INGERSOLL-RAND COMPANY LIMITED DEBT SECURITIES UNDERWRITING AGREEMENT STANDARD PROVISIONS
XXXXXXXXX-XXXX
COMPANY LIMITED DEBT SECURITIES
UNDERWRITING AGREEMENT STANDARD PROVISIONS
UNDERWRITING AGREEMENT STANDARD PROVISIONS
May 24,
2005
From time
to time Xxxxxxxxx-Xxxx Company Limited, a Bermuda company (the "Company")
proposes to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (the Securities
so specified being referred to herein as the "Designated Securities"). The
Designated Securities may be guaranteed (the “Guarantee”) by Xxxxxxxxx-Xxxx
Company, a New Jersey corporation and a subsidiary of the Company (the
“Guarantor”) (any such guaranteed Designated Securities, the “Guaranteed
Securities”). If the Designated Securities are Guaranteed Securities, the
Guarantor will also enter into the Pricing Agreement with respect
thereto.
1.
The terms
and rights of the issuance of the Designated Securities shall be specified in
Schedule I to the applicable Pricing Agreement and in or pursuant to the
indenture (the "Indenture") identified in such Pricing Agreement. Particular
sales of Designated Securities may be made from time to time to the Underwriters
of such Securities, for whom the firm or firms designated as representatives of
the Underwriters of such Securities in the Pricing Agreement relating thereto
will act as representative (the "Representative"). The term "Representative"
also refers to Underwriters who act without any firm being designated as their
representative. These Underwriting Agreement Standard Provisions shall not be
construed as an obligation of the Company to sell or the Guarantor to guarantee
any of the Securities or as an obligation of any of the Underwriters to purchase
the Securities. The obligation of the Company to issue and sell any of the
Securities, the obligation of the Guarantor to issue any Guarantee and the
obligation of any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the aggregate principal
amount of such Designated Securities, the initial public offering price of such
Designated Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, whether the Designated
Securities are Guaranteed Securities and the principal amount of such Designated
Securities to be purchased by each Underwriter and shall set forth the date,
time and manner of delivery of such Designated Securities and payment therefor.
The Pricing Agreement shall also specify (to the extent not set forth in the
Indenture and the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced
by an exchange of facsimile communications or any other rapid transmission
device designated to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2.
The
Company, and if the Designated Securities are Guaranteed Securities, the
Guarantor, jointly and severally represent and warrant to, and agree with, each
of the Underwriters that:
(a)
A
registration statement in respect of the Securities and, in the case of
Guaranteed Securities, the Guarantees and more particularly described in the
applicable Pricing Agreement has been filed with the Securities and Exchange
Commission (the "Commission") in the form heretofore delivered or to be
delivered to the Representative, and such registration statement in such form
has been declared effective by the Commission and no stop order suspending the
effectiveness of such registration statement has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement being hereinafter
called a "Preliminary Prospectus"); if any post-effective amendment to such
registration statement has been filed with the Commission prior to the date of
the applicable Pricing Agreement, the most recent such amendment has been
declared effective by the Commission; "Effective Date" means the date as of
which such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; such registration
statement, as amended at the Effective Date, including all material incorporated
by reference therein and, if the date of the Pricing Agreement is on or before
the fifteenth business day after the Effective Date, including all information
deemed to be a part thereof as of the Effective Date pursuant to paragraph (b)
of Rule 430A under the Securities Act of 1933, as amended (the "Act"), is
hereinafter referred to as the "Registration Statement," and the form of
prospectus relating to the Designated Securities, as first filed pursuant to
paragraph (1) or (4) of Rule 424(b) ("Rule 424(b)") under the Act or, if the
date of the Pricing Agreement is after the fifteenth business day after the
Effective Date, pursuant to Rule 424(b)(2) or (5), as such form of prospectus
may be supplemented as contemplated by Section 1 to reflect the terms of the
Designated Securities and the terms of offering thereof, including all documents
incorporated by reference therein, is hereinafter referred to as the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
incorporated therein by reference);
(b)
The
documents incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; any further documents so filed and
incorporated by reference in the Prospectus or in any amendments or supplements
thereto, when such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall apply only to documents so filed and
incorporated by reference during the period that a prospectus relating to the
Designated Securities is required to be delivered in connection with sales of
such Designated Securities (such period being hereinafter sometimes referred to
as the "prospectus delivery period"); and provided further, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company or (in the case of Guaranteed Securities) the Guarantor by an
Underwriter through the Representative expressly for use in the
Prospectus;
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(c)
The
Registration Statement and the Prospectus conform, and any amendments or
supplements thereto will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission thereunder, and the
Registration Statement does not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto, contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and the Prospectus does not and will not, as of the applicable filing date as to
the Prospectus and any supplement thereto and as of the Time of Delivery contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein in
light of the circumstances under which they were made not misleading; provided,
however, that this representation and warranty shall apply only to amendments or
supplements filed or made during the prospectus delivery period; and provided
further, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company or (in the case of Guaranteed Securities)
the Guarantor by an Underwriter through the Representative expressly for use in
the Prospectus;
(d)
Since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change in or affecting the
business and operations, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Prospectus;
(e)
The
Company is duly incorporated and validly existing as a company in good standing
under the laws of its jurisdiction of incorporation, with corporate power and
authority to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business under the laws of each other jurisdiction in which the
nature of the business it transacts or the properties it owns requires such
qualification except where such failures to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the Company
and its subsidiaries taken as a whole;
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(f)
If the
Designated Securities are Guaranteed Securities, the Guarantor is duly
incorporated and validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with corporate power and authority to
own its properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of business
under the laws of each other jurisdiction in which the nature of the business it
transacts or the properties it owns requires such qualification except where
such failures to be so qualified would not, individually or in the aggregate,
have a material adverse effect on the Guarantor and its subsidiaries taken as a
whole;
(g)
The
Securities have been duly authorized by the Company, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the Pricing
Agreement with respect thereto and duly authenticated by the Trustee in
accordance with the Indenture, such Designated Securities will have been duly
executed, issued and delivered by the Company and will constitute valid and
legally binding obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits provided by the
Indenture, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and to general equity principles; the Indenture has
been duly authorized, executed and delivered by the Company and is duly
qualified under the Trust Indenture Act and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and legally
binding instrument of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and to general equity principles; this Agreement and
the Pricing Agreement with respect to the Designated Securities has been duly
authorized, executed and delivered by the Company; and the Securities, the
Designated Securities, this Agreement, the Pricing Agreement and the Indenture
will conform in all material respects to the descriptions thereof in the
Prospectus;
(h)
If the
Designated Securities are Guaranteed Securities, the Guarantee of the Guaranteed
Securities has been duly authorized by the Guarantor and, when the Guarantee
endorsed on the Guaranteed Securities is executed by the Guarantor, and when the
Guaranteed Securities are issued, executed and delivered pursuant to this
Agreement and the Pricing Agreement with respect thereto and duly authenticated
by the Trustee in accordance with the Indenture and delivered and paid for by
the Underwriters, such Guarantee will have been duly executed and issued by the
Guarantor and will constitute a valid and legally binding obligation of the
Guarantor enforceable against the Guarantor in accordance with its terms and
entitled to the benefits provided by the Indenture, subject, as to enforcement,
to bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and to general equity
principles; the Indenture has been duly authorized, executed and delivered by
the Guarantor and, assuming due authorization, execution and delivery thereof by
the Trustee, constitutes a valid and legally binding instrument of the
Guarantor, enforceable against the Guarantor in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and to general equity principles; this Agreement and the Pricing
Agreement with respect to the Designated Securities has been duly authorized,
executed and delivered by the Guarantor; and the Guarantee will conform in all
material respects to the descriptions thereof in the Prospectus;
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(i)
The issue
and sale of the Designated Securities and, in the case of Guaranteed Securities,
the Guarantee, and the compliance by the Company and, in the case of Guaranteed
Securities, the Guarantor, with all of the provisions of the Designated
Securities, the Indenture, the Guarantee and this Agreement and the Pricing
Agreement with respect thereto, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or, in the case of Guaranteed Securities, the Guarantor, is a
party or by which the Company or, in the case of Guaranteed Securities, the
Guarantor, is bound or to which any of the property or assets of the Company or,
in the case of Guaranteed Securities, the Guarantor, is subject, nor will such
action result in any violation of the provisions of the Memorandum of
Association or Bye-Laws of the Company, or in the case of Guaranteed Securities,
the certificate of incorporation, as amended, or the by-laws of the Guarantor or
any statute, order, rule or regulation (except for state securities or Blue Sky
laws, rules and regulations, as to which the Company and the Guarantor make no
representation) of any court or governmental agency or body having jurisdiction
over the Company or, in the case of Guaranteed Securities, the Guarantor, or any
of the properties of the Company, or in the case of Guaranteed Securities, the
Guarantor; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities or the consummation
by the Company or, in the case of Guaranteed Securities, the Guarantor, of the
other transactions contemplated by the applicable Pricing Agreement or the
Indenture except such as have been, or will have been prior to the Time of
Delivery (as defined in Section 4 hereof), obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations and
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Designated Securities by
the Underwriters.
(j)
Other
than as set forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending or, to the best of the Company's or, in the
case of Guaranteed Securities, the Guarantor’s knowledge, threatened to which
the Company, the Guarantor (in the case of Guaranteed Securities) or any of
their subsidiaries is a party or of which any property of the Company, the
Guarantor (in the case of Guaranteed Securities) or any of their subsidiaries is
the subject which individually or in the aggregate have a reasonable possibility
of having a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole.
3.
Upon the
execution of the applicable Pricing Agreement and the authorization by the
Representative of the release of the Designated Securities, the several
Underwriters propose to offer such Securities for sale upon the terms and
conditions set forth in the Prospectus.
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4.
Designated
Securities to be purchased by each Underwriter in such authorized denominations
and registered in such names as the Representative may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representative for the accounts of the
Underwriters, against payment by such Underwriter or on its behalf of the
purchase price therefor in the manner and in the funds specified in such Pricing
Agreement, all at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representative and the
Company may agree upon in writing, such time and date being herein called the
"Time of Delivery" for such Designated Securities.
5.
The
Company and, in the case of Guaranteed Securities, the Guarantor, jointly and
severally agree with each of the Underwriters of any Designated
Securities:
(a)
To
prepare the Prospectus as amended and supplemented in relation to the applicable
Designated Securities in a form not disapproved by the Representative and to
file such Prospectus with both the Registrar of Companies in Bermuda and with
the Commission (i) pursuant to Rule 424(b)(1) (or, if applicable and if
consented to by the Representatives, pursuant to Rule 424(b)(4)) not later than
the Commission's close of business on the earlier of (A) the second business day
following the date of the applicable Pricing Agreement or (B) the fifteenth
business day after the Effective Date, or (ii) if the date of the applicable
Pricing Agreement is after the fifteenth business day after the Effective Date,
pursuant to Rule 424(b)(2) (or, if applicable and if consented to by the
Representatives, pursuant to Rule 424(b)(5)) not later than the second business
day following the date of the applicable Pricing Agreement; the Company or, in
the case of Guaranteed Securities, the Guarantor, will advise you promptly of
any such filing pursuant to Rule 424(b); to advise the Representative promptly
of any amendment or supplement to the Registration Statement or Prospectus after
such relevant Time of Delivery and during the prospectus delivery period and
furnish the Representative with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company or, in the case of Guaranteed Securities, the Guarantor, with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and during the prospectus delivery
period; and during such same period to advise the Representative, promptly after
it receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or become effective or any supplement to the Prospectus
or any amended Prospectus has been filed, or mailed for filing, of the issuance
by the Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Designated Securities, of the suspension
of the qualification of such Designated Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Designated
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
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(b)
Promptly
from time to time to take such action as the Representative may reasonably
request to qualify the Designated Securities for offering and sale under the
securities laws of such jurisdictions as the Representative may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities, provided that in connection
therewith neither the Company nor the Guarantor shall be required to qualify as
a foreign corporation or to file a general consent to service of process in any
jurisdiction;
(c)
To
furnish the Underwriters with copies of the Prospectus in such quantities as the
Representative may from time to time reasonably request, and, if the delivery of
a prospectus is required at any time prior to the expiration of nine months
after the time of issue of such prospectus in connection with the offering or
sale of the Designated Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representative and upon the request of the Representative to file such document
and to prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as the Representative may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance; and in
case any Underwriter is required to deliver a prospectus in connection with
sales of any of such Designated Securities at any time nine months or more after
the time of issue of the Prospectus, upon the request of the Representative but
at the expense of such Underwriter, to prepare and deliver to such Underwriter
as many copies as the Representative may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d)
To make
generally available to its security holders as soon as practicable an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company or the Guarantor,
Rule 158); and
(e)
During
the period beginning from the date of the applicable Pricing Agreement and
continuing to and including the earlier of (i) the termination of trading
restrictions for the Designated Securities, as notified to the Company by the
Representative and (ii) the Time of Delivery, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company or, in the case
of Guaranteed Securities, the Guarantor, which mature more than one year after
such Time of Delivery, without the prior written consent of the
Representative.
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6.
The
Company and, in the case of Guaranteed Securities, the Guarantor, jointly and
severally covenant and agree with the several Underwriters that the Company and,
in the case of Guaranteed Securities, the Guarantor, will jointly and severally
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Company's and the Guarantor’s counsel and accountants in connection with
the registration of the Designated Securities and, in the case of Guaranteed
Securities, the Guarantee, under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements (except
as expressly provided in the last clause of Section 5(c) hereof) thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Indenture, any Blue Sky survey and any
other documents in connection with the offering, purchase, sale and delivery of
the Designated Securities; (iii) all expenses in connection with the
qualification of the Designated Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the reasonable
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) any fees charged
by securities rating services for rating the Designated Securities; (v) any
filing fees incident to any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Designated Securities;
(vi) the cost of preparing the Designated Securities and, in the case of
Guaranteed Securities, the Guarantee; (vii) the fees and expenses of any Trustee
and any agent of any Trustee and the fees and disbursements of counsel for any
Trustee in connection with any Indenture, the Designated Securities and, in the
case of Guaranteed Securities, the Guarantee; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, Section 5(c), Section 8 and Section 11
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the Securities and
Guarantees by them, and any advertising expenses connected with any offers they
may make.
7.
The
Representative shall have the right to terminate the Pricing Agreement, in its
sole discretion, due to any inaccuracy in the representations and warranties and
other statements of the Company or, in the case of Guaranteed Securities, the
Guarantor, herein, at and as of the Time of Delivery, the nonperformance by the
Company or, in the case of Guaranteed Securities, the Guarantor, of any of its
obligations hereunder to be performed, and the nonperformance of the following
additional conditions:
(a)
The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) of the Agreement;
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with;
(b)
Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished
to the Representative such opinion or opinions, dated the Time of Delivery, with
respect to the validity of the Indenture, the Designated Securities, the
Registration Statement, the Prospectus as amended or supplemented and other
related matters as the Representative may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
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(c)
Xxxxxxx
Xxxx & Xxxxxxx, Bermuda counsel for the Company, shall have furnished to the
Representative its written opinion, dated the Time of Delivery, covering such
matters (including, without limitation, the validity of the Indenture and the
Designated Securities) and in such form and substance as the Representative may
reasonably request;
(d)
Xxxxxxxx
Xxxxxxxxx, Esq., Senior Vice President and General Counsel of the Guarantor,
shall have furnished to the Representative her written opinion, dated the Time
of Delivery, to the effect that:
(i)
In the
case of Guaranteed Securities, the Guarantor has been duly incorporated and is
validly existing and in good standing as a corporation under the laws of the
State of New Jersey and has full corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii)
Each of
the Company and, in the case of Guaranteed Securities, the Guarantor has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such qualification
except where such failures to be so qualified or be in good standing would not,
individually or in the aggregate, have a material adverse effect on the Company,
the Guarantor (in the case of Guaranteed Securities) and their subsidiaries
taken as a whole (such counsel being entitled to rely in respect of the opinion
in this clause upon certificates of state officials, provided that such counsel
shall state that she believes that both the Representative and she are justified
in relying upon such certificates);
(iii)
To the
best of such counsel's knowledge there are no legal or governmental proceedings
pending to which the Company, the Guarantor (in the case of Guaranteed
Securities) or any of their subsidiaries is a party or of which any property of
the Company, the Guarantor (in the case of Guaranteed Securities) or any of
their subsidiaries is the subject, other than as set forth in the Prospectus and
other than litigation incident to the kind of business conducted by the Company,
the Guarantor (in the case of Guaranteed Securities) and their subsidiaries
which individually and in the aggregate is not material to the Company, the
Guarantor (in the case of Guaranteed Securities) and their subsidiaries taken as
a whole; and to the best of such counsel's knowledge no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(iv)
In the
case of Guaranteed Securities, this Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized, executed and
delivered by the Guarantor;
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(v)
This
Agreement and the Pricing Agreement with respect to the Designated Securities
have been duly delivered by the Company;
(vi)
The
Designated Securities have been duly issued and delivered by the Company and,
assuming due authentication thereof by the Trustee and upon payment and delivery
in accordance with this Agreement and the Pricing Agreement, will constitute
valid and legally binding obligations of the Company enforceable against the
Company in accordance with their terms and entitled to the benefits provided by
the Indenture, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the Designated
Securities and the Indenture conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(vii)
The
Indenture has been duly delivered by the Company, and assuming the Indenture is
the valid and legally binding obligation of the Trustee, the Indenture
constitutes a valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(viii)
In the
case of Guaranteed Securities, the Guarantee has been duly authorized, executed
and issued by the Guarantor and, assuming due authentication of the Designated
Securities by the Trustee and upon payment for and delivery of the Designated
Securities in accordance with this Agreement and the Pricing Agreement, will
constitute valid and legally binding obligations of the Guarantor enforceable
against the Guarantor in accordance with its terms and entitled to the benefits
provided by the Indenture, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
the Guarantee conforms to the descriptions thereof in the Prospectus as amended
or supplemented;
(ix)
In the
case of Guaranteed Securities, the Indenture has been duly authorized, executed
and delivered by the Guarantor and, assuming the Indenture is the valid and
legally binding obligation of the Trustee, constitutes a valid and legally
binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
the Indenture has been duly qualified under the Trust Indenture
Act;
(x)
The issue
and sale of the Designated Securities and the compliance by the Company with all
of the provisions of the Designated Securities, the Indenture, this Agreement
and the Pricing Agreement with respect to the Designated Securities and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of the Company pursuant
to the terms of, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument which is material to the Company and its subsidiaries
taken as a whole and is known to such counsel to which the Company is a party or
by which the Company is bound or to which any of the property or assets of the
Company or any of its significant subsidiaries is subject, nor will such action
will not result in any violation of any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or any such regulatory authority or other governmental agency or body
is required for the issue and sale of the Designated Securities or the
consummation of the other transactions contemplated by this Agreement or such
Pricing Agreement or the Indenture, except such as have been obtained under the
Act and the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
10
(xi)
In the
case of Guaranteed Securities, the issue and sale of the Designated Securities
and the Guarantee and the compliance by the Guarantor with all of the provisions
of the Guarantee, the Indenture, this Agreement and the Pricing Agreement with
respect to the Designated Securities and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Guarantor pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument which
is material to the Company, the Guarantor and its subsidiaries taken as a whole
and is known to such counsel to which the Guarantor is a party or by which the
Guarantor is bound or to which any of the property or assets of the Guarantor or
any of its significant subsidiaries is subject, nor will such action result in
any violation of the provisions of the Restated Certificate of Incorporation, as
amended, or the By-Laws, as amended, of the Guarantor or any statute or any
order, rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Guarantor or any of its properties;
and no consent, approval, authorization, order, registration or qualification of
or with any such court or any such regulatory authority or other governmental
agency or body is required for the issue and sale of the Guarantee or the
consummation of the other transactions contemplated by this Agreement or such
Pricing Agreement or the Indenture, except such as have been obtained under the
Act and the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(xii)
The
documents incorporated by reference in the Prospectus as amended or supplemented
(other than the financial statements and related schedules therein, as to which
such counsel need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder; and such counsel has
no reason to believe that any of such documents, when they became effective or
were so filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and, in the case of
other documents which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading; and
11
(xiii)
The
Registration Statement, as of its effective date, and the Prospectus as amended
or supplemented and any further amendments and supplements thereto made by the
Company prior to the Time of Delivery for the Designated Securities as of its
date (other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; such counsel has no reason to believe that, as
of the effective date of the Registration Statement, the Registration Statement
(other than the financial statements and related schedules therein, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as of its
date and as of the Time of Delivery, the Prospectus, as amended or supplemented
(other than the financial statements and related schedules therein, as to which
such counsel need express no opinion), contains an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and such counsel does not know of
any contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or described as
required;
(e)
The
Trustee shall have furnished to the Representative a certificate, dated the Time
of Delivery, as to its due authorization, execution and delivery of the
Indenture and its due authentication of the Designated Securities;
(f)
At the
Time of Delivery, the independent accountants who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representative a letter, dated the Time of Delivery, of the type described in
the American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72 covering such matters as the Representative may reasonably
request and in form and substance satisfactory to the
Representative;
12
(g)
Since the
effective date of the Registration Statement (or any post-effective amendment
thereto) no event shall have occurred which should have been set forth in an
amendment to the Registration Statement or a supplement to the Prospectus but
which has not been so set forth, and since the respective dates as of which
information is given in the Prospectus there shall not have been any change or
any development involving a prospective change in or affecting the business and
operations, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus, the effect of which is in the reasonable
judgment of the Representative so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Designated Securities on the terms and in the manner contemplated in the
Prospectus;
(h)
Subsequent
to the date of the applicable Pricing Agreement there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, Inc.; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; (iii) a material disruption in securities
settlement or clearance services; or (iv) the outbreak or material escalation of
hostilities involving the United States or Bermuda or the declaration, on or
after the date hereof, by the United States or Bermuda of a national emergency
or war if the effect of any such event specified in this clause (iv) in the
reasonable judgment of the Representative makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Designated Securities
on the terms and in the manner contemplated in the Prospectus;
(i)
Each of
the Company and, in the case of Guaranteed Securities, the Guarantor shall have
furnished or caused to be furnished to the Representative at the Time of
Delivery a certificate or certificates of officers of the Company and, in the
case of Guaranteed Securities, the Guarantor as to the accuracy of the
representations and warranties of the Company and, in the case of Guaranteed
Securities, the Guarantor herein at and as of the Time of Delivery, as to the
performance by the Company and, in the case of Guaranteed Securities, the
Guarantor of all of their obligations hereunder to be performed at or prior to
the Time of Delivery, and as to the matters set forth in subsections (a) and (g)
of this Section; and
(j)
Subsequent
to the execution of the applicable Pricing Agreement, there shall not have been
(i) any decrease in the ratings of any of the debt securities of the Company or
the Guarantor by Xxxxx'x Investors Service, Inc. or Standard & Poor's
Corporation and (ii) Xxxxx'x Investors Service, Inc. or Standard & Poor's
Corporation shall not have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the debt securities
of the Company or the Guarantor.
13
8.
(a) Each
of the Company and, in the case of Guaranteed Securities, the Guarantor will
jointly and severally indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus or any other
prospectus relating to the Designated Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim; provided,
however, that neither the Company nor, in the case of Guaranteed Securities, the
Guarantor shall be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus or any other prospectus relating to the Designated Securities, or
any amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company or, in the case of Guaranteed
Securities, the Guarantor by any Underwriter through the Representative
expressly for use in the Prospectus relating to such Designated Securities;
provided further, however, that the foregoing indemnity with respect to
preliminary prospectuses shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Designated Securities if such untrue statement or omission made in any
preliminary prospectus is eliminated or remedied in the Prospectus relating to
such Securities and if a copy of the Prospectus relating to such Securities
(excluding documents incorporated by reference) has not been sent or given to
such person at or prior to the written confirmation of the sale of such
Securities to such person.
(b) Each
Underwriter, severally and not jointly, will indemnify and hold harmless the
Company and, in the case of Guaranteed Securities, the Guarantor against any
losses, claims, damages or liabilities to which the Company or, in the case of
Guaranteed Securities, the Guarantor may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus or
any other prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus or any other prospectus relating to the Designated Securities, or
any amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company or, in the case of Guaranteed
Securities, the Guarantor by such Underwriter through the Representative
expressly for use therein; and will reimburse the Company and, in the case of
Guaranteed Securities, the Guarantor for any legal or other expenses reasonably
incurred by the Company or, in the case of Guaranteed Securities, the Guarantor
in connection with investigating or defending any such action or
claim.
14
(c)
Promptly after receipt by an indemnified party under subsection (a) or (b) above
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party,
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by its counsel that representation of such indemnified party
and the indemnifying party by the same counsel would be inappropriate (whether
or not such representation by the same counsel has been proposed) under
applicable standards of professional conduct due to actual or potential
differing interests or defenses between them, the indemnified party or parties
shall have the right to select separate counsel or participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election so
to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representative in the case of paragraph (a) of
this Section 8, representing the indemnified parties under such paragraph (a)
who are parties to such action). No indemnifying party will (i) without the
prior written consent of the indemnified parties (which consent will not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action), unless such settlement, compromise or consent
(A) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (B) 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, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent will not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
15
(d) If
the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and, in the case of Guaranteed Securities, the Guarantor on the
one hand and the Underwriters on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and, in the case of
Guaranteed Securities, the Guarantor on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and, in the case of Guaranteed Securities, the Guarantor on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company and, in the case of Guaranteed Securities, the
Guarantor bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and, in the case of Guaranteed Securities,
the Guarantor on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Guarantor (in the case of
Guaranteed Securities) and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Designated Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The
obligations of the Company and, in the case of Guaranteed Securities, the
Guarantor under this Section 8 shall be in addition to any liability which the
Company and, in the case of Guaranteed Securities, the Guarantor may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions to each officer and director of the Company
and, in the case of Guaranteed Securities, the Guarantor and to each person, if
any, who controls the Company and, in the case of Guaranteed Securities, the
Guarantor within the meaning of the Act.
16
9.
(a) If
any Underwriter shall default in its obligations to purchase the Designated
Securities which it has agreed to purchase under the Pricing Agreement, the
Representative may in its discretion arrange for any Underwriter or Underwriters
or another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representative does not arrange for the purchase of such
Designated Securities, then the Company and, in the case of Guaranteed
Securities, the Guarantor shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representative to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed periods, the Representative
notifies the Company and, in the case of Guaranteed Securities, the Guarantor
that it has so arranged for the purchase of such Designated Securities, or
either of the Company and, in the case of Guaranteed Securities, the Guarantor
notifies the Representative that it has so arranged for the purchase of such
Designated Securities, the Representative, the Company or, in the case of
Guaranteed Securities, the Guarantor shall have the right to postpone the Time
of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and each of the
Company and, in the case of Guaranteed Securities, the Guarantor agrees to file
promptly any amendments to the Registration Statement or the Prospectus which in
the opinion of the Representative may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Agreement with respect to such Designated Securities.
(b) If,
after giving effect to any arrangement for the purchase of the Designated
Securities of a defaulting Underwriter or Underwriters by the Representative,
the Company and, in the case of Guaranteed Securities, the Guarantor as provided
in subsection (a) above, the aggregate principal amount of such Designated
Securities which remains unpurchased does not exceed one-tenth of the aggregate
principal amount of all the Designated Securities, then the Company and, in the
case of Guaranteed Securities, the Guarantor shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase hereunder and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount of such Designated Securities which such Underwriter
agreed to purchase hereunder) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If,
after giving effect to any arrangements for the purchase of the Designated
Securities of a defaulting Underwriter or Underwriters by the Representative,
the Company and, in the case of Guaranteed Securities, the Guarantor as provided
in subsection (a) above, the aggregate principal amount of Designated Securities
which remains unpurchased exceeds one-tenth of the aggregate principal amount of
Designated Securities, or if the Company and, in the case of Guaranteed
Securities, the Guarantor shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase Designated
Securities of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any nondefaulting
Underwriter, the Company or, in the case of Guaranteed Securities, the
Guarantor, except for the expenses to be borne by the Company, the Guarantor (in
the case of Guaranteed Securities) and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
17
10.
The
respective indemnities, agreements, warranties and other statements of the
Company, the Guarantor (in the case of Guaranteed Securities) and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company or any officer or director or controlling person of
the Company, or, in the case of Guaranteed Securities, the Guarantor or any
officer or director or controlling person of the Guarantor, and shall survive
delivery of and payment for the Designated Securities.
11.
If the
applicable Pricing Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor, in the case of Guaranteed Securities, the Guarantor
shall then be under any liability to any Underwriter with respect to the
Designated Securities except as provided in Section 6 and Section 8 hereof; but
if for any other reason Designated Securities are not delivered by or on behalf
of the Company as provided herein, the Company and, in the case of Guaranteed
Securities, the Guarantor will jointly and severally reimburse the Underwriters
through the Representative for all out-of-pocket expenses approved in writing by
the Representative, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company and, in the case of
Guaranteed Securities, the Guarantor shall then be under no further liability to
any Underwriter with respect to such Designated Securities except as provided in
Section 6 and Section 8 hereof.
12.
In all
dealings hereunder, the Representative shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by the Representative.
All
statements, requests, notices and agreements hereunder shall be in writing or by
facsimile, and if to the Underwriters shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Representative as set
forth in the applicable Pricing Agreement; if to the Company shall be sufficient
in all respects if delivered or sent by registered mail in care of the Guarantor
to the address of the Guarantor set forth in the Registration Statement,
Attention: Vice President and Treasurer, with a copy to: Senior Vice President
and General Counsel; if to the Guarantor (in the case of Guaranteed Securities)
shall be sufficient in all respects if delivered or sent by registered mail to
the address of the Guarantor set forth in the Registration Statement, Attention:
Vice President and Treasurer, with a copy to: Senior Vice President and General
Counsel; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by registered mail to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
facsimile constituting such Questionnaire, which address has been supplied to
the Company by the Representative.
18
13.
This
Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company, the Guarantor (in the case of Guaranteed Securities)
and, to the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Company and the Guarantor (in the case of Guaranteed
Securities) and each person who controls the Company, the Guarantor (in the case
of Guaranteed Securities) or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14.
Time
shall be of the essence in connection with each Pricing Agreement.
15.
This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York applicable to contracts made and to be performed
therein.
16.
This
Agreement and each Pricing Agreement may be executed by any one or more of the
parties hereto in any number of counterparts (including by means of facsimile),
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
19
PRICING
AGREEMENT
BANC OF
AMERICA SECURITIES LLC
DEUTSCHE
BANK SECURITIES INC.
As
Representatives of the several
Underwriters
named in Schedule I hereto,
0 Xxxx
00xx Xxxxxx,
00xx
Xxxxx
Xxx Xxxx,
XX 00000
May 24,
2005
Dear
Ladies and Gentlemen:
Xxxxxxxxx-Xxxx
Company Limited (the "Company") proposes, subject to the terms and conditions
stated herein and in the Underwriting Agreement Standard Provisions dated as of
May 24, 2005 (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). The Designated
Securities will be guaranteed (the “Guarantee”) to the extent and as provided in
the Indenture. Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty with respect to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An
amendment to the Registration Statement, or a supplement to the Prospectus, as
the case may be, relating to the Designated Securities, in the form heretofore
delivered to you is now proposed to be filed with the Commission. Subject to the
terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the time and place and at the purchase
price to the Underwriters set forth in Schedule II hereto, the principal amount
of Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
2
If the
foregoing is in accordance with your understanding, please sign and return to us
two counterparts hereof, and upon acceptance hereof by you, on behalf of each of
the Underwriters, this letter and such acceptance hereof, including the
provisions of the Underwriting Agreement incorporated herein by reference, shall
constitute a binding agreement between each of the Underwriters, the Company and
the Guarantor. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company and the Guarantor for examination, upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very
truly yours,
XXXXXXXXX-XXXX
COMPANY LIMITED
By:
/s/
Xxxxxxx X. McLevish_________________
By:
/s/
Xxxxxxx X. Brasier___________________
XXXXXXXXX-XXXX
COMPANY
By:
/s/
Xxxxxxx X. McLevish_________________
By:
/s/
Xxxxxxx X. Brasier____________________
2
Accepted
as of the date hereof:
BANC OF
AMERICA SECURITIES LLC
By:/s/
Lily Chang____________________
DEUTSCHE
BANK SECURITIES INC.
By:/s/
Xxxxxxxxxxx X. Whitman_________
By:/s/
Marc Fratepietro_______________
3
SCHEDULE
I
Underwriter |
Principal
Amount of
Designated
Securities
to
be Purchased |
|||
Banc
of America Securities LLC |
$ |
76,923,000 |
||
Deutsche
Bank Securities Inc. |
$ |
46,154,000 |
||
Citigroup
Global Markets Inc. |
$ |
30,768,000 |
||
X.X.
Xxxxxx Securities Inc. |
$ |
30,768,000 |
||
Lazard
Frères & Co. LLC |
$ |
23,077,000 |
||
BNP
Paribas Securities Corp. |
$ |
15,385,000 |
||
Credit
Suisse First Boston LLC |
$ |
15,385,000 |
||
HSBC
Securities (USA) Inc. |
$ |
15,385,000 |
||
Greenwich
Capital Markets, Inc. |
$ |
15,385,000 |
||
UBS
Securities LLC |
$ |
15,385,000 |
||
Wachovia
Capital Markets, LLC |
$ |
15,385,000 |
||
Total |
$ |
300,000,000 |
SCHEDULE
II
TITLE OF
DESIGNATED SECURITIES
4.75%
Senior Notes due May 15, 2015
AGGREGATE
PRINCIPAL AMOUNT:
U.S.
$300,000,000
PRICE TO
PUBLIC:
99.625%
of the principal amount of the Designated Securities, plus accrued interest, if
any, from May 27, 2005
PURCHASE
PRICE BY UNDERWRITERS:
98.975%
of the principal amount of the Designated Securities, plus accrued interest, if
any, from May 27, 2005
METHOD
AND SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Same day
funds; book-entry form
INDENTURE:
Debt
Securities Indenture, dated as of May 24, 2005, between the Company, the
Guarantor and Xxxxx Fargo Bank, N.A., as Trustee
MATURITY:
May 15,
2015
INTEREST
RATE:
4.75%
INTEREST
PAYMENT DATES:
The notes
will bear interest from and including May 27, 2005. Interest will be payable
semiannually on May 15 and November 15 of each year, commencing November 15,
2005, to the holders of record of the notes at the close of business on the
preceding May 1 or November 1, whether or not such day is a business day.
2
REDEMPTION
PROVISIONS:
The
Designated Securities are redeemable in whole or in part, at any time at a
redemption price equal to the greater of: (i) 100% of the principal amount of
the Designated Securities to be redeemed, plus accrued interest to the
redemption date, or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest on the notes to be redeemed (not
including any portion of payments of interest accrued as of the redemption date)
discounted to the redemption date on a semiannual basis at an adjusted treasury
rate plus 15 basis points, plus accrued interest to the redemption date.
CONVERSION
PROVISIONS:
No
provisions for conversion
PUT
PROVISIONS:
No
provisions for right to put
SINKING
FUND PROVISIONS:
No
sinking fund provisions
TIME OF
DELIVERY:
10:00
a.m., New York City time, May 27, 2005.
CLOSING
LOCATION:
Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
NAME AND
ADDRESSES OF REPRESENTATIVE:
Banc of
America Securities LLC
0 Xxxx
00xx Xxxxxx,
00xx
Xxxxx
Xxx Xxxx,
XX 00000