Exhibit 1(a)
CONSTELLATION ENERGY GROUP, INC.
UNSECURED DEBT SECURITIES
FORM OF PURCHASE AGREEMENT
INCLUDING
STANDARD PURCHASE PROVISIONS
CONSTELLATION ENERGY GROUP, INC.
UNSECURED DEBT SECURITIES
FORM OF PURCHASE AGREEMENT
[Date]
Constellation Energy Group, Inc.
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
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 as supplemented by the prospectus supplement dated [ ] relating
to the Purchased Securities referred to below, 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, is hereinafter 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 Unsecured Debt
Securities having the terms described below (the "Purchased Securities") set
forth opposite the name of each Purchaser on Schedule A hereto.
The price at which the Purchased Securities 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 Securities will be offered by the Purchasers
as set forth in the Prospectus Supplement relating to such Purchased Securities.
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The Purchased Securities 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 Securities may be
checked, packaged and
delivered shall be: ___________________
Notices to the Purchasers shall be sent to the following address(es) or
telecopier number(s):
With a copy to : Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxx Xxxx Esq.
Facsimile: 212-269-5420
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 among the Company and the several Purchasers in
accordance with its terms.
Very truly yours,
[Firm Name]
By
Name: _______________________
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
Name: _____________
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 ("Debt Securities") registered under the
registration statement referred to in Section 2(a). The Debt Securities will be
issued under an Indenture, dated as of March 24, 1999 between the Company and
The Bank of New York , as Trustee (the "Indenture"). The Debt Securities will be
sold to the Purchasers for resale in accordance with the terms of the offering
determined at the time of the sale. The Debt Securities involved in any such
offering are hereinafter referred to as the "Purchased Debt Securities," 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 Debt Securities.
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 $2.5
billion principal amount of the Debt Securities, 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, and the pertinent published
rules and regulations of the Commission thereunder (the "Act ") 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 written information
furnished to the Company by any Purchaser specifically for use therein. The
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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 Debt
Securities to you for the accounts of the Purchasers at the offices of Xxxxxx
Xxxxxx & Xxxxxxx (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 Debt Securities so 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 Debt Securities
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 Debt Securities be issued in a name or names other
than that of the Purchaser agreeing to purchase such Purchased Debt Securities
hereunder, the Company shall not be obligated to pay any transfer taxes
resulting therefrom. The Debt Securities may also be represented by a permanent
global Note or Debt Securities, 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 Debt Securities will only
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be evidenced by, and transfers thereof will only be effected through, records
maintained by the Depositary's participants.
4. Offering by the Purchasers. The several Purchasers propose to offer the
Purchased Debt Securities 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 Debt
Securities 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) Not later than 45 days after the end of the 12-month period
beginning at the end of the fiscal quarter of the Company in which the
Closing Date occurs, the Company will make generally available to its
security holders an earnings statement (which need not be audited)
covering such 12-month period which will satisfy the provisions of
Section 11(a) of the Act.
(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 Debt Securities as originally filed and all
pre-effective amendments thereto (at least one of which will be signed
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and will include all exhibits except those incorporated by reference
to previous filings with the Commission); (ii) each prospectus
relating to the Purchased Debt Securities; and (iii) during the time
when a prospectus relating to the Purchased Debt Securities is
required to be delivered under the Act, all amendments and supplements
to the Registration Statement or Prospectus, respectively (except
supplements relating to securities that are not Purchased Debt
Securities).
(e) The Company will use its best efforts to obtain the qualification
of the Purchased Debt Securities 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.
(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: (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 Debt Securities 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 Debt
Securities, for any expenses incurred in connection with listing the
Purchased Debt Securities on a national securities exchange or for
obtaining any required clearance from the National Association of
Securities Dealers Inc. 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 Purchased Debt
Securities prior to ten business days after the Closing Date without
the consent of the Purchasers.
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6. Conditions of the Obligations of the Purchasers. The obligations of the
several Purchasers to purchase and pay for the Purchased Debt Securities 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 schedule audited by them which are included in the
Company's Form 10-K ("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 by the American Institute of Certified
Public Accountants 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 substantially
consistent with that of the audited consolidated financial
statements incorporated by reference 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
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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
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
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knowledge of the Company or you, shall be contemplated by the
Commission.
(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 Debt Securities, (ii) no rating of any of the Company's debt
securities shall have been lowered by any recognized rating agency 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 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 Debt Securities.
(d) 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 Nuclear LLC ("CN") and, Constellation Enterprises,
Inc. ("CEI") have been duly incorporated or formed and are
validly existing as corporations or as a limited liability
company 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; the Company owns all of the
outstanding shares of common stock of BGE, CEI and the membership
interests of CN; 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;
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(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 Debt Securities have
been duly authorized by all necessary corporate action of the
Company. The Purchased Debt Securities (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 Debt Securities),
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 Closing Date) 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,
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 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
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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 Securities 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, if any, 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 Securities
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 Securities and Indenture conform as to legal matters with
the statements concerning them in the Registration Statement and
Prospectus under the caption "DESCRIPTION OF SECURITIES" and on
the cover page of the Prospectus.
(e) The Purchasers shall have received from Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Purchasers, an opinion dated the Closing Date, with
respect to the matters referred to in paragraph 6(d) 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.
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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 any subsequent amendments or supplements
thereto, as of their respective dates, 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).
(f) 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 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
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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.
(g) 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 Debt Securities 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 this 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 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
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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 unless such loss, claim,
damage or liability arises out of the offer or sale of the Purchased Debt
Securities occurring after such Purchaser or controlling person has
notified the Company in writing that such information should no longer be
used therein. 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, each of its officers who have signed the Registration
Statement 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, claim, damage,
liability or action as such expenses are incurred; provided, however, that
such Purchaser will not be liable to the Company, or any such director,
officer or controlling person in any such case to the extent that any such
loss, claim, damage or liability arises out of the offer or sale of
Purchased Debt Securities occurring after such Purchaser has notified the
Company in writing that such information should no longer be used therein.
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
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(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. 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 Debt Securities (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
be required to make contribution hereunder which in the aggregate exceeds
the total public offering price of the Purchased Debt Securities, 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 are not joint.
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9. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Purchased Debt Securities hereunder and the aggregate
principal amount of Purchased Debt Securities which such defaulting Purchaser or
Purchasers agreed but failed to purchase is 10% of the principal amount of
Purchased Debt Securities or less, you may make arrangements satisfactory to the
Company for the purchase of such Purchased Debt Securities 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
Debt Securities which such defaulting Purchasers agreed but failed to purchase.
If any Purchaser or Purchasers so default and the aggregate principal amount of
Purchased Debt Securities with respect to which such default or defaults occur
is more than the above percentage and arrangements satisfactory to you and the
Company for the purchase of such Purchased Debt Securities by other persons are
not made within thirty-six 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 Debt Securities
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
Debt Securities. If this Agreement is terminated pursuant to Section 6, 7 or 9
or if for any reason the purchase of the Purchased Debt Securities 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
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pursuant to Section 8 shall remain in effect; provided, however, that you will
use your best efforts to promptly notify each other Purchaser and each dealer
and prospective customer to whom you have delivered a Prospectus for the
Purchased Debt Securities 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.
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