EXHIBIT 1
August 2001
ORIENT-EXPRESS HOTELS LTD.
CLASS A COMMON SHARES
STANDARD FIRM COMMITMENT UNDERWRITING AGREEMENT PROVISIONS
SECTION 1. Introductory. Sea Containers Ltd., a Bermuda company ("Sea
Containers"), proposes to sell from time to time up to 5,000,000 shares (the
"Shares") of the class A common shares, par value $.01 each (the "Class A
Shares"), of Orient-Express Hotels Ltd., a Bermuda company ("OEH"). Each Share
includes a right (a "Right") to purchase, under certain circumstances, one
one-hundredth of a series A junior participating preferred share of OEH (a
"Preferred Share"), subject to adjustment. The Rights are being issued pursuant
to a Rights Agreement dated as of June 1, 2000, between OEH and Fleet National
Bank, as rights agent (the "Rights Agreement").
The firm or firms which agree to purchase the Shares are hereinafter
referred to as the "Underwriters" and the representative or representatives of
the Underwriters, if any, specified in a Pricing Agreement referred to in
Section 2 are hereinafter referred to as the "Representatives." If a Pricing
Agreement does not specify any representative of the Underwriters, the term
"Representatives" as used herein (other than in the second sentence of Section
2) shall mean the Underwriters.
SECTION 2. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase any Shares will be evidenced by a written communication
in the form of Annex A hereto (a "Pricing Agreement"). Each Pricing Agreement
will incorporate by reference these Standard Firm Commitment Underwriting
Agreement Provisions (these "Provisions"), except as otherwise provided therein,
and will specify (1) the firm or firms which will be Underwriters, (2) the names
of the Representatives, if any, (3) the number of Shares to be purchased by each
Underwriter and the purchase price to be paid by the Underwriters and payment
will be made to Sea Containers (which shall not be less than the aggregate par
value of such Shares), (4) the time and date on which delivery of the Shares
will be made to the Representatives for the accounts of the several Underwriters
and payment will be made to Sea Containers (the "Closing Date"), and (5) the
place of delivery and payment.
The obligations of the Underwriters to purchase the Shares will be
several and not joint. The Shares delivered to the Underwriters on the Closing
Date will be in definitive fully registered form, in such denominations and
registered in such names as the Representatives may request not less than two
full business days in advance of the Closing Date.
The Underwriters, through the Representatives, will pay to Sea
Containers the purchase price for the Shares, less the commission of the
Underwriters, on the Closing Date, by wire transfer of same-day funds to an
account to be specified by Sea Containers not less than two full business days
in advance of the Closing Date.
SECTION 3. Representations and Warranties. Sea Containers and OEH
represent and warrant to each of the Underwriters as of the date of execution of
a Pricing Agreement (the "Representation Date") and as of any Closing
Date that:
(a) OEH is permitted to use Form S-3 under the Securities Act
of 1933, as amended (the "1933 Act"), and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on
such Form (Registration No. 333-67268), which has become effective, for
the registration of the Shares under the 1933 Act. Such registration
statement, as amended at the Representation Date, meets the
requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and
complies in all other material respects with said Rule. Such
registration statement, including the exhibits thereto, as amended at
the Representation Date, is hereinafter called the "Registration
Statement," and the prospectus constituting Part I of the Registration
Statement, as supplemented to reflect the plan of distribution of any
Shares, in the form furnished to the Underwriters for use in connection
with the offering of the Shares, is hereinafter called the
"Prospectus." Any reference herein to the Registration Statement or the
Prospectus will be deemed to include the documents which are
incorporated by reference therein pursuant to Item 12 of Form S-3 and
which were filed under the Securities Exchange Act of 1934 (the "1934
Act") on or before the Representation Date or the date of the
Prospectus, as the case may be, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement or the Prospectus will be deemed to include the filing of any
document under the 1934 Act after the Representation Date or the date
of the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
(b) (i) the Registration Statement and the Prospectus comply
in all material respects with the applicable requirements of the 1933
Act and the 1934 Act and the respective rules thereunder, and (ii)
neither the Registration Statement nor the Prospectus contains any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; provided that Sea Containers and OEH
make no warranty or representation with respect to any statement
contained in the Registration Statement or the Prospectus in reliance
upon and in conformity with information furnished in writing by or on
behalf of any Underwriter through the Representatives to OEH expressly
for use in the Registration Statement or the Prospectus, as provided in
paragraph 6(a) of these Provisions.
(c) Sea Containers, OEH and the subsidiaries of OEH have been
duly organized and are validly existing as companies or corporations,
as the case may be, in good standing under the laws of their respective
jurisdictions of organization, with full power and authority (corporate
and other) to own, lease and operate their respective properties and
conduct their respective businesses as described in the Prospectus; Sea
Containers, OEH and the subsidiaries of OEH are in compliance with all
laws requiring their qualification to do business as foreign
corporations, and are in good standing, in all other jurisdictions in
which they respectively own or lease properties of a nature, or
transact business of a type, that would require such qualification,
except where the failure to comply with such laws would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of OEH and its
subsidiaries considered as one enterprise (a "Material Adverse
Effect").
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(d) All of the outstanding capital shares of the subsidiaries
of OEH (including the Shares) have been duly authorized and validly
issued and are fully paid and nonassessable, and OEH, directly or
through subsidiaries, owns all the outstanding capital shares of its
subsidiaries, free and clear of all material security interests, liens,
encumbrances, claims and equities, except that approximately 6.8% of
the equity in Companhia Hoteis Palace and approximately 4.5% of the
equity in Societe de la Cite are not owned by OEH or its subsidiaries.
(e) No holder of the outstanding capital shares of OEH is
subject to personal liability by reason of being such a holder; none of
the outstanding capital shares of OEH was issued in violation of the
preemptive rights of any shareholder of OEH; and the Class A Shares and
the Rights conform in all material respects to the descriptions thereof
contained in the Prospectus.
(f) To the knowledge of OEH, Deloitte & Touche LLP, the
accountants who certified the financial statements and supporting
schedules included in or incorporated by reference into the
Registration Statement and the Prospectus, are independent public
accountants as required by the 1933 Act and the rules of the
Commission.
(g) The consolidated financial statements of OEH and its
consolidated subsidiaries included in or incorporated by reference into
the Registration Statement and the Prospectus present fairly the
financial position and results of operations of OEH and its
subsidiaries on a consolidated basis at the respective dates or for the
respective periods to which they apply; such financial statements have
been prepared in conformity with U.S. generally accepted accounting
principles applied on a consistent basis throughout the respective
periods involved and in compliance with the applicable accounting
requirements of the 1933 Act, the 1934 Act and the rules of the
Commission, and the supporting financial statement schedule or
schedules in the Registration Statement, when considered in relation to
the basic consolidated financial statements taken as a whole, present
fairly in all material respects the information required to be stated
therein. The summary consolidated financial data included or
incorporated by reference in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited consolidated financial statements included or
incorporated by reference in the Registration Statement.
(h) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, and except
as otherwise disclosed in the Prospectus, (A) there has been no
material adverse change in the condition (financial or otherwise),
earnings, business affairs or business prospects of OEH and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Change"), (B)
there have been no transactions entered into by OEH or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to OEH and its subsidiaries considered
as one enterprise, and (C) there has been no dividend or distribution
of any kind declared, paid or made by OEH on any class of its capital
shares.
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(i) There is no action, suit or proceeding before or by any
court or governmental agency or body, United States domestic
("domestic") or foreign (other than as disclosed in or incorporated by
reference into the Registration Statement), now pending or, to the
knowledge of OEH, threatened, against or affecting OEH or any of its
subsidiaries, which is required to be disclosed in or incorporated by
reference into the Registration Statement, or which might result in any
Material Adverse Change, or which might materially and adversely affect
the sale of the Shares pursuant to the Pricing Agreement; and all
pending or threatened legal or governmental proceedings to which OEH or
any of its subsidiaries is a party or of which any of their property is
the subject which are not described in or incorporated by reference
into the Registration Statement or otherwise publicly disclosed prior
to the date of the Pricing Agreement, including ordinary routine
litigation incidental to their businesses, are, considered in the
aggregate, not material to OEH and its subsidiaries considered as one
enterprise.
(j) There are no contracts or documents of OEH or any of its
subsidiaries which are required to be filed or incorporated by
reference as exhibits to the Registration Statement by the 1933 Act or
by the rules of the Commission, or are required to be described in the
Prospectus, which have not been so filed or incorporated by reference
or described therein.
(k) Neither OEH nor any of its subsidiaries is in violation of
its charter or bye-laws or other constituent documents, or is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust or other instrument or agreement to which it is a party
or by which it or its property may be bound or subject except for such
defaults, if any, that individually or in the aggregate would not have
a Material Adverse Effect.
(l) The execution and delivery by OEH and Sea Containers of
the Pricing Agreement, the performance by OEH and Sea Containers of, or
compliance with, their respective obligations under, the Pricing
Agreement, the sale and delivery by Sea Containers of the Shares, the
Rights and, upon exercise of the Rights, the Preferred Shares, and the
other transactions contemplated in the Pricing Agreement or in the
Registration Statement do not and will not result in a breach or
violation 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 property or assets of Sea Containers, OEH or any
subsidiary of OEH under,
(i) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which Sea
Containers, OEH or any of OEH's subsidiaries is a party or by
which any of them is bound or to which any of their properties
may be subject, except for such breaches, violations, defaults
and liens that would not have a Material Adverse Effect, or
(ii) the charter or bye-laws or other constituent
documents of Sea Containers, OEH or any of OEH's subsidiaries,
or
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(iii) any decree, judgment, order, statute, rule or
regulation of any court or governmental agency or body
(domestic or foreign) having jurisdiction over Sea Containers,
OEH or any of OEH's subsidiaries or over their respective
properties, except for such breaches, violations or defaults
and liens that would not have a Material Adverse Effect.
(m) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body (domestic or foreign) is
required for the performance by Sea Containers or OEH of its
obligations under the Pricing Agreement or the consummation of the
transactions contemplated by the Pricing Agreement or otherwise in
connection with the valid sale and delivery by Sea Containers of the
Shares and the Rights except
(i) such as shall have been obtained or made under
the 1933 Act,
(ii) such as have been obtained from the Bermuda
Monetary Authority, and
(iii) such as may be required under state securities
laws in connection with the purchase and distribution of the
Shares and Rights by the Underwriters.
(n) Sea Containers has full power and authority to sell the
Shares as contemplated by these Provisions.
(o) The Pricing Agreement has been duly authorized, executed
and delivered by OEH and Sea Containers and is a valid and binding
agreement of OEH and Sea Containers, except that (i) the validity of
the indemnification and contribution provisions of Sections 6 and 7 may
be limited by public policy considerations, and (ii) the validity of
Section 14 of these Provisions may be limited by the public policy of
the State of New York, and with respect to the United States District
Court for the Southern District of New York, may be subject to the
discretion of the court pursuant to 28 U.S.C. Section 1404(a).
(p) The Rights Agreement has been duly authorized, executed
and delivered by OEH; the Rights have been duly authorized by OEH, and
the Rights attached to the Shares are validly issued; and the Preferred
Shares issuable upon exercise of such Rights have been duly authorized
by OEH and validly reserved for issuance upon the exercise of the
Rights and, when issued upon such exercise in accordance with the terms
of the Rights Agreement, will be validly issued, fully paid and
nonassessable.
(q) The Shares, including the Rights associated therewith,
are listed on the New York Stock Exchange.
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(r) There are no contracts, agreements or understandings
between OEH and any person other than Sea Containers, granting such
person the right to require OEH to include in the Registration
Statement any securities (debt or equity) of OEH owned or to be owned
by such person.
(s) Each of OEH and its subsidiaries has good and marketable
title to all properties and assets owned by it, free and clear of all
liens, charges, encumbrances or restrictions, except such as (A) are
otherwise described in the Prospectus or (B) are neither material in
amount nor materially significant in relation to the business of OEH
and its subsidiaries considered as one enterprise. All of the leases
and subleases material to the business of OEH and its subsidiaries,
considered as one enterprise, and under which OEH or any subsidiary
holds properties, are in full force and effect, and neither OEH nor any
subsidiary has any notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of OEH or any subsidiary
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of OEH or such subsidiaries to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(t) Except as disclosed in the Registration Statement, or
except as would not individually or in the aggregate have a Material
Adverse Effect, each of OEH and its subsidiaries owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations necessary to own
or lease, as the case may be, and to operate its properties and to
carry on its business as presently conducted, and neither OEH nor any
subsidiary has received any notice of proceedings relating to
revocation or modification of any such licenses, permits, certificates,
consents, orders, approvals or authorizations.
(u) Except as disclosed in the Registration Statement or
except as would not individually or in the aggregate have a Material
Adverse Effect, (A) OEH and its subsidiaries are in compliance with all
applicable Environmental Laws, (B) OEH and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are in compliance with their requirements, (C)
there are no pending or threatened Environmental Claims against OEH or
any of its subsidiaries, and (D) there are no circumstances with
respect to any property or operations of OEH or its subsidiaries that
could reasonably be anticipated to form the basis of an Environmental
Claim against OEH or its subsidiaries. "Environmental Law" means any
United States (or other applicable jurisdiction's) federal, state,
local or municipal statute, law, rule, regulation, ordinance, code,
policy or rule of common law and any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent decree or judgment, relating to the environment, health, safety
or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority, and
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations or proceedings
relating in any way to any Environmental Law.
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(v) OEH is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
SECTION 4. Covenants of OEH and Sea Containers. OEH and Sea Containers
covenant with the Underwriters as follows:
(a) OEH or Sea Containers will advise the Representatives
immediately and confirm such advice in writing:
(i) of OEH's intention to amend or supplement the
Registration Statement or the Prospectus (otherwise than by
the filing of documents pursuant to the 1934 Act), and OEH
will furnish you with copies of any such amendment or
supplement a reasonable time in advance of filing, and will
not file such amendment or supplement without your consent,
which consent shall not be unreasonably withheld;
(ii) of the filing of any document incorporated by
reference in the Registration Statement, and OEH will furnish
you with copies of any such document concurrently with such
filing and promptly thereafter will make available to you for
consultation appropriate personnel of OEH so as to permit you
to conduct due diligence with respect to such filing;
(iii) of the receipt of any comments from the
Commission with respect to the Registration Statement or the
Prospectus, or the request by the Commission for any amendment
to the Registration Statement or any supplement to the
Prospectus or for additional information relating to the
Registration Statement or the Prospectus or any document
incorporated by reference into the Prospectus;
(iv) of the filing or effectiveness of any amendment
or supplement to the Registration Statement or the Prospectus;
and
(v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or of the suspension of the qualification of the
Shares for offering or sale in any jurisdiction or the
institution or threat of any proceeding for any such purposes.
OEH will use its best efforts to prevent the issuance of any
such order or of any order suspending such qualification and
to obtain as soon as possible its lifting at the earliest
possible moment, if issued.
(b) OEH will furnish to the Underwriters such copies of the
Prospectus and all amendments and supplements thereto, in each case as
soon as available and in such quantities as the Representatives may
reasonably request.
(c) OEH or Sea Containers will advise the Representatives
promptly of the happening of any event known to OEH or Sea Containers
within the time during which a prospectus relating to the Shares is
required to be delivered under the 1933 Act which, in the judgment of
OEH or Sea Containers, would require the making of any change in the
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Prospectus then being used, or in the information incorporated therein
by reference, so that the Prospectus would not include an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under
which they are made, not misleading, and, during such time, to prepare
and furnish to the Representatives promptly, at Sea Containers'
expense, such amendments or supplements to such Prospectus as may be
necessary to reflect any such change and to furnish to the
Representatives a copy of such proposed amendment or supplement before
filing any such amendment or supplement with the Commission.
(d) OEH will make generally available to its securityholders
an earnings statement that satisfies the provisions of Section 11(a) of
the 1933 Act and Rule 158 under the 1933 Act.
(e) For a period of one year from the date of any Pricing
Agreement, OEH will furnish to the Representatives, as soon as
available, (i) a copy of each of its annual reports to shareholders,
(ii) a copy of each other document mailed by OEH to its shareholders,
(iii) each press release or announcement issued by OEH, and (iv) from
time to time, such other information concerning OEH and its
subsidiaries as the Representatives may reasonably request.
(f) OEH and Sea Containers will cooperate with the
Representatives in qualifying the Shares, including the Rights
associated therewith, for offering and sale under the laws of such
jurisdictions as the Representatives shall designate and will cooperate
with the Representatives in continuing such qualifications in effect so
long as required for the distribution by the Representatives of such
Shares and Rights; provided that in connection with such qualification,
OEH or Sea Containers will not be required to qualify as a foreign
corporation or a securities dealer in any jurisdiction, or to consent
to the service of process under the laws of any jurisdiction (except
service of process with respect to the offering and sale of the Shares)
or to take any action which would or could subject OEH or Sea
Containers to taxation in any jurisdiction where it is not previously
so subject. OEH will execute such statements and reports which the
Representatives or their counsel prepare as may be required by the laws
of each jurisdiction in which the Shares and Rights are being
qualified. OEH will also supply the Representatives with such
information for determining the legality of the Shares and Rights for
investment under the laws of such jurisdictions as the Representatives
may reasonably request.
(g) Between the date of any Pricing Agreement and the Closing
Date with respect to such Pricing Agreement, OEH will not, without the
Representatives' prior consent, offer or sell, or enter into any
agreement to sell, any Class A Shares or securities convertible into or
exchangeable for Class A Shares (other than the Shares and Rights which
are to be sold pursuant to such Pricing Agreement), except as may
otherwise be provided in any such Pricing Agreement and except for (i)
Class A Shares issuable upon the exercise of employee stock options
granted in the normal course of OEH's business, and (ii) Class A Shares
issuable upon conversion of OEH's outstanding class B common shares and
preferred shares.
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(h) Sea Containers will pay all expenses, fees and taxes
(other than any transfer taxes and fees and disbursements of counsel
for the Underwriters except as set forth under clause (iv) below and
paragraph (i) of this Section 4) in connection with (i) the preparation
and filing of the Registration Statement, each preliminary prospectus,
the Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment), (ii) the
preparation, issuance, execution, authentication and delivery of the
Shares, (iii) the printing of the Pricing Agreement (including these
Provisions), an Agreement among Underwriters, any dealer agreements,
any powers of attorney, and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (iv) the qualification of
the Securities for offering and sale under state laws and the
determination of their eligibility for investment under state law as
provided in paragraph 4(f) (including the legal fees and filing fees
and other disbursements of counsel for the Underwriters) and the
printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers, (v) any listing
of the Shares on any securities exchange and any registration thereof
under the 1934 Act, (vi) any filing for review of the public offering
of the Securities by the National Association of Securities Dealers,
Inc. (the "NASD"), and (vii) the performance of OEH's other obligations
hereunder.
(i) If the Shares to be sold pursuant to a Pricing Agreement
are not delivered for any reason other than (a) a termination of the
obligations of the several Underwriters in accordance with clause
(a)(ii), (a)(iii) or (a)(iv) of Section 9 hereof, or (b) a default by
one or more of the Underwriters in its or their respective obligations
hereunder, Sea Containers will reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and
disbursements of their counsel.
SECTION 5. Conditions of Obligations. The Underwriters' several
obligations to purchase Shares pursuant to any Pricing Agreement will be subject
to the accuracy of the representations and warranties on the part of OEH and Sea
Containers herein on the Representation Date and the Closing Date, to the
performance by OEH and Sea Containers of all covenants and agreements herein
contained on their part to be performed and observed, and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or the suspension of the qualification of the
Shares for offering or sale in any jurisdiction has been issued and not
lifted, and no proceedings for such issuance are pending or, to the
knowledge of the Representatives, OEH or Sea Containers, threatened,
and all requests for additional information by the Commission have been
complied with to the Representatives' reasonable satisfaction.
(b) Sea Containers and OEH will furnish to the Representatives
on the Closing Date an opinion, dated as of such date, of Xxxxxx,
Xxxxxxx & Xxxxxxx, United States counsel to Sea Containers and OEH, or
other United States counsel to Sea Containers and OEH reasonably
satisfactory to the Representatives, in form reasonably satisfactory to
the Representatives and their counsel, to the effect that:
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(i) To such counsel's knowledge, except as described
in the Prospectus, there are no legal or governmental
proceedings pending or threatened in the United States to
which OEH or any of its subsidiaries is a party or to which
any of its or their properties is subject and which are
required to be disclosed in the Registration Statement;
(ii) The execution and delivery by OEH and Sea
Containers of the Pricing Agreement (including these
Provisions), the performance by OEH and Sea Containers of, or
their compliance with, their respective obligations under the
Pricing Agreement and the consummation of the transactions
contemplated in the Pricing Agreement or in the Registration
Statement, including the sale and delivery by Sea Containers
of the Shares, the Rights and the Preferred Shares issuable
upon the exercise of such Rights (assuming such Preferred
Shares were issued on the date of such opinion), do not and
will not result in a breach or violation 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 property or assets of OEH or Sea Containers under,
(A) any indenture, mortgage, deed of trust, loan agreement or
any other agreement or instrument which is described or
referred to in the Prospectus, or is filed or incorporated by
reference as an exhibit to the Registration Statement, and to
which OEH or Sea Containers is a party or by which it is bound
or to which any of its property or assets is subject, or (B)
any United States federal or New York statute, rule or
regulation or any decree, judgment or order, known to such
counsel, of any United States federal or New York court or
governmental agency or body specifically applicable to OEH or
Sea Containers or to any of their respective properties,
except for such breaches, violations, defaults, liens, charges
or encumbrances that would not have a Material Adverse Effect;
(iii) No consent, approval, authorization or order
of, or registration or qualification or filing of or with, any
United States federal or New York governmental agency or body
or, to the best of such counsel's knowledge, any United States
federal or New York court is required for the performance by
OEH or Sea Containers of its obligations under the Pricing
Agreement or the consummation of the transactions contemplated
by the Pricing Agreement, including the sale and delivery by
Sea Containers of the Shares, the Rights associated therewith
and the Preferred Shares issuable upon the exercise of such
Rights, except, in the case of the Shares and the Rights
associated therewith, (a) such as have been obtained or made
under the 1933 Act, and (b) such as may be required under
state securities laws in connection with the purchase and
distribution of the Shares and Rights by the Underwriters, and
except in the case of the Preferred Shares issuable upon the
exercise of the Rights associated with the Shares, (a) such as
may be required under the 1933 Act or the 1934 Act, and (b)
such as may be required under state securities laws in
connection with the issuance of the Preferred Shares upon the
exercise of such Rights;
(iv) The Registration Statement has become effective
under the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the
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effectiveness of the Registration Statement is in effect and
no proceedings for that purpose have been initiated or are
pending or threatened;
(v) The Registration Statement, the Prospectus and
each amendment or supplement thereto comply as to form in all
material respects with the requirements of the 1933 Act and
the rules of the Commission thereunder;
(vi) Each document incorporated by reference in the
Registration Statement and Prospectus, at the time such
document was initially filed with the Commission, complied as
to form in all material respects with the requirements of the
1934 Act and the rules of the Commission thereunder;
(vii) The descriptions in the Registration Statement
and the Prospectus of contracts and other documents, of United
States federal and New York statutes, and of legal and
governmental proceedings in the United States, are accurate
summaries in all material respects and fairly present the
information required to be given;
(viii) Such counsel does not know of any contracts or
documents required to be described in the Registration
Statement or Prospectus, or to be filed as exhibits to the
Registration Statement or incorporated by reference in the
Registration Statement or Prospectus, which are not described
or filed or incorporated by reference as required, it being
understood that such counsel need express no opinion as to the
financial statements and related notes and schedule or
schedules or other financial information and statistical data
in the Registration Statement or the Prospectus;
(ix) The Class A Shares (including the Shares) and
Rights associated therewith are listed on the New York Stock
Exchange;
(x) OEH is eligible to use Form S-3 for the
registration under the 1933 Act of the offer and sale of the
Shares as described in the Prospectus, and the Registration
Statement meets the requirements set forth in Rule
415(a)(1)(x) under the 1933 Act; and
(xi) Assuming that (A) the certificate or
certificates representing the Shares to be sold by Sea
Containers have been effectively indorsed in blank in
accordance with NYUCC Article 8, and (B) a purchaser is
without notice of any adverse claim to the Shares, then such
purchaser, upon paying the purchase price for Shares and
acquiring possession of the certificate or certificates for
such Shares, will be a "protected purchaser" of such Shares
within the meaning of Section 8-303 of the NYUCC, and will
acquire such Shares (including, without limitation, all rights
that Sea Containers has the power to transfer in such Shares)
free of any adverse claim.
(xii) OEH is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
11
Such counsel may limit such opinion to the laws of the United
States of America and the State of New York and may rely as to factual
matters on certificates obtained from officers of OEH, Sea Containers
and public officials. The opinion of Xxxxxx, Xxxxxxx & Xxxxxxx will
also state that, while such counsel have not made any independent
investigation of, are not passing upon and do not assume responsibility
for, the accuracy or completeness of the statements contained in the
Registration Statement or the Prospectus (other than as indicated in
clause (vii) above), on the basis of discussions regarding the business
and affairs of OEH and Sea Containers and their familiarity with
certain matters relating to such business and affairs as a result of
having served as United States counsel for OEH and Sea Containers in
connection with certain previous transactions, nothing has come to
their attention that would lead them to believe that the Registration
Statement (other than the financial statements and notes and other
financial and statistical data included in the Registration Statement,
as to which no view need be expressed), as of the date it was declared
effective, 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 the Prospectus
(other than the financial statements and notes and other financial and
statistical data included in the Prospectus, as to which no view need
be expressed), at the date of the Prospectus and at all times up to and
including the Closing Date, contained an untrue statement of a material
fact or omitted 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.
(c) Sea Containers and OEH will furnish the Representatives on
the Closing Date an opinion, dated as of such date, of Xxxxxxx Xxxxxxxx
& Kempe, Bermuda counsel to Sea Containers and OEH, or other Bermuda
counsel to Sea Containers and OEH reasonably satisfactory to the
Representatives, in form reasonably satisfactory to the Representatives
and their counsel, to the effect that:
(i) OEH and Sea Containers are validly existing
companies, in good standing under the laws of the Islands of
Bermuda, OEH and Sea Containers have full corporate power and
authority to own, lease and operate their respective
properties and to conduct their respective businesses, and Sea
Containers has full corporate power and authority to sell and
deliver the Shares as herein contemplated;
(ii) The Class A Shares, the Rights and the Rights
Agreement conform in all material respects to the descriptions
thereof contained in the Prospectus under the caption
"Description of Common Shares";
(iii) All of the outstanding capital shares of OEH
(including the Shares) have been duly authorized and validly
issued, are fully paid and nonassessable, and no holder
thereof is or will be subject to personal liability by reason
of being such a holder;
(iv) None of the outstanding capital shares of OEH
were issued in violation of the preemptive rights of any
shareholder of OEH;
12
(v) The Rights Agreement has been duly authorized,
executed and delivered by OEH, the Rights have been duly
authorized by OEH, the Rights attached to the Shares are
validly issued, and the Preferred Shares issuable upon the
exercise of the Rights have been duly authorized by OEH and
validly reserved for issuance upon the exercise of the Rights
and, when issued upon such exercise in accordance with the
terms of the Rights Agreement, will be validly issued, fully
paid and nonassessable;
(vi) To such counsel's knowledge, except as described
in the Prospectus, there are no legal or governmental
proceedings pending or threatened in Bermuda to which OEH is a
party or to which any of its properties is subject;
(vii) The Pricing Agreement (including these
Provisions) has been duly authorized, executed and delivered
by OEH and Sea Containers and is a valid and binding agreement
of OEH and Sea Containers;
(viii) The execution and delivery by OEH and Sea
Containers of the Pricing Agreement (including these
Provisions), the performance by OEH and Sea Containers of, or
their compliance with, their respective obligations under the
Pricing Agreement, and the consummation of the transactions
contemplated in the Pricing Agreement or in the Registration
Statement, including the sale and delivery by Sea Containers
of the Shares, the Rights and the Preferred Shares issuable
upon the exercise of such Rights (assuming such Preferred
Shares were issued on the date of such opinion), do not and
will not result in a breach or violation 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 property or assets of OEH and Sea Containers under,
(A) any indenture, mortgage, deed of trust, loan agreement or
any other agreement or instrument which is described or
referred to in the Prospectus, or is filed or incorporated by
reference as an exhibit to the Registration Statement, and to
which OEH or Sea Containers is a party or by which it is bound
or to which any of its property or assets is subject, (B)
OEH's or Sea Containers' certificate of incorporation,
memorandum of association or bye-laws or other constituent
documents, or (C) any Bermuda statute, rule or regulation or
any decree, judgment or order, known to such counsel, of any
Bermuda court or governmental agency or body specifically
applicable to OEH, Sea Containers, or any of their respective
properties, except for such breaches, violations, defaults,
liens, charges or encumbrances that would not have a Material
Adverse Effect;
(ix) No consent, approval, authorization or order of,
or registration or qualification or filing of or with, any
Bermuda governmental agency or body or, to the best of such
counsel's knowledge, any Bermuda court is required for the
performance by OEH or Sea Containers of its obligations under
the Pricing Agreement or the consummation of the transactions
contemplated by the Pricing Agreement, including the sale and
delivery by Sea Containers of the Shares, the Rights
associated therewith and the Preferred Shares issuable upon
the exercise of
13
such Rights, except such as have been obtained from the
Bermuda Monetary Authority; and
(x) The statements in the Registration Statement and
Prospectus under the caption "Risk Factors - Other Risk
Factors - We cannot assure you that a judgment of a United
States court for liabilities under U.S. securities laws would
be enforceable in Bermuda," insofar as such statements
constitute a summary of the legal matters referred to therein,
fairly and accurately summarize such legal matters.
(d) The Representatives will receive on the Closing Date the
opinion of counsel to the Underwriters, dated the Closing Date, in form
and substance reasonably satisfactory to the Representatives.
(e) Between the Representation Date and the Closing Date,
there will not have been any Material Adverse Change, whether or not
arising in the ordinary course of business, and on the Closing Date,
the Representatives will receive a certificate of the president or any
vice president of OEH dated as of the Closing Date, to the effect that
(i) there has been no such Material Adverse Change, (ii) the other
representations and warranties of OEH contained in Section 3 of these
Provisions are true and correct with the same force and effect as
though expressly made at and as of the time of such certificate, (iii)
OEH has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied under the Pricing Agreement at or
prior to the date of such certificate, and (iv) no stop order
suspending the effectiveness of the Registration Statement or the
qualification of the Shares for offer or sale in any jurisdiction has
been issued, and no proceedings for that propose have been initiated or
are pending or, to such person's knowledge, are threatened.
(f) On the Closing Date, the Representatives will receive a
certificate of the president or any vice president of Sea Containers,
dated as of the Closing Date, to the effect that (i) the
representations and warranties of Sea Containers contained in Section 3
of these Provisions are true and correct with the same force and effect
as though expressly made expressly at and as of the time of such
certificate, and (ii) Sea Containers has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
under the Pricing Agreement at or prior to the date of such
certificate.
(g) On the date of the Pricing Agreement, the Representatives
will have received from Deloitte & Touche LLP a letter, dated as of
such date`, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) They are independent public accountants with
respect to OEH and its subsidiaries within the meaning of the
1933 Act and the rules of the Commission and that the
response, if any, to Item 10 of Form S-3 is "none" with
respect to Deloitte & Touche LLP;
(ii) In their opinion, the consolidated financial
statements and related financial statement schedules audited
by them and included in or incorporated by
14
reference into the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1934 Act and the
rules of the Commission thereunder, as applicable;
(iii) On the basis of limited procedures, not
constituting an audit in accordance with generally accepted
auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to below,
a reading of the latest available interim financial statements
of OEH and its subsidiaries, inspection of the minute books of
OEH, inquiries of officials of OEH and its subsidiaries
responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to
believe that:
(1) as of a specified date not more than
five days prior to the date of
delivery of such letter, there were
any changes in the capital shares,
long-term debt or shareholders'
equity, or any decrease in total
assets, in each case as compared
with amounts shown in the latest
balance sheet included or
incorporated by reference in the
Prospectus, except in each case for
changes, increases or decreases
which the Prospectus discloses have
occurred or may occur or which are
described in such letter;
(2) for the period from the date of the
latest balance sheet included or
incorporated by reference into the
Prospectus to the specified date
referred to in clause (i) above
there were any material decreases in
consolidated revenues, earnings from
operations before net financing
costs or in the total or per share
amounts of net income of OEH and its
subsidiaries, in each case as
compared with the corresponding
period of the preceding year, except
in each case for decreases which the
Prospectus discloses have occurred
or may occur or which are described
in such letter;
(3) the unaudited financial statements,
if any, included or incorporated in
the Registration Statement and the
Prospectus do not comply in form in
all material respects with the
applicable accounting requirements
of the 1933 Act or the 1934 Act, as
the case may be, and the rules of
the Commission thereunder, or are
not in conformity with generally
accepted accounting principles
applied on a basis substantially
consistent with that of the audited
financial statements included or
incorporated in the Registration
Statement and the Prospectus; and
(4) the unaudited financial information,
if any, included or incorporated in
the Registration Statement and the
15
Prospectus does not agree with
the amounts set forth in the
unaudited consolidated financial
statements from which it was derived
or was not determined on a basis
substantially consistent with that
of the audited financial statements
included or incorporated in the
Registration Statement and the
Prospectus; and
(iv) Certain information set forth in dollar amounts
(or ratios, per share amounts or percentages derived from such
dollar amounts) specified by the Representatives contained in
the Registration Statement, in each case to the extent that
such dollar amounts, ratios, per share amounts and percentages
have been obtained from accounting records which are subject
to the internal controls of OEH's accounting system or have
been derived directly from such accounting records by analysis
or computation, is in agreement with such records or
computations made therefrom.
(h) On the Closing Date, the Representatives will receive from
Deloitte & Touche LLP a letter, dated as of such Closing Date, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to paragraph (g) of this Section 5, except that the specified
date referred to will be a date not more than five days prior to such
Closing Date and, to the extent that any additional documents are
incorporated by reference in the Registration Statement, such letter
will refer to the most recent consolidated financial statements,
amounts, percentages and financial information contained therein.
(i) On the Representation Date and on the Closing Date,
counsel to the Representatives shall have been furnished with such
documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the sale of the Shares as herein
contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by OEH and Sea Containers in connection with the sale
of the Shares as herein contemplated shall be reasonably satisfactory
in form and substance to the Representatives and their counsel.
(j) The Representatives will receive evidence reasonably
satisfactory to them that the appointment of Corporation Service
Company as agent for service of process for OEH and Sea Containers
pursuant to Section 14 hereof has been accepted by such agent.
The Underwriters' obligation to purchase Shares pursuant to any
Pricing Agreement will be subject to the further condition that there shall not
have come to the Representatives' attention any facts that would cause them to
believe that the Prospectus, at the time it was required to be delivered to a
purchaser of the Shares, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not misleading.
16
SECTION 6. Indemnification.
(a) Sea Containers agrees to indemnify and hold harmless each
Underwriter, OEH and each person, if any, who controls any Underwriter
or OEH within the meaning of Section 15 of the 1933 Act as follows:
(i) 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 any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material
fact contained in 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;
(ii) 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
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 if such settlement is
effected with the written consent of OEH;
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by the Representatives and OEH), reasonably incurred in
investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or
body, commenced or threatened and to which the Underwriters
are a party, 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 subsection (i) or (ii) above; and
(iv) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
failure by Sea Containers to comply with its obligation to
deliver Shares to any purchaser hereunder or pursuant to any
Pricing Agreement (such indemnity for failure to deliver
Shares to be provided to the same extent that indemnity is
provided in subsections (i)-(iii) above with respect to untrue
statements and omissions);
however, (A) this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished to OEH by the Underwriters expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary
Prospectus supplement or the Prospectus (or any amendment or supplement
thereto); and (B) this indemnity, as to any preliminary Prospectus
supplement, will not inure to any Underwriter's benefit (or any
17
person controlling an Underwriter) on account of any loss, claim,
damage, liability or litigation arising from the sale of Shares to any
person by an Underwriter if such Underwriter failed to send or give a
copy of any subsequent Prospectus or Prospectus supplement to such
person within the time required by the 1933 Act, and the untrue
statement or alleged untrue statement or omission or alleged omission
of a material fact in such preliminary Prospectus supplement was
corrected in the subsequent Prospectus or Prospectus supplement, unless
such failure resulted from noncompliance by OEH with paragraph 4(b)
hereof. The information furnished by the Underwriters to OEH expressly
for use in the Registration Statement and the Prospectus will be
specified in a certificate of the Representatives delivered to OEH on
or prior to the Closing Date.
(b) Each Underwriter severally agrees to indemnify and hold
harmless OEH and Sea Containers, its directors, each of its officers
who signed the Registration Statement, and each person, if any, who
controls OEH or Sea Containers within the meaning of Section 15 of the
1933 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsections (a)(i)-(iii) of
this Section 6, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to OEH by any Underwriter expressly
for use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto), as described in
paragraph (a) above.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party must, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided that the failure to notify the indemnifying party will
not relieve it from any liability which it may have under this Section
6 except to the extent it has been materially prejudiced by such
failure; and provided further that the failure to notify the
indemnifying party will not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 6. If
any such claim or action is brought against an indemnified party and it
notifies the indemnifying party thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it wishes, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim
or action, the indemnifying party will not be liable to the indemnified
party under this Section 6 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided that the
indemnified party will have the right to employ one counsel in each
jurisdiction to represent jointly the indemnified party and its
respective controlling persons who may be subject to liability arising
out of any claim in respect of which indemnity may be sought by the
indemnified party under this Section 6 if, in the reasonable judgment
of the indemnified party, it is advisable for the indemnified party and
controlling persons to be jointly represented by separate counsel, and
in that event the fees and expenses of such separate counsel will be
paid by the indemnifying party. An indemnifying party will not, without
the prior written consent of
18
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 includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding. An indemnified party will not, without the prior
written consent of the indemnifying party (which consent shall not be
unreasonably withheld), settle or compromise any such action, 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.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 is for any reason unavailable to or insufficient to hold harmless an
indemnified party under Section 6 in respect to any loss, liability, claim,
damage or expense, or any action in respect thereof, referred to therein, then
each indemnifying party will, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, liability, claim, damage or expense, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by Sea Containers and the Underwriters from the offering of the Shares
pursuant to the applicable Pricing Agreement or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of Sea Containers and the Underwriters with
respect to the statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by Sea
Containers and the Underwriters with respect to such offering will be deemed to
be in the same proportion as the total net proceeds from the offering of the
Shares purchased under the applicable Pricing Agreement (before deducting
expenses) received by Sea Containers, on the one hand, and the total brokerage
and underwriting discounts and commissions received by the Underwriters with
respect to such Shares, on the other hand, bear to the total gross proceeds from
the offering of the Shares under the applicable Pricing Agreement. The relative
fault will be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by OEH, Sea Containers or the Underwriters,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. OEH, Sea
Containers and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 7 were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, liability, claim, damage or
expense or action in respect thereof, referred to above in this Section 7 will
be deemed to include, for purposes of this Section 7, 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 Section 7, no Underwriter will be required to contribute any
amount in excess of the amount by which the total price at which the Shares
distributed by such Underwriter hereunder was offered to the public exceeds the
amount of any damages which
19
such Underwriter has otherwise paid or become liable to pay by reason of any
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 0000 Xxx) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
SECTION 8. Representations and Indemnities to Survive Delivery. Except
as otherwise specified herein, the respective indemnities, agreements,
representations, warranties and other statements of OEH, Sea Containers, their
respective officers or subsidiaries, and the Underwriters set forth in or made
pursuant to any Pricing Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of the Underwriters or OEH or Sea Containers or any of their
respective officers, directors or controlling persons and will survive delivery
of and payment for the Shares, from time to time.
SECTION 9. Termination. The Representatives may terminate any Pricing
Agreement, by notice to OEH and Sea Containers, at any time on or before the
applicable Closing Date (i) if there has been, since the applicable
Representation Date, any Material Adverse Change, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets or any outbreak or escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in your judgment, impracticable to market
the Shares, or (iii) if trading in any securities of OEH has been suspended by
the Commission or a national securities exchange, or if trading generally on
either the New York Stock Exchange or the Nasdaq Stock Market has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium has been declared by either Federal, New York or United
Kingdom authorities, or (iv) a stop order suspending the effectiveness of the
Registration Statement or an order preventing or suspending the use of the
Prospectus shall have been entered and shall not have been lifted or removed, or
(v) any event shall have occurred as a result of which the Prospectus would
include any 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 are made, not misleading, and OEH shall not have
complied with Section 4(c) of these Provisions. In the event of any such
termination, a party hereto will not have any liability to the other parties
hereto except that the covenants set forth in paragraphs 4(d) and 4(h) of these
Provisions and Sections 6, 7, 8 and 11 of these Provisions will remain in
effect.
SECTION 10. Notices. All notices and other communications hereunder
will be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters will be directed to their addresses furnished to OEH and Sea
Containers in the Pricing Agreement. Notices to OEH or Sea Containers will be
directed to it at 00 Xxxxx Xxxxxx, Xxxxxxxx, XX XX, Xxxxxxx, attention of
the Secretary (fax (000) 000-0000), with copies to Sea Containers America Inc.,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxx X.
Xxxxxx, Xx., Esq. (fax (000) 000-0000); to Sea Containers Services Ltd.,
Sea Containers House, 00 Xxxxx Xxxxxx, Xxxxxx XX0 0XX, Xxxxxxx, attention of
Xxxxx X. Xxxxxxxxxxxx, Esq. (fax 000-00-000-000-0000); and to
20
Xxxxxx X. Xxxxx, Esq., Xxxxxx, Xxxxxxx & Xxxxxxx, 0 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (fax (000) 000-0000).
SECTION 11. Parties. Any Pricing Agreement will inure to the benefit
of and be binding upon the Underwriters named therein, OEH and Sea Containers
and their respective successors. Nothing expressed or mentioned in a Pricing
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties thereto and their respective successors and
the controlling persons and officers and directors referred to in Section 6
hereof and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of such Pricing Agreement, or any provision
herein or therein contained. A Pricing Agreement and all conditions and
provisions thereof (including these Provisions) are intended to be for the sole
and exclusive benefit of the parties hereto and their respective successors and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
SECTION 12. Governing Law. All Pricing Agreements and the rights and
obligations of the parties created thereby will be governed by, and construed
in accordance with, the laws of the State of New York.
SECTION 13. Counterparts. Any Pricing Agreement may be executed
in one or more counterparts and, when a counterpart has been executed by
each party, all such counterparts taken together will constitute one and the
same agreement.
SECTION 14. Submission to Jurisdiction. Any legal action or proceeding
with respect to a Pricing Agreement, the Shares or any document related thereto
may be brought in the courts of the State of New York in the County of New York
or the United States District Court for the Southern District of New York and,
by execution and delivery of a Pricing Agreement, OEH and Sea Containers hereby
accept for themselves and in respect of their respective property, generally and
unconditionally, the jurisdiction of the aforesaid courts in any such legal
action or proceeding. The parties hereto hereby irrevocably waive trial by jury,
and OEH and Sea Containers hereby irrevocably waive any objection, including,
without limitation, any objection to the laying of venue or based on the grounds
of forum non conveniens, which they may now or hereafter have to the bringing of
any such action or proceeding in such respective jurisdictions. OEH and Sea
Containers hereby irrevocably designate Sea Containers America Inc. and
Corporation Service Company as the designees, appointees and agents of OEH and
Sea Containers to receive, for and on behalf of OEH and Sea Containers, service
of process in such respective jurisdictions in any legal action or proceeding
with respect to this Agreement, the Shares or any document related thereto. It
is understood that a copy of such process served on either such agent will be
promptly forwarded to OEH and Sea Containers at their addresses set forth in
Section 12, but the failure of OEH and Sea Containers to receive such copy will
not affect in any way the service of such process. In addition to service on
OEH's or Sea Containers' process agent, OEH and Sea Containers further
irrevocably consent to the service of process of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to OEH or Sea Containers at its
said address, such service to become effective 10 days after such mailing.
Nothing herein will affect the Underwriters' right to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against OEH or Sea Containers in any other jurisdiction.
21
ANNEX A
ORIENT-EXPRESS HOTELS LTD.
COMMON STOCK
PRICING AGREEMENT
, 2001
Orient-Express Hotels Ltd.
Sea Containers Ltd.
Sea Containers House
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Xxxxxxx
Ladies and Gentlemen:
Referring to the class A common shares of Orient-Express Hotels Ltd.
("OEH") covered by the Registration Statement on Form S-3 (No. 333-67268) filed
by OEH, on the basis of the representations, warranties and agreements contained
in this Agreement and in OEH's Standard Firm Commitment Underwriting Agreement
Provisions attached hereto (the "Standard Provisions"), and subject to the terms
and conditions set forth herein and therein, the Underwriters named on Schedule
I hereto ("Underwriters") agree to purchase, severally and not jointly, and Sea
Containers Ltd. ("Sea Containers") agrees to sell to the Underwriters, an
aggregate of _____ class A common shares (the "Shares") in the respective
amounts set forth opposite the names of the Underwriters on Schedule I hereto.
The public offering price for the Shares, as set forth on the cover
page of the Prospectus Supplement relating thereto, will be $________ per Share.
The price at which the Shares shall be purchased from Sea Containers by the
Underwriters will be $_____ per share. The Shares will be offered as set forth
in the Prospectus Supplement relating thereto.
Closing: a.m. on , 200_, at , in same day funds.
Name[s] and Address[es] of Representative[s]:
The attached Standard Provisions are incorporated herein by reference
[except as follows]:
A global certificate representing all of the Shares will be made
available for inspection at the office of ___________________, at least 24 hours
prior to the Closing Date.
A-1
We represent that we are authorized to act for the several
Underwriters named in Schedule I hereto in connection with this financing and
any action under this agreement by any of us will be binding upon all the
Underwriters.
This Pricing Agreement may be executed in one or more counterparts,
all of which counterparts shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among OEH, Sea Containers and the several
Underwriters in accordance with its terms.
Very truly yours,
[NAMES OF REPRESENTATIVES]
On behalf of themselves and
as Representatives of the
Several Underwriters
By:_____________________________
By:_____________________________
Name:
Title:
The foregoing Pricing Agreement is hereby confirmed as of the date first above
written.
ORIENT-EXPRESS HOTELS LTD.
By:__________________________
Name:
Title:
SEA CONTAINERS LTD.
By:__________________________
Name:
Title:
A-2
SCHEDULE I
Names of Underwriters No. of Shares
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