EXHIBIT 10.1
U.S. $500,000,000*
CENTERPOINT PROPERTIES
TRUST
MEDIUM-TERM NOTES
DISTRIBUTION
AGREEMENT
July 7, 2004
Wachovia Capital Markets, LLC
Banc One Capital Markets, Inc.
Banc of America Securities LLC
ABN AMRO Incorporated
Lehman Brothers Inc.
c/o Wachovia Capital Markets, LLC
One Wachovia Center
301 S. College Street
Charlotte, North Carolina 28288
Ladies and Gentlemen:
CenterPoint Properties Trust, a
Maryland real estate investment trust (the
“Company” ), confirms its agreement with you
(each, an “Agent,” and, together, the
“Agents” ) with respect to the issuance and sale
by the Company of up to an aggregate of $500,000,000* in gross
proceeds of its Medium-Term Notes Due Nine Months or More from Date
of Issuance (the “Notes” ). The Notes are
to be issued from time to time pursuant to an indenture, dated as
of March 12, 2004 (the “Original Indenture”
), by and between the Company and SunTrust Bank, as trustee (the
“Trustee” ), as supplemented by the First
Supplemental Indenture, dated as of July 7, 2004 (the
“First Supplement” ), by and between the Company
and the Trustee (the Original Indenture, as supplemented, and as
may be further supplemented and amended from time to time, is
referred to as the ”Indenture.” )
The Notes shall have the maturity
ranges, applicable interest rates or interest rate formulas,
specified currencies, issue prices, redemption and repayment
provisions and other terms set forth in the Prospectus referred to
in Section 1(a) as it may be amended or supplemented from time
to time, including any supplement providing for the interest rate,
maturity and other terms of any Note (a “Pricing
Supplement” ). The Notes will be issued, and the
terms thereof established, from time to time, by the Company in
accordance with the Indenture and the procedures referred to
below. This Agreement shall only apply to sales of the Notes
and not to sales of any other securities or evidences of
indebtedness of the Company and only on the specific terms set
forth herein.
*
Or the U.S. dollar equivalent in
certain specified foreign currencies, composite currencies or
currency units.
Subject to the terms and conditions
stated herein and to the reservation by the Company of the right to
sell its Notes directly on its own behalf, the Company hereby
(i) appoints the Agents, on a non-exclusive basis, as the
agents of the Company for the purpose of soliciting and receiving
offers to purchase Notes from the Company and (ii) agrees that
whenever the Company determines to sell Notes directly to the
Agents as principals it will enter into a separate agreement (each
a “Purchase Agreement” ). Each such
Purchase Agreement, whether oral (and confirmed in writing, which
may be by facsimile transmission) or in writing, shall be with
respect to such information (as applicable) as specified in
Exhibit C hereto, relating to such sale in accordance with
Section 2(e) hereof.
Section 1.
Representations and
Warranties . The
Company represents and warrants to the Agents as of the date
hereof, as of the Closing Date (defined herein) and as of the times
referred to in Sections 6(a) and 6(b) hereof (the Closing Date
and each such time being hereinafter sometimes referred to as a
“Representation Date” ), as follows:
(a)
Two registration statements (File
Nos. 333-113572 and 333-42748) on Form S-3, and amendments
thereto, with respect to, among other things, the Notes, have been
prepared and filed by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the
“Act” ), and the rules and regulations (the
“Rules and Regulations” ) of the Securities and
Exchange Commission (the “Commission” )
thereunder, and have become effective under the Act. The
Indenture has been qualified under the Trust Indenture Act of 1939,
as amended (the “Trust Indenture Act” ).
As used in this Agreement, (i) “Registration
Statement” means such two registration statements,
collectively, (including all documents incorporated therein by
reference) when each became effective under the Act, and as from
time to time amended or supplemented thereafter, or, if later, at
the time of the Company’s filing of an annual report pursuant
to the Securities Exchange Act of 1934, as amended (the
“Exchange Act” ) (if any post-effective
amendment to any such registration statement has been filed with
the Commission prior to the execution and delivery of this
Agreement, the time the most recent such amendment has been
declared effective by the Commission); (ii) “Basic
Prospectus” means the most recently filed prospectus
(including all documents incorporated therein by reference)
included in the Registration Statement; and (iii)
“Prospectus” means the Basic Prospectus
(including all documents incorporated therein by reference) and any
amendments or supplements thereto (including the applicable Pricing
Supplement) relating to the Notes, as filed with the Commission
pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order
preventing or suspending the use of the Prospectus. Any
reference in this Agreement to amending or supplementing the
Prospectus shall be deemed to include the filing of materials
incorporated by reference in the Prospectus after the Closing Date
(defined herein).
(b)
The Registration Statement and each
Prospectus conformed, and the Registration Statement and each
Prospectus will conform as of the applicable Representation Date
and at all times during each period during which, in the opinion of
counsel for the Agents, a prospectus relating to the Notes is
required to be delivered under the Act and solicitation has not
been suspended by the Company under Section 2(b)
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(each a “Marketing
Period” ), in all material respects to the requirements
of the Act, the Exchange Act, the Trust Indenture Act and the Rules
and Regulations; the Indenture, including any amendments and
supplements thereto, conforms with the requirements of the Trust
Indenture Act and the Rules and Regulations; and the Registration
Statement, at the time it became effective, or, if later, at the
time of the Company’s filing of an annual report pursuant to
the Exchange Act, did not contain 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 and the Registration Statement and each Prospectus do
not, and will not as of the applicable Representation Date and at
all times during each Marketing Period, contain 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, with respect to the Prospectus only, in
light of the circumstances under which they were made; provided,
however, that no representation or warranty is made as to
information contained in or omitted from the Registration Statement
or any Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Agents specifically for
inclusion therein or to any statements in or omissions from the
statement of eligibility and qualification on Form T-1 (the
“Form T-1” ) of the Trustee under the Trust
Indenture Act.
(c)
The Company and CP Financing Trust,
a Maryland real estate investment trust ( “CPFT”
), have been duly organized under the Maryland REIT Law and are
validly existing as real estate investment trusts in good standing
under the laws of Maryland and are duly qualified to do business
and in good standing as foreign trusts in each jurisdiction in
which their respective ownership or lease of property or the
conduct of their respective business requires such qualification,
and have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they
are engaged.
Other than CPFT, the Company’s
subsidiaries have been duly incorporated and are validly existing
as corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business
and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, except in any such case where the failure to so
qualify or be in good standing would not have a material adverse
effect upon the Company and its subsidiaries taken as a whole; and
have all corporate power and authority necessary to own or hold
their respective properties and to conduct the businesses in which
they are engaged; and, except for CPFT, none of the subsidiaries of
the Company is a “significant subsidiary,” as such term
is defined in Rule 405 of the Rules and Regulations.
(d)
The Company has an authorized
capitalization as set forth in the Prospectus, and all of the
issued shares of beneficial interest of the Company have been duly
and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in
the Prospectus; and all of the issued shares of capital stock or
issued shares of beneficial interest, as applicable, of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable
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and except as set forth in the
Prospectus are owned directly or indirectly by the Company as
described in the Prospectus, free and clear of all liens,
encumbrances, equities or claims.
(e)
This Agreement and the Indenture
have been and, in the case of any applicable Purchase Agreement at
the time of execution will be, duly authorized, executed and
delivered by the Company and constitute the valid and binding
agreements of the Company, enforceable against the Company in
accordance with their respective terms; the execution, delivery and
performance of this Agreement and any applicable Purchase Agreement
and the Indenture by the Company and the consummation of the
transactions contemplated hereby and thereby have been, or in the
case of any applicable Purchase Agreement at the time of execution
will be, duly authorized by all necessary corporate action and did
not and will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge
or encumbrance upon any of the properties or assets of the Company
or any of its subsidiaries pursuant to any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor did or will such actions result in
any violation of the provisions of the declaration of trust or
charter, as the case may be, or by-laws of the Company or any of
its subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties
or assets; except for the registration of the Notes under the Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and distribution of the Notes by the Agents, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body was or is required for the
execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated
hereby.
(f)
The Notes have been validly
authorized for issuance and sale pursuant to this Agreement and,
when the terms of the Notes and of their issue and sale have been
duly established in accordance with the Indenture and this
Agreement so as not to violate any applicable law or agreement or
instrument then binding on the Company, and the Notes have been
duly executed, authenticated, delivered and paid for as provided in
this Agreement and the Indenture, the Notes will be validly issued
and outstanding, and will constitute valid and legally binding
obligations of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms and the
terms of the Indenture. The Notes will conform and the
Indenture conforms to the descriptions thereof contained in each
Prospectus.
(g)
Except as disclosed in the
Registration Statement, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company or any subsidiary of the
Company to file a registration statement under the Securities Act
with respect to any securities of the Company or any
4
subsidiary of the Company owned or
to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Securities Act.
(h)
Neither the Company nor any of its
subsidiaries has sustained, since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, any material loss or interference with its business
from fire, explosion, flood, earthquake or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since such date, there has
not been any change in the capital stock other than issuances of
Common Shares in connection with stock option and other benefit
plans and agreements, the conversion of preferred stock or
debentures into Common Shares and the Company’s Dividend
Reinvestment and Stock Purchase Plan or material increase in the
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the
Prospectus.
(i)
The financial statements (including
the related notes and supporting schedules) filed as part of the
Registration Statement or included or incorporated by reference in
the Prospectus present fairly and will present fairly at all times
during each Marketing Period the financial condition and results of
operations of the entities purported to be shown thereby; and said
financial statements (including the related notes and supporting
schedules) have been and will be at all times during each Marketing
Period prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved; and the financial schedules and other financial
information included or incorporated by reference in the
Registration Statement and the Prospectus present fairly, or will
present fairly at all times during each Marketing Period, the
information required to be stated therein.
(j)
PricewaterhouseCoopers LLP,
whose report appears in the Company’s most recent Annual
Report on Form 10-K which is incorporated by reference in the
Prospectus, and if not the same auditors, the Company’s
outside auditors as of the applicable Representation Date, are or
will be, as applicable, independent public accountants as required
by the Securities Act and the Rules and Regulations.
(k)
The Company (i) has established and
maintains disclosure controls and procedures (as such term is
defined in Rule 13a-14 under the Exchange Act), which (A) are
designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to
the Company’s principal executive officer and its principal
financial officer by others within those entities particularly
during the periods in which the periodic reports required under the
Exchange Act are being prepared, (B) have been evaluated for
effectiveness as of a date within 90 days prior to the filing of
the Company’s most recent annual or quarterly report filed
with the Commission, and (C)
5
are effective in all material
respects to perform the functions for which they were established,
(ii) based on the evaluation of its disclosure controls and
procedures, is not aware of (A) any significant deficiency in the
design or operation of internal controls which could adversely
affect the Company’s ability to record, process, summarize
and report financial data or any material weaknesses in internal
controls, or (B) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
Company’s internal controls, and (iii) since the date of the
most recent evaluation of such disclosure controls and procedures,
has experienced no significant changes in internal controls or in
other factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses.
(l)
(i) The Company and each of its
subsidiaries have insurable title in fee simple to all real
property and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as
do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries; (ii) all
real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and
enforceable leases, which such exceptions as are not material and
do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries;
(iii) all liens, charges, encumbrances, claims, or
restrictions on or affecting the properties and assets of any of
the Company or its subsidiaries which are required to be disclosed
in the Prospectus are disclosed therein; (iv) neither the
Company nor any of its subsidiaries is in default under any of the
leases pursuant to which any of the Company or its subsidiaries
leases its properties and neither the Company nor any of its
subsidiaries knows of any event which, but for the passage of time
or the giving of notice, or both, would constitute a default under
any of such leases; except for any such defaults which would not,
individually or in the aggregate, have a material adverse effect on
the consolidated financial position, stockholders’ equity,
results of operations, business or prospects of the Company and its
subsidiaries; (v) except as described in the Prospectus, no
tenant under any of the leases pursuant to which any of the Company
or its subsidiaries leases properties has an option or right of
first refusal to purchase the premises under such lease, which
exercise of such right would, either individually or in the
aggregate, have a material adverse effect on the consolidated
financial position, stockholders’ equity, results of
operations, business or prospects of the Company and its
subsidiaries; (vi) each of the properties of any of the
Company or its subsidiaries complies with all applicable codes and
zoning laws and regulations, except for such failures to comply
which would not individually or in the aggregate have a material
adverse effect on the consolidated financial position,
stockholders’ equity, results of operations, business or
prospects of the Company and its subsidiaries; and
(vii) neither the Company nor any of its subsidiaries has
knowledge of any pending or threatened condemnation, zoning change,
or other proceeding or action that will in any manner affect the
size of, use of, improvements on, construction on or access to the
properties of any of the Company or its subsidiaries, except as may
be described in the Prospectus or any such matter which would not,
individually or in the
6
aggregate, have a material adverse
effect on the consolidated financial position, stockholders’
equity, results of operations, business or prospects of the Company
and its subsidiaries.
(m)
The Company and each of its
subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties
and as is customary for companies engaged in similar businesses in
similar industries.
(n)
The Company and each of its
subsidiaries own or possess adequate rights to use all patents,
patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights and
licenses necessary for the conduct of their respective businesses,
except where the failure to own or possess such rights would not,
individually or in the aggregate, have a material adverse effect on
the consolidated financial position, stockholders’ equity,
results of operations, business or prospects of the Company and its
subsidiaries, and have no reason to believe that the conduct of
their respective businesses will conflict with, and have not
received any notice of any claim of conflict with, any such rights
of others.
(o)
There are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property or assets of the Company or any
of its subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries, would reasonably be
expected to have a material adverse effect on the consolidated
financial position, stockholders’ equity, results of
operations, business or prospects of the Company and its
subsidiaries; and to the best of the Company’s knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(p)
There are no contracts or other
documents which are required to be described in the Prospectus or
filed as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been described
in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the
Rules and Regulations.
(q)
No relationship, direct or indirect,
exists between or among the Company on the one hand, and the
directors, officers or stockholders of the Company on the other
hand, which is required to be described in the Prospectus which is
not so described.
(r)
No labor disturbance by the
employees of the Company exists or, to the knowledge of the
Company, is imminent which might be expected to have a material
adverse effect on the consolidated financial position,
stockholders’ equity, results of operations, business or
prospects of the Company and its subsidiaries.
(s)
The Company is in compliance in all
material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
( “ERISA” );
7
no “reportable event”
(as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which the
Company would have any liability; the Company has not incurred and
does not expect to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any
“pension plan” or (ii) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the
“Code” ); and each “pension plan “
for which the Company would have any liability that is intended to
be qualified under Section 401(a) of the Code is so qualified
in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification.
(t)
The Company has filed all federal,
state and local income and franchise tax returns required to be
filed through the date hereof and has paid all taxes due thereon,
and no tax deficiency has been determined adversely to the Company
or any of its subsidiaries, which has had (nor does the Company
have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its subsidiaries, would
reasonably be expected to have) a material adverse effect on the
consolidated financial condition, stockholders’ equity,
results of operations, business or prospects of the Company and its
subsidiaries.
(u)
Since the date as of which
information is given in the Prospectus through the date hereof, and
except as may otherwise be disclosed in the Prospectus, the Company
has not (i) issued or granted any securities, other than in
connection with stock option and other benefit plans and
agreements, the conversion of preferred stock or debentures into
Common Shares and the issuance of shares under the Dividend
Reinvestment and Stock Purchases Plan, (ii) incurred any
material liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary
course of business, (iii) entered into any transaction not in
the ordinary course of business or (iv) declared or paid any
dividend on its capital stock (other than regular quarterly
dividends).
(v)
The Company (i) makes and keeps
accurate books and records and (ii) maintains internal
accounting controls which provide reasonable assurance that
(A) transactions are executed in accordance with
management’s authorization, (B) transactions are
recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets,
(C) access to its assets is permitted only in accordance with
management’s authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(w)
Neither the Company nor any of its
subsidiaries (i) is in violation of its declaration of trust
or charter, as the case may be, or by-laws, (ii) is in default
in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it
is a party or by which it is bound or to which any of its
properties or assets is subject or (iii) is in violation in
any material
8
respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of
its property or to the conduct of its business.
(x)
Neither the Company nor any of its
subsidiaries, nor any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or any of
its subsidiaries, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any
bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(y)
There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or
treatment of any material by the Company or any of its subsidiaries
or, to the Company’s knowledge, any of their predecessors in
interest at, upon or from any of the properties now or previously
owned or leased by the Company or its subsidiaries or any of their
predecessors in interest in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or
which would require remedial action damages other modification or
cessation of any activity of the Company or any of its subsidiaries
under any applicable law, common law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation,
remedial action, damages, modification or cessation which would not
have, singly or in the aggregate with all such violations, remedial
actions, damages, modifications or cessations, a material adverse
effect on the consolidated financial position, stockholders’
equity, results of operations, business or prospects of the Company
and its subsidiaries; and there has been no material spill,
discharge, leak, emission, escape, dumping, migration or release of
any kind onto such property or into the environment surrounding
such property except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have, singly
or in the aggregate with all such spills, discharges, leaks,
emission, injections, escapes, dumpings and releases, a material
adverse effect on the consolidated financial position,
stockholders’ equity, results of operations, business or
prospects of the Company and its subsidiaries.
(z)
Neither the Company nor any
subsidiary is an “investment company” within the
meaning of such term under the Investment Company Act of 1940 and
the rules and regulations of the Commission promulgated
thereunder.
(aa)
The Company is organized in
conformity with the requirements for qualification as a real estate
investment trust ( “REIT” ) under the Code, and
its present and contemplated method of operation does and will
enable it to meet the requirements for taxation as a REIT under the
Code for the year ended December 31, 1994 and subsequent
taxable years.
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(bb)
Each of the Company and its
subsidiaries has title insurance on all real property described in
the Prospectus as owned by such party in an amount at least equal
to the greater of (a) the cost of acquisition of such property
or assets and (b) the cost of construction of the improvements
located on such properties.
(cc)
The documents incorporated by
reference into any Prospectus have been, and will be as of the
applicable Representation Date and at all times during each
Marketing Period, prepared in conformity with the applicable
requirements of the Act and the Rules and Regulations and the
Exchange Act and the rules and regulations of the Commission
thereunder in all material respects; and none of such documents
contained, in the light of the circumstances under which they were
made, or will contain as of the applicable Representation Date and
at all times during each Marketing Period, an untrue statement of a
material fact or omitted, in the light of the circumstances under
which they were made, or will omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and such documents have been, or will be,
as of the applicable Representation Date and at all times during
each Marketing Period, timely filed as required thereby.
(dd)
The Notes have been rated by a
“nationally recognized statistical rating agency” (as
that term is defined by the Commission for the purposes of
Rule 436(g)(2) of the Rules and Regulations), including one or
both of Moody’s Investor Services, Inc. and Standard &
Poor’s Corporation.
Section 2.
Solicitations as Agents;
Purchases as Principals.
(a)
Appointment.
Subject to the terms and
conditions stated herein, and subject to the reservation by the
Company of the right to sell Notes directly on its own behalf and
through or to other dealers or agents, the Company hereby appoints
the Agents on a non-exclusive basis as agents of the Company for
the purpose of soliciting or receiving offers to purchase the Notes
from the Company by others. The Company may from time to time
offer Notes for sale otherwise than through the Agents;
provided, however , that so long as this Agreement shall be
in effect the Company shall not solicit offers to purchase Notes
through any other agents without amending this Agreement to appoint
such agents as additional Agents hereunder on the same terms and
conditions as provided herein for the Agents and without giving the
Agents prior notice of such appointment. The consent of the
then current Agents shall not be necessary for such purpose.
In the absence of such an amendment, the Company may accept offers
to purchase Notes from or through an agent other than the Agents,
provided that (i) the Company shall not have solicited such
offers, (ii) the Company and such agent shall have executed an
agreement with respect to such purchases having terms and
conditions (including, without limitation, commission rates) with
respect to such purchases substantially the same as the terms and
conditions that would apply to such purchases under this Agreement
as if such agent was an Agent (which may be accomplished by
incorporating by reference in such agreement the terms and
conditions of this Agreement), and (iii) the Company shall
provide the Agents with a copy of such agreement following the
execution thereof. On the basis of the representations and
warranties contained herein, but subject to the terms and
conditions herein set forth, the Agents agree, as Agents of the
Company, to use their reasonable efforts to solicit offers to
purchase the
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Notes upon the terms and conditions set forth in
the Prospectus. Except as otherwise provided herein, so long
as this Agreement shall remain in effect, the Company shall not,
without the consent of the Agents, solicit or accept offers to
purchase Notes otherwise than through the Agents; provided,
however , the Company expressly reserves the right to sell
Notes directly to investors, in which case no commission will be
payable with respect to any such sale. The Agents may also
purchase Notes from the Company as principals for purposes of
resale, as more fully described in paragraph (e) of this
Section.
(b)
Suspension of
Solicitation. The
Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes commencing at any time
for any period of time or indefinitely. Upon receipt of
telephonic notice confirmed by facsimile notice from the Company,
the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has
advised the Agents that such solicitation may be
resumed.
Upon receipt of notice from the
Company as contemplated by Section 3(c) hereof, the Agents
shall suspend their solicitation of offers to purchase Notes until
such time as the Company shall have furnished them with an
amendment or supplement to the Registration Statement or the
Prospectus, as the case may be, contemplated by Section 3(c)
and shall have advised the Agents that such solicitation may be
resumed.
(c)
Agents’
Commission.
Promptly upon the closing of the sale of any Notes sold by the
Company as a result of a solicitation made by or offer to purchase
received by the Agents, unless otherwise agreed, the Company agrees
to pay the Agents a commission, in the form of a discount, in
accordance with the schedule set forth in Schedule A
hereto.
(d)
Solicitation of
Offers. The Agents
are authorized to solicit offers to purchase the Notes only in
denominations as are specified in the Prospectus at a purchase
price as shall be specified by the Company, in an aggregate amount
not to exceed the amount authorized by the Company from time to
time (less the aggregate amount of Notes either sold directly by
the Company or purchased from the Company by the Agents as
principals or purchased from the Company by other Agents).
The Agents shall communicate to the Company, orally or in writing,
each reasonable offer to purchase Notes received by them as
Agents. The Company shall have the sole right to accept
offers to purchase the Notes and may reject any such offer in whole
or in part. The Agents shall have the right, in their
discretion reasonably exercised without advising the Company, to
reject any offer to purchase the Notes received by them, in whole
or in part, and any such rejection shall not be deemed a breach of
their agreement contained herein.
No Note which the Company has agreed
to sell pursuant to this Agreement shall be deemed to have been
purchased and paid for, or sold by the Company, until such Note
shall have been delivered to the purchaser thereof against payment
by such purchaser.
(e)
Purchases as
Principals. Each
sale of Notes to the Agents as principals, for resale to one or
more investors or to another broker-dealer (acting as principal for
purposes of resale), shall be made in accordance with the terms of
this Agreement and a Purchase Agreement whether oral (and confirmed
in writing by such Agents to the Company, which may be
by
11
facsimile transmission) or in writing, which
will provide for the sale of such Notes to, and the purchase
thereof by, the Agents. A Purchase Agreement may also specify
certain provisions relating to the reoffering of such Notes by the
Agents. The commitment of the Agents to purchase Notes from
the Company as principals shall be deemed to have been made on the
basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein
set forth. Each Purchase Agreement shall contain, to the
extent applicable, those terms specified in Exhibit A hereto,
including the time and date (each such time and date being referred
to herein as a “Time of Delivery” ) and place of
delivery of and payment for such Notes and such other information
(as applicable) as is set forth in Exhibit C hereto. The
Company agrees that if the Agents purchase Notes as principals for
resale such Agents shall receive such compensation, in the form of
a discount or otherwise, as shall be indicated in the applicable
Purchase Agreement or, if no compensation is indicated therein, a
commission in accordance with Schedule A hereto. The
Agents may utilize a selling or dealer group in connection with the
resale of such Notes. In addition, the Agents may offer the
Notes they have purchased as principals to other dealers. The
Agents may sell Notes to any dealer at a discount and upon such
terms as may be specified in the applicable Pricing
Supplement. Such Purchase Agreement shall also specify any
requirements for delivery of opinions of counsel, accountants
letters and officers’ certificates pursuant to Section 5
hereof.
(f)
Administrative
Procedures. The
purchase price, interest rate or formula, maturity date and other
terms of the Notes (as applicable) specified in Exhibit A
hereto shall be agreed upon by the Company and the Agents and
specified in a Pricing Supplement to be prepared in connection with
each sale of Notes. Administrative procedures respecting the
sale of Notes (the “Procedures” ) are set forth
in Exhibit B hereto and may be amended in writing from time to
time by the Agents and the Company. The Agents and the
Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in
the Procedures. The Procedures shall apply to all
transactions contemplated hereunder including sales of Notes to the
Agents as principals pursuant to a Purchase Agreement, unless
otherwise set forth in such Purchase Agreement.
(g)
Delivery of Documents.
The documents required to be
delivered by Section 5 hereof shall be delivered at the
offices of Chapman and Cutler LLP, 111 West Monroe Street, Chicago,
Illinois 60603, not later than 10:00 A.M., New York City time,
on the date of this Agreement or at such later time as may be
mutually agreed upon by the Company and the Agents, which in no
event shall be later than the time at which the Agent commences
solicitation of offers to purchase Notes hereunder (the
“Closing Date” ).
Section 3.
Covenants of the
Company. The
Company covenants and agrees:
(a)
Delivery of Signed Registration
Statement. To
furnish promptly to the Agents and to their counsel a signed copy
of the Registration Statement as originally filed and each
amendment or supplement thereto.
(b)
Delivery of Other
Documents. To
deliver promptly to the Agents, and in such number as they may
request, each of the following documents: (i) conformed
copies of the Registration Statement (excluding exhibits other than
the computation of the ratio
12
of earnings to fixed charges, the
Indenture, this Agreement and such other exhibits that the Agents
may request), (ii) the Basic Prospectus, (iii) each
Prospectus and (iv) during any Marketing Period, any documents
incorporated by reference in the Prospectus.
(c)
Revisions to Prospectus -
Material Changes.
If, during any Marketing Period, any event occurs as a result of
which the Prospectus would include an untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein, not misleading, or if it is necessary at
any time to amend any Prospectus to comply with the Act, to notify
the Agents promptly, in writing, to suspend solicitation of
purchases of the Notes; and if the Company shall decide to amend or
supplement the Registration Statement or any Prospectus, to
promptly advise the Agents by telephone (with confirmation in
writing) and to promptly, in writing, prepare and file with the
Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance; provided, however , that if during the period
referred to above the Agents shall own any Notes which they have
purchased from the Company as principals with the intention of
reselling them, the Company shall promptly prepare and timely file
with the Commission any amendment or supplement to the Registration
Statement or any Prospectus that may, in the judgment of the
Company or the reasonable judgment of the Agents, be required by
the Act or requested by the Commission.
(d)
Commission Filings.
To timely file with the
Commission during any Marketing Period, all documents (and any
amendments to previously filed documents) required to be filed by
the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act.
(e)
Copies of Filings with
Commission. Upon
filing with the Commission during any Marketing Period,
(i) any amendment or supplement to the Registration Statement,
(ii) any amendment or supplement to any Prospectus or
(iii) any document incorporated by reference in any of the
foregoing or any amendment of or supplement to any such
incorporated document, to furnish, if requested, a copy thereof to
the Agents.
(f)
Notice to Agents of Certain
Events. To advise
the Agents immediately (i) when any post-effective amendment
to the Registration Statement relating to or covering the Notes
becomes effective, (ii) of any request or proposed request by
the Commission for an amendment or supplement to the Registration
Statement, to any Prospectus, to any document incorporated by
reference in any of the foregoing or for any additional information
and the Company will afford the Agents a reasonable opportunity to
comment on any such proposed amendment or supplement, (iii) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any part thereof or
any order directed to any Prospectus or any document incorporated
therein by reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy of any
document incorporated by reference in any Prospectus, (iv) of
receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose, (v) of any downgrading in the rating of
the
13
Notes or any other debt securities
of the Company, or any proposal to downgrade the rating of the
Notes or any other debt securities of the Company, by any
“nationally recognized statistical rating organization”
(as defined for purposes of Rule 436(g) of the Rules and
Regulations), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a
possible downgrading of such rating) as soon as the Company learns
of any such downgrading, proposal to downgrade or public
announcement and (vi) of the happening of any event which
makes untrue any statement of a material fact made in the
Registration Statement or any Prospectus or which requires the
making of a change in the Registration Statement or any Prospectus
in order to make any material statement therein not
misleading.
(g)
Stop Orders.
If, during any Marketing
Period, the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting of that order at the
earliest possible time.
(h)
Earnings Statements.
As soon as practicable, but
not later than 18 months, after the date of each acceptance by
the Company of an offer to purchase Notes hereunder, to make
generally available to its security holders an earnings statement
covering a period of at least 12 months beginning after the
later of (i) the effective date of the Registration Statement,
(ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior
to the date of such acceptance and (iii) the date of the
Company’s most recent Annual Report on Form 10-K filed with
the Commission prior to the date of such acceptance which will
satisfy the provisions of Section 11(a) of the Act (including,
at the option of the Company, Rule 158 of the Rules and
Regulations);
(i)
Copies of Reports, Releases and
Financial Statements. So long as any of the Notes are
outstanding, to furnish to the Agents, not later than the time the
Company makes the same available to others, copies of all public
reports or releases and all reports and financial statements
furnished by the Company to any securities exchange on which the
Notes are listed pursuant to requirements of or agreements with
such exchange or to the Commission pursuant to the Exchange Act or
any rule or regulation of the Commission thereunder.
(j)
Blue Sky
Qualifications. To
endeavor, in cooperation with the Agents, to qualify the Notes for
offering and sale under the securities laws of such jurisdictions
as the Agents may designate, and to maintain such qualifications in
effect for as long as may be required for the distribution of the
Notes; and to file such statements and reports as may be required
by the laws of each jurisdiction in which the Notes have been
qualified as above provided; provided, however, that the
Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign entity in any
jurisdiction in which it is not so qualified.
14
(k)
Holdback. Between the date of a Purchase Agreement
and the date of delivery of the Notes with respect thereto, the
Company will not, without the prior written consent of the Agent or
Agents purchasing such Notes, offer or sell, or enter into any
agreement to sell, any of its debt securities, other than
borrowings under the Company’s revolving credit agreements
and lines of credit, as may be amended, supplemented or replaced,
the private placement of securities and issuances of its commercial
paper.
(l)
Pricing Supplement.
To prepare, with respect to
any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a
form previously approved by the Agents and to file such Pricing
Supplement pursuant to Rule 424 of the Rules and
Regulations.
Section 4.
Payment of Expenses.
The Company will pay:
(i) the costs incident to the authorization, issuance, sale
and delivery of the Notes and any taxes payable in that connection;
(ii) the costs incident to the preparation, printing and
filing under the Act of the Registration Statement and any
amendments and exhibits thereto; (iii) the costs incident to
the preparation, printing and filing of any document and any
amendments and exhibits thereto required to be filed by the Company
under the Exchange Act; (iv) the costs of distributing the
Registration Statement, as originally filed, and each amendment and
post-effective amendment thereof (including exhibits), the Basic
Prospectus, each Prospectus, any supplement or amendment to any
Prospectus and any documents incorporated by reference in any of
the foregoing documents; (v) the fees and disbursements of the
Trustee, any paying agent, any calculation agent, any exchange rate
agent and any other agents appointed by the Company, and their
respective counsel; (vi) the costs and fees in connection with
the listing of the Notes on any securities exchange; (vii) the
cost and fees in connection with any filings with the National
Association of Securities Dealers, Inc.; (viii) the fees and
disbursements of counsel to the Company and counsel to the Agents;
(ix) the fees paid to rating agencies in connection with the
rating of the Notes; (x) the fees and expenses of qualifying
the Notes under the securities laws of the several jurisdictions as
provided in Section 3(j) hereof and of preparing and printing
a Blue Sky Memorandum and a memorandum concerning the legality of
the Notes as an investment (including reasonable fees and expenses
of counsel for the Agents in connection therewith); provided,
however, that such fees do not exceed $5,000; (xi) all
advertising expenses in connection with the offering of the Notes
incurred with the consent of the Company; and (xii) all other
costs and expenses arising out of the transactions contemplated
hereunder and incident to the performance of the Company’s
obligations under this Agreement.
Section 5.
Conditions of Obligations of
Agents. The
obligation of the Agents, as agents of the Company, under this
Agreement to solicit offers to purchase the Notes, the obligation
of any person who has agreed to purchase Notes to make payment for
and take delivery of Notes, and the obligation of the Agents to
purchase Notes pursuant to any Purchase Agreement, are subject to
the accuracy, on each Representation Date, of the representations
and warranties of the Company contained herein, to the accuracy of
the statements of the Company’s officers made in any
certificate furnished pursuant to the provisions hereof, to the
performance by the Company of its respective obligations hereunder,
and to each of the following additional terms and
conditions:
15
(a)
Registration
Statement. The
Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to such Notes shall have been filed with
the Commission pursuant to Rule 424(b) of the Rules and
Regulations within the applicable time period prescribed for such
filing by the Rules and Regulations and in accordance with
Section 3(l) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor
any order directed to any document incorporated by reference in any
Prospectus shall have been issued and no stop order proceeding
shall have been initiated or threatened by the Commission and no
challenge shall have been made to the accuracy or adequacy of any
document incorporated by reference in any Prospectus; any request
of the Commission for inclusion of additional information in the
Registration Statement or any Prospectus or otherwise shall have
been complied with; and the Company shall not have filed with the
Commission any amendment or supplement to the Registration
Statement or any Prospectus (or any document incorporated by
reference therein) without affording the Agents a reasonable
opportunity to comment thereon (which in the case of a
Form 10-Q or Form 8-K may be a one day time period for
such comments).
(b)
No Suspension of Sale of the
Notes. No order
suspending the sale of the Notes in any jurisdiction designated by
the Agents pursuant to Section 3(j) hereof shall have been
issued, and no proceeding for that purpose shall have been
initiated or threatened.
(c)
No Material Omissions or Untrue
Statements. The
Agents shall not have discovered and disclosed to the Company that
the Registration Statement or any Prospectus contains an untrue
statement of a fact which, in the opinion of counsel for the
Agents, is material or omits to state a fact which, in the opinion
of such counsel, is material and is required to be stated therein
or is necessary to make the statements therein not
misleading.
(d)
Legal Matters Satisfactory to
Counsel. All
corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Notes, the
Indenture, the form of the Registration Statement, each Prospectus
and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all
respects to counsel for the Agents, and the Company shall have
furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such
matters.
(e)
Opinion of Company
Counsel. At the
Closing Date, the Agents shall have received the opinion, addressed
to the Agents and dated the Closing Date, of (i) Kirkland &
Ellis LLP, counsel to the Company and (ii) Ballard Spahr Andrews
& Ingersoll, LLP, special Maryland counsel to the Company, in
each case in form and substance satisfactory to the Agents and
their counsel, substantially in the form of Exhibits E-1 and E-2,
respectively, attached hereto.
Kirkland & Ellis LLP shall also
have furnished to the Agents a written statement, addressed to the
Agents and dated the Closing Date, in form and substance
reasonably
16
satisfactory to the Agents, to the effect that
no facts have come to the attention of such counsel which lead it
to believe that the Registration Statement, as of the effective
date and as of the Closing Date, contained any untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading, or that the Prospectus, as of the Closing Date and
at the time such Prospectus was issued, contains any untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; such statement need not address the
financial statements included therein or omitted
therefrom.
(f)
Officers’
Certificate. The
Company shall have furnished to the Agents on the Closing Date a
certificate, dated the Closing Date, of the Chairman of the Board,
the President or a Vice President and the Chief Financial Officer
of the Company stating that to the best of such officers’
knowledge:
(i)
The representations, warranties and
agreements of the Company in Section 1 hereof are true and
correct as of the Closing Date; the Company has complied with all
its agreements contained herein; and the conditions set forth in
Sections 5(a) and 5(b) hereof have been fulfilled;
(ii)
No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the
Commission;
(iii)
All filings required by
Rule 424(b) of the Rules and Regulations have been made;
and
(iv)
They have carefully examined the
Registration Statement and the Prospectus and, in their opinion,
(A) the Registration Statement, as of its effective date (or,
if later, at the time of the Company’s filing of a
post-effective amendment to the Registration Statement or the
Company’s filing of an annual report pursuant to the Exchange
Act), did not contain 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,
(B) the Prospectus does not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, and (C) since the effective date of the
Registration Statement there has not occurred any event required to
be set forth in an amended or supplemented prospectus which has not
been so set forth.
(g)
Accountant’s
Letter. The
Company shall have furnished to the Agents on the Closing Date a
letter of PricewaterhouseCoopers LLP addressed jointly to the
Company and the Agents and dated the Closing Date, of the type
described in the American Institute of Certified Public
Accountants’ Statement on Auditing Standards No. 49, in form
and substance reasonably satisfactory to the Agents confirming that
they are
17
independent accountants within the
meaning of the Act and the applicable published Rules and
Regulations thereunder and stating in effect that:
(i)
In their opinion, the financial
statements and schedules examined by them and included in the
Prospectus contained in the Registration Statement comply in form
in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii)
They have made a review of any
unaudited financial statements included in the Prospectus in
accordance with standards established by the American Institute of
Certified Public Accountants, as indicated in their report or
reports attached to such letter;
(iii)
On the basis of the review referred
to in (ii) above and a reading of the latest available interim
financial statements of the Company, inquired of officials of the
Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A)
the unaudited consolidated financial
statements, if any, incorporated by reference in the Registration
Statement, Prospectus and Prospectus Supplement, do not comply as
to form in all material respects with the applicable accounting
requirements of the Exchange Act and the related rules and
regulations adopted by the Commission;
(B)
any material modifications should be
made to the unaudited consolidated financial statements, if any,
incorporated by reference in the Registration Statement,
Prospectus, and Prospectus Supplement, for them to be in conformity
with generally accepted accounting principles;
(C)
the unaudited capsule information,
if any, included in the Prospectus does not agree with the amounts
set forth in the unaudited consolidated financial statements from
which it was derived or was not determined on a basis substantially
consistent with that of the audited financial statements included
in the Prospectus;
(D)
at the date of the latest available
balance sheet read by such accountants, or at a subsequent
specified date not more than five days prior to the Closing Date,
there was any change in the capital stock, any increase in debt of
the Company and consolidated subsidiaries or, at the date of the
latest available balance sheet read by such accountants, there was
any decrease in consolidated net assets as compared with amounts
shown on the latest balance sheet included in the Prospectus;
or
(E)
for the period from the date of the
latest income statement included in the Prospectus to the closing
date of the latest available
18
income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year, in consolidated rental
income, total revenues, net income or in the ratio of earnings to
fixed charges;
except in all cases set forth in
clauses (D) and (E) above for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(iv)
They have compared specified dollar
amounts (or percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each case to
the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company’s accounting system or are derived
directly from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and
schedules included in material incorporated by reference into the
Prospectus shall be deemed included in the Prospectus for purposes
of this subsection.
(h)
The Agents shall have received from
Chapman and Cutler LLP, counsel to the Agents, such opinion or
opinions, dated the Closing Date, with respect to the issuance and
sale of the Notes, the Indenture, the Registration Statement, the
Prospectus and other related matters as the Agents may reasonably
require, and the Company shall have furnished to such counsel such
documents as they may request for the purpose of enabling them to
pass upon such matters.
(i)
Additional Conditions.
There shall not have
occurred: (i) any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, stockholders’
equity, business, properties, condition (financial or other),
results of operations or prospects of the Company and its
subsidiaries which in the opinion of the Agents, materially impairs
the investment quality of the Notes; (ii) a suspension or
material limitation in trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or the
over-the-counter market or the establishment of minimum prices on
such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having
jurisdiction; (iii) a general moratorium on commercial banking
activities declared by Federal or New York State authorities or a
material disruption in commercial banking or securities settlement
or clearance services in the United States; (iv) any
downgrading in the rating accorded the Company’s debt
securities by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g) of
the Rules and
19
Regulations), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than
an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating);
(v) any outbreak or escalation of major hostilities in which
the United States is involved, any declaration of a national
emergency or war by the United States, an act of terrorism shall
have been committed against the United States or any of its
nationals or properties; or (vi) there shall have occurred such a
calamity or crisis or such a material adverse change in general
domestic or international economic, political or financial
conditions, including without limitation as a result of terrorist
activities (or the effect of international conditions on the
financial markets in the United States shall be such), that in the
judgment of the Agents makes it impracticable or inadvisable to
proceed with the solicitation of offers to purchase Notes or the
purchase of Notes from the Company as principals pursuant to a
Purchase Agreement, as the case may be.
(j)
Other Information and
Documentation.
Prior to the Closing Date, the Company shall have furnished to the
Agents such further information, certificates and documents as the
Agents or counsel to the Agents may reasonably request.
All opinions, letters, evidence and
certificates mentioned above or elsewhere in this Agreement shall
be deemed to be in compliance with the provisions hereof only if
they are in the form and substance satisfactory to counsel for the
Agents.
Section 6.
Additional Covenants of the
Company . The
Company covenants and agrees that:
(a)
Acceptance of Offer Affirms
Representations And Warran
