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SOUTHTRUST CORPORATION
(a Delaware corporation)
5.80% SUBORDINATED NOTES DUE 2014
PURCHASE AGREEMENT
Dated: May 19, 2004
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SOUTHTRUST CORPORATION
(a Delaware corporation)
$400,000,000
Subordinated Notes, Due 2014
PURCHASE AGREEMENT
May 19, 2004
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
Lehman Brothers Inc. and
SouthTrust Securities, Inc.
as
Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill
Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
SouthTrust
Corporation, a Delaware corporation (the "Company"), confirms
its agreement with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and each of
the other Underwriters named in
Schedule A hereto (collectively, the
"Underwriters", which term shall also
include any underwriter substituted as
hereinafter provided in Section 10
hereof), for whom Merrill Lynch, Citigroup
Global Markets Inc., J.P. Morgan
Securities Inc., Lehman Brothers Inc. and
SouthTrust Securities, Inc. are acting
as representatives (in such capacity, the
"Representatives"), with respect to
the issue and sale by the Company and the
purchase by the Underwriters, acting
severally and not jointly, of the
respective principal amounts set forth in said
Schedule A of $400,000,000 aggregate
principal amount of the Company's
subordinated notes, due 2014 (the
"Securities"). The Securities are to be issued
pursuant to an indenture dated as of May 1,
1992 (the "Indenture") between the
Company and JPMorgan Chase Bank (as
successor to The Chase Manhattan Bank, the
successor to Chemical Bank), as trustee
(the "Trustee"). The term "Indenture,"
as used herein, includes the Officer's
Certificate (as defined in the Indenture)
establishing the form and terms of the
Securities pursuant to Sections 201 and
301 of the Indenture.
The
Company understands that the Underwriters propose to make a
public
offering of the Securities as soon as the
Representatives deem advisable after
this Agreement has been executed and
delivered.
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The
Company has filed with the Securities and Exchange Commission
(the
"Commission") a registration statement on
Form S-3 (No. 333-32922), including
the related preliminary prospectus or
prospectuses, covering the registration of
the Securities under the Securities Act of
1933, as amended (the "1933 Act").
Promptly after execution and delivery of
this Agreement, the Company will
prepare and file a prospectus in accordance
with the provisions of Rule 430A
("Rule 430A") of the rules and regulations
of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph
(b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. The information
included in such prospectus that was
omitted from such registration statement at
the time it became effective but
that is deemed to be part of such
registration statement at the time it became
effective pursuant to paragraph (b) of Rule
430A is referred to as "Rule 430A
Information." Each prospectus used before
such registration statement became
effective, and any prospectus that omitted
the Rule 430A Information, that was
used after such effectiveness and prior to
the execution and delivery of this
Agreement, is herein called a "preliminary
prospectus." Such registration
statement, including the exhibits and any
schedules thereto, at the time it
became effective, and including the
documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the
1933 Act at such time and the Rule
430A Information, is herein called the
"Registration Statement." Any
registration statement filed pursuant to
Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b)
Registration Statement," and after
such filing the term "Registration
Statement" shall include the Rule 462(b)
Registration Statement. The final
prospectus in the form first furnished to the
Underwriters for use in connection with the
offering of the Securities,
including the documents incorporated by
reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act at the time of
the execution of this Agreement, is
herein called the "Prospectus." For
purposes of this Agreement, all references
to the Registration Statement, any
preliminary prospectus, the Prospectus or any
Term Sheet or any amendment or supplement
to any of the foregoing shall be
deemed to include the copy filed with the
Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval
system ("EDGAR").
All
references in this Agreement to financial statements and schedules
and
other information which is "contained,"
"included" or "stated" in the
Registration Statement, any preliminary
prospectus or the Prospectus (or other
references of like import) shall be deemed
to mean and include all such
financial statements and schedules and
other information which is incorporated
by reference in the Registration Statement,
any preliminary prospectus or the
Prospectus, as the case may be; and all
references in this Agreement to
amendments or supplements to the
Registration Statement, any preliminary
prospectus or the Prospectus shall be
deemed to mean and include the filing of
any document under the Securities Exchange
Act of 1934, as amended (the "1934
Act"), which is incorporated by reference
in the Registration Statement, such
preliminary prospectus or the Prospectus,
as the case may be.
SECTION 1.
Representations and Warranties.
(a)
Representations
and Warranties by the Company. The Company
represents and warrants to each Underwriter
as of the date hereof, as of the
Closing Time referred to in Section 2(b)
hereof, and agrees with each
Underwriter, as follows:
(i) Compliance
with Registration Requirements. The Company meets
the
requirements for use of Form S-3 under the 1933 Act. Each of
the
Registration Statement, any Rule 462(b) Registration Statement and
any
post-effective amendment thereto has become effective under the
1933 Act
and no
stop order suspending the effectiveness of the Registration
Statement,
any Rule 462(b) Registration Statement or any post-effective
amendment
thereto has been issued under the 1933 Act and no proceedings
for that
purpose have been instituted or are pending or, to the
knowledge
of the
Company, are contemplated by the Commission, and any request on
the
part of
the Commission for additional information has been complied
with.
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At the respective times the Registration Statement, any Rule
462(b)
Registration Statement and any post-effective amendments thereto
became
effective
and at the Closing Time, the Registration Statement, the Rule
462(b)
Registration Statement and any amendments and supplements
thereto
complied and
will comply in all material respects with the requirements of
the 1933
Act and the 1933 Act Regulations and the Trust Indenture Act of
1939, as
amended (the "1939 Act"), and the rules and regulations of the
Commission
under the 1939 Act (the "1939 Act Regulations"), and did not
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 not misleading. Neither the Prospectus nor
any
amendments
or supplements thereto, at the time the Prospectus or any such
amendment
or supplement was issued and at the Closing Time, included or
will
include an untrue statement of a material fact or omitted or
will
omit to
state a material fact necessary in order to make the statements
therein,
in the light of the circumstances under which they were made,
not
misleading. The representations and warranties in this subsection
(A)
shall not
apply to statements in or omissions from the Registration
Statement
or Prospectus made in reliance upon and in conformity with
written
information furnished to the Company by any Underwriter through
Merrill
Lynch expressly for use in the Registration Statement (or any
amendment
thereto) or to the Prospectus (or any amendment or supplement
thereto)
and (B) shall not apply to that part of the Registration
Statement
which shall constitute the Statement of Eligibility and
Qualification of the Trustee (Form T-1) under the 1939 Act of the
Trustee.
Each preliminary prospectus and the prospectus filed as part of
the
Registration Statement as originally filed or as part of any
amendment
thereto
complied when so filed in all material respects with the 1933
Act
Regulations and each preliminary prospectus and the Prospectus
delivered
to the
Underwriters for use in connection with this offering was
identical
to the
electronically transmitted copies thereof filed with the
Commission
pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
The Indenture has been duly qualified under the 1939 Act.
(ii) Incorporated
Documents. The documents incorporated or deemed
to be
incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with
the
Commission, complied and will comply in all material respects with
the
requirements of the 1934 Act and the rules and regulations of
the
Commission
thereunder (the "1934 Act Regulations"), and, when read
together
with the other information in the Prospectus, at the time that
they were
filed, at the time the Prospectus was issued and at the Closing
Time, did
not 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.
(iii) Independent Accountants. The accountants who certified
the
financial
statements and supporting schedules included in the
Registration
Statement
are independent public accountants as required by the 1933 Act
and the
1933 Act Regulations.
(iv) Financial
Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the
related
schedules
and notes, present fairly the financial position of the Company
and its
consolidated subsidiaries at the dates indicated and the
statement
of
operations, stockholders' equity and cash flows of the Company and
its
consolidated subsidiaries for the periods specified; said
financial
statements
have been prepared in conformity with generally accepted
accounting
principles ("GAAP") applied, except as otherwise stated
therein,
on a consistent basis throughout the periods involved. The
supporting
schedules, if any, included in the Registration Statement
present
fairly in accordance with GAAP the information
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required
to be stated therein. The selected financial data and the
summary
financial
information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent
with that
of the audited financial statements included in the
Registration
Statement.
(v) No Material
Adverse Change in Business. Since the respective
dates as
of which information is given in the Registration Statement and
the
Prospectus, except as otherwise stated therein, (A) there has been
no
material
adverse change in the condition, financial or otherwise, or in
the
earnings, business affairs or business prospects of the Company
and
its
subsidiaries considered as one enterprise, whether or not arising
in
the
ordinary course of business (a "Material Adverse Effect"), (B)
there
have been
no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which
are
material with respect to the Company and its subsidiaries
considered
as one
enterprise, and (C) except for regular quarterly dividends on
the
common
stock, par value $2.50 per share, of the Company (the "Common
Stock") in
amounts per share that are consistent with past practice, there
has been
no dividend or distribution of any kind declared, paid or made
by
the
Company on any class of its capital stock.
(vi) Good Standing of
the Company. The Company has been duly
organized
and is validly existing as a corporation in good standing under
the laws
of the State of Delaware and has corporate power and authority
to
own, lease
and operate its properties and to conduct its business as
described
in the Prospectus and to enter into and perform its obligations
under this
Agreement; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
other
jurisdiction in which such qualification is required, whether by
reason of
the
ownership or leasing of property or the conduct of business,
except
where the
failure so to qualify or to be in good standing would not
result
in a
Material Adverse Effect; the Company is duly registered as a
bank
holding
company under the Bank Holding Company Act of 1956, as amended
and
has
elected to be a financial holding company under the
Gramm-Leach-Bliley
Act; and
SouthTrust Bank (the "Principal Subsidiary Bank") is a state
banking
corporation organized under the laws of the State of Alabama.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary"
of the
Company (as such term is defined in Rule 1-02 of Regulation
S-X)
(each a
"Subsidiary" and, collectively, the "Subsidiaries") has been
duly
organized
and is validly existing as a corporation in good standing under
the laws
of the jurisdiction of its incorporation, has power and
authority
as a
corporation or other entity to own, lease and operate its
properties
and to conduct
its business as described in the Prospectus and is duly
qualified
as a foreign corporation or other entity to transact business
and is in
good standing in each jurisdiction in which such qualification
is
required, whether by reason of the ownership or leasing of property
or
the
conduct of business, except where the failure so to qualify or to
be
in good
standing would not result in a Material Adverse Effect; except
as
otherwise
disclosed in the Registration Statement, all of the issued and
outstanding capital stock or other equity interests of each
such
Subsidiary
has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge,
lien,
encumbrance, claim or equity; none of the outstanding shares of
capital
stock or other equity interests of any Subsidiary was issued in
violation
of the preemptive or similar rights of any securityholder of
such
Subsidiary. The only subsidiaries of the Company are the
subsidiaries
listed on
Schedule C hereto.
(viii) Capitalization. The shares of issued and outstanding
capital
stock of the
Company have been duly authorized and validly issued and are
fully paid
and non-assessable;
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none of
the outstanding shares of capital stock of the Company was
issued
in
violation of the preemptive or other similar rights of any
securityholder of the Company. The outstanding shares of capital
stock of
the
Principal Subsidiary Bank have been duly authorized and validly
issued,
are fully paid and nonassessable (except as provided in 12
U.S.C.
Section
55, as amended) and, except for directors qualifying shares,
are
owned
beneficially, directly or indirectly, by the Company free and
clear
of any
security interest, mortgage, pledge, lien, encumbrance, claim
or
equity
except as described in the Prospectus.
(ix) Authorization of
Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x)
Authorization of the Indenture. The Indenture has been duly
authorized
by the Company and duly qualified under the 1939 Act, has been
duly
executed and delivered by the Company and the Trustee, and
constitutes a valid and binding agreement of the Company,
enforceable
against the Company in accordance
with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including,
without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement
of
creditors'
rights generally and except as enforcement thereof is subject
to general
principles of equity (regardless of whether enforcement is
considered
in a proceeding in equity or at law), and further subject to 12
U.S.C.
Section 1818(b)(6)(D) and similar bank regulatory powers and to
the
application of principles of public policy.
(xi) Authorization of
the Securities. The Securities have been duly
authorized
and, at the Closing Time, will have been duly executed by the
Company
and, when authenticated, issued and delivered in the manner
provided
for in the Indenture and delivered against payment of the
purchase
price therefor as provided in this Agreement, will constitute
valid and
binding obligations of the Company, enforceable against the
Company in
accordance with their terms, except as the enforcement thereof
may be
limited by bankruptcy, insolvency (including, without
limitation,
all laws relating to fraudulent
transfers), reorganization, moratorium or
similar
laws affecting enforcement of creditors' rights generally and
except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity
or at
law), and further subject to 12 U.S.C. Section 1818(b)(6)(D)
and
similar
bank regulatory powers and to the application of principles of
public
policy, and will be in the form contemplated by, and entitled
to
the
benefits of, the Indenture.
(xii) Description of the Indenture and the Securities. The
Indenture
conforms
in all material respects to the respective statements relating
thereto
contained in the Prospectus, and is in substantially the form
filed as
an exhibit to the Registration Statement. The Securities will
conform in
all material respects to the statements relating thereto
contained
in the Prospectus and will be in substantially the form that
the
Company
will file as an exhibit to the Form 8-K describing the
transactions contemplated by this Agreement.
(xiii) Absence of Defaults and Conflicts. Neither the Company
nor
any of its
subsidiaries is in violation of its charter, by-laws or similar
organizational documents or in default in the performance or
observance of
any
obligation, agreement, covenant or condition contained in any
contract,
indenture, mortgage, deed of trust, loan or credit agreement,
note,
lease or other agreement or instrument to which the Company or
any
of its
subsidiaries is a party or by which it or any of them may be
bound,
or to
which any of the property or assets of the Company or any
subsidiary
is subject
(collectively, "Agreements and Instruments") except for such
defaults
that would not result in a Material Adverse Effect; and the
execution,
delivery and performance of this Agreement, the Indenture and
the
Securities and the consummation of the transactions
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contemplated herein and in the Registration Statement (including
the
issuance
and sale of the Securities and the use of the proceeds from the
sale of the Securities as
described in the prospectus supplement under the
caption
"Summary - Use of Proceeds") and compliance by the Company with
its
obligations hereunder and under the Indenture and the Securities
have
been duly
authorized by all necessary corporate action and do not and
will
not,
whether with or without the giving of notice or passage of time
or
both,
conflict with or constitute a breach of, or default or
Repayment
Event (as
defined below) under, or result in the creation or imposition
of
any lien,
charge or encumbrance upon any property or assets of the
Company
or any
subsidiary pursuant to, the Agreements and Instruments (except
for
such
conflicts, breaches, defaults or Repayment Events or liens,
charges
or
encumbrances that would not result in a Material Adverse Effect),
nor
will such
action result in any violation of the provisions of the
charter,
by-laws or
similar organizational documents of the Company or any
subsidiary
or any applicable law, statute, rule, regulation, judgment,
order,
writ or decree of any government, government instrumentality or
court,
domestic or foreign, having jurisdiction over the Company or
any
subsidiary
or any of their assets, properties or operations. As used
herein, a
"Repayment Event" means any event or condition which gives the
holder of
any note, debenture or other evidence of indebtedness (or any
person
acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(xiv) Absence of Labor Dispute. No labor dispute with the
employees
of the
Company or any subsidiary exists or, to the knowledge of the
Company,
is imminent.
(xv) Absence of
Proceedings. There is no action, suit, proceeding,
inquiry or
investigation before or brought by any court or governmental
agency or
body, domestic or foreign, now pending, or, to the knowledge of
the
Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the
Registration
Statement
(other than as disclosed therein), or which might result in a
Material
Adverse Effect, or which might materially and adversely affect
the
consummation of the transactions contemplated in this Agreement or
the
performance by the Company of its obligations hereunder; the
aggregate of
all
pending legal or governmental proceedings to which the Company or
any
subsidiary
is a party or of which any of their respective property or
assets is
the subject which are not described in the Registration
Statement,
including ordinary routine litigation incidental to the
business,
would not be reasonably likely to result in a Material Adverse
Effect.
(xvi) Accuracy of Exhibits. There are no contracts or documents
which are
required to be described in the Registration Statement, the
Prospectus
or the documents incorporated by reference therein or to be
filed as
exhibits thereto which have not been so described and filed as
required.
(xvii) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate
patents,
patent rights, licenses, inventions, copyrights, know-how
(including
trade secrets and other unpatented and/or unpatentable
proprietary or
confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual
property
(collectively, "Intellectual Property") necessary to carry on the
business
now
operated by them, and neither the Company nor any of its
subsidiaries
has
received any notice or is otherwise aware of any infringement of
or
conflict
with asserted rights of others with respect to any Intellectual
Property
or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest
of the
Company or
any of its subsidiaries therein, and which infringement or
conflict
(if the subject of any unfavorable decision, ruling or finding)
or
invalidity or inadequacy, singly or in the aggregate, would not
result
in a
Material Adverse Effect.
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(xviii) Absence of Manipulation. Except for stock repurchases
conducted
in compliance with the 1934 Act and the 1934 Act Regulations,
neither
the Company nor any affiliate of the Company has taken, nor
will
the
Company or any affiliate take, directly or indirectly, any
action
which is
designed to or which has constituted or which would be expected
to cause
or result in stabilization or manipulation of the price of any
security
of the Company to facilitate the sale or resale of the
Securities.
(xix) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency
is
necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or
sale
of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement or for the due execution, delivery
or
performance of the Indenture by the Company, except such as have
been
already
obtained or as may be required under the 1933 Act or the 1933
Act
Regulations or state securities laws and except for the
qualification of
the
Indenture under the 1939 Act.
(xx) Possession of
Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents
and other
authorizations (collectively, "Governmental Licenses") issued by
the
appropriate federal, state, local or foreign regulatory agencies or
bodies
necessary
to conduct the business now operated by them, except where the
failure so
to possess would not, singly or in the aggregate, result in a
Material
Adverse Effect; the Company and its subsidiaries are in
compliance
with the terms and conditions of all such Governmental
Licenses,
except where the failure so to comply would not, singly or in
the
aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect,
except when
the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not,
singly or
in the
aggregate, result in a Material Adverse Effect; and neither the
Company
nor any of its subsidiaries has received any notice of
proceedings
relating
to the revocation or modification of any such Governmental
Licenses
which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a
Material
Adverse
Effect.
(xxi) Title to Property. The Company and its subsidiaries have
good
and
marketable title to all real property owned by the Company and
its
subsidiaries and
good title to all other properties owned by them, in each
case, free
and clear of all mortgages, pledges, liens, security interests,
claims,
restrictions or encumbrances of any kind except such as (a) are
described
in the Prospectus or (b) do not, singly or in the aggregate,
materially
affect the value of such property and do not interfere with the
use made
and proposed to be made of such property by the Company or any
of
its
subsidiaries. All of the leases and subleases material to the
business
of the
Company and its subsidiaries, considered as one enterprise, and
under
which the Company or any of its subsidiaries holds properties
described
in the Prospectus, are in full force and effect, and neither
the
Company
nor any subsidiary has any notice of any material claim of any
sort that
has been asserted by anyone adverse to the rights of the
Company
or any
subsidiary under any of the leases or subleases mentioned above,
or
affecting
or questioning the rights of the Company or such subsidiary to
the
continued possession of the leased or subleased premises under
any
such lease
or sublease, except where any of the foregoing circumstances
would not
result in a Material Adverse Effect.
(xxii) Investment Company Act. The Company is not required, and
upon
the
issuance and sale of the Securities as herein contemplated and
the
application of the net proceeds therefrom as described in the
Prospectus
will not
be required, to register as, an "investment company" under the
Investment
Company Act of 1940, as amended (the "1940 Act").
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(xxiii) Environmental Laws. Except as described in the
Registration
Statement
and except as would not, singly or in the aggregate, result in
a
Material
Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or
foreign
statute,
law, rule, regulation, ordinance, code, policy or rule of
common
law or any
judicial or administrative interpretation thereof, including
any
judicial or administrative order, consent, decree or judgment,
relating
to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater,
land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or
threatened
release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous
substances, petroleum or petroleum products,
asbestos-containing
materials
or mold (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal,
transport
or handling of Hazardous Materials (collectively,
"Environmental
Laws"),
(B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental
Laws and
are each in compliance with their requirements, (C) there are
no
pending or
threatened administrative, regulatory or judicial actions,
suits,
demands, demand letters, claims, liens, notices of noncompliance
or
violation,
investigation or proceedings relating to any Environmental Law
against
the Company or any of its subsidiaries and (D) there are no
events
or
circumstances that would reasonably be expected to form the basis
of an
order for
clean-up or remediation, or an action, suit or proceeding by
any
private
party or governmental body or agency, against or affecting the
Company or
any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(b)
Officer's
Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries
delivered to the Representatives or to
counsel for the Underwriters shall be
deemed a representation and warranty by
the Company to each Underwriter as to the
matters covered thereby as of the date
of such certificate.
SECTION 2.
Sale and Delivery to Underwriters; Closing.
(a)
Securities. On
the basis of the representations and warranties
herein contained and subject to the terms
and conditions herein set forth, the
Company agrees to sell to each Underwriter,
severally and not jointly, and each
Underwriter, severally and not jointly,
agrees to purchase from the Company, at
the price set forth in Schedule B, the
aggregate principal amount of Securities
set forth in Schedule A opposite the name
of such Underwriter, plus any
additional principal amount of Securities
which such Underwriter may become
obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b)
Payment. Payment
of the purchase price for, and delivery of
certificates for, the Securities shall be
made at the offices of Morrison &
Foerster LLP, 1290 Avenue of the Americas,
New York, New York 10104, or at such
other place as shall be agreed upon by the
Representatives and the Company, at
9:00 A.M. (Eastern time) on the third
business day after the date hereof (unless
postponed in accordance with the provisions
of Section 10), or such other time
not later than ten business days after such
date as shall be agreed upon by the
Representatives and the Company (such time
and date of payment and delivery
being herein called "Closing Time").
Payment
shall be made to the Company by wire transfer of immediately
available funds to a bank account
designated by the Company, against delivery to
the Representatives through the facilities
of The Depository Trust Company
("DTC") for the respective accounts of the
Underwriters of certificates for the
Securities to be purchased by them. It is
understood that each Underwriter has
authorized the Representatives, for its
account, to accept delivery of, receipt
for, and make payment of the purchase price
for, the Securities which it has
agreed to purchase. Merrill Lynch,
individually and not as representative
8
<PAGE>
of the Underwriters, may (but shall not be
obligated to) make payment of the
purchase price for the Securities to be
purchased by any Underwriter whose funds
have not been received by the Closing Time,
but such payment shall not relieve
such Underwriter from its obligations
hereunder.
(c)
Registration.
The Securities will be made available for examination
by the Representatives in The City of New
York not later than 10:00 A.M.
(Eastern time) on the business day prior to
the Closing Time. Unless otherwise
agreed, one or more global notes
representing the Securities may be deposited
with DTC or a custodian for DTC and
registered in the name of Cede & Co., as
nominee for DTC.
SECTION 3.
Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a)
Compliance with
Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will
comply with the requirements of Rule 430A
and will notify the Representatives
immediately, and confirm the notice in
writing, (i) when any post-effective
amendment to the Registration Statement
shall become effective, or any supplement
to the Prospectus or any amended
Prospectus shall have been filed, (ii) of
the receipt of any comments from the
Commission, (iii) of any request by the
Commission for any amendment to the
Registration Statement or any amendment or
supplement to the Prospectus or any
document incorporated by reference therein
or for additional information, and
(iv) of the issuance by the Commission of
any stop order suspending the
effectiveness of the Registration Statement
or of any order preventing or
suspending the use of any preliminary
prospectus, or of the suspension of the
qualification of the Securities for
offering or sale in any jurisdiction, or of
the initiation or threatening of any
proceedings for any of such purposes. The
Company will promptly effect the filings
necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary
to ascertain promptly whether the
form of prospectus transmitted for filing
under Rule 424(b) was received for
filing by the Commission and, in the event
that it was not, it will promptly
file such prospectus. The Company will make
every reasonable effort to prevent
the issuance of any stop order and, if any
stop order is issued, to obtain the
lifting thereof at the earliest possible
moment.
(b)
Filing of
Amendments. The Company will give the Representatives
notice of its intention to file or prepare
any amendment to the Registration
Statement (including any filing under Rule
462(b)) or any amendment, supplement
or revision to either the prospectus
included in the Registration Statement at
the time it became effective or to the
Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, will
furnish the Representatives with copies of
any such documents a reasonable amount of
time prior to such proposed filing or
use, as the case may be, and will not file
or use any such document to which the
Representatives or counsel for the
Underwriters shall reasonably object.
(c)
Delivery of
Registration Statements. The Company has furnished or
will deliver to the Representatives and
counsel for the Underwriters, without
charge, signed copies of the Registration
Statement as originally filed and of
each amendment thereto (including exhibits
filed therewith or incorporated by
reference therein and documents
incorporated or deemed to be incorporated by
reference therein) and signed copies of all
consents and certificates of
experts, and will also deliver to the
Represent
