EXHIBIT 1.1
▇▇▇▇▇▇▇▇▇-▇▇▇▇ COMPANY LIMITED DEBT SECURITIES
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
__________ __, 2002
From time to time ▇▇▇▇▇▇▇▇▇-▇▇▇▇ Company Limited, a Bermuda company
(the "Company") proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement) certain of its debt
securities (the "Securities") specified in Schedule II to such Pricing
Agreement (the Securities so specified being referred to herein as the
"Designated Securities"). The Designated Securities may be guaranteed (the
"Guarantee") by ▇▇▇▇▇▇▇▇▇-▇▇▇▇ Company, a New Jersey corporation and a
subsidiary of the Company (the "Guarantor") (any such guaranteed Designated
Securities, the "Guaranteed Securities"). If the Designated Securities are
Guaranteed Securities, the Guarantor will also enter into the Pricing
Agreement with respect thereto.
1. The terms and rights of the issuance of the Designated Securities
shall be specified in Schedule I to the applicable Pricing Agreement and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firm or firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representative (the
"Representative"). The term "Representative" also refers to Underwriters who
act without any firm being designated as their representative. These
Underwriting Agreement Standard Provisions shall not be construed as an
obligation of the Company to sell or the Guarantor to guarantee any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities, the obligation of the Guarantor to issue any Guarantee and the
obligation of any of the Underwriters to purchase any of the Securities shall
be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters, whether the Designated Securities are Guaranteed Securities and
the principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
facsimile
2
communications or any other rapid transmission device designated to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company, and if the Designated Securities are Guaranteed
Securities, the Guarantor, jointly and severally represent and warrant to, and
agree with, each of the Underwriters that:
(a) A registration statement in respect of the Securities
and, in the case of Guaranteed Securities, the Guarantees and more
particularly described in the applicable Pricing Agreement has been
filed with the Securities and Exchange Commission (the "Commission")
in the form heretofore delivered or to be delivered to the
Representative, and such registration statement in such form has been
declared effective by the Commission and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement being hereinafter called a "Preliminary Prospectus"); if
any post-effective amendment to such registration statement has been
filed with the Commission prior to the date of the applicable Pricing
Agreement, the most recent such amendment has been declared effective
by the Commission; "Effective Date" means the date as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; such
registration statement, as amended at the Effective Date, including
all material incorporated by reference therein and, if the date of
the Pricing Agreement is on or before the fifteenth business day
after the Effective Date, including all information deemed to be a
part thereof as of the Effective Date pursuant to paragraph (b) of
Rule 430A under the Securities Act of 1933, as amended (the "Act"),
is hereinafter referred to as the "Registration Statement," and the
form of prospectus relating to the Designated Securities, as first
filed pursuant to paragraph (1) or (4) of Rule 424(b) ("Rule 424(b)")
under the Act or, if the date of the Pricing Agreement is after the
fifteenth business day after the Effective Date, pursuant to Rule
424(b)(2) or (5), as such form of prospectus may be supplemented as
contemplated by Section 1 to reflect the terms of the Designated
Securities and the terms of offering thereof, including all documents
incorporated by reference therein, is hereinafter referred to as the
"Prospectus"; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and incorporated therein by reference);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact
3
required to be stated therein or necessary to make the statements
therein not misleading; any further documents so filed and
incorporated by reference in the Prospectus or in any amendments or
supplements thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder 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,
however, that this representation and warranty shall apply only to
documents so filed and incorporated by reference during the period
that a prospectus relating to the Designated Securities is required
to be delivered in connection with sales of such Designated
Securities (such period being hereinafter sometimes referred to as
the "prospectus delivery period"); and provided further, however,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company or (in the case of
Guaranteed Securities) the Guarantor by an Underwriter through the
Representative expressly for use in the Prospectus;
(c) The Registration Statement and the Prospectus conform,
and any amendments or supplements thereto will conform, in all
material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder, and the
Registration Statement does not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto, 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, and the Prospectus does
not and will not, as of the applicable filing date as to the
Prospectus and any supplement thereto and as of the Time of Delivery
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein in light of the circumstances under which
they were made not misleading; provided, however, that this
representation and warranty shall apply only to amendments or
supplements filed or made during the prospectus delivery period; and
provided further, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company or (in the case of Guaranteed Securities) the Guarantor by an
Underwriter through the Representative expressly for use in the
Prospectus;
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material adverse change or any development involving a
prospective material adverse change in or affecting the business and
operations, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(e) The Company is duly incorporated and validly existing as
a company in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business under
4
the laws of each other jurisdiction in which the nature of the
business it transacts or the properties it owns requires such
qualification except where such failures to be so qualified would
not, individually or in the aggregate, have a material adverse effect
on the Company and its subsidiaries taken as a whole;
(f) If the Designated Securities are Guaranteed Securities,
the Guarantor is duly incorporated and validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business under the laws of each other jurisdiction in
which the nature of the business it transacts or the properties it
owns requires such qualification except where such failures to be so
qualified would not, individually or in the aggregate, have a
material adverse effect on the Guarantor and its subsidiaries taken
as a whole;
(g) The Securities have been duly authorized by the Company,
and, when Designated Securities are issued and delivered pursuant to
this Agreement and the Pricing Agreement with respect thereto and
duly authenticated by the Trustee in accordance with the Indenture,
such Designated Securities will have been duly executed, issued and
delivered by the Company and will constitute valid and legally
binding obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits provided by
the Indenture, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and to general equity
principles; the Indenture has been duly authorized, executed and
delivered by the Company and is duly qualified under the Trust
Indenture Act and, assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and to general
equity principles; this Agreement and the Pricing Agreement with
respect to the Designated Securities has been duly authorized,
executed and delivered by the Company; and the Securities, the
Designated Securities, this Agreement, the Pricing Agreement and the
Indenture will conform in all material respects to the descriptions
thereof in the Prospectus;
(h) If the Designated Securities are Guaranteed Securities,
the Guarantee of the Guaranteed Securities has been duly authorized
by the Guarantor and, when the Guarantee endorsed on the Guaranteed
Securities is executed by the Guarantor, and when the Guaranteed
Securities are issued, executed and delivered pursuant to this
Agreement and the Pricing Agreement with respect thereto and duly
authenticated by the Trustee in accordance with the Indenture and
delivered and paid for by the Underwriters, such Guarantee will have
been duly executed and issued by the Guarantor and will constitute a
valid and legally binding obligation of the Guarantor enforceable
against the Guarantor in accordance with its terms and entitled to the
benefits provided by the Indenture, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and to
general equity principles; the Indenture has been duly authorized,
executed and delivered by the
5
Guarantor and, assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a valid and legally binding
instrument of the Guarantor, enforceable against the Guarantor in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and to general
equity principles; this Agreement and the Pricing Agreement with
respect to the Designated Securities has been duly authorized,
executed and delivered by the Guarantor; and the Guarantee will
conform in all material respects to the descriptions thereof in the
Prospectus;
(i) The issue and sale of the Designated Securities and, in
the case of Guaranteed Securities, the Guarantee, and the compliance
by the Company and, in the case of Guaranteed Securities, the
Guarantor, with all of the provisions of the Designated Securities,
the Indenture, the Guarantee and this Agreement and the Pricing
Agreement with respect thereto, and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or, in the case of Guaranteed Securities, the Guarantor, is a party
or by which the Company or, in the case of Guaranteed Securities, the
Guarantor, is bound or to which any of the property or assets of the
Company or, in the case of Guaranteed Securities, the Guarantor, is
subject, nor will such action result in any violation of the
provisions of the Memorandum of Association or Bye-Laws of the
Company, or in the case of Guaranteed Securities, the certificate of
incorporation, as amended, or the by-laws of the Guarantor or any
statute, order, rule or regulation (except for state securities or
Blue Sky laws, rules and regulations, as to which the Company and the
Guarantor make no representation) of any court or governmental agency
or body having jurisdiction over the Company or, in the case of
Guaranteed Securities, the Guarantor, or any of the properties of the
Company, or in the case of Guaranteed Securities, the Guarantor; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Securities
or the consummation by the Company or, in the case of Guaranteed
Securities, the Guarantor, of the other transactions contemplated by
the applicable Pricing Agreement or the Indenture except such as have
been, or will have been prior to the Time of Delivery (as defined in
Section 4 hereof), obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations and
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters.
(j) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending
or, to the best of the Company's or, in the case of Guaranteed
Securities, the Guarantor's knowledge, threatened to which the
Company, the Guarantor (in the case of Guaranteed Securities) or any
of their subsidiaries is a party or of which any property of the
Company, the Guarantor (in the case of Guaranteed Securities) or any
of their subsidiaries is the subject which individually or in the
aggregate have a reasonable possibility of having a material adverse
effect on the consolidated financial position, shareholders' equity
or results of operations of the Company and its subsidiaries taken as
a whole.
6
3. Upon the execution of the applicable Pricing Agreement and the
authorization by the Representative of the release of the Designated
Securities, the several Underwriters propose to offer such Securities for sale
upon the terms and conditions set forth in the Prospectus.
4. Designated Securities to be purchased by each Underwriter in such
authorized denominations and registered in such names as the Representative
may request upon at least forty-eight hours' prior notice to the Company,
shall be delivered by or on behalf of the Company to the Representative for
the accounts of the Underwriters, against payment by such Underwriter or on
its behalf of the purchase price therefor in the manner and in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date
as the Representative and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Designated
Securities.
5. The Company and, in the case of Guaranteed Securities, the
Guarantor, jointly and severally agree with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form not
disapproved by the Representative and to file such Prospectus with
both the Registrar of Companies in Bermuda and with the Commission
(i) pursuant to Rule 424(b)(1) (or, if applicable and if consented to
by the Representatives, pursuant to Rule 424(b)(4)) not later than
the Commission's close of business on the earlier of (A) the second
business day following the date of the applicable Pricing Agreement
or (B) the fifteenth business day after the Effective Date, or (ii)
if the date of the applicable Pricing Agreement is after the
fifteenth business day after the Effective Date, pursuant to Rule
424(b)(2) (or, if applicable and if consented to by the
Representatives, pursuant to Rule 424(b)(5)) not later than the
second business day following the date of the applicable Pricing
Agreement; the Company or, in the case of Guaranteed Securities, the
Guarantor, will advise you promptly of any such filing pursuant to
Rule 424(b); to advise the Representative promptly of any amendment
or supplement to the Registration Statement or Prospectus after such
relevant Time of Delivery and during the prospectus delivery period
and furnish the Representative with copies thereof; to file promptly
all reports and any definitive proxy or information statements
required to be filed by the Company or, in the case of Guaranteed
Securities, the Guarantor, with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of the Prospectus and during the prospectus delivery period; and
during such same period to advise the Representative, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or become effective or any
supplement to the Prospectus or any amended Prospectus has been
filed, or mailed for filing, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Designated Securities, of the suspension
of the qualification of such Designated Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order
7
preventing or suspending the use of any prospectus relating to the
Designated Securities or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representative may request and to comply with
such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Designated Securities, provided
that in connection therewith neither the Company nor the Guarantor
shall be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus in such quantities as the Representative may from time to
time reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the
time of issue of such prospectus in connection with the offering or
sale of the Designated Securities and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or,
if for any other reason it shall be necessary during such same period
to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order
to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representative and upon the request of the
Representative to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as the Representative may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of such Designated
Securities at any time nine months or more after the time of issue of
the Prospectus, upon the request of the Representative but at the
expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as the Representative may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of
the Act;
(d) To make generally available to its security holders as
soon as practicable an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company or the Guarantor, Rule 158);
and
(e) During the period beginning from the date of the
applicable Pricing Agreement and continuing to and including the
earlier of (i) the termination of trading restrictions for the
Designated Securities, as notified to the Company by the
Representative and (ii) the Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or, in the case of Guaranteed
8
Securities, the Guarantor, which mature more than one year after such
Time of Delivery, without the prior written consent of the
Representative.
6. The Company and, in the case of Guaranteed Securities, the
Guarantor, jointly and severally covenant and agree with the several
Underwriters that the Company and, in the case of Guaranteed Securities, the
Guarantor, will jointly and severally pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's and the Guarantor's
counsel and accountants in connection with the registration of the Designated
Securities and, in the case of Guaranteed Securities, the Guarantee, under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements (except as expressly provided in the
last clause of Section 5(c) hereof) thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Blue Sky survey and any other documents in
connection with the offering, purchase, sale and delivery of the Designated
Securities; (iii) all expenses in connection with the qualification of the
Designated Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) any fees
charged by securities rating services for rating the Designated Securities;
(v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Designated Securities; (vi) the cost of preparing the Designated Securities
and, in the case of Guaranteed Securities, the Guarantee; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture, the
Designated Securities and, in the case of Guaranteed Securities, the
Guarantee; and (viii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
Section, Section 5(c), Section 8 and Section 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities and Guarantees by them, and
any advertising expenses connected with any offers they may make.
7. The Representative shall have the right to terminate the Pricing
Agreement, in its sole discretion, due to any inaccuracy in the
representations and warranties and other statements of the Company or, in the
case of Guaranteed Securities, the Guarantor, herein, at and as of the Time of
Delivery, the nonperformance by the Company or, in the case of Guaranteed
Securities, the Guarantor, of any of its obligations hereunder to be
performed, and the nonperformance of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) of the Agreement; no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with;
9
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, shall have furnished to the Representative such opinion
or opinions, dated the Time of Delivery, with respect to the validity
of the Indenture, the Designated Securities, the Registration
Statement, the Prospectus as amended or supplemented and other
related matters as the Representative may reasonably request, and
such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(c) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel for the Company,
shall have furnished to the Representative its written opinion, dated
the Time of Delivery, covering such matters (including, without
limitation, the validity of the Indenture and the Designated
Securities) and in such form and substance as the Representative may
reasonably request;
(d) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., Senior Vice President and
General Counsel of the Guarantor, shall have furnished to the
Representative her written opinion, dated the Time of Delivery, to
the effect that:
(i) In the case of Guaranteed Securities, the
Guarantor has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the
State of New Jersey and has full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) Each of the Company and, in the case of
Guaranteed Securities, the Guarantor has been duly qualified
as a foreign corporation for the transaction of business and
is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification
except where such failures to be so qualified or be in good
standing would not, individually or in the aggregate, have a
material adverse effect on the Company, the Guarantor (in
the case of Guaranteed Securities) and their subsidiaries
taken as a whole (such counsel being entitled to rely in
respect of the opinion in this clause upon certificates of
state officials, provided that such counsel shall state that
she believes that both the Representative and she are
justified in relying upon such certificates);
(iii) To the best of such counsel's knowledge there
are no legal or governmental proceedings pending to which
the Company, the Guarantor (in the case of Guaranteed
Securities) or any of their subsidiaries is a party or of
which any property of the Company, the Guarantor (in the
case of Guaranteed Securities) or any of their subsidiaries
is the subject, other than as set forth in the Prospectus
and other than litigation incident to the kind of business
conducted by the Company, the Guarantor (in the case of
Guaranteed Securities) and their subsidiaries which
individually and in the aggregate is not material to the
Company, the Guarantor (in the case of Guaranteed
Securities) and their subsidiaries taken as a whole; and to
the best of such counsel's knowledge no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
10
(iv) In the case of Guaranteed Securities, this
Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed
and delivered by the Guarantor;
(v) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
delivered by the Company;
(vi) The Designated Securities have been duly
issued and delivered by the Company and, assuming due
authentication thereof by the Trustee and upon payment and
delivery in accordance with this Agreement and the Pricing
Agreement, will constitute valid and legally binding
obligations of the Company enforceable against the Company
in accordance with their terms and entitled to the benefits
provided by the Indenture, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Designated Securities and the Indenture conform to the
descriptions thereof in the Prospectus as amended or
supplemented;
(vii) The Indenture has been duly delivered by the
Company, and assuming the Indenture is the valid and legally
binding obligation of the Trustee, the Indenture constitutes
a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and
(viii) In the case of Guaranteed Securities, the
Guarantee has been duly authorized, executed and issued by
the Guarantor and, assuming due authentication of the
Designated Securities by the Trustee and upon payment for
and delivery of the Designated Securities in accordance with
this Agreement and the Pricing Agreement, will constitute
valid and legally binding obligations of the Guarantor
enforceable against the Guarantor in accordance with its
terms and entitled to the benefits provided by the
Indenture, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Guarantee conforms to
the descriptions thereof in the Prospectus as amended or
supplemented;
(ix) In the case of Guaranteed Securities, the
Indenture has been duly authorized, executed and delivered
by the Guarantor and, assuming the Indenture is the valid
and legally binding obligation of the Trustee, constitutes a
valid and legally binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its
terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
11
(x) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions
of the Designated Securities, the Indenture, this Agreement
and the Pricing Agreement with respect to the Designated
Securities and the consummation of the transactions herein
and therein contemplated will not conflict with or result in
a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the property or
assets of the Company pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument which is material to the Company and
its subsidiaries taken as a whole and is known to such
counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets
of the Company or any of its significant subsidiaries is
subject, nor will such action result in any violation of any
statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or any such
regulatory authority or other governmental agency or body is
required for the issue and sale of the Designated Securities
or the consummation of the other transactions contemplated
by this Agreement or such Pricing Agreement or the
Indenture, except such as have been obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(xi) In the case of Guaranteed Securities, the
issue and sale of the Designated Securities and the
Guarantee and the compliance by the Guarantor with all of
the provisions of the Guarantee, the Indenture, this
Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the
Guarantor pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement or other agreement or
instrument which is material to the Company, the Guarantor
and its subsidiaries taken as a whole and is known to such
counsel to which the Guarantor is a party or by which the
Guarantor is bound or to which any of the property or assets
of the Guarantor or any of its significant subsidiaries is
subject, nor will such action result in any violation of the
provisions of the Restated Certificate of Incorporation, as
amended, or the By-Laws, as amended, of the Guarantor or any
statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Guarantor or any of its properties;
and no consent, approval, authorization, order, registration
or qualification of or with any such court or any such
regulatory authority or other governmental agency or body is
required for the issue and sale of the Guarantee or the
consummation of the other transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture, except
such as have
12
been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the
Underwriters;
(xii) The documents incorporated by reference in
the Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they
became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that
any of such documents, when they became effective or were so
filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act,
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and, in the case
of other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading; and
(xiii) The Registration Statement, as of its
effective date, and the Prospectus as amended or
supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery
for the Designated Securities as of its date (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and
regulations thereunder; such counsel has no reason to
believe that, as of the effective date of the Registration
Statement, the Registration Statement (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of
its date and as of the Time of Delivery, the Prospectus, as
amended or supplemented (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion), contains an untrue statement of a
material fact or omits to state a material fact required to
be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; and such counsel does not know of
any contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus
as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by
reference or described as required;
13
(e) The Trustee shall have furnished to the Representative a
certificate, dated the Time of Delivery, as to its due authorization,
execution and delivery of the Indenture and its due authentication of
the Designated Securities;
(f) At the Time of Delivery, the independent accountants who
have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representative a
letter, dated the Time of Delivery, of the type described in the
American Institute of Certified Public Accountants' Statement on
Auditing Standards No. 72 covering such matters as the Representative
may reasonably request and in form and substance satisfactory to the
Representative;
(g) Since the effective date of the Registration Statement
(or any post-effective amendment thereto) no event shall have
occurred which should have been set forth in an amendment to the
Registration Statement or a supplement to the Prospectus but which
has not been so set forth, and since the respective dates as of which
information is given in the Prospectus there shall not have been any
change or any development involving a prospective change in or
affecting the business and operations, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which is in the
reasonable judgment of the Representative so material and adverse as
to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus;
(h) Subsequent to the date of the applicable Pricing
Agreement there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally
on the New York Stock Exchange, Inc.; (ii) a general moratorium on
commercial banking activities in New York declared by either Federal
or New York State authorities; (iii) a material disruption in
securities settlement or clearance services; or (iv) the outbreak or
material escalation of hostilities involving the United States or
Bermuda or the declaration, on or after the date hereof, by the
United States or Bermuda of a national emergency or war if the effect
of any such event specified in this clause (iv) in the reasonable
judgment of the Representative makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the
Prospectus;
(i) Each of the Company and, in the case of Guaranteed
Securities, the Guarantor shall have furnished or caused to be
furnished to the Representative at the Time of Delivery a certificate
or certificates of officers of the Company and, in the case of
Guaranteed Securities, the Guarantor as to the accuracy of the
representations and warranties of the Company and, in the case of
Guaranteed Securities, the Guarantor herein at and as of the Time of
Delivery, as to the performance by the Company and, in the case of
Guaranteed Securities, the Guarantor of all of their obligations
hereunder to be performed at or prior to the Time of Delivery, and as
to the matters set forth in subsections (a) and (g) of this Section;
and
14
(j) Subsequent to the execution of the applicable Pricing
Agreement, there shall not have been any decrease in the ratings of
any of the debt securities of the Company or, in the case of
Guaranteed Securities, the Guarantor by ▇▇▇▇▇'▇ Investors Service,
Inc. or Standard & Poor's Corporation.
8. (a) Each of the Company and, in the case of Guaranteed Securities,
the Guarantor will jointly and severally indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus or any other prospectus relating to the Designated Securities,
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim; provided, however, that neither the Company nor, in the
case of Guaranteed Securities, the Guarantor shall be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus or any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company or, in the case of Guaranteed Securities,
the Guarantor by any Underwriter through the Representative expressly for use
in the Prospectus relating to such Designated Securities; provided further,
however, that the foregoing indemnity with respect to preliminary prospectuses
shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased Designated
Securities if such untrue statement or omission made in any preliminary
prospectus is eliminated or remedied in the Prospectus relating to such
Securities and if a copy of the Prospectus relating to such Securities
(excluding documents incorporated by reference) has not been sent or given to
such person at or prior to the written confirmation of the sale of such
Securities to such person.
(b) Each Underwriter will indemnify and hold harmless the Company
and, in the case of Guaranteed Securities, the Guarantor against any losses,
claims, damages or liabilities to which the Company or, in the case of
Guaranteed Securities, the Guarantor may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus or any other prospectus relating to the Designated Securities,
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus or any other prospectus relating to the
Designated Securities, or any amendment or supplement thereto, in reliance
upon and in conformity with
15
written information furnished to the Company or, in the case of Guaranteed
Securities, the Guarantor by such Underwriter through the Representative
expressly for use therein; and will reimburse the Company and, in the case of
Guaranteed Securities, the Guarantor for any legal or other expenses
reasonably incurred by the Company or, in the case of Guaranteed Securities,
the Guarantor in connection with investigating or defending any such action or
claim.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party,
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by its counsel that representation of such indemnified party
and the indemnifying party by the same counsel would be inappropriate (whether
or not such representation by the same counsel has been proposed) under
applicable standards of professional conduct due to actual or potential
differing interests or defenses between them, the indemnified party or parties
shall have the right to select separate counsel or participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
unless the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Representative in
the case of paragraph (a) of this Section 8, representing the indemnified
parties under such paragraph (a) who are parties to such action).
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company and, in the case of
Guaranteed Securities, the Guarantor on the one hand and the Underwriters on
the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and, in the case of Guaranteed
Securities, the Guarantor on the one hand and the Underwriters on
16
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Company and, in the case of Guaranteed Securities, the
Guarantor on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company and, in the case of Guaranteed
Securities, the Guarantor bear to the total underwriting discounts and
commissions received by the Underwriters. The 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 the Company and, in
the case of Guaranteed Securities, the Guarantor on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company, the Guarantor (in the case of Guaranteed Securities)
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company and, in the case of Guaranteed
Securities, the Guarantor under this Section 8 shall be in addition to any
liability which the Company and, in the case of Guaranteed Securities, the
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
8 shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions to each
officer and director of the Company and, in the case of Guaranteed Securities,
the Guarantor and to each person, if any, who controls the Company and, in the
case of Guaranteed Securities, the Guarantor within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligations to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement, the Representative may in its discretion arrange for any
Underwriter or Underwriters or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the Representative does not
arrange for the purchase of such Designated Securities, then the Company and,
in the case of Guaranteed
17
Securities, the Guarantor shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to
the Representative to purchase such Designated Securities on such terms. In
the event that, within the respective prescribed periods, the Representative
notifies the Company and, in the case of Guaranteed Securities, the Guarantor
that it has so arranged for the purchase of such Designated Securities, or
either of the Company and, in the case of Guaranteed Securities, the Guarantor
notifies the Representative that it has so arranged for the purchase of such
Designated Securities, the Representative, the Company or, in the case of
Guaranteed Securities, the Guarantor shall have the right to postpone the Time
of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement
or the Prospectus, or in any other documents or arrangements, and each of the
Company and, in the case of Guaranteed Securities, the Guarantor agrees to
file promptly any amendments to the Registration Statement or the Prospectus
which in the opinion of the Representative may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangement for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representative, the Company and, in the case of Guaranteed Securities, the
Guarantor as provided in subsection (a) above, the aggregate principal amount
of such Designated Securities which remains unpurchased does not exceed
one-tenth of the aggregate principal amount of all the Designated Securities,
then the Company and, in the case of Guaranteed Securities, the Guarantor
shall have the right to require each non-defaulting Underwriter to purchase
the principal amount of Designated Securities which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
such Designated Securities which such Underwriter agreed to purchase
hereunder) of the Designated Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representative, the Company and, in the case of Guaranteed Securities, the
Guarantor as provided in subsection (a) above, the aggregate principal amount
of Designated Securities which remains unpurchased exceeds one-tenth of the
aggregate principal amount of Designated Securities, or if the Company and, in
the case of Guaranteed Securities, the Guarantor shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Designated Securities of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the part
of any nondefaulting Underwriter, the Company or, in the case of Guaranteed
Securities, the Guarantor, except for the expenses to be borne by the Company,
the Guarantor (in the case of Guaranteed Securities) and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
10. The respective indemnities, agreements, warranties and other
statements of the Company, the Guarantor (in the case of Guaranteed
Securities) and the several Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this
18
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company or any officer or director or controlling person of the Company, or,
in the case of Guaranteed Securities, the Guarantor or any officer or director
or controlling person of the Guarantor, and shall survive delivery of and
payment for the Designated Securities.
11. If the applicable Pricing Agreement shall be terminated pursuant
to Section 9 hereof, neither the Company nor, in the case of Guaranteed
Securities, the Guarantor shall then be under any liability to any Underwriter
with respect to the Designated Securities except as provided in Section 6 and
Section 8 hereof; but if for any other reason Designated Securities are not
delivered by or on behalf of the Company as provided herein, the Company and,
in the case of Guaranteed Securities, the Guarantor will jointly and severally
reimburse the Underwriters through the Representative for all out-of-pocket
expenses approved in writing by the Representative, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated
Securities, but the Company and, in the case of Guaranteed Securities, the
Guarantor shall then be under no further liability to any Underwriter with
respect to such Designated Securities except as provided in Section 6 and
Section 8 hereof.
12. In all dealings hereunder, the Representative shall act on behalf
of each of the Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representative.
All statements, requests, notices and agreements hereunder shall be
in writing or by facsimile, and if to the Underwriters shall be sufficient in
all respects if delivered or sent by registered mail to the address of the
Representative as set forth in the applicable Pricing Agreement; if to the
Company shall be sufficient in all respects if delivered or sent by registered
mail in care of the Guarantor to the address of the Guarantor set forth in the
Registration Statement, Attention: Vice President and Treasurer, with a copy
to: Senior Vice President and General Counsel; if to the Guarantor (in the
case of Guaranteed Securities) shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Guarantor set forth
in the Registration Statement, Attention: Vice President and Treasurer, with a
copy to: Senior Vice President and General Counsel; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by registered mail to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or facsimile constituting such
Questionnaire, which address has been supplied to the Company by the
Representative.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Guarantor (in the case of
Guaranteed Securities) and, to the extent provided in Section 8 and Section 10
hereof, the officers and directors of the Company and the Guarantor (in the
case of Guaranteed Securities) and each person who controls the Company, the
Guarantor (in the case of Guaranteed Securities) or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
19
14. Time shall be of the essence in connection with each Pricing
Agreement.
15. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York applicable to contracts made and to be
performed therein.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
ANNEX I
FORM OF PRICING AGREEMENT
INSERT NAME ,
As Representatives of the several
Underwriters named in Schedule I hereto,
Insert Address
____________ __, 200_
Dear Sirs:
▇▇▇▇▇▇▇▇▇-▇▇▇▇ Company Limited (the "Company") proposes, subject to
the terms and conditions stated herein and in the Underwriting Agreement
Standard Provisions dated as of _____ __, 2002 (the "Underwriting Agreement"),
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). [If the Designated Securities are Guaranteed
Securities, insert: The Designated Securities will be guaranteed (the
"Guarantee") to the extent and as provided in the Indenture.] Each of the
provisions of the Underwriting Agreement is incorporated herein by reference
in its entirety, and shall be deemed to be a part of this Agreement to the
same extent as if such provisions had been set forth in full herein; and each
of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that
each representation and warranty with respect to the Prospectus in Section 2
of the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject of
this Pricing Agreement [If the Designated Securities are not Guaranteed
Securities, insert: ; provided that all covenants, agreements, conditions,
indemnities, representations and warranties with respect to the Guarantor and
the Guarantee and all other provisions with respect to the Guarantor and the
Guarantee set forth therein shall not be incorporated by reference herein or
deemed to be a part hereof]. Each reference to the Representatives herein and
in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission. Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and
2
not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the
principal amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us two counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters [and][,] the Company [and the Guarantor]. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is or
will be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company [and the
Guarantor] for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
▇▇▇▇▇▇▇▇▇-▇▇▇▇ COMPANY LIMITED
By:
------------------------------------
[In the case of Guaranteed Securities, insert
▇▇▇▇▇▇▇▇▇-▇▇▇▇ COMPANY
By:
------------------------------------
By:
------------------------------------]
Accepted as of the date hereof:
Insert Name
By:
---------------------------------------
On behalf of each of the Underwriters
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
----------- --------------------
Name of Underwriters $
------------------------
Total $
------------------------
SCHEDULE II
TITLE OF DESIGNATED SECURITIES
[%] [Floating Rate] [Zero Coupon] [Notes][due]
AGGREGATE PRINCIPAL AMOUNT:
[U.S.] $
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest, if any, from to [and accrued
amortization, if any, from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest, if any, from to [and accrued
amortization, if any, from to ]
METHOD AND SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[same day] [next day] funds; [certificated] [book-entry] form
INDENTURE:
Indenture, dated as of ______ _, 2002, as supplemented, between the Company,
the Guarantor and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Trustee
MATURITY:
INTEREST RATE:
[%] [zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through
the sinking fund, in whole or in part at the option of the Company [or the
Guarantor] in the amount of $ or an integral multiple thereof,
on or after , at the following redemption price
2
(expressed in percentages of principal amount).] If [redeemed on or before
, %, and if redeemed during the 12-month period beginning
Redemption
Year Price
---- -----
------- ----------
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[On any interest payment date falling on or after , ,
at the election of the Company [or the Guarantor] at a redemption price equal
to the principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as make-whole provision
mandatory redemption upon occurrence of certain events or redemption for
changes in tax law.]
[Restriction on refunding]
CONVERSION PROVISIONS:
[No provisions for conversion] [If securities are convertible, insert
applicable conversion provisions]
PUT PROVISIONS:
[No provisions for right to put] [If securities have put rights, insert
applicable provisions]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire $ principal amount of Designated Securities on
in each of the years through at 100% of their principal amount plus
accrued interest] [, together with [cumulative] [noncumulative] redemptions at
the option of the Company [or the Guarantor] to retire an additional $
principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest].
[If Securities are extendable debt Securities, insert - -
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and years], at the
option of the holder, at their principal amount with accrued interest. Initial
annual interest rate will be %, and thereafter annual interest rate will be
adjusted on , and to a rate not less than %
3
of the effective annual interest rate on U.S. Treasury obligations with
-year maturities as of the [insert date 15 days prior to maturity date]
prior to such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert - -
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through ________ [and
thereafter will be adjusted [______] [on each , ] [, and to an
annual rate of % above the average rate for -year [insert period of time]
[securities] [certificates of deposit] by and [insert names of banks].] [and
the annual interest rate [thereafter] [from through ] will be the
interest yield equivalent of the weekly average per annum market discount rate
for - month Treasury bills plus % of Interest Differential (the excess,
if any, of (i) then current weekly average per annum secondary market yield
for -month certificates of deposit over (ii) then current interest yield
equivalent of the weekly average per annum market discount rate for -month
Treasury bills); [from and thereafter the rate will be the then current
interest yield equivalent plus % of Interest Differential].]
TIME OF DELIVERY:
CLOSING LOCATION:
NAME AND ADDRESSES OF REPRESENTATIVE:
Designated Representative:
Address for Notice; etc.:
[OTHER TERMS]: