Exhibit 4(a)
Baltimore Gas and Electric Company
$300,000,000 5.25% Notes
due December 15, 2006
PURCHASE AGREEMENT
December 4, 2001
Xxxxxx Brothers Inc.
Banc of America Securities LLC
BNY Capital Markets, Inc.
Xxxxxxx Xxxxx Barney Inc.
Scotia Capital (USA) Inc.,
SunTrust Capital Markets, Inc.
c/x
Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Ladies and Gentlemen:
1. Introduction. Baltimore Gas and Electric Company, a Maryland corporation (the
"Company") proposes to issue and sell to Xxxxxx Brothers Inc., Banc of America
Securities LLC, BNY Capital Markets, Inc., Xxxxxxx Xxxxx Barney Inc., Scotia
Capital (USA) Inc., and SunTrust Capital Markets, Inc. (the "Initial
Purchasers"), its $300,000,000 5.25% Notes due December 15, 2006, described in
Annex I (the "Securities"), subject to the terms and conditions set forth
herein. The Securities are to be issued pursuant to the provisions of the
Indenture dated as of July 1, 1985 and supplemented on October 1, 1987 and
January 26, 1993, creating the Securities (the "Indenture"), between the Company
and The Bank of New York (successor to Mercantile-Safe Deposit and Trust
Company), as Trustee (the "Trustee"). The Securities will bear interest at a
rate of 5.25 % per year. The Initial Purchasers and their direct and indirect
transferees will be entitled to the benefits of a registration rights agreement
dated December 11, 2001 and in a form reasonably satisfactory to the Initial
Purchasers and the Company (the "Registration Rights Agreement"), pursuant to
which the Company will use its commercially reasonable efforts to file a
registration statement with the Securities Exchange Commission (the "SEC") under
the Securities Act of 1933, as amended (the "Securities Act") covering the
exchange offer referred to in the Registration Rights Agreement (the "Exchange
Offer").
2. Terms of Offering. The Securities will be offered and sold to the Initial
Purchasers pursuant to one or more exemptions from the registration requirements
under the Securities Act. The Company has prepared and delivered a preliminary
offering memorandum (the "Preliminary Offering Memorandum") dated December 3,
2001 and has prepared and will
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deliver a final offering memorandum (the "Final
Offering Memorandum") dated December 4, 2001 and will deliver to the Initial
Purchasers, on the date hereof or the next succeeding day, copies of the Final
Offering Memorandum, relating to the Securities, for use by each of Initial
Purchasers in connection with the solicitation of, purchases of, or offering of,
the Securities. "Offering Memorandum" means, with respect to any date or time
referred to in this Agreement, the most recent offering memorandum (including
any amendment or supplement to such document as of such date), including
exhibits thereto and any documents incorporated therein by reference, which has
been prepared and delivered by the Company to the Initial Purchasers in
connection with the solicitation of, purchases of, or offering of, the
Securities.
The Initial Purchasers have advised the Company that the
Initial Purchasers will, and the Company agrees that the Initial Purchasers may,
make offers (the "Exempt Resales") of the Securities purchased hereunder on the
terms set forth in the Offering Memorandum solely to persons whom the Initial
Purchasers reasonably believe each to be (i) "qualified institutional buyers" as
defined in Rule 144A under the Securities Act ("QIBs"), (ii) other institutional
"accredited investors" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that execute and deliver a certificate containing certain
representations and agreements ("Institutional Accredited Investors"), and (iii)
non-U.S. persons to whom offers and sales of the Securities may be made in
reliance upon the provisions of Regulation S under the Securities Act (such
persons collectively being referred to herein as the "Eligible Purchasers"). The
Initial Purchasers will offer the Securities to Eligible Purchasers initially at
a price equal to 99.56% of the principal amount thereof. Such price may be
changed at any time without notice.
Upon original issuance thereof, and until such time as the
same is no longer required pursuant to the Indenture with respect thereto, the
Securities shall bear the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (A) (1) TO THE COMPANY, (2) IN A
TRANSACTION ENTITLED TO ANY EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (5)
TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
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REVERSE OF THIS SECURITY) THAT
IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND
A CERTIFICATE IN THE FORM ATTACHED TO THIS SECURITY IS DELIVERED BY THE
TRANSFEREE TO THE COMPANY AND THE TRUSTEE OR (6) IN ACCORDANCE WITH ANOTHER
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) AND (B) IN EACH
CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF EACH STATE OF THE
UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES
IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER
INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF
THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY
THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
OR (2) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S.
PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF, OR AN ACCOUNT SATISFYING
THE REQUIREMENTS OF RULE 902 UNDER, REGULATION S UNDER THE SECURITIES ACT.
IF THIS NOTE IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE
"DEPOSITARY") (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) OR ITS NOMINEE, THIS NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY UNLESS AND UNTIL
THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY
PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN."
3. Representation and Warranties of the Company. The Company
represents and warrants to the Initial Purchasers, that:
(a) The Preliminary Offering Memorandum and, the Final Offering Memorandum
as of their respective dates did not and the Offering Memorandum does not, and
at the Closing Date (as hereinafter defined) the Offering Memorandum will not,
contain an untrue statement of a material fact or omit to state a material fact
necessary in
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order to make the statements made therein not misleading; on said
dates. The documents listed under the heading WHERE YOU CAN FIND MORE
INFORMATION that are or will be incorporated by reference in the Offering
Memorandum (the "Incorporated Documents"), taken together as a whole, fully
complied or will comply in all material respects with the applicable provisions
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
applicable rules and regulations of the SEC thereunder, and, when read together
with the Offering Memorandum on said dates 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;
provided that the foregoing representations and warranties in this paragraph (a)
shall not apply to statements or omissions made in reliance upon and in
conformity with the information furnished to the Company in writing by, or on
behalf of Initial Purchasers expressly for use in the Offering Memorandum.
(b) The Company has been incorporated and is validly existing as a
corporation and is in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own,
lease and operate its properties and to conduct its business as
presently conducted and as set forth in or contemplated by the Offering
Memorandum, and the Company is qualified as a foreign corporation to
transact business and in good standing in each jurisdiction in which
such qualification is required and is in which the failure to be so
qualified would have a material adverse effect on the financial
position or financial results of operations of the Company and its
subsidiaries taken as a whole.
(c) The Company is not in violation of its Articles or Certificate of
Incorporation, or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any mortgage or any
material contract, lease, note or other instrument to which it is a party or by
which it may be bound, or materially in violation of any law, administrative
regulation or administrative, arbitration or court order, except in each case to
such extent as may be set forth in the Offering Memorandum; and the execution
and delivery of this Agreement, the incurrence of the obligations herein set
forth and the consummation of the transactions herein contemplated will not
conflict with or constitute a breach of, or default under, the Articles of
Incorporation or by-laws of the Company or any mortgage, material contract,
lease, note or other instrument to which the Company is a party or by which the
Company may be bound, or any law, administrative regulation or administrative,
arbitration or court order.
(d) The approval of the Maryland Public Service Commission necessary for
the valid issuance by the Company of the Securities has been obtained and
continues in full force and effect. Other than as provided in the immediately
preceding sentence, no consent of or approval by any public board or body or
administrative agency, federal or state, is necessary to authorize the issuance
and sale of the Securities, except that there must be compliance with the Blue
Sky or securities laws of the states in which the Securities are to be sold.
Subject to compliance by the Initial Purchasers with the representations and
warranties set forth in Section 7 and, with respect to sales to Eligible
Purchasers, compliance by the Initial Purchasers with the provision of Rule
144A,
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Regulation D or Regulation S applicable to the Initial Purchasers in
connection with such sales, it is not necessary in connection with the offer,
sale and delivery of the Securities by the Company to the Initial Purchasers,
and by the Initial Purchasers to each Eligible Purchaser, in the manner
contemplated by this Agreement and the Offering Memorandum to register the
Securities under the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
(e) The Company has not, directly or indirectly, solicited any offer to buy
or offered to sell, and will not, directly or indirectly, solicit any
offer to buy or offer to sell, in the United States or to any United
States citizen or resident, any security which is or would be
integrated with the sale of the Securities in a manner that would
require the Securities to be registered under the Securities Act.
(f) The Securities are eligible for resale pursuant to Rule 144A and will
not be, at the Closing Date, of the same class as securities listed on
a national securities exchange registered under the Section 6 of the
Exchange Act, or quoted in a U.S. automated interdealer quotation
system.
(g) None of the Company, its affiliates, as such term is defined in Rule
501(b) under the Securities Act ("Affiliates"), or any person acting on
its or any of their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation) has engaged or will engage,
in connection with the offering of the Securities, in any form of
general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act.
(h) With respect to those Securities sold in reliance on Regulation S (A)
none of the Company, its Affiliates or any person acting on its or
their behalf (other than the Initial Purchasers, as to whom the Company
makes no representation) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S and (B) each of the
Company and its Affiliates and any person acting on its or their behalf
(other than the Initial Purchasers, as to whom the Company makes no
representation) has complied and will comply with the offering
restriction requirements of Regulation S.
(i) Except as set forth in or contemplated by the Offering Memorandum, no
material adverse change has occurred in the financial condition of the
Company, since the respective dates as of which information is given in
the Offering Memorandum.
(j) This Agreement has been duly authorized, executed and delivered by
the Company.
(k) The Registration Rights Agreement has been duly and validly authorized
by all necessary corporate action.
(l) The Indenture has been duly and validly authorized by all
necessary corporate action; and the Indenture has been duly and validly
executed and delivered and is a valid and enforceable instrument in
accordance with its terms, except as enforcement of the provisions of
the Indenture may be limited by bankruptcy or other applicable laws
affecting the enforcement of creditors' rights or by general principles
of equity.
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(m) The issuance and sale of the Securities have been duly and
validly authorized by all necessary corporate action, and on the
Closing Date, (assuming authentication by the Trustee) will be duly
executed and delivered and constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their terms,
except as enforcement may be limited by bankruptcy or other applicable
laws effecting the enforcement of creditor's rights or by general
principles of equity.
(n) The Exchange Securities (as defined in the Registration
Rights Agreement) have been duly and validly authorized by all
necessary corporate action and when duly issued, authenticated and
delivered will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, except as
enforcement may be limited by bankruptcy or other applicable laws
effecting the enforcement of creditor's rights or by general principals
of equity.
Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Initial Purchasers shall be deemed a
representation and warranty by the Company to the Initial Purchasers as to the
matters covered thereby. The Company acknowledges that the Initial Purchasers,
and, for purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Section 8 hereof, counsel to the Company and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations, and the Company hereby consents to such reliance.
4 Purchase and Sale. 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 the Initial Purchasers, severally, and the Initial
Purchasers each agree to purchase from the Company, severally, at the time and
place herein specified, the principal amount of the Securities listed next to
their respective names in Schedule A hereto at a purchase price equal to 99.06%
of the principal amount thereof.
5. Time and Place of Closing. Delivery of the Securities against
payment therefor by wire transfer in federal funds shall be made at the offices
of Baltimore Gas and Electric Company, 00 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx, at 9:00 A.M., New York City Time, on December 11, 2001 or at such
other place, time and date as shall be agreed upon in writing by the Company and
the Initial Purchasers. The hour and date of such delivery and payment are
herein called the "Closing Date".
The Securities sold to QIBs in reliance on Rule 144A will be
issued in the form of one or more global notes in fully registered form (the
"144A Global Notes"). The Securities sold to non-U.S. persons in offshore
transactions in reliance on Regulation S will be issued in the form of one or
more global notes in fully registered form (the "Regulation S Global Notes," and
together with the 144A Global Notes are referred to herein as the "Global
Notes"). The Global Notes shall be delivered on the Closing Date, or on such
other date and time as agreed by the Initial Purchasers, the Company, The
Depository Trust Company ("DTC") or The Bank of New York, to DTC or The Bank of
New York, as custodian for DTC, in fully registered form in the name of CEDE &
Co. for the account of the Initial Purchasers or as directed by the Initial
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Purchasers not later than the close of business on the second business day prior
to the Closing Date.
Certificates representing the Securities sold to Institutional
Accredited Investors shall be delivered on the Closing Date to the Initial
Purchasers, or as directed by the Initial Purchasers, in fully registered form
in denominations of $100,000 and in integral multiples of $1,000 in excess
thereof and registered in such names as the Initial Purchasers shall reasonably
request in writing not later than the close of business on the second business
day prior to the Closing Date, or, to the extent not so requested, registered in
the names of the Initial Purchasers in such authorized denomination as the
Company shall determine.
The Company agrees to make the Securities available to the
Initial Purchasers for checking purposes not later than 10:00 A.M., New York
Time, on the last business day preceding the Closing Date at the offices of The
Bank of New York, 0 Xxxx Xxxxx - 00xx Xxxxx, Xxx Xxxx XX 00000-0000.
6. Covenants of the Company. The Company agrees with
the Initial Purchasers as follows:
(a) To advise the Initial Purchasers (i) of the issuance by any state
securities commission of any stop order suspending the qualification or
exemption from qualification of any of the Securities for offering or sale, or
the initiation of any proceeding by any state securities commission or any other
federal or state regulatory authority for such purpose and (ii) of the happening
of any event during the period referred to in Section 6(c) below that makes any
statement of a material fact made in the Offering Memorandum untrue or that
requires any additions to or changes in the Offering Memorandum in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The Company shall use its best efforts to prevent the
issuance of any stop order suspending the qualification or exemption of any of
the Securities under any state securities or blue-sky laws and, if at any time
any state securities commission or other federal or state regulatory authority
shall issue an order suspending the qualification or exemption of any of the
Securities under any state securities or blue-sky laws, the Company shall use
its best efforts to obtain the prompt withdrawal or lifting of such order.
(b) To furnish the Initial Purchasers, without charge, as many copies of
the Offering Memorandum, and any amendments or supplements thereto, and
Incorporated Documents, as the Initial Purchasers may reasonably
request. Subject to the Initial Purchasers' compliance with
representations and warranties and agreements set forth in Section 7
hereof, the Company consents to the use of the Offering Memorandum, and
any amendments and supplements thereto required pursuant hereto, by the
Initial Purchasers in connection with Exempt Resales.
(c) If, during such period (not exceeding the nine month period following
the date of this Agreement) as in the opinion of counsel for the Initial
Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers, any event relating to
or affecting the Company or of which the
8
Company shall be advised in writing by
the Initial Purchasers shall occur which, in the Company's reasonable opinion,
should be set forth in a supplement to, or an amendment of, the Offering
Memorandum in order to make the Offering Memorandum not misleading in the light
of the circumstances when such Offering Memorandum is delivered to an Eligible
Purchaser, the Company will, at its expense, prepare an appropriate amendment or
supplement to such Offering Memorandum so that the Offering Memorandum, as so
amended or supplemented, will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances when the Offering Memorandum
is delivered to an Eligible Purchaser, not misleading; provided that should such
event relate solely to information furnished in writing to the Company by or on
behalf of the Initial Purchasers for use in connection with the preparation of
the Preliminary Offering Memorandum, the Final Offering Memorandum or any
Offering Memorandum (or any amendment or supplement thereto), then the Initial
Purchasers shall assume the expense of preparing and furnishing any such
amendment or supplement. In case the Initial Purchasers are required to deliver
an Offering Memorandum after the expiration of nine months from the date of this
Agreement, the Company, upon the Initial Purchasers' request, will furnish to
the Initial Purchasers, at the Initial Purchasers' expense, a reasonable
quantity of any such amendment or supplement referred to in this Section 6(c).
(d) To advise the Initial Purchasers promptly of any proposal to amend or
supplement the Offering Memorandum. The Initial Purchasers' delivery of
any such amendment or supplement, shall not constitute a waiver of any
of the conditions set forth in Section 8.
(e) To furnish such proper information as may be lawfully required and
otherwise cooperate in qualifying the Securities for offer and sale to
the Initial Purchasers and pursuant to Exempt Resales under the
blue-sky laws of such jurisdictions as the Initial Purchasers may
designate, provided that the Company shall not be required to register
or qualify as a foreign corporation or dealer in securities, to file
any consents to service of process under the laws of any jurisdiction,
or to meet any other requirements deemed by the Company to be unduly
burdensome.
(f) To take all reasonable action necessary to enable the ratings agencies
rating the Securities to provide their ratings of the Securities.
(g) So long as any of the Securities remain outstanding and during any
period in which the Company is not subject to Section 13 or 15(d) of
the Exchange Act, to make available to any holder of Securities in
connection with any sale thereof and any prospective purchaser of such
Securities from such holder, the information ("Rule 144A Information")
required by Rule 144A(d)(4) under the Securities Act.
(h) Except as herein provided, whether or not the transactions contemplated
herein are consummated or this Agreement is terminated, to pay all expenses and
taxes (except transfer taxes) in connection with the performance by the Company
of its obligations under this Agreement, including without limitation (i) the
preparation by it of
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the Preliminary Offering Memorandum and the Offering
Memorandum, (ii) the issuance and delivery of the Securities as provided in
Section 5 hereof, (iii) the qualification of the Securities under blue-sky laws
(including counsel fees not to exceed $7,500), and (iv) the printing and
delivery to the Initial Purchasers of reasonable quantities of the Offering
Memorandum and, except as provided in Section 6(c) hereof, of any amendments or
supplements thereto. The Company shall not, however, be required to pay any
amount for any expenses of the Initial Purchasers, except that, if this
Agreement shall be terminated in accordance with the provisions of Section 8 or
10 hereof, the Company will reimburse the Initial Purchasers for the reasonable
fees and disbursements of counsel for the Initial Purchasers, whose reasonable
fees and disbursements the Initial Purchasers agree to pay in any other event,
and will reimburse the Initial Purchasers for their reasonable out-of-pocket
expenses, in an aggregate amount not exceeding $5,000, incurred in contemplation
of the performance of this Agreement. The Company shall not in any event be
liable to the Initial Purchasers for damages on account of loss of anticipated
profits.
(i) To obtain the approval of DTC for "book-entry" transfer of the
Securities, except those Securities sold to Institutional Accredited
Investors, and to comply with all of its agreements in the Registration
Rights Agreement and set forth in the representation letter of the
Company to DTC relating to the approval of the Securities by DTC for
"book-entry" transfer.
(j) During the period beginning on the date hereof and continuing to the
Closing Date, not to offer, sell, contract to sell or otherwise
transfer or dispose of any debt securities of the Company or any
warrants, rights or options to purchase or otherwise acquire debt
securities of the Company substantially similar to the Securities
(other than (i) the Securities and (ii) commercial paper issued in the
ordinary course of business), without the prior written consent of the
Initial Purchasers.
(k) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act)
that would be integrated with the sale of the Securities to the Initial
Purchasers or pursuant to Exempt Resales in a manner that would require
the registration of any such sale of the Securities under the
Securities Act.
(l) None of the Company, its Affiliates or any person acting on its or
their behalf (other than the Initial Purchasers) will engage in any
direct selling efforts (as that term is defined in Regulation S under
the Securities Act) with respect to the Securities sold pursuant to
Regulation S, and the Company and its Affiliates and each person acting
on its or their behalf (other than the Initial Purchasers) will comply
with the offering restrictions of Regulation S with respect to those
Securities sold pursuant thereto.
(m) Until the expiration of two years after the original issuance of the
Securities, the Company will not, and will cause its Affiliates not to,
purchase or agree to purchase or otherwise acquire any Securities which
are "restricted securities" (as such term is defined in Rule 144(a)(3)
under the Securities Act), whether as beneficial owner or otherwise
(except as agent acting as a securities broker on behalf of and for the
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account of customers in the ordinary course of business in unsolicited
broker's transactions) unless, promptly upon any such purchase, the
Company or any Affiliate shall submit such Securities to the Trustee
for cancellation.
(n) In connection with the original distribution of the Securities, prior
to any offer or sale of the Securities by the Initial Purchasers, the Initial
Purchasers and its counsel shall have the right to make reasonable inquiries
into the business of the Company, The Company also agrees to provide answers to
each prospective subsequent purchaser of Securities who so requests concerning
the Company (to the extent that such information is available or can be acquired
and made available to prospective subsequent purchasers without unreasonable
effort or expense and to the extent that the provision thereof is not prohibited
by applicable law and, in the case of confidential or proprietary information,
subject to appropriate confidentiality arrangements regarding such information)
and the terms and conditions of the Securities, as provided in the Offering
Memorandum.
7. Initial Purchasers' Representations and Warranties. Each Initial
Purchaser represents and warrants to and agrees with the Company,
that:
(a) It is a QIB or an Institutional Accredited Investor, as the case may
be, with such knowledge and experience in financial and business
matters as is necessary in order to evaluate the merits and risks of an
investment in the Securities.
(b) It is not acquiring the Securities with any present intention of
offering or selling any of the Securities in a transaction that would
violate the Securities Act or the securities laws of any state of the
United States or any other applicable jurisdiction.
(c) No form of general solicitation or general advertising (within the
meaning of Regulation D under the Securities Act) has been or will be
used by it or any of its representatives in connection with the offer
and sale of the Securities pursuant hereto, including, but not limited
to, articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising.
(d) In connection with Exempt Resales, it will solicit offers to buy the
Securities only from, and will offer to sell the Securities only to, Eligible
Purchasers that agree that (x) the Securities purchased by them may be resold,
pledged or otherwise transferred only (I) to the Company, (II) so long as the
Securities are eligible for resale pursuant to Rule 144A under the Securities
Act to a person whom the seller reasonably believes is a QIB purchasing for its
own account or for the account of a QIB in a transaction meeting the
requirements of Rule 144A under the Securities Act, (III) in an offshore
transaction (as defined in Rule 902 of Regulation S) meeting the requirements of
Rule 904 of Regulation S, (IV) in a transaction entitled to an exemption from
registration provided by Rule 144 under the Securities Act, (V) to an
Institutional Accredited Investor that, prior to such transfer, furnishes the
Trustee a signed letter (substantially in the form of Appendix I to the Offering
Memorandum), or (VI) in accordance with another
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applicable exemption from the
registration requirements of the Securities Act (and based upon an opinion of
counsel acceptable to the Company) and, in each case, in accordance with the
applicable securities laws of each state of the United States or any other
applicable jurisdiction and (y) they will deliver to each person, as required by
applicable law, to whom such Securities or an interest therein is transferred a
copy of the Offering Memorandum.
(e) It will not offer, sell or deliver any of the Securities in any
jurisdiction outside the United States, except in accordance with
Regulation S under the Securities Act.
Each Initial Purchaser acknowledges that the Company and, for
purposes of the opinions to be delivered to the several Initial Purchasers
pursuant to Section 8 hereof, counsel to the Company and counsel for the Initial
Purchasers, will rely upon the accuracy and truth of the foregoing
representations and each Initial Purchaser hereby consents to such reliance.
8. Conditions of the Initial Purchaser's Obligations. The obligation of each
Initial Purchaser to purchase and pay for the Securities shall be subject to the
accuracy of the representations and warranties made herein on the part of the
Company, to the performance by the Company of its obligations to be performed
hereunder prior to the Closing Date, and to the following conditions:
(a) On the Closing Date, the Initial Purchasers shall have received from
Xxxxx Xxxxxx, Esq., counsel for the Company, an opinion in form and
substance reasonably satisfactory to the Initial Purchasers with such
changes therein as may be agreed upon by the Company and the Initial
Purchasers, with the approval of counsel for the Initial Purchasers,
and the Initial Purchasers shall have received from Xxxxxx Xxxxxx &
Xxxxxxx, counsel for the Initial Purchasers, an opinion in form and
substance reasonably satisfactory to the Initial Purchasers.
(b) Subsequent to the signing of this Agreement, the Initial Purchasers
shall have received a letter of PricewaterhouseCoopers LLP, dated the
Closing Date, confirming that they are independent public accountants
within the meaning of the Securities Act and the rules and regulations
thereunder, and stating in effect that:
(i) In their opinion, the consolidated financial statements
and supporting schedule audited by them which are included in the
Company's Form 10-K ("Form 10-K"), which is incorporated by
reference in the Offering Memorandum comply in form in all
material respects with the applicable accounting requirements of
the Securities Act and the rules and regulations thereunder and
the Exchange Act and the rules and regulations thereunder;
(ii) On the basis of procedures specified in such letter (but
not an audit in accordance with generally accepted auditing
standards), including reading the minutes of meetings of the
shareholder and the Board of Directors of the Company since the
end of the year covered by the Form
12
10-K as set forth in the
minute books through a specified date not more than five days
prior to the Closing Date, performing procedures specified in
Statement on Auditing Standards No. 71, Interim Financial
Information, on the unaudited interim consolidated financial
statements of the Company incorporated by reference in the
Offering Memorandum and reading the latest available unaudited
interim consolidated financial statements of the Company, and
making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters as to whether
the latest available financial statements not incorporated by
reference in the Offering Memorandum are prepared on a basis
substantially consistent with that of the audited consolidated
financial statements incorporated in the Offering Memorandum,
nothing has come to their attention that has caused them to
believe that (1) any unaudited consolidated financial statements
incorporated by reference in the Offering Memorandum do not
comply in form in all material respects with the applicable
requirements of the Securities Act and the rules and regulations
thereunder and the Exchange Act and the rules and regulations
thereunder or any material modifications should be made to those
unaudited consolidated financial statements for them to be in
conformity with generally accepted accounting principles; (2) at
the date of the latest available balance sheet not incorporated
by reference in the Offering Memorandum there was any change in
the capital stock, change in long-term debt or decrease in
consolidated net assets or ratio of earnings to fixed charges
(measured on the most recent twelve-month period) of the Company
as compared with the amounts shown in the latest balance sheet
incorporated by reference in the Offering Memorandum or for the
period from the closing date of the latest income statement
incorporated by reference in the Offering Memorandum to the
closing date of the latest available income statement read by
them there were any decreases, as compared with the corresponding
period of the previous year, in operating revenues, operating
income or net income except in all instances for changes or
decreases that the Offering Memorandum discloses have occurred or
may occur, or which are described in such letter; or (3) at a
specified date not more than five days prior to the Closing Date,
there was any change in the capital stock or long-term debt of
the Company or any decreases in consolidated net assets or in the
ratio of earnings to fixed charges (measured on the most recent
twelve-month period) of the Company as compared with amounts
shown in the latest balance sheet incorporated by reference in
the Offering Memorandum, except in all cases for changes or
decreases which the Offering Memorandum discloses have occurred
or may occur, or which are described in such letter; and
(iii) Certain specified procedures have been applied to
certain financial or other statistical information (to the extent
such information was obtained from the general accounting records
of the Company) set forth or incorporated by reference in the
Offering Memorandum and that such
13
procedures have not revealed
any disagreement between the financial and statistical
information so set forth or incorporated and the underlying
general accounting records of the Company, except as described in
such letter.
(c) Since the most recent dates as of which information is given in the
Offering Memorandum, there shall not have been any material adverse
change in the financial position or financial results of operations of
the Company and its consolidated subsidiaries, considered as a whole
and, at the Closing Date, the Initial Purchasers shall have received a
certificate to such effect dated the Closing Date and signed by an
officer of the Company.
(d) Since the date of this Agreement, neither Xxxxx'x Investor Services
Inc. nor Standard & Poor's Ratings Services shall have downgraded or
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any securities of the
Company which are of the same class as the Securities or the financial
condition of the Company.
(e) Prior to the Closing Date, the Company shall have furnished to the
Initial Purchasers such further information, certificates and
documentation as the Initial Purchasers may reasonably request.
(f) The approval of the Maryland Public Service Commission necessary for
the valid issuance by the Company of the Securities shall have been
obtained and be continuing in full force and effect.
In case any of the conditions specified above in this Section
8 shall not have been fulfilled, this Agreement may be terminated by Xxxxxx
Brothers Inc. on behalf of the Initial Purchasers upon written notice hereof to
the Company. Any such termination shall be without liability of any party to any
other party except as otherwise provided in Sections 6(h) and 9 hereof.
9. Indemnification.
(a) The Company shall indemnify, defend and hold harmless each Initial
Purchaser and each person who controls any Initial Purchaser within the meaning
of the Securities Act or the Exchange Act from and against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act or any other statute or common law
and shall reimburse each Initial Purchaser and any such controlling person for
any legal or other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with investigating any
such losses, claims, damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering Memorandum,
the Final Offering Memorandum or any Offering Memorandum (or any amendment or
supplement thereto), or the omission or alleged omission to state therein a
material fact required to be stated
14
therein or necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading; provided, however, that the indemnity agreement contained in this
Section 9 shall not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such untrue statement or
alleged untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon information furnished in writing
to the Company by or on behalf of the Initial Purchasers for use in connection
with the preparation of the Preliminary Offering Memorandum and the Final
Offering Memorandum or any Offering Memorandum (or any amendment or supplement
thereto); and provided further, that the indemnity agreement contained in this
Section 9 shall not inure to the benefit of any Initial Purchaser (or of any
person controlling any Initial Purchaser) on account of any such losses, claims,
damages, liabilities, expenses or actions arising from the sale of the
Securities to any subsequent purchaser if a copy of the Offering Memorandum
(including any amendment or supplement thereto), shall have been furnished to
the Initial Purchasers or any subsequent purchaser at or prior to the time of
written confirmation of the sale involved and such amendment or supplement
corrected the alleged omission or alleged untrue statement in the Preliminary
Offering Memorandum or the Offering Memorandum (exclusive of any documents
incorporated by reference), and where the Company shall have provided to the
Initial Purchasers in a timely manner sufficient copies of such Offering
Memorandum or amendment or supplement thereof, shall not have been given or sent
to such subsequent purchaser by or on behalf of the Initial Purchasers with or
prior to the written confirmation of the sale involved. The indemnity agreement
of the Company contained in this Section 9 and the representations and
warranties of the Company contained in Section 3 hereof shall remain operative
and in full force and effect regardless of any termination of this Agreement or
of any investigation made by or on behalf of the Initial Purchasers or any such
controlling person, and shall survive the delivery of the Securities. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Initial Purchaser shall indemnify, defend and hold harmless the
Company, its officers and directors, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, from and against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or any other
statute or common law and shall reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided, reasonable counsel
fees) incurred by them in connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any actions, insofar as
such losses, claims, damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum, the Final Offering
Memorandum, or any Offering Memorandum (or any amendment or supplement thereto),
or the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of the Initial
Purchasers for use in connection with the preparation of the Preliminary
Offering Memorandum, the Final Offering Memorandum or any Offering Memorandum
(or any amendment or supplement thereto).
15
The Initial Purchasers hereby furnishs
to the Company in writing expressly for use in the Preliminary Offering
Memorandum and Final Offering Memorandum (i) the statements relating to the
offering price on the front cover and (ii) the first, second, third, fourth,
fifth (exclusive of the first sentence thereof) and sixth paragraphs under PLAN
OF DISTRIBUTION. The Company acknowledges and agrees that the information
referred to in the previous sentence is the only information the Initial
Purchasers have furnished to the Company for use in the Preliminary Offering
Memorandum or Final Offering Memorandum. The indemnity agreement of the Initial
Purchasers contained in this Section 9 shall remain operative and in full force
and effect regardless of any termination of this Agreement or of any
investigation made by or on behalf of the Company, its directors or its
officers, the Initial Purchasers, or any such controlling person, and shall
survive the delivery of the Securities. This indemnity agreement will be in
addition to any liability which the Initial Purchasers may have.
(c) The Company and the Initial Purchasers shall, upon the receipt of
notice of the commencement of any action against it or any person controlling it
as aforesaid, in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, promptly give written notice of the
commencement thereof to the party or parties against whom indemnity shall be
sought hereunder, but the omission so to notify such indemnifying party or
parties of any such action shall not relieve such indemnifying party or parties
from any liability which it or they may have to the indemnified party otherwise
than on account of such indemnity agreement. In case such notice of any such
action shall be so given, such indemnifying party shall be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
(in conjunction with any other indemnifying parties) the defense of such action,
in which event such defense shall be conducted by counsel chosen by such
indemnifying party or parties and satisfactory to the indemnified party or
parties who shall be defendant or defendants in such action, and such defendant
or defendants shall bear the fees and expenses of any additional counsel
retained by them, but if the indemnifying party shall elect not to assume the
defense of such action, such indemnifying party will reimburse such indemnified
party or parties for the reasonable fees and expenses of any counsel retained by
them; provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and counsel for the indemnified
party shall have reasonably concluded that there may be a conflict of interest
involved in the representation by such counsel of both the indemnifying party
and the indemnified party, the indemnified party or parties shall have the right
to select separate counsel, satisfactory to the indemnifying party, to
participate in the defense of such action on behalf of such indemnified party or
parties (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (in additional to
local counsel) representing the indemnified parties who are parties to such
action). Each of the Company and the Initial Purchasers agrees that without the
other party's prior written consent, which consent shall not be unreasonably
withheld, it will not settle, compromise or consent to the entry of any judgment
in any claim in respect of which indemnification may be sought under the
indemnification provisions of this Agreement, unless such settlement, compromise
or consent (i) includes an unconditional release of such other party from all
liability arising out of such claim and (ii) does not include a
16
statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
such other party.
(d) If the indemnification provided for in subparagraph (a) or (b) above
shall be unenforceable under applicable law by an indemnified party, each
indemnifying party agrees to contribute to such indemnified party with respect
to any and all losses, claims, damages, liabilities and expenses for which each
such indemnification provided for in subparagraph (a) or (b) above shall be
unenforceable, in such proportion as shall be appropriate to reflect (i) the
relative fault of each indemnifying party on the one hand and the indemnified
party on the other in connection with the statements or omissions which have
resulted in such losses, claims, damages, liabilities and expenses, (ii) the
relative benefits received by the Company on the one hand and the Initial
Purchasers on the other hand from the offering of the Securities pursuant to
this Agreement, and (iii) any other relevant equitable considerations; provided,
however, (x) that in no case shall any Initial Purchaser be responsible for any
amount in excess of the aggregate commission applicable to the Securities
purchased by such Initial Purchaser and (y) that no indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any indemnifying party
not guilty of such fraudulent misrepresentation. Relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such indemnifying party or
the indemnified party and each such party's relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Initial Purchasers agree that it would not be just
and equitable if contributions pursuant to this subparagraph (d) were to be
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 9, no Initial Purchaser shall be
required to contribute in excess of the amount equal to the excess of (i) the
total price at which the Securities purchased by it were offered to Eligible
Purchasers, over (ii) the amount of any damages which the Initial Purchasers
have otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
10. Termination. Xxxxxx Brothers Inc., on behalf of the Initial Purchasers,
may terminate this Agreement, in its absolute discretion, by written notice to
the Company, at any time prior to the Closing Date, if (a) prior to such time
there has been, since the date of this Agreement or since the respective dates
as of which information is given in the Offering Memorandum, any material
adverse change in the financial position or financial results of operations of
the Company and its subsidiaries considered as one enterprise, (b) after the
date hereof and at or prior to the Closing Date there shall have occurred any
suspension or material limitation of trading of any of the Constellation Energy
Group, Inc. or the Company's securities on the New York Stock Exchange, Inc.
("NYSE") or any general suspension of trading in securities on the NYSE, the
American Stock Exchange, Inc. ("AMEX") or the NASDAQ Stock Market, Inc.
("NASDAQ") or there shall have been established by the NYSE, AMEX or NASDAQ or
by the
17
Commission or by any federal or state agency or by the decision of any
court, any general limitation on prices for such trading or any general
restrictions on the distribution of securities, or a general banking moratorium
declared by New York or federal authorities, or (c) there shall have occurred
any (i) new material outbreak of hostilities or (ii) new material other national
or international calamity (including a terrorist attack) or crises, including,
but not limited to, an escalation of hostilities which existed prior to the date
of this Agreement, or (iii) material adverse change in the financial markets in
the United States, and the effect of any such event specified in clause (b) or
(c) above on the financial markets of the United States shall be such as to in
the reasonable judgement of Xxxxxx Brothers Inc. make it impracticable for the
Initial Purchasers to enforce contracts for the sale of the Securities. This
Agreement may also be terminated at any time prior to the Closing Date by Xxxxxx
Brothers Inc., on behalf of the Initial Purchasers, if the subject matter of any
amendment or supplement to the Offering Memorandum (other than an amendment or
supplement relating solely to the activity of the Initial Purchasers) prepared
and issued by the Company after the effectiveness of this Agreement shall have
disclosed a material adverse change in the financial position or financial
results of operations of the Company and its consolidated subsidiaries,
considered as a whole, that has materially impaired the marketability of the
Securities. Any termination hereof pursuant to this Section 10 shall be without
liability of any party to any other party except as otherwise provided in
Section 6(h) and 9 hereof.
11. Miscellaneous. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. This Agreement shall
inure to the benefit of the Company, the Initial Purchasers and with
respect to the provisions of Section 9 hereof, each director, officer
and controlling person referred to in said Section 9, and their
respective successors. Nothing herein is intended or shall be construed
to give to any other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of any provision of this
Agreement. The term "successor" as used herein shall not include any
purchaser, as such purchaser, of any of the Securities from the Initial
Purchasers.
12. Notices. All communications hereunder shall be in writing, and, if to
the Initial Purchasers, shall be mailed or delivered to the Initial Purchasers
at the address set forth above (with a copy to the General Counsel of Xxxxxx
Brothers Inc.), or, if to the Company, shall be mailed or delivered to it at 000
Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Treasurer.
13. Survival. The respective agreements, representations, warranties,
indemnities and other statements of the Company or its officers and of
the Initial Purchasers set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation
made by or on behalf of the Initial Purchasers or the Company or any of
the officers, directors or controlling persons referred to in Section 9
hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 6(h) and 9 shall survive the termination or
cancellation of this Agreement.
18
By signature below in the space provided below for that
purpose, Xxxxxx Brothers Inc. on behalf of the Initial Purchasers indicates
acceptance hereof, whereupon this letter and acceptance shall constitute a
binding agreement between the Company and the Initial Purchasers in accordance
with its terms.
Very truly yours,
BALTIMORE GAS AND ELECTRIC COMPANY
By: /s/ Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Treasurer and Assistant Secretary
Accepted and delivered as of
the date first above written
XXXXXX BROTHERS INC.
On behalf of the Initial Purchasers
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
19
SCHEDULE A
BALTIMORE GAS AND ELECTRIC COMPANY
Debt Securities
Aggregate Principal
Amount of 5.25%
Underwriter Notes due 2006
Xxxxxx Brothers Inc $165,000,000
Banc of America Securities LLC $ 75,000,000
BNY Capital Markets, Inc. $ 15,000,000
Xxxxxxx Xxxxx Barney Inc. $ 15,000,000
Scotia Capital (USA) Inc. $ 15,000,000
SunTrust Capital Markets, Inc. $ 15,000,000
Total $300,000,000
20
Annex I
===============================================================================
Description of Securities
$300,000,000 5.25% Notes due December 15, 2006, interest payable on
June 15, and December 15 of each year commencing June 15, 2002.
Purchase Price
99.56% of the principal amount
