Exhibit 1.1
COCA-COLA HBC FINANCE B.V.
COCA-COLA HELLENIC BOTTLING COMPANY S.A.
DEBT SECURITIES
FORM OF UNDERWRITING AGREEMENT
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To the Representatives of the Several Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time Coca-Cola HBC Finance B.V., a Dutch
corporation with its corporate seat in Amsterdam (the "Issuer"), proposes to
enter into one or more Pricing Agreements 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
several firms named in Schedule I to the applicable Pricing Agreement (such
firms constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) the principal amount of its debt securities
identified in Schedule II to such Pricing Agreement (generally and, as the
context may require, with respect to such Pricing Agreement, the "Securities")
to be issued pursuant to the provisions of the indenture identified in such
Pricing Agreement (hereinafter called the "Indenture"), among the Issuer,
Coca-Cola Hellenic Bottling Company S.A., as Guarantor (the "Guarantor"), and
the Trustee identified in such Schedule (the "Trustee"). The Securities are to
be fully, unconditionally and irrevocably guaranteed (the "Guarantees") as to
payment of principal, premium, if any, and interest by the Guarantor. All
references herein to "this Agreement" shall be deemed to refer to this Agreement
together with the applicable Pricing Agreement.
The Issuer and the Guarantor have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form F-3
(Registration No. 333-o), including a prospectus relating to the Securities of a
maximum aggregate offering price of $2,000,000,000 to be issued severally from
time to time by the Issuer. The Issuer also has filed with, or proposes to file
with, the Commission pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"), a Prospectus Supplement specifically relating to
the Securities (the "Prospectus Supplement"). Upon request, but not without your
agreement, the Issuer may also file a Rule 462(b) Registration Statement in
accordance with Rule 462(b) under the Securities Act with respect to an increase
of no more than 20% in the maximum aggregate
offering price mentioned above. The registration statement as of the date of
this Agreement and any Rule 462(b) Registration Statement that becomes effective
prior to the Closing Date (as defined in Article IV below) is hereinafter
referred to as the "Registration Statement" and the related prospectus covering
the Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the Prospectus Supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (including the Basic Prospectus, a "preliminary prospectus")
previously filed with the Commission pursuant to Rule 424 or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 6 of Form F-3 under the Securities Act which were filed
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") on
or before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include any documents filed under the Exchange
Act after the date of this Agreement, or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be, which are deemed
to be incorporated by reference therein. Any reference to "Rule 462(b)
Registration Statement" shall be deemed to refer to a registration statement and
any amendments thereto filed pursuant to Rule 462(b) relating to the offering
covered by the initial Registration Statement.
I.
Each of the Issuer and the Guarantor jointly and severally
represents and warrants to each of the Underwriters that:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) Registration Statement and Included Documents. (i) The
Registration Statement, when it became effective, did not contain, and,
as amended or supplemented, if applicable, did not or will not, as the
case may be, contain at the time of such amendment or supplement, any
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, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply, as the case may be, in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (iii) the Prospectus does not or will not, as
the case may be, as of the date of the Prospectus and as at the Closing
Date, contain and, as amended or supplemented, if
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applicable, at the time of such amendment or supplement, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph (b)
do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus, as amended or supplemented, if applicable,
based upon information concerning any Underwriter furnished to the
Issuer or the Guarantor in writing by such Underwriter through you
expressly for use therein or (B) to the Statement of Eligibility and
Qualification of the Trustee on Form T-1 and (iv) each document, if
any, filed or to be filed pursuant to the Exchange Act and incorporated
by reference in the Prospectus complied or will comply when so filed in
all material respects with the Exchange Act.
(c) Preliminary Prospectus. Each preliminary prospectus filed
as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with
the Securities Act and the rules and regulations of the Commission
thereunder.
(d) Indenture. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended, (the "1939 Act") and has been
duly authorized, executed and delivered by the Issuer and duly
authorized, executed and delivered by the Guarantor and is a valid and
legally binding agreement of the Issuer and the Guarantor, enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(e) No Material Adverse Change in Business. Since the date of
the Guarantor's most recent annual or interim financial statements
included in the Registration Statement and the Prospectus, except as
otherwise stated in the Registration Statement and the Prospectus, (i)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Issuer or the Guarantor and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (ii) there have been
no transactions entered into by the Issuer or the Guarantor or any of
its subsidiaries, other than those in the ordinary course of business,
which are material with respect to either of the Issuer or the
Guarantor and its subsidiaries considered as one enterprise and (iii)
except for regular dividends on the common stock of the Guarantor in
amounts per share that are consistent with past practice, there has
been no dividend or distribution of any kind declared, paid or made by
the Guarantor on any class of its capital stock.
(f) Financial Statements. The financial statements, including
the statements of income, balance sheets and statements of
shareholders' equity and cash flows of the
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Guarantor and its consolidated subsidiaries for the period specified
and the related schedules and notes thereto, included or incorporated
by reference in the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Guarantor and its
consolidated subsidiaries as of the dates indicated and the results of
its operations and the changes in their consolidated cash flows for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved; the supporting
schedule(s), if any, included in the Registration Statement present
fairly the information required to be stated therein; and, if
applicable, the pro forma financial information, and the related notes
thereto, included in the Registration Statement and the Prospectus has
been prepared in accordance with the applicable requirements of the
Securities Act and is based upon good faith estimates and assumptions
believed by the Guarantor to be reasonable.
(g) Independent Accountants. The accountants who certified the
financial statements and supporting schedule(s), if any, of the
Guarantor included or incorporated by reference in the Registration
Statement and the Prospectus are independent public accountants with
respect to the Guarantor within the meaning of Regulation S-X under the
Securities Act.
(h) Internal Accounting Controls. The Issuer, the Guarantor
and its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorization, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets, (iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(i) Due Organization and Valid Existence of the Issuer and the
Guarantor. The Issuer has been duly organized and is validly existing
as a corporation under the laws of the Netherlands and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus and to enter into and perform its obligations under this
Agreement; the Guarantor has been duly organized and is validly
existing as a corporation under the laws of the Hellenic Republic and
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus and to enter into and perform its
obligations under this Agreement; and each of the Issuer and the
Guarantor is duly qualified as a foreign corporation to transact
business and is in good standing (where applicable) in each other
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good
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standing would not result in a Material Adverse Effect.
(j) Due Organization and Valid Existence of Subsidiaries. Each
"significant subsidiary" of the Guarantor (as such term is defined in
Rule 1-02 of Regulation S-X) and each Material Subsidiary (as such term
is defined in the Registration Statement and the Prospectus) that is
not also a "significant subsidiary" (each such significant subsidiary
and Material Subsidiary, a "Designated Subsidiary" and, collectively,
the "Designated Subsidiaries") has been duly organized and is validly
existing as a company in good standing (where applicable) under the
laws of the jurisdiction of its formation, has power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus and is duly
qualified as a foreign company to transact business and is in good
standing (where applicable) in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing (where applicable)
would not result in a Material Adverse Effect; except as otherwise
disclosed in the Registration Statement and the Prospectus, all of the
issued and outstanding capital stock of each Designated Subsidiary has
been duly authorized and validly issued, is fully paid and
non-assessable and the capital stock of each Designated Subsidiary
owned by the Guarantor, directly or through subsidiaries, is owned free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of capital
stock of the Designated Subsidiaries was issued in violation of any
preemptive or similar rights of any securityholder of such Designated
Subsidiary.
(k) Capitalization. The authorized, issued and outstanding
capital stock of the Guarantor is as set forth in the financial
statements, including the schedules and notes, included in the
Registration Statement and the Prospectus and in the column entitled
"Actual" under the caption "Capitalization and Indebtedness of
Coca-Cola Hellenic Bottling Company S.A." in the Registration Statement
and the Prospectus (except for subsequent issuances, if any, pursuant
to this Agreement, pursuant to reservations, agreements, employee
benefit plans or other events referred to in the Registration Statement
and the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Registration Statement and the
Prospectus). The shares of issued and outstanding capital stock of the
Issuer and the Guarantor have been duly authorized and validly issued
and are fully paid and non-assessable; none of the outstanding shares
of capital stock of the Issuer or the Guarantor was issued in violation
of the preemptive or other similar rights of any securityholder of the
Issuer or the Guarantor, respectively.
(l) Authorization of the Underwriting Agreement. This
Agreement has been duly authorized, executed and delivered by the
Issuer and the Guarantor. The performance of this Agreement, the
consummation of the transactions contemplated herein and compliance by
the Issuer and the Guarantor with its respective obligations
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hereunder have been duly authorized by the Issuer and the Guarantor,
respectively.
(m) Authorization of the Securities. The Securities have been
duly authorized and, at the Closing Date, will have been duly executed
by the Issuer and the Guarantor and, when authenticated, issued and
delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this
Agreement, will constitute valid and binding obligations of each of the
Issuer and the Guarantor, enforceable against each of the Issuer and
the Guarantor in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers) reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(n) Description of the Securities. The Securities and the
Indenture will conform in all material respects to the respective
statements relating thereto contained in the Registration Statement and
the Prospectus. Upon due execution by the Issuer and authentication and
delivery by the Trustee of the certificates evidencing Securities
pursuant to the Indenture, persons in whose names the Securities are
registered will be entitled to the rights specified in the Indenture.
(o) Absence of Defaults and Conflicts. Neither the Issuer, the
Guarantor, nor any of the Guarantor's Designated Subsidiaries is in
violation of its charter, by-laws or similar organizational documents
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Issuer, the Guarantor or any of
the Guarantor's Designated Subsidiaries is a party or by which or any
of them may be bound, or to which any of the property or assets of the
Issuer, the Guarantor or any of the Guarantor's Designated Subsidiaries
is subject (collectively, "Agreements and Instruments"), except for
such defaults that would not result in a Material Adverse Effect; and
the execution, delivery and performance of this Agreement, the
Indenture, the Securities and any other agreement or instrument entered
into or issued or to be entered into or issued by the Issuer or the
Guarantor in connection with the transactions contemplated hereby or
thereby or in the Registration Statement and the Prospectus and the
consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Registration Statement and the
Prospectus under the caption "Use of Proceeds") and compliance by each
of the Issuer and the Guarantor with its obligations hereunder have
been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as
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defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Issuer,
the Guarantor or any of the Guarantor's Designated Subsidiaries
pursuant to, the Agreements and Instruments except for such conflicts,
breaches or defaults or Repayment Events or liens, charges or
encumbrances that, singly or in the aggregate, would not result in a
Material Adverse Effect, nor will such action result in any violation
of (i) the provisions of the charter, by-laws or similar organizational
documents of the Issuer, the Guarantor or any of the Guarantor's
Designated Subsidiaries or (ii) any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Issuer, the Guarantor or any of the Guarantor's
Designated Subsidiaries or any of their assets, properties or
operations except, in the case of (ii) above, for violations that would
not result in a Material Adverse Effect. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Issuer,
the Guarantor or any of the Guarantor's Designated Subsidiaries.
(p) Absence of Labor Dispute. No labor dispute with the
employees of the Guarantor or any of the Guarantor's subsidiaries
exists or, to the knowledge of either of the Issuer or the Guarantor,
is imminent that might have a Material Adverse Effect.
(q) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Issuer or the Guarantor, threatened, against or affecting the Issuer,
the Guarantor or any of the Guarantor's subsidiaries which might result
in a Material Adverse Effect, or which might materially and adversely
affect the consummation of the transactions contemplated by this
Agreement or the Indenture or the performance by the Issuer or the
Guarantor of its obligations hereunder or thereunder. The aggregate of
all pending legal or governmental proceedings to which the Issuer, the
Guarantor or any of the Guarantor's subsidiaries is a party or of which
any of their respective property or assets is the subject which are not
described in the Registration Statement or the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(r) Absence of Manipulation. Neither the Issuer, the Guarantor
nor any affiliate of the Issuer or the Guarantor has taken, nor will
the Issuer, the Guarantor or any affiliate take, directly or
indirectly, any action which is designed to or which has constituted or
which would reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of either of the Issuer or
the Guarantor to facilitate the sale or resale of the Securities.
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(s) Possession of Intellectual Property. The Issuer, the
Guarantor and its subsidiaries own or possess, have valid licenses for,
or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade
names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and
neither the Issuer, the Guarantor nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding), singly or in
the aggregate, would result in a Material Adverse Effect.
(t) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by either of the
Issuer or the Guarantor of its obligations hereunder, in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement or for
the due execution, delivery or performance of the Indenture by either
of the Issuer or the Guarantor, except (i) with respect to the
registration with the Commission of the Securities and registration or
qualification under applicable securities or "Blue Sky" laws of the
various states, (ii) any filings with the Netherlands Authority for the
Financial Markets (Autoriteit Financiele Markten) required for
compliance with the Dutch 1995 Act on the Supervision of the Securities
Trade (Wet toezicht effectenverkeer 1995) and the 1992 Banking Act (Wet
toezicht kredietwezen 1992) and (iii) such as have already been
obtained.
(u) Possession of Licenses and Permits. The Issuer, the
Guarantor and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except where the failure so to possess
would not, singly or in the aggregate, result in a Material Adverse
Effect; the Issuer, the Guarantor and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not,
singly or in the aggregate, result in a Material Adverse Effect; and
neither the Issuer, the Guarantor nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
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(v) Title to Property. The Issuer, the Guarantor and its
subsidiaries have good and marketable title to all real property owned
by the Issuer, the Guarantor and its subsidiaries and good title to all
other properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (i) are described in the
Registration Statement and the Prospectus or (ii) do not, singly or in
the aggregate, have a Material Adverse Effect; and all of the leases
and subleases of the Issuer, the Guarantor and its subsidiaries under
which the Issuer, the Guarantor or any of the Guarantor's subsidiaries
holds properties described in the Registration Statement and the
Prospectus, are in full force and effect, and neither the Issuer, the
Guarantor nor any of its subsidiaries has any notice of any claim of
any sort that has been asserted by anyone adverse to the rights of the
Issuer, the Guarantor or any of the Guarantor's subsidiaries under any
of the leases or subleases mentioned above, or affecting or questioning
the rights of the Issuer, the Guarantor or any subsidiary thereof to
the continued possession of the leased or subleased premises under any
such lease or sublease, except in each case, as would not singly or in
the aggregate have a Material Adverse Effect.
(w) Environmental Laws. Except as described in the
Registration Statement and the Prospectus and except such matters as
would not, singly or in the aggregate, result in a Material Adverse
Effect, (i) neither the Issuer, the Guarantor nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum
products, asbestos-containing materials or mold (collectively,
"Hazardous Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (ii) the Issuer, the
Guarantor and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (iii) there are no pending or,
to the knowledge of the Issuer and the Guarantor, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Issuer, the Guarantor or any of the Guarantor's subsidiaries and
(iv) to the best knowledge of the Issuer, the Guarantor or any such
subsidiary, there are no events or circumstances that would reasonably
be expected to form the basis of an order for clean-up or remediation,
or an action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Guarantor or any of its
subsidiaries relating to Hazardous Materials or Environmental Laws.
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(x) Investment Company Act. Neither the Issuer nor the
Guarantor is required, and upon the issuance and sale of the offered
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Registration Statement and the
Prospectus will not be required, to register as an "investment company"
under the Investment Company Act of 1940, as amended (the "1940 Act").
(y) Compliance with Laws. Each of the Guarantor and its
subsidiaries is in compliance with all applicable laws, statutes,
ordinances, rules or regulations of any applicable jurisdiction, except
for failures the enforcement of which, singly or in the aggregate,
would not result in a Material Adverse Effect.
(z) Taxes. Each of the Guarantor and its subsidiaries has
filed all material federal, state, local and foreign income and
franchise tax returns required by law to be filed by it in the Hellenic
Republic and in any other applicable jurisdiction and has paid all
taxes shown as due thereon, other than taxes which are being contested
in good faith or state withholding taxes in each case for which
adequate reserves have been established, except for such filings or
payments, with respect to which the failure to file or pay is not
expected to result in a Material Adverse Effect, and neither the Issuer
nor the Guarantor has any knowledge of any material tax deficiency
which has been or is reasonably likely to be asserted or threatened
against the Issuer or the Guarantor or any of its subsidiaries other
than those for which adequate reserves have been established. Adequate
charges, accruals and reserves have been provided for in the financial
statements referred to in paragraph (f) of this Article I in respect of
all material federal, state, local and foreign taxes for all periods as
to which the tax liability of the Guarantor or any of its subsidiaries
has not been finally determined or remains open to examination by
applicable taxing authorities.
(aa) Insurance. Each of the Guarantor and its subsidiaries
carries or is entitled to the benefits of insurance with respect to its
properties and business against loss or damage of the kinds customarily
insured against by corporations of established reputation engaged in
the same or similar businesses and similarly situated, of such types
and in such amounts as are customarily carried under similar
circumstances by such other corporations, and such insurance is in full
force and effect, except to the extent that the failure to carry or
maintain such insurance, or the failure of such insurance to be in full
force and effect, would not, singly or in the aggregate, have a
Material Adverse Effect; provided, however, that neither the Guarantor
nor the Issuer make a representation as to the general conditions in
the insurance market, including the insurance market for companies
operating in the same industry as the Guarantor, which may from time to
time adversely affect the Guarantor's ability to renew or obtain such
coverage.
(bb) No Withholdings. Except as described in the Registration
Statement and the Prospectus, payments in respect of this Agreement,
the Securities, and the Indenture including the transfer, sale and
delivery of the Securities, are not subject under the current
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laws of any jurisdiction or any political subdivision thereof or
therein applicable to the Issuer or the Guarantor to any withholdings
or similar charges for or on account of taxation or otherwise, other
than taxes imposed on the income or gain of an Underwriter subject to
tax in any applicable jurisdiction or political subdivision thereof or
therein.
(cc) Holders. Except as described in the Registration
Statement and the Prospectus, non-Dutch or non-Greek holders of the
Securities will not be deemed resident, domiciled, carrying on business
or subject to taxation in the Netherlands or the Hellenic Republic,
respectively, solely by reason of the execution, delivery, performance
or enforcement of this Agreement, the Indenture and any other agreement
contemplated in connection with an offering of the Securities.
(dd) Reporting Company. The Guarantor is subject to the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act.
(ee) Foreign Private Issuer. Each of the Guarantor and the
Issuer is a "foreign private issuer" (within the meaning of paragraph
(v) of Rule 405 under the Securities Act).
(ff) Stamp Duty. Except as described in the Registration
Statement and the Prospectus, or as has already been paid or authorized
for payment, no stamp duty or similar tax or duty is payable under
applicable laws or regulations in connection with the creation,
issuance or delivery of the Securities, the transfer of any of the
Securities or with respect to the execution and delivery of and
performance by the respective parties under this Agreement, the
Indenture or any other agreement contemplated in connection with an
offering of the Securities.
(gg) Withholding Taxes. Except as described in the
Registration Statement and the Prospectus, payments made by the Issuer
or the Guarantor to holders under the Securities and the Indenture and
by the Issuer or the Guarantor to the Underwriters under this Agreement
will not be subject under the current laws of the Netherlands or the
Hellenic Republic, as the case may be, or any political subdivision of
any such jurisdiction to any withholdings or similar charges for or on
account of taxation.
(hh) Choice of Law; Consent to Jurisdiction; Appointment of
Agent to Accept Service of Process. The choice of the laws of the State
of New York as the governing law of this Agreement, the Indenture, any
other agreement contemplated in connection with an offering of the
Securities and the Securities is a valid choice of law under the laws
of the Netherlands and the Hellenic Republic and any political
subdivision thereof and courts of the Netherlands and the Hellenic
Republic should honor this choice of law. Each of the Issuer and the
Guarantor has the power to submit and pursuant to Article X of this
Agreement and Section 117 of the Indenture has legally, validly,
effectively and irrevocably submitted to the non-exclusive personal
jurisdiction of any state or federal court in the City, County and
State of New York in any suit, action or proceeding against
-11-
it arising out of or related to any of this Agreement, the Indenture or
any other agreement contemplated in connection with an offering of the
Securities or with respect to its obligations, liabilities or any other
matter arising out of or in connection with the sale of Securities by
the Issuer to the Underwriters under this Agreement and has validly and
irrevocably waived any objection to the venue of a proceeding in any
such court; and has the power to designate, appoint and empower and
pursuant to Article X of this Agreement and Section 117 of the
Indenture has legally, validly, effectively and irrevocably designated,
appointed and empowered an agent for service of process in any suit or
proceeding based on or arising under this Agreement in any federal or
state court in the State of New York.
(ii) Waiver of Immunities. Each of the Issuer, the Guarantor
and its obligations under this Agreement, the Indenture or any other
agreement contemplated in connection with an offering of the
Securities, are subject to civil and commercial law and to suit and
neither the Issuer, the Guarantor nor any of their properties, assets
or revenues have any right of immunity, on the grounds of sovereignty,
from any legal action, suit or proceeding, from the giving of any
relief in any such legal action, suit or proceeding, from setoff or
counterclaim, from the jurisdiction of any Dutch, Greek, New York State
or U.S. federal court, as the case may be, from service of process,
attachment upon or prior to judgment, or attachment in aid of execution
of judgment, or from execution or enforcement of a judgment, or other
legal process or proceeding for the giving of any relief or for the
enforcement of a judgment, in any such court, with respect to its
obligations or liabilities or any other matter under or arising out of
or in connection with this Agreement, the Indenture or any other
agreement contemplated in connection with an offering of the
Securities; and, to the extent that the Issuer, the Guarantor or any of
their respective properties, assets or revenues may have or may
hereafter become entitled to any such right of immunity in any such
court in which proceedings may at any time be commenced, each of the
Issuer and the Guarantor waived or will waive such right to the extent
permitted by law and has consented to such relief and enforcement as
provided in this Agreement, the Indenture or any other agreement
contemplated in connection with an offering of the Securities.
(jj) Enforceability of New York Judgment. Any final judgment
for a fixed or readily calculable sum of money rendered by any court of
the State of New York or of the United States located in the State of
New York having jurisdiction under its own domestic laws in respect of
any suit, action or proceeding against the Issuer or the Guarantor
based upon any of this Agreement, the Indenture or any other agreement
contemplated in connection with an offering of the Securities, the
Guarantee or the Securities would be declared enforceable against the
Issuer or the Guarantor by the courts of the Netherlands or the
Hellenic Republic without reexamination, review of the merits of the
cause of action in respect of which the original judgment was given or
relitigation of the matters adjudicated upon or payment of any stamp,
registration or similar tax or duty; provided, however, that:
-12-
(i) given the absence of an applicable convention
between the Netherlands and the United States providing for
the reciprocal recognition and enforcement of judgments in
civil and commercial matters, a judgment rendered by a U.S.
court against the Issuer or its directors would not be
recognized and enforced by the courts of the Netherlands; in
order to obtain a judgment against the Issuer or its
directors, a complainant would have to file a claim against
the Issuer or such directors with a court of competent
jurisdiction in the Netherlands and, in the course of those
proceedings, the complainant would be permitted to submit the
judgment rendered by a U.S. court; if the Netherlands court
were to find that the jurisdiction of the U.S. court was based
on grounds that are internationally acceptable and that proper
legal procedures were observed, the Netherlands court would in
principle give effect to the final judgment of the U.S. court
unless such judgment would contravene the public policy of the
Netherlands; and
(ii) there is uncertainty as to the enforceability in
the Hellenic Republic of judgments of U.S. courts because such
enforcement is subject to ascertainment by the Greek courts of
a number of conditions, including that the foreign court has
jurisdiction under Greek law and that the judgment is not
contrary to good morals and public policy as determined by
Greek courts; it is uncertain if a Greek court will apply the
federal laws of the United States in any action brought before
such court.
(kk) Validity under the Laws of the Netherlands and the
Hellenic Republic. It is not necessary under the laws of the
Netherlands or the Hellenic Republic or any political subdivision
thereof or authority or agency therein in order to enable a subsequent
purchaser of Securities or an owner of any interest therein to enforce
its rights under the Securities or to enable an Underwriter to enforce
its rights under any of this Agreement, the Indenture or any other
agreement contemplated in connection with an offering of the Securities
that it should, as a result solely of its holding of Securities be
licensed, qualified, or otherwise entitled to carry on business in the
Netherlands or the Hellenic Republic or any political subdivision
thereof or authority or agency therein; each of this Agreement, the
Indenture or any other agreement contemplated in connection with an
offering of the Securities are in proper legal form under the laws of
the Netherlands or the Hellenic Republic and any political subdivision
thereof or authority or agency therein for the enforcement thereof
against the Issuer and the Guarantor therein; and it is not necessary
to ensure the legality, validity, enforceability or admissibility in
evidence of any of this Agreement, the Indenture or any other agreement
contemplated in connection with an offering of the Securities in the
Netherlands or the Hellenic Republic or any political subdivision
thereof or agency therein that any of them be filed or recorded with
any court, authority or agency in, or that any stamp, registration or
similar taxes or duties be paid to any court, authority or agency of
the Netherlands or the Hellenic Republic or any political subdivision
thereof.
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(ll) ▇▇▇▇▇▇▇▇-▇▇▇▇▇. To its knowledge, the Guarantor is in
material compliance with all applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and regulations promulgated
thereunder or implementing the provisions thereof that are currently in
effect and reasonably expects that it will be in compliance with other
applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 upon
effectiveness of such provisions.
(mm) Officer's Certificates. Any certificate signed by any
officer of the Issuer or the Guarantor delivered to the Representatives
or to counsel for the Underwriters shall be deemed a representation and
warranty by either the Issuer or the Guarantor as the case may be to
each Underwriter as to the matters covered therein.
II.
Each Underwriter severally represents and agrees that it has
not offered and will not offer any Securities anywhere in the world, and that it
has not announced and will not announce any such offer, other than:
(a) within a closed circle, or
(b) if those Securities have been, or will likely shortly be,
admitted to listing on the Official Segment of the stock market of
Euronext Amsterdam N.V. or another recognized Dutch stock exchange, or
(c) if (i) the Registration Statement and any other document
announcing or in respect of, an offer of Securities (for purposes of
this Article, the "Offer Documents") (A) comply with Section 2 of the
1995 Decree on the Supervision of the Securities Trade (Besluit
toezicht effectenverkeer 1995, the "Securities Decree"), (B) are
submitted to the Netherlands Authority for the Financial Markets
(Stichting Autoriteit Financiele Markten, the "AFM") before the offer
is made, and (C) are generally available as of the time when the offer
is made, or the Offer Documents (A) have been approved by the competent
authority as referred to in Article 20 or Article 21 of EC Directive
89/298/EEC, (B) are recognized by the AFM and (C) are generally
available as of the time when the offer is made; and (ii) each
announcement of the offer states where and when the Offer Documents
will be or have been made generally available, and each such
announcement made before the offer is made, is submitted to the AFM
before the Offer Documents are published; and (iii) if after the date
of the Registration Statement new relevant facts occur or are
discovered, Section 6 of the Securities Decree is complied with; all
provided that the offer is made within one year after the date of the
Registration Statement, or
(d) to persons who trade or invest in securities in the
conduct of their profession or trade (which includes banks, securities
intermediaries (including dealers and brokers), insurance companies,
pension funds, other institutional investors and commercial enterprises
which as an ancillary activity regularly invest in securities)
-14-
("Professional Investors"), provided that the offer, the applicable
Prospectus Supplement and each announcement of the offer states that
the offer is exclusively made to those persons, or
(e) to persons who are established, domiciled or have their
residence (collectively, "are resident") outside the Netherlands,
provided that (i) the offer, the Offer Documents and each announcement
of the offer states that the offer is not and will not be made to
persons who are resident in the Netherlands, (ii) the offer, the Offer
Documents and each announcement of the offer comply with the laws and
regulations of any State where persons to whom the offer is made are
resident, (iii) a statement by the Issuer that those laws and
regulations are complied with and is submitted to the AFM before the
offer is made and is included in the Offer Documents and each such
announcement, or
(f) to persons who, (i) are Professional Investors, or (ii)
are resident (as defined in paragraph (e) above outside the
Netherlands; provided that (A) the offer, the Offer Documents and each
announcement of the offer states that the offer is and will only be
made to persons who are professional investors or who are not resident
in the Netherlands, (B) the offer, the Offer Documents and each
announcement of the offer comply with the laws and regulations of any
State where persons to whom the offer is made are resident, (C) a
statement by the Issuer that those laws and regulations are complied
with is submitted to the AFM before the offer is made and is included
in the Offer Documents and each such announcement, or
(g) if those Securities have a denomination of at least EUR
50,000 (or its foreign currency equivalent), or
(h) if those Securities are offered for no consideration (om
neit), or
(i) if, (i) those Securities qualify as Euro-securities
(Euro-effecten) (which they do if (A) they are subscribed for and
placed by a syndicate of which at least two members are established
according to their constitutional documents in different States party
to this Agreement on the European Economic Area, (B) at least 60% of
those Securities are offered in one or more states other than the state
where the Issuer is established according to its constitutional
documents, and (C) the Securities may only be subscribed for or
initially be purchased through a credit institution or another
institution which in the conduct of its business or profession provides
one or more of the services referred to under 7 and 8 of Annex I to EC
Directive 2000/12/EC), and (ii) no general advertising or canvassing
campaign is conducted in respect of the Securities anywhere in the
world, or
-15-
(j) otherwise in accordance with the Dutch 1995 Act on the
Supervision of the Securities Trade (Wet toezicht effectenverkeer
1995).
In addition, each Underwriter represents and agrees that it
has not transferred or accepted and will not transfer or accept any Securities
which qualify as savings certificates as defined in the Dutch Savings
Certificates Act (Wet inzake spaarbewijzen) other than through the mediation of
either the Issuer or a Member of Euronext Amsterdam N.V. with due observance of
the Savings Certificates Act and its implementing regulations (including
registration requirements), provided that no mediation is required in respect of
(i) the initial issue of those Securities to the first holders thereof, (ii) any
transfer and delivery by individuals who do not act in the conduct of a
profession or trade, and (iii) the issue and trading of those Securities, if
they are physically issued outside the Netherlands and are not distributed in
the Netherlands in the course of primary trading or immediately thereafter.
Each Underwriter severally represents and agrees that (a) the
Securities will not be offered or sold to persons in the Hellenic Republic other
than to insurance companies, credit institutions, social security funds and
other persons who qualify as "institutional investors" within the meaning of
Resolution no. 9/201/10.10.2000 of the Capital Market Commission and any other
relevant regulation. No action will be taken by the Underwriters that would, or
is intended to, permit a public offer of the notes in the Hellenic Republic.
Accordingly, no Securities will be, directly or indirectly, offered or sold and
no offering circular, prospectus information memorandum, form of application,
advertisement or other document or information will be distributed or published
in the Hellenic Republic except under circumstances that will result in
compliance with any applicable laws and regulations of the Hellenic Republic and
all offers and sales of Securities in the Hellenic Republic will be made on the
same terms or (b) otherwise in accordance with applicable Greek law, rules and
regulations of the Athens Stock Exchange.
III.
The Issuer and the Guarantor are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Securities as soon after the applicable Pricing Agreement has become
effective as in your judgment is advisable. The terms of the public offering of
the Securities will be set forth in the Prospectus Supplement.
IV.
Payment for the Securities shall be made by certified or
official bank check or checks or wire transfer, as specified in the applicable
Pricing Agreement, payable to the order of the Issuer in the funds in such
Pricing Agreement at the time and place, in each case as set forth in such
Pricing Agreement, or at such other time on the same or such other date, not
later than the third New York business day thereafter, as shall be designated in
writing by you, which date and time may be postponed by agreement among you, the
Issuer and the Guarantor or as
-16-
provided in Article IX hereof. The time and date of such payment, as specified
in the applicable Pricing Agreement in relation to an offering of Securities,
are hereinafter referred to as the "Closing Date".
Payment for the Securities shall be made against delivery to
you for the respective accounts of the several Underwriters of the Securities
registered in such names and in such denominations as you shall request in
writing not later than one full business day prior to the date of delivery, with
any transfer taxes payable in connection with the transfer of the Securities to
the Underwriters duly paid.
V.
The several obligations of the Underwriters hereunder are
subject to the following conditions, appropriately modified for the Issuer:
(a) The applicable Prospectus Supplement shall have been filed
with the Commission pursuant to Rule 424 within the applicable time
period prescribed for such filing by the rules and regulations under
the Securities Act; no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; and
all requests for additional information on the part of the Commission
shall have been complied with to your satisfaction.
(b) Subsequent to the execution and delivery of the applicable
Pricing Agreement and prior to the Closing Date, there shall not have
occurred a downgrading in the rating assigned to the Securities or any
of the Issuer's other securities by any "nationally recognized
statistical rating agency", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the 1933 Act, and no such
securities rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of the Securities or any of the Issuer's or the Guarantor's
other securities.
(c) At the Closing Date, there shall not have been, since the
date of the Guarantor's most recent annual or interim financial
statements included in the Registration Statement and the Prospectus
except as described in the Registration Statement and the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of the Pricing Agreement), any Material Adverse Effect, and the
Underwriters shall have received a certificate of the Managing Director
or an officer reporting directly to the Managing Director of the
Guarantor and of the chief financial or chief accounting officer of the
Guarantor, dated as of the Closing Date, to the effect that (i) there
has been no such Material Adverse Effect, (ii) the representations and
warranties in Article I hereof are true and correct with the same force
and effect as though expressly made at and as of the Closing Date, and
(iii) each of the Issuer and the Guarantor has
-17-
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Date.
(d) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel to the Issuer and the
Guarantor, dated the Closing Date, to the effect that:
(i) Assuming the Indenture has been duly authorized,
executed and delivered by the Issuer insofar as the laws of
the Netherlands are concerned, it has been duly executed and
delivered by the Issuer, and, assuming the Indenture has been
duly authorized, executed and delivered by the Guarantor
insofar as the laws of the Hellenic Republic are concerned, it
has been duly executed and delivered by the Guarantor; the
Indenture has been duly qualified under the 1939 Act and
constitutes a valid and legally binding obligation of each of
the Issuer and the Guarantor, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles;
(ii) Assuming the Securities have been duly
authorized, executed, authenticated, issued and delivered by
the Issuer insofar as the laws of the Netherlands are
concerned, they have been duly executed, authenticated, issued
and delivered by the Issuer and constitute valid and legally
binding obligations of the Issuer, enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iii) Assuming the Guarantees have been duly
authorized, executed and delivered by the Guarantor insofar as
the laws of the Hellenic Republic are concerned, the
Guarantees have been duly executed and delivered by or on
behalf of the Guarantor and constitute valid and legally
binding obligations of the Guarantor enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iv) Assuming this Agreement has been duly
authorized, executed and delivered by the Issuer insofar as
the laws of the Netherlands are concerned, it has been duly
executed and delivered by the Issuer, and, assuming this
Agreement has been duly authorized, executed and delivered by
the Guarantor insofar as the laws of the Hellenic Republic are
concerned, it has been duly executed and delivered by the
Guarantor;
-18-
(v) The issuance of the Securities in accordance with
the Indenture and the sale of the Securities by the Issuer to
the Underwriters pursuant to this Agreement do not, and the
performance by the Issuer and the Guarantor of their
respective obligations under the Indenture, this Agreement,
the Securities and the Guarantees will not violate any Federal
law of the United States or the law of the State of New York
applicable to the Issuer or the Guarantor; provided, however,
that, with respect to this paragraph (v), such counsel need
express no opinion with respect to Federal or state securities
laws, other anti-fraud laws, fraudulent transfer laws, the
Employee Retirement Income Security Act of 1974 and related
laws and laws that restrict transactions between United States
persons and citizens or residents of certain foreign countries
or specially designated nationals and organizations; provided,
further, that insofar as performance by the Issuer and the
Guarantor of their respective obligations under the Indenture,
this Agreement, the Securities and the Guarantees is
concerned, such counsel need express no opinion as to
bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights;
(vi) All regulatory consents, authorizations,
approvals and filings required to be obtained or made by the
Issuer or the Guarantor, as the case may be, under the Federal
laws of the United States and the laws of the State of New
York for the issuance of the Guarantees by the Guarantor and
the issuance, sale and delivery of the Securities by the
Issuer to the Underwriters have been obtained or made;
(vii) Neither the Issuer nor the Guarantor is an
"investment company" or a company "controlled" by an
"investment company" required to be registered under the 1940
Act; and
(viii) Under the laws of the State of New York
relating to submission to jurisdiction, assuming the validity
of such actions insofar as the laws of the Netherlands are
concerned, the Issuer has, and assuming the validity of such
actions insofar as the laws of the Hellenic Republic are
concerned, the Guarantor has, pursuant to each of Article X of
this Agreement, and Section 117 of the Indenture, validly and
irrevocably submitted to the personal jurisdiction of any
State or Federal court located in the City, County and State
of New York, in any action arising out of or relating to this
Agreement or the Indenture, respectively, or any of the
transactions contemplated thereby, has validly and irrevocably
waived any objection to the venue of such a proceeding in any
such court and has validly and irrevocably appointed CT
Corporation as authorized agent for the purposes described in
Article X of this Agreement and Section 117 of the Indenture,
respectively; and service of process effected on such agent in
the manner set forth in Article X of this Agreement or Section
117 of the Indenture, respectively will be effective to confer
valid personal jurisdiction over the Issuer
-19-
or the Guarantor, as the case may be.
In rendering such opinion, such counsel may state that such
opinion is limited to the Federal laws of the United States and the laws of the
State of New York and such counsel may assume that (A) the Issuer has been duly
incorporated and is an existing corporation under the laws of the Netherlands
and (B) the Guarantor has been duly incorporated and is an existing corporation
under the laws of the Hellenic Republic. Such counsel may also note that with
respect to all matters of Dutch law, you are relying on the opinion of De Brauw
Blackstone Westbroek N.V., Dutch legal advisor to the Issuer, delivered to you
pursuant to paragraph (g) of this Article V, and that with respect to all
matters of Greek law, you are relying on the opinion of Kyriakides ▇▇▇▇▇▇▇▇▇▇▇▇,
Greek counsel to the Guarantor, delivered to you pursuant to paragraph (h) of
this Article V.
Such counsel may also state that, with your approval, such
counsel have relied as to certain matters on information obtained from public
officials, officers of the Issuer and Guarantor and other sources believed by
them to be responsible, and that such counsel have assumed that the Indenture
has been duly authorized, executed and delivered by the Trustee, that the
Securities conform to the specimens thereof examined by them, that the Trustee's
certificates of authentication of the Securities have been manually signed by
one of the Trustee's authorized officers and that the signatures on all
documents examined by them are genuine, assumptions which such counsel have not
independently verified.
Such counsel shall also state that they have reviewed the
Registration Statement, the Basic Prospectus and the Prospectus Supplement,
certificate of certain officers of the Issuer and the Guarantor, opinions
addressed to the Underwriters from the Issuer's Dutch counsel and the
Guarantor's Greek counsel and letters addressed to the Underwriters from the
Guarantor's accountants and participated in discussions with representatives of
the Issuer and the Guarantor and their Dutch and Greek counsel, representatives
of the accountants for the Issuer and the Guarantor and representatives of the
Underwriters and their U.S. counsel; and on the basis of the information that
such counsel gained in the course of the performance of such services,
considered in the light of the experience such counsel have gained through their
practice in this field, such counsel shall confirm to the Underwriters that each
part of the Registration Statement, when such part became effective, and the
Basic Prospectus, as supplemented by the Prospectus Supplement as of the date of
the Prospectus Supplement appeared on their face to be appropriately responsive
in all material respects to the requirements of the Securities Act, the 1939 Act
and the applicable rules and regulations of the Commission thereunder; and
nothing that has come to the attention of such counsel has caused them to
believe (A) that any part of the Registration Statement, when such part became
effective, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as supplemented by the
Prospectus Supplement as of the date of the Prospectus Supplement, contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of the circumstances
in which they were made, not misleading or
-20-
(B) that, in the course of specified procedures performed by them subsequent to
the effective date of the Registration Statement, the Basic Prospectus, as
supplemented by a Prospectus Supplement, as of the date of such opinion
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
Such opinion may also state (A) that such counsel do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Basic Prospectus or
any Prospectus Supplement except for those made under the captions "Description
of the Notes and the Guarantees" and "Plan of Distribution" insofar as they
relate to provisions of the Securities, the Guarantees, the Indenture and this
Agreement and under the caption "Taxation - United States Taxation" insofar as
they relate to provisions of United States Federal Securities laws and to
provisions of United States Federal tax law, respectively, therein described and
"Description of the Notes and the Guarantees" and "Underwriting" in a Prospectus
Supplement insofar as they relate to the provisions of documents therein
described and (B) that such counsel do not express any opinion or belief as to
the financial statements or other financial data contained in the Registration
Statement or the Basic Prospectus or any Prospectus Supplement, or as to the
statement of the eligibility and qualification of the Trustee under the
Indenture under which the Securities are being issued, or as to any statement
made by De Brauw Blackstone Westbroek N.V. with respect to Dutch law or any
statement made by Kyriakides ▇▇▇▇▇▇▇▇▇▇▇▇ with respect to Greek law, in each
case, in the Registration Statement or in documents incorporated by reference
therein.
(e) You shall have received on the Closing Date an opinion of
Jan Gustavsson, General counsel to the Guarantor, dated the Closing
Date, to the effect that:
(i) Except as described in the Registration Statement
and the Prospectus (as this term is defined in this
Agreement), such counsel does not know of actions,
investigations, suits or judicial, arbitral, administrative
proceedings pending or threatened to which the Issuer, the
Guarantor or any of the Designated Subsidiaries is a party or
to which any of the properties of the Issuer, the Guarantor or
any of the Designated Subsidiaries is subject that could
reasonably be expected to have a Material Adverse Effect;
(ii) Neither the Issuer, nor the Guarantor nor any of
the Designated Subsidiaries is (A) in violation of its
articles of association, (B) in default in any material
respect in the due performance of observance of any term,
covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument to which they are a party or by which
they are bound or to which any of their property or assets is
subject, or (C) in violation in any material respect of any
law, ordinance, governmental rule, regulation or court decree
to which the Issuer, the Guarantor or any of the Designated
Subsidiaries or their property or assets may be subject,
except in each
-21-
case for such violations and defaults as could not reasonably
be expected to have a Material Adverse Effect;
(iii) The Issuer, the Guarantor and the Designated
Subsidiaries (A) have received all permits, licenses or other
approvals required of them under applicable law to conduct
their respective businesses as described in the Registration
Statement and the Prospectus, and (B) are in compliance with
all terms and conditions of any such permit, licenses or other
approvals, except where failure to receive such permits,
licenses or approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a Material Adverse Effect;
and
(iv) The issuance of the Securities and Guarantees in
accordance with the Indenture and the sale of the Securities
by the Issuer to the Underwriters pursuant to this Agreement
do not, and the performance by the Issuer and the Guarantor of
their respective obligations under the Indenture, this
Agreement, the Securities and the Guarantees will not (A)
violate the articles of association or other charter documents
of the Issuer, the Guarantor or any of the Designated
Subsidiaries or (B) result in a default under or breach of any
of the agreements listed in Annex A to such counsel's opinion
(the "Annex A Agreements"), which are the only agreements
known to such counsel which are material to the Issuer or to
the Guarantor and its subsidiaries considered as a whole, or
(C) result in the creation or imposition of any lien, charge
or encumbrance pursuant to any of the Annex A Agreements on
any property or assets of the Issuer, the Guarantor or any of
the Designated Subsidiaries.
(f) You shall have received on the Closing Date an opinion of
De Brauw Blackstone Westbroek N.V., Dutch Counsel to the Issuer, dated
the Closing Date, to the effect that:
(i) The Issuer has been incorporated and is existing
as a legal entity (rechtspersoon) in the form of a private
company with limited liability (besloten vennootschap met
beperkte aansprakelijkheid) under Dutch law;
(ii) The Issuer has the corporate power to enter into
and perform under the Indenture and this Agreement and to
issue and perform the Securities;
(iii) The Issuer has taken all necessary corporate
action to authorise its entry into, and performance of, the
Indenture, this Agreement and the Securities;
(iv) The Issuer has validly signed the Indenture,
this Agreement and the Securities;
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(v) Under Dutch law there are no governmental or
regulatory consents, approvals or authorisations required by
the Issuer for its entry into and performance of the
Agreements or for its issue and performance of the Securities;
(vi) Under Dutch law there are no registration,
filing or similar formalities required to ensure the validity,
binding effect and enforceability against the Issuer of this
Agreement, the Indenture and the Securities except for the
purpose of complying with the requirements that no Securities
will be offered upon issue anywhere in the world other than in
accordance with the 1995 act on the Supervision of Securities
Trade (Wet toezicht effectenverkeer 1995) and that the Issuer
complies with Chapter 2 of the 1992 Banking Act Exemption
Regulation (Vrijstellingsregeling Wtk 1992) and therefore does
not require a banking licence pursuant to Section 6 of the
1992 Act on the Supervision of the Credit System (Wet toezicht
kredietwezen 1992);
(vii) The entry into and performance of this
Agreement, the Indenture and the issue and performance of the
Securities, by the Issuer do not violate Dutch law or the
articles of association of the Issuer;
(viii) Under Dutch law the choice of New York law as
the governing law of this Agreement, the Indenture and the
Securities is recognised and accordingly New York law governs
the validity, binding effect and enforceability against the
Issuer of this Agreement, the Indenture and the Securities;
(ix) To the extent that Dutch law applies, the
Issuer's payment obligations under the Securities are
unsecured and rank at least pari passu with the claims of all
its other unsecured creditors (except for claims preferred by
law);
(x) A judgment rendered by a court in New York will
not be recognised and enforced by the Dutch courts. However,
if a person has obtained a final and conclusive judgment for
the payment of money rendered by a court in New York (the
"foreign court") which is enforceable in New York (the
"foreign judgment") and files his claim with the competent
Dutch court, the Dutch court will generally give binding
effect to the foreign judgment insofar as it finds that the
jurisdiction of the foreign court has been based on grounds
which are internationally acceptable and that proper legal
procedures have been observed and unless the foreign judgment
contravenes Dutch public policy;
(xi) Under Dutch law, in proceedings in a New York
court, New York law determines the validity, binding effect
and enforceability of Article X of this Agreement and Section
117 of the Indenture;
-23-
(xii) Under Dutch law, the Issuer is not entitled to
immunity from legal proceedings nor are its assets immune from
execution;
(xiii) The statements in the Basic Prospectus under
the headings "Taxation - Dutch Taxation" and the statements in
the Prospectus under the headings "Risk Factors", in each case
to the extent that they are statements as to Dutch law or as
to the Issuer's articles of association, are correct;
(xiv) No Dutch withholding tax is required to be
deducted by the Issuer from any payment by it under the
Securities. Exceptions apply if,
(A) any payment under the Securities is
contingent (or deemed to be
contingent) (in whole or in part)
on the profits of or on the
distribution of profits by the
Issuer or an affiliate company
(verbonden lichaam) of it, and
(B) the Securities have no fixed
maturity or a maturity that exceeds
10 years; and
(xv) No Dutch stamp duty or registration or similar
tax (other than court fees) is payable in connection with the
Issuer's issue or performance, or a securityholder's transfer
or enforcement, of the Securities or the execution or
performance of this Agreement or the Indenture.
In rendering such opinion, such counsel may state that such
opinion is limited to Dutch law as applied by the Dutch courts and published and
in effect on the date of such opinion and on the basis that all matters relating
to it will be governed by, and that it (including all terms used in it) will be
construed in accordance, with Dutch law. Such counsel may assume that (A) all
copy documents conform to the originals and all originals are genuine and
complete, (B) each signature is the genuine signature of the individual
concerned, (C) any minutes and extracts from minutes referred to in such opinion
are a true record of the proceedings described in them in duly convened,
constituted and quorate meetings and the resolutions set out in those minutes
and any written resolutions referred to in such opinion were validly passed and
remain in full force and effect without modification and any confirmation
referred to in such opinion is true, (D) the Securities have been or will have
been issued in the form referred to in such opinion, (E) this Agreement and the
Indenture are within the capacity and powers of, and have been validly
authorized and entered into by, each party other than the Issuer and the
Securities have been or will have been validly authenticated in accordance with
the Indenture, (F) the power of attorney to authorized persons of the Issuer
remains in full force and effect without modification and no rule of law which
under the The Hague Convention on the Law applicable to Agency 1978 applies or
may be applied to the existence and extent of the authority of any person
authorized to sign this Agreement and the Indenture on behalf of the Issuer
under such power of attorney, adversely affects the existence and extent of that
authority as expressed in the
-24-
power of attorney, (G) this Agreement and the Indenture have been signed on
behalf of the Issuer by a person named as authorized person in the power of
attorney and the Securities have been or will have been signed on behalf of the
Issuer, manually or, with the approval of the director concerned, in facsimile
by one of its managing directors, (H) when validly signed by all the parties,
this Agreement and the Indenture and the Securities are valid, binding and
enforceable on each party under the laws of the State of New York by which they
are expressed to be governed and under New York law, the choice of New York law
as the governing law of this Agreement and the Indenture applies to the
submission of jurisdiction of the courts of the State of New York or the courts
of the United States of America located in the county of New York pursuant to
Article X of this Agreement and Section 117 of the Indenture, (I) under New York
law the Issuer's payment obligations under the Securities are unsecured and
unsubordinated, (J) the Issuer's assets are not intended for public use (de
openbare dienst) and (K) this Agreement and the Indenture and each transaction
entered into pursuant to them have been entered into on an arm's length basis.
(g) You shall have received on the Closing Date an opinion of
Kyriakides ▇▇▇▇▇▇▇▇▇▇▇▇, Greek counsel to the Guarantor, dated the
Closing Date, to the effect that:
(i) The Guarantor has been duly incorporated and is
validly existing as a corporation under the laws of the
Hellenic Republic;
(ii) The Guarantor has corporate power and authority
to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the
Prospectus and to enter into and perform its obligations under
this Agreement;
(iii) The Guarantor is duly qualified as a foreign
corporation to transact business and is in good standing
(where applicable) in each jurisdiction in which such
qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing
(where applicable) would not result in a Material Adverse
Effect;
(iv) Each Designated Subsidiary organised under the
laws of the Hellenic Republic (collectively, the "Greek
Subsidiaries") has been duly incorporated and is validly
existing as a company in good standing (where applicable)
under the laws of the jurisdiction of its formation, has power
and authority to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectus, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good
standing (where applicable) would not result in a Material
Adverse Effect; all of the issued and outstanding capital
stock of each such Greek Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and, to
the best of such counsel's knowledge and
-25-
information, the capital stock of each such Greek Subsidiary
owned by the Guarantor, directly or through subsidiaries, is
owned free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity;
(v) Except as disclosed in the Registration Statement
and the Prospectus, there is not pending or, to the best of
such counsel's knowledge, threatened any action, suit,
proceeding, inquiry or investigation, to which the Guarantor,
or any Greek Subsidiary is a party, or to which the property
of the Guarantor or any Greek Subsidiary is subject, before or
brought by any Greek court or governmental agency or body,
which would reasonably be expected to result in a Material
Adverse Effect, or which would reasonably be expected to
materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated
in this Agreement or the performance by the Guarantor of its
obligations thereunder or the transactions contemplated by the
Prospectus;
(vi) The Indenture has been duly authorized, executed
and delivered by the Guarantor and (assuming the due
authorization, execution and delivery thereof by the Trustee)
constitutes a valid and binding agreement of the Guarantor,
enforceable against the Guarantor in accordance with its
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally, or by general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(vii) The Securities have been duly authorized, and
executed by the Guarantor and, when issued and delivered, will
constitute valid and binding obligations of the Guarantor, as
applicable, enforceable against the Guarantor in accordance
with their respective terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium (including, without limitation, all laws relating
to fraudulent transfers), or other similar laws relating to or
affecting enforcement of creditor's rights generally, or by
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law), and will be entitled to the benefits of the Indenture;
(viii) This Agreement has been duly authorized,
executed and delivered by the Guarantor. The performance of
this Agreement, the consummation of the transactions
contemplated therein and compliance by the Guarantor with its
obligations thereunder have been duly authorized by the
Guarantor;
(ix) The authorized, issued and outstanding capital
stock of the Guarantor is as set forth in the financial
statements, including the schedules and
-26-
notes, included in the Registration Statement and the
Prospectus in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances, if any,
pursuant to this Agreement or pursuant to reservations,
agreements, employee benefit plans or the exercise of
convertible securities or options referred to in the
Registration Statement and the Prospectus); the shares of
issued and outstanding capital stock of the Guarantor have
been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital
stock of the Guarantor was issued in violation of the
preemptive or other similar rights of any security holder of
the Guarantor;
(x) The information in the Registration Statement and
the Prospectus under "Description of the Notes and
Guarantees", "Plan of Distribution" and "Taxation" and in the
Annual Report on Form 20-F, to the extent that it constitutes
matters of Greek law, summaries of Greek legal matters, the
Guarantor's charter, by-laws, similar organizational documents
or legal proceedings in the Hellenic Republic, or legal
conclusions in respect of Greek law, has been reviewed by such
counsel and is correct in all material respects and our
opinion set forth under "Taxation" is confirmed;
(xi) No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree
of, any Greek court or governmental authority or agency is
necessary or required in the Hellenic Republic in connection
with the due authorization, execution and delivery of this
Agreement, or the due execution, delivery or performance of
the Indenture by the Guarantor or for the offering, issuance,
sale or delivery of the Securities to the Underwriters;
(xii) The execution, delivery and performance of this
Agreement, the Indenture and the Securities and the
consummation of the transactions contemplated in this
Agreement and in the Registration Statement and the Prospectus
(including the use of the proceeds from the sale of the
Securities as described in the Registration Statement and the
Prospectus under the caption "Use Of Proceeds") and compliance
by the Guarantor with its obligations under this Agreement,
the Indenture and the Securities do not and will not, whether
with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or
Repayment Event under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets
of the Guarantor pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease
or any other agreement or instrument, known to such counsel,
to which the Guarantor is a party or by which it or any of
them may be bound, or to which any of the property or assets
of the Guarantor is subject (except for such conflicts,
breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not have a Material Adverse Effect),
nor will such action result in any violation of the provisions
of the charter, by-laws or
-27-
similar organizational documents of the Guarantor, or any
applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of the Hellenic Republic, any
Greek government instrumentality or court having jurisdiction
over the Guarantor or any of their respective properties,
assets or operations;
(xiii) The Guarantor has validly and irrevocably
submitted to the personal jurisdiction of any United States
Federal or State court in the State of New York, County of New
York in an action arising out of or, relating to the
Securities, this Agreement or the Indenture or the
transactions contemplated thereby. The Guarantor has validly
and effectively waived any objection to the venue of any such
proceeding in any such court. The courts of the Hellenic
Republic will give effect to such submission and waiver. The
Guarantor has validly appointed CT Corporation System as its
authorized agent for the purpose described in such agreements;
and service of process effected on such agent in the manner
set forth in such agreements will be effective, insofar as
Greek law is concerned, to confer valid personal jurisdiction
over the Guarantor, with the exception that in respect of a
bankruptcy or similar proceeding brought before the Greek
bankruptcy courts and courts of similar procedure, such courts
have exclusive jurisdiction in respect of all property of the
Guarantor and further subject to the fact that there is doubt
as to the enforceability in the Hellenic Republic in original
actions or in actions for enforcement of judgements of the
United States courts of civil liabilities predicated solely
upon the federal securities laws of the United States,
pursuant to the specific provisions of the Greek Code of Civil
Procedure and/or any respective international convention or
treaty ratified by Greek law, which is relevant to the matter;
(xiv) None of the Guarantor or the Greek
Subsidiaries, nor any of their respective properties, assets
or revenues in the Hellenic Republic is entitled to immunity
from suit, execution, attachment or other legal process in the
Hellenic Republic and waiver of immunities in this Agreement,
the Indenture or the Prospectus is valid and binding under the
laws of the Hellenic Republic;
(xv) The choice of the laws of the State of New York
as the governing law of the Securities, this Agreement and the
Indenture is a valid choice of law under the laws of the
Hellenic Republic;
(xvi) Except as disclosed in the Prospectus or in any
document incorporated by reference therein, to ensure the
legality, validity or enforceability of the Securities, this
Agreement and the Indenture, it is not necessary that any such
document or any other document be filed or recorded with any
court or other authority in the Hellenic Republic or to be
notarized, or that any stamp tax or similar tax be paid on or
in respect thereof or in respect of any other document to be
furnished thereunder;
-28-
(xvii) Except as disclosed in the Registration
Statement and the Prospectus or in any document incorporated
by reference therein, under current Greek laws and
regulations, no transaction, stamp, duty or similar tax, or
duty or withholding or other taxes imposed by the Hellenic
Republic are payable by or on behalf of the Underwriters, in
connection with (A) the creation, issuance and delivery of the
Securities as contemplated by this Agreement and the
Indenture, (B) the transfer, sale and delivery of the
Securities by the Underwriters, or (C) the execution, delivery
or performance of this Agreement and the Indenture;
(xviii) Except as described in the Registration
Statement and the Prospectus, payments made by the Issuer or
the Guarantor to holders under the Securities and the
Indenture and by the Issuer or the Guarantor to the
Underwriters under this Agreement will not be subject under
the current laws of the Hellenic Republic or any political
subdivision thereof to any withholdings or similar charges for
or on account of taxation;
(xix) It is not necessary in order to enable any
Underwriters to exercise or enforce their rights under this
Agreement or the Indenture in the Hellenic Republic or by
reason of the entry into and/or the performance of this
Agreement or the Indenture, that all or any of the
Underwriters should be licensed or, qualified to do business
in the Hellenic Republic. The Underwriters will not be deemed
resident, domiciled, carrying on business or subject to
taxation in the Hellenic Republic solely by reason of the
execution, delivery, performance or enforcement of this
Agreement or the Indenture;
(xx) Nothing has come to such counsel's attention
that would lead such counsel to believe that the Prospectus or
any amendment or supplement thereto (except for financial
statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom as to
which we need make no statement), at the time the Prospectus
was issued, at the time any such amended or supplemented
Prospectus was issued or at the Closing Date, included or
includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and
(xxi) Judgements of United States courts will not be
directly enforceable in the Hellenic Republic and a separate
Greek judgement must be obtained. Greek courts could (but
there is no certainty that such courts would) give an
enforceable Greek judgement on the basis of a judgement
rendered by a court of the United States, provided that such
court of the United States has jurisdiction and that its
judgement has gained legal force and is not contrary to public
policy in the Hellenic Republic.
-29-
In rendering such opinion, such counsel may state that such
opinion is confined to and is given on the basis of Greek law applicable as of
the date of such opinion and no opinion is expressed as the laws of any other
jurisdiction. Such counsel may assume the validity of this Agreement, the
Indenture, the Registration Statement and the Prospectus and the relevant
resolutions of the Guarantor's Board of Directors under the laws of the State of
New York and the federal law of the United States. Such counsel may also state
that (A) service of court process by registered mail in the Hellenic Republic
would not be recognized by a court of the Hellenic Republic, except in the
exceptional case mentioned in Article 122 of paragraph 4 of the Greek Code of
Civil Procedure, subject to the fulfillment of the formalities of Royal Decree
338/1970, (B) certain categories of claims listed in Articles 975 and 976 of the
Greek Code of Civil Procedure have priority over all other claims, in case of
forced execution, liquidation and/or bankruptcy and (C) Greek courts if called
upon to hear a case on this Agreement, the Indenture, the Registration Statement
and the Prospectus and the relevant resolutions of the Guarantor's Board of
Directors will not treat as conclusive those certificates and determinations
which this Agreement and the Indenture state are to be so treated. In such a
case the court will allow the production of counter evidence.
(h) You shall have received on the Closing Date an opinion of
United States counsel for the Underwriters, dated the Closing Date,
covering certain of the matters referred to in subparagraphs (i), (ii),
(iii), (iv) and (v) and the last paragraph of paragraph (e) of this
Article V.
(i) You shall have received on the date of the applicable
Pricing Agreement a letter dated such date and also on the Closing Date
a letter dated the Closing Date, in each case in form and substance
satisfactory to you, from the independent certified public accountants
who have certified the financial statements of the Issuer and the
Guarantor and their subsidiaries included in the Registration Statement
and the Prospectus containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(j) The Securities and the Guarantees to be delivered shall
have been approved for listing on the Luxembourg Stock Exchange or
another recognized stock exchange, subject to official notice of
issuance.
VI.
In further consideration of the agreements of the Underwriters
herein contained, the Issuer and the Guarantor jointly covenant as follows:
(a) To furnish you, without charge, three signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated by reference therein) and for delivery to each other
Underwriter a conformed copy of the Registration
-30-
Statement (without exhibits thereto, but including documents
incorporated by reference therein) and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as you may reasonably request.
(b) During the period mentioned in paragraph (c) below, before
amending or supplementing the Registration Statement or the Prospectus,
to furnish you a copy of each such proposed amendment or supplement,
and not to file any such proposed amendment or supplement to which you
reasonably object.
(c) If, during such period after the first date of the public
offering of the applicable Securities as, in the opinion of your
counsel, the Prospectus is required by applicable U.S. law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with applicable U.S. law, forthwith to prepare
and furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Issuer and the
Guarantor) to which Securities may have been sold by you on behalf of
the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus as amended or supplemented, will
comply with applicable U.S. laws; provided, however, that in case any
Underwriter or dealer is required to deliver a Prospectus under the
Securities Act in connection with the offer or sale of Securities at
any time more than nine months after the Closing Date, the cost of such
preparation and furnishing of such amended or supplemented Prospectus
shall be borne by the Underwriter of such Securities.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to pay all expenses (including reasonable
fees and disbursements of counsel) in connection with such
qualification.
(e) To make generally available to the Guarantor's security
holders as soon as practicable an earnings statement that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) To use their best efforts to list, subject to notice of
issuance, the Securities and the Guarantees on the Luxembourg Stock
Exchange or another recognized stock exchange.
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(g) During the period beginning from the date hereof and
continuing to and including the earlier of (i) the termination of
trading restrictions on the Securities, as notified promptly to the
Issuer and the Guarantor by you, and (ii) the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of in the United
States any debt securities or warrants to purchase debt securities of
the Issuer which mature more than one year after the Closing Date, and
which are substantially similar to the Securities, without your prior
written consent, such consent not to be unreasonably withheld.
VII.
The Issuer and the Guarantor jointly and severally agree to
indemnify and hold harmless each Underwriter, its affiliates, as such term is
defined in Rule 501(b) under the Securities Act (each, an "Affiliate"), its
selling agents and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as
follows:
(a) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(b) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to the provisions regarding settlement without consent
described below) any such settlement is effected with the written
consent of the Issuer or the Guarantor; and
(c) against any and all expense, as reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (a) or
(b) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Issuer by any
Underwriter expressly for use in the Prospectus (or any amendment thereto).
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Each Underwriter severally agrees to indemnify and hold
harmless the Guarantor, the Issuer and each person, if any, who controls the
Issuer or the Guarantor within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained above, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the Issuer
by such Underwriter expressly for use in the Prospectus.
Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's choice at
the indemnifying party's expense to represent the indemnified party and any
other indemnified parties as the indemnifying party may designate in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (a) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (b) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (c) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (d) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party; provided, however, that (a), (b) and (c)
above notwithstanding, an indemnified party may participate at its own expense
in the defense of any such action. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all indemnified parties. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Article VII (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement,
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compromise or consent (x) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (y) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated above effected without its written
consent if (a) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (b) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (c) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement; provided that an indemnifying party shall
not be liable for any such settlement effected without its consent if such
indemnifying party, prior to the date of such settlement, (x) reimburses such
indemnified party in accordance with such request for the amount of such fees
and expenses of counsel as the indemnifying party believes in good faith to be
reasonable, and (y) provides written notice to the indemnified party that the
indemnifying party disputes in good faith the reasonableness of the unpaid
balance of such fees and expenses.
If the indemnification provided for in this Article VII is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (a) in such proportion as is appropriate to
reflect the relative benefits received by the Issuer or the Guarantor on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (b) if the allocation provided by (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in (a) above but also the relative fault
of the Issuer or the Guarantor on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Issuer or the Guarantor
on the one hand and the Underwriters on the other hand in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received
by the Issuer and the Guarantor and the total underwriting discount received by
the Underwriters, bear to the aggregate initial offering price of the
Securities.
The relative fault of the Issuer or the Guarantor on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to
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state a material fact relates to information supplied by the Issuer and the
Guarantor or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Issuer, the Guarantor and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Article VII
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 Article
VII. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Article VII shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Article VII, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities purchased and sold by it
hereunder 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Article VII, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act and each Underwriter's Affiliates and selling
agents shall have the same rights to contribution as such Underwriter, and each
person, if any, who controls the Issuer or the Guarantor within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Issuer and the Guarantor. The
Underwriter's respective obligations to contribute pursuant to this Article VII
are several in proportion to the principal amount of Securities set forth
opposite their respective names in Schedule I hereto and not joint.
The indemnity and contribution agreements contained in this
Article VII and the representations and warranties of the Issuer and the
Guarantor contained in this Agreement shall remain operative and in full force
and effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of any of the Issuer, the Guarantor, their
respective officers or directors or any other person controlling the Issuer or
the Guarantor and (c) acceptance of and payment for any of the Securities.
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VIII.
Any Pricing Agreement shall be subject to termination in your
discretion, by notice given to the Issuer and the Guarantor, if (a) after the
execution and delivery of such Pricing Agreement and prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the Commission, the Luxembourg Stock Exchange or the
New York Stock Exchange, (ii) trading of any securities of the Issuer or the
Guarantor shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your reasonable
judgment, is material and adverse and (b) in the case of any of the events
specified in subparagraphs (a) (i) through (iv) above, such event singly or
together with any other such event makes it, in your reasonable judgment, after
consultation with the Issuer and the Guarantor, impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus and
applicable Prospectus Supplement.
IX.
This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement by the
Commission.
If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Securities that it or they have agreed to
purchase hereunder and under the applicable Pricing Agreement on such date, and
the aggregate principal amount of Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II bears to the principal amount of Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the principal amount of Securities
that any Underwriter has agreed to purchase pursuant to the applicable Pricing
Agreement be increased pursuant to this Article IX by an amount in excess of
one-ninth of such principal amount of Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under the applicable Pricing Agreement on such date, and the aggregate principal
amount of Securities with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Securities to be purchased on
such date, and arrangements satisfactory to you, the Issuer and the Guarantor
for the purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter, the
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Issuer or the Guarantor. In any such case either you, the Issuer or the
Guarantor shall have the right to postpone the Closing Date but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement, the Prospectus, the Prospectus Supplement or any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement or a Pricing Agreement shall be terminated
by the Underwriters, or any of them, because of any failure or refusal on the
part of the Issuer or the Guarantor to comply with the terms or to fulfill any
of the conditions of this Agreement or such Pricing Agreement, or if for any
reason the Issuer or the Guarantor shall be unable to perform their respective
obligations under this Agreement or such Pricing Agreement, the Issuer or the
Guarantor will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement or such Pricing Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) reasonably and properly incurred by such
Underwriters in connection with this Agreement or such Pricing Agreement or the
offering contemplated hereunder or thereunder.
X.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Issuer and the Guarantor
have appointed CT Corporation System as its authorized agent (the "Authorized
Agent") upon which process may be served in any action based on this Agreement
that may be instituted in any state or federal court in the City, County and
State of New York by any Underwriter or by any person controlling any
Underwriter, and expressly accepts the jurisdiction of any such court in respect
of such action. Such appointment shall be irrevocable for a period of three
years from and after the Closing Date unless and until a successor Authorized
Agent shall be appointed and such successor shall accept such appointment for
the remainder of such three-year period. Each of the Issuer and the Guarantor
represents to each of the Underwriters that it has notified the Authorized Agent
of such designation and appointment and that the Authorized Agent has accepted
the same in writing. The Issuer and the Guarantor will take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment or appointments in full force and effect
as aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Issuer or the Guarantor (mailed or delivered as aforesaid)
shall be deemed, in every respect, effective service of process upon the Issuer
or the Guarantor. Notwithstanding the foregoing, any action based on this
Agreement may be instituted by any Underwriter against the Issuer or the
Guarantor in any competent court in the Netherlands or the Hellenic Republic.
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XI.
In all dealings hereunder, you 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 you jointly or alone. All statements, requests, notices and agreements
hereunder shall be in writing and, if to the Underwriters shall be delivered or
sent by telex, facsimile transmission, or in writing delivered by hand, or by
telephone (to be promptly confirmed by telex or fax) to you as the
Representatives to the address specified in the applicable Pricing Agreement;
and if to the Issuer or the Guarantor shall be delivered or sent by telex,
facsimile transmission, or in writing delivered by hand, or by telephone (to be
promptly confirmed by telex or fax) to the address of the Issuer or the
Guarantor, as the case may be, set forth in the Registration Statement,
Attention: Company Secretary; provided, however, that any notice to an
Underwriter pursuant to Article VII hereof shall be delivered or sent by telex,
facsimile transmission, or in writing delivered by hand, or by telephone (to be
promptly confirmed by telex or fax) to such Underwriter at its address set forth
in its Underwriters' Questionnaire, or the telex constituting such
Questionnaire, which address will be supplied to the Issuer and the Guarantor by
you upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof. This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Issuer and the Guarantor
and, to the extent provided in Article VII hereof, the officers and directors of
the Issuer and the Guarantor and each person who controls the Issuer, the
Guarantor or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have the 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. Time shall be of the essence of this Agreement.
This Agreement may be signed in two or more counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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Very truly yours,
Coca-Cola HBC Finance B.V.
By
--------------------------------------
Name:
Title:
Coca-Cola Hellenic Bottling Company S.A.
By
--------------------------------------
Name:
Title:
[Underwriters]
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
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ANNEX I
[FORM OF PRICING AGREEMENT]
Representatives of the
Several Underwriters named
in Schedule I hereto
---------, ----
Ladies and Gentlemen:
Coca-Cola HBC Finance B.V., a Dutch corporation with its
corporate seat in Amsterdam (the "Issuer"), and Coca-Cola Hellenic Bottling
Company S.A., a Greek corporation (the "Guarantor"), propose, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated o,
2003 (the "Underwriting Agreement"), a copy of which is attached hereto, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). 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 which refers to the
Prospectus in Article I 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. 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 Article XII
of the Underwriting Agreement and the address of the Representatives referred to
in such Article XII 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 Issuer agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from
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the Issuer, 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 [o] 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, the Issuer 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 Issuer 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,
Coca-Cola HBC Finance B.V.
By
-------------------------------------
Name:
Title:
Coca-Cola Hellenic Bottling Company S.A.
By
--------------------------------------
Name:
Title:
[Underwriters]
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
-2-
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ----------
$
----------
TOTAL........................................................ $
==========
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SCHEDULE II
ISSUER:
Coca-Cola HBC Finance B.V.
GUARANTOR:
Coca-Cola Hellenic Bottling Company S.A.
TITLE OF DESIGNATED SECURITIES:
[__%] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
__% of the principal amount of the Designated Securities, plus accrued
interest from __________ to __________ [and accrued amortization, if any,
from __________ to __________]
PURCHASE PRICE BY UNDERWRITERS:
__% of the principal amount of the Designated Securities, plus accrued
interest from __________ to __________ [and accrued amortization, if any,
from __________ to __________]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[_________] funds
METHOD OF PAYMENT:
[Certified or official bank check] [Wire transfer to account ___________]
INDENTURE:
Indenture dated as of September 17, 2003, among Coca-Cola HBC Finance B.V.,
Coca-Cola Hellenic Bottling Company S.A. and The Bank of New York, as
Trustee
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MATURITY:
____________,
INTEREST RATE:
[__%] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[Months and dates, commencing __________,]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Issuer, in the
amount of [$] or an integral multiple thereof, on or after __________, at
the following redemption prices (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 in or after __________, at the
election of the Issuer, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[The Securities are redeemable at the option of the Issuer or the Guarantor
upon certain changes in Dutch or Greek tax law.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for other changes in tax law]
[Restriction on refunding]
-5-
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$] principal amount of Designated Securities on in each of
the years through at 100% of their principal amount plus accrued
interest][,together with [cumulative] [noncumulative] redemptions at the
option of the Issuer to retire an additional [$] principal amount of
Designated Securities in the years through at 100% of their
principal amount plus accrued interest].
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 __% 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 [monthly] [on each __________, and __________, ] [to an annual
rate of __% above the average rate for -year [month] [securities]
[certificates of deposit] issued 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].]
DEFEASANCE PROVISIONS:
OVERALLOTMENT OPTION:
TIME OF DELIVERY:
CLOSING LOCATION:
-6-
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
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