purchaser results from the fact such Purchaser sold the Purchased Notes to
a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) in any case
where such delivery is required by the Act if the Company has previously
furnished copies thereof to such Purchaser and the loss, claim, damage or
liability of such Purchaser results from an untrue statement or omission of
a material fact contained in the preliminary prospectus which was corrected
in the Prospectus (or the Prospectus as amended or supplemented). This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Purchaser will indemnify and hold harmless the Company, each
of its directors and officers and each person, if any, who controls the
Company within the meaning of the Act or the Exchange Act, against any
losses, claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject, under the Act,
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 any material fact contained in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto), or any related preliminary prospectus or arise out of or are
based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Purchaser specifically for use
therein; and will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer or controlling person in
connection with investigating or defending any such loss,
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claim, damage, liability or action as such expenses are incurred. This
indemnity agreement will be in addition to any liability which such
Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
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 (a) and (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section, except to the extent the indemnifying
party has been materially prejudiced by such omission. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
may, with the consent of the indemnified party, be counsel to the
indemnifying party) and who shall not be counsel to any other indemnified
party who may have interests conflicting with those of such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section, for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof shall be
entitled to contribution to liabilities and expenses, except to the extent
that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each
party from the offering of the Purchased Notes (taking into account the
portion of the proceeds of the offering realized by each), the parties'
relative knowledge and access to information concerning the matter with
respect to which the claim was asserted, the opportunity to correct and
prevent any statement or omission, and any other equitable considerations
appropriate under the circumstances. The Company and the Purchasers and
such controlling persons agree that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita allocation
(even if the Purchasers and such controlling persons were treated as one
entity for such purpose). Notwithstanding the provisions of this subsection
(d), no Purchaser or controlling person shall
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be required to make contribution hereunder which in the aggregate exceeds
the total public offering price of the Purchased Notes, purchased by the
Purchaser under this Agreement, less the aggregate amount of any damages
which such Purchaser or such controlling person has otherwise been required
to pay in respect of the same claim or any substantially similar claim. The
Purchasers' obligations to contribute are several in proportion to their
respective underwriting obligations and not joint.
9. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Purchased Notes hereunder and the aggregate
principal amount of Purchased Notes which such defaulting Purchaser or
Purchasers agreed but failed to purchase is 10% of the principal amount of
Purchased Notes or less, the non-defaulting Purchasers may make arrangements
satisfactory to the Company for the purchase of such Purchased Notes by other
persons, including any of the Purchasers, but if no such arrangements are made
by the Closing Date the non-defaulting Purchasers shall be obligated severally,
in proportion to their respective commitments hereunder, to purchase the
Purchased Notes which such defaulting Purchasers agreed but failed to purchase.
If any Purchaser or Purchasers so default and the aggregate principal amount of
Purchased Notes with respect to which such default or defaults occur is more
than the above percentage and arrangements reasonable satisfactory to you and
the Company for the purchase of such Purchased Notes by other persons are not
made within seventy-two hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Purchaser or the Company,
except as provided in Section 10. In the event that any Purchaser or Purchasers
default in their obligation to purchase Purchased Notes hereunder, the Company
may, by prompt written notice to the non-defaulting Purchasers, postpone the
Closing Date for a period of not more than seven full business days in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus or in any other documents, and the Company will
promptly file any amendments to the Registration Statement or supplements to the
Prospectus which may thereby be made necessary. As used in this Agreement, the
term "Purchaser" includes any person substituted for a Purchaser under this
Section. Nothing herein will relieve a defaulting Purchaser from liability for
its default.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties, and other
statements of the Company or its officers and of the several Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Purchaser or the Company or any of its officers or
directors or any controlling person, and will survive delivery of and payment
for the Purchased Notes. If this Agreement is terminated pursuant to Section 6,
7 or 9 or if for
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any reason the purchase of the Purchased Notes by the Purchasers is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5(g). In addition, in such event the
respective obligations of the Company and the Purchasers pursuant to Section 8
shall remain in effect; provided, however, that each Purchaser will use its best
efforts to promptly notify each other Purchaser and each dealer and prospective
customer to whom such Purchaser has delivered a Prospectus for the Purchased
Notes by telephone or telegraph, confirmed by letter in either case, of such
termination or failure to consummate, including in such notice instructions
regarding the continued use of the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus.
11. Notices. All communications hereunder will be in writing, and, if
sent to the Purchasers will be delivered or telecopied and confirmed to the
address furnished in writing for the purpose of such communications hereunder,
or, if sent to the Company, will be delivered or telecopied and confirmed to it,
attention of Treasurer at 000 X. Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000, telecopier (000) 000-0000.
12. Successors. This Purchase 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, and no
other person will have any right or obligation hereunder.
13. Construction. This Purchase Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland.
14. Counterparts. This Agreement may be executed in one or more
counterparts and it is not necessary that the signatures of all parties appear
on the same counterpart, but such counterparts together shall constitute but one
and the same agreement.
