Dated as of June 9, 2011 PROVINCE OF NEW BRUNSWICK U.S.$750,000,000 2.750% Bonds, Series HD, due June 15, 2018 UNDERWRITING AGREEMENT
Exhibit 99.7
EXECUTION VERSION
Dated as of June 9, 2011
U.S.$750,000,000
2.750% Bonds, Series HD, due June 15, 2018
June 9, 2011
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
CIBC World Markets Corp.
RBC Capital Markets, LLC
RBC Capital Markets, LLC
As representatives of the several Underwriters
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
The Province of New Brunswick (the “Province”) proposes to issue and sell the principal amount
of its debt securities identified in Schedule I hereto (the “Securities”) to the underwriters named
in Schedule II hereto (the “Underwriters”), for whom you are acting as representatives (the
"Representatives”). The Securities will be issued in the form of one or more fully registered
permanent global securities (the “Global Securities”) registered in the name of Cede & Co., as the
nominee of The Depository Trust Company (“DTC”), subject to the provisions of the fiscal agency
agreement identified on Schedule I hereto (the “Fiscal Agency Agreement”). As of June 9, 2011 (the
"Time of Sale”), the Province had prepared the following information (collectively, the “Time of
Sale Information”): the Basic Prospectus (as defined below) as supplemented by the Preliminary
Final Prospectus (as defined below) dated June 9, 2011 and the Issuer Free Writing Prospectus (as
defined below), substantially in the form of Schedule I hereto. As used herein, “Issuer Free
Writing Prospectus” shall have the meaning assigned to the term “issuer free writing prospectus” in
Section 433 under the U.S. Securities Act of 1933, as amended (the “U.S. Securities Act”). This
Agreement is to confirm the arrangements with respect to the purchase of the Securities by the
several Underwriters.
1. Representations and Warranties. The Province represents and warrants to, and
agrees with, the several Underwriters that:
(i) The Time of Sale Information, at the Time of Sale and at the Closing Date (as
hereinafter defined), did not and will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided that the Province
makes no representation or warranty with respect to any statements or omissions made in
reliance upon and in conformity with information furnished to the Province in writing by or
on behalf of an Underwriter through the Representatives specifically for use in such Time of
Sale Information. The Issuer Free Writing Prospectus
in the form of Schedule I hereto complies in all material respects with the U.S.
Securities Act.
(ii) The Province has filed with the U.S. Securities and Exchange Commission (the
“SEC”) a registration statement or registration statements under Schedule B of the U.S.
Securities Act, which has or have become effective, for the registration of any Securities
which may be sold in the United States under the U.S. Securities Act. Each such
registration statement, as amended at the date of this Agreement, complies in all material
respects with the requirements of the U.S. Securities Act and the rules and regulations
thereunder. The Province has filed a Preliminary Final Prospectus (as defined below) with
the SEC pursuant to Rule 424 under the U.S. Securities Act, which has been furnished to the
Underwriters, and proposes to file with the SEC pursuant to Rule 424 under the U.S.
Securities Act a supplement to the form of prospectus included in the most recent
registration statement, or amendment thereto, filed with the SEC relating to the Securities
and the plan of distribution thereof and has advised you of all further information
(financial and other) with respect to the Province to be set forth therein. The
registration statement or registration statements, including the exhibits thereto and the
documents incorporated by reference therein, as amended at the date of this Agreement, is or
are herein called the “Registration Statement”; the prospectus in the form in which it
appears in the Registration Statement, including the documents incorporated by reference
therein, is herein called the “Basic Prospectus”; the Basic Prospectus as supplemented to
reflect the terms of the Securities and the terms of the offering thereof, in the form in
which it shall be first filed with the SEC pursuant to Rule 424 under the U.S. Securities
Act after the date hereof, including the documents incorporated by reference therein, is
herein called the “Final Prospectus”; and any preliminary form of the Final Prospectus which
has heretofore been filed pursuant to Rule 424 under the U.S. Securities Act, including the
documents incorporated by reference therein, is herein called the “Preliminary Final
Prospectus”.
(iii) The documents filed by the Province with the SEC pursuant to the U.S. Securities
Exchange Act of 1934, as amended (the “U.S. Exchange Act”) that are incorporated by
reference in the Preliminary Final Prospectus or the Final Prospectus, at the time they were
filed with the SEC, complied in all material respects with the requirements of the U.S.
Exchange Act and the rules and regulations thereunder.
(iv) The Province will use all reasonable efforts to publish a prospectus approved by
the UK Listing Authority as soon as possible after the Closing Date (as defined below) (the
“UKLA Prospectus”) in compliance with Directive 2003/71/EC (the “European Prospectus
Directive”) and all laws, regulations and rules implementing the European Prospectus
Directive, as amended from time to time and shall submit (or procure the submission on its
behalf of) such reports or information as may from time to time be required and otherwise
comply with the European Prospectus Directive and all laws, regulations and rules
implementing the European Prospectus Directive.
(v) As of the date hereof, when the Final Prospectus is first filed pursuant to Rule
424 under the U.S. Securities Act, when, prior to the Closing Date (as hereinafter defined),
any amendment to the Registration Statement becomes effective, when any
2
supplement to the Final Prospectus is filed with the SEC and at the Closing Date, (a)
the Registration Statement, as amended as of any such time and the Final Prospectus, as
amended or supplemented as of any such time, complied and will comply in all material
respects with the applicable requirements of the U.S. Securities Act and the rules and
regulations thereunder and (b) the Registration Statement, as amended as of any such time,
did not or will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements
therein not misleading, and the Final Prospectus, as amended or supplemented as of any such
time, will not contain any untrue statement of a material fact or omit to state any 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, and the summary set
out in the Final Prospectus is not misleading, inaccurate or inconsistent when read with
other parts of the Final Prospectus; provided, however, that the Province makes no
representations or warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in writing to the
Province by or on behalf of any Underwriter through the Representatives specifically for use
in connection with the preparation of the Registration Statement or the Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Province agrees to sell to each Underwriter,
and each Underwriter, severally and not jointly, agrees to purchase from the Province, at the
purchase price set forth in Schedule I hereto, the principal amount of the Securities set forth
opposite such Underwriter’s name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall be made at
the offices of Shearman & Sterling LLP, Xxxxxxxx Xxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, Xxxxxx
(or such other place as may be agreed to by the Representatives and the Province) at 9:00 a.m.,
Toronto time, on June 16, 2011 (or at such time on such later date not later than five business
days after such specified date as the Representatives and the Province shall agree upon), which
date and time may be postponed by agreement between the Representatives and the Province or as
provided in Section 10 hereof (such date and time of delivery and payment for the Securities being
herein called the “Closing Date”). Delivery of the Global Securities shall be made to the
Representatives or to their order for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase price thereof to
the Province in immediately available (same day) funds by transfer to a U.S. dollar account
specified by the Province. The Global Securities shall be substantially in the form annexed to the
Fiscal Agency Agreement and registered in the name of Cede & Co., as nominee of DTC.
The Global Securities shall be made available for inspection and checking by the
Representatives in Toronto, Ontario not later than 3:00 P.M. (Toronto time) on the business day
prior to the Closing Date. For purposes of this Agreement, “business day” shall mean a day on
which banking institutions in the City of Toronto are not authorized or obligated by law or
executive order to be closed.
3
4. Listing. The Province agrees with the Underwriters to file or cause to be filed an
application to the Financial Services Authority in its capacity as competent authority under the
Financial Services and Markets Xxx 0000, as amended (the “UK Listing Authority”), for the
Securities to be admitted to the Official List of the UK Listing Authority (the “Official List”)
and to the London Stock Exchange plc for the Securities to be admitted to trading on the Regulated
Market of the London Stock Exchange plc (the “Stock Exchange”) as soon as possible after the
Closing Date. References herein to “list”, “listed” or “listing” when used in relation to the Stock
Exchange shall mean admitted to the Official List and admitted to trading on the Regulated Market
of the Stock Exchange, which is a regulated market for the purposes of the Markets in Financial
Instruments Directive (2004/39/EC). The Province shall use all reasonable efforts to cause the
Securities to be listed on the Stock Exchange as soon as possible after the Closing Date. The
Province further agrees to furnish to the UK Listing Authority and the Stock Exchange all
documents, instruments, information and undertakings and to publish all advertisements or other
material that may be necessary in order to effect the listing of the Securities and to cause the
listing of the Securities on the Stock Exchange to be continued for so long as any of the
Securities remain outstanding; provided, however, that if in the opinion of the Province, the
continuation of such listing shall become unduly onerous, then the Province may delist the
Securities from the Stock Exchange; provided, further, that if the Securities are to be so delisted
from the Stock Exchange, the Province will use its best efforts to obtain the admission to listing,
trading and/or quotation of the Securities by another listing authority, securities exchange and/or
quotation system reasonably acceptable to the Representatives and the Province prior to the
delisting of the Securities from the Stock Exchange. The provisions of this Section 4 shall apply
to any other listing authority, securities exchange and/or quotation system on which the Securities
may be admitted to listing, trading and/or quotation mutatis mutandis.
5. Agreements. (a) The Province and the several Underwriters agree that:
(i) Prior to the termination of the offering of the Securities, the Province will not
file any amendment to the Registration Statement, any supplement to the Time of Sale
Information or the Final Prospectus, or any document that would as a result thereof be
incorporated by reference in the Time of Sale Information or the Final Prospectus, unless
the Province has furnished to the Underwriters a copy for their review prior to filing and
will not file any such proposed amendment, supplement or document to which the Underwriters
reasonably object, except that the Underwriters may not object to the filing, as exhibits to
an amendment on Form 18-K/A to the Province’s Annual Report on Form 18-K, of reports
prepared by the Province and the NB Power Group in the ordinary course. Subject to the
foregoing sentence, the Province will cause any Preliminary Final Prospectus and the Final
Prospectus to be filed (or mailed for filing) with the SEC pursuant to Rule 424 under the
U.S. Securities Act and the Province will file any Issuer Free Writing Prospectus to the
extent required by Rule 433 under the U.S. Securities Act. The Province will promptly
advise the Representatives (i) when the Time of Sale Information, the Final Prospectus or
any document that would as a result thereof be incorporated by reference in the Time of Sale
Information or the Final Prospectus shall have been filed (or mailed for filing) with the
SEC, (ii) when any amendment to the Registration Statement relating to the Securities shall
have become effective, (iii) of any request by the SEC for any amendment of the Registration
Statement or amendment of or supplement to the Time of Sale Information or the Final
Prospectus or for any additional
4
information relating thereto or to any document incorporated by reference in the
Preliminary Final Prospectus or the Final Prospectus, (iv) of the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the Province of any
notification with respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
The Province will use its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(ii) Before using or filing any Issuer Free Writing Prospectus, other than the Issuer
Free Writing Prospectus substantially in the form of Schedule I hereto, the Province will
furnish to the Representatives and counsel for the Underwriters a copy of the proposed
Issuer Free Writing Prospectus for review and will not use or file any such Issuer Free
Writing Prospectus to which the Representatives reasonably object; provided that the
Representatives may not object to a filing that is required.
(iii) If, at any time when a prospectus relating to the Securities is required to be
delivered under the U.S. Securities Act, any event occurs as a result of which the Time of
Sale Information or the Final Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they were made not misleading,
or if it shall be necessary to amend or supplement the Time of Sale Information or the Final
Prospectus to comply with the U.S. Securities Act or the rules and regulations thereunder,
the Province promptly will prepare and file with the SEC, subject to the first sentence in
paragraph (a)(i) of this Section 5, an amendment or supplement at its own expense which will
correct such statement or omission or an amendment which will effect such compliance.
(iv) Subject to the UKLA Prospectus being approved and published in accordance with
Section 1(iv), the Province shall update or amend the UKLA Prospectus by the publication in
accordance with the European Prospectus Directive of a supplement thereto or an update
thereof in the event that (A) a significant new factor, material mistake or inaccuracy
relating to the information included in the UKLA Prospectus which is capable of affecting
the assessment of the Securities arises or is noted, or (B) if there is any Significant (as
defined below) change affecting any matter contained in the UKLA Prospectus or a Significant
new matter arises, the inclusion of information in respect of which would have been so
required if it had arisen when the UKLA Prospectus was prepared, or if such supplement or
update would be required by the UK Listing Authority prior to the listing of such
Securities. Without prejudice to the generality of the foregoing, the Province undertakes
that in the period from and including the date when the UKLA Prospectus is approved by the
UK Listing Authority to and including the date when the Securities are issued it will only
prepare and publish a supplement to, or update of, the UKLA Prospectus if it is required, or
has reasonable grounds to believe that it is required, to do so in order to comply with
Section 87G of the Financial Services and Markets Xxx 0000. For the purposes of this
clause, “Significant” means significant for the purposes of making an informed assessment of
(A) the assets and liabilities, financial
5
position, profits and losses and prospects of the Province and (B) the rights attaching
to the Securities.
(v) The Province will make generally available to its security holders and to the
Representatives as soon as practicable after the close of its first fiscal year beginning
after the date hereof, statements of its revenues and expenditures for such fiscal year
which will satisfy the provisions of Section 11(a) of the U.S. Securities Act and the
applicable rules and regulations thereunder.
(vi) The Province will furnish to the Representatives, upon request, copies of the
Registration Statement (including exhibits thereto and documents incorporated by reference
therein) and each amendment thereto which shall become effective on or prior to the Closing
Date and, so long as delivery of a prospectus by an Underwriter or a dealer may be required
by the U.S. Securities Act or publication of a prospectus may be required by the European
Prospectus Directive, as many copies of any Preliminary Final Prospectus, any Issuer Free
Writing Prospectus, the Final Prospectus and the UKLA Prospectus and any amendments thereof
and supplements thereto as the Representatives may reasonably request.
(vii) The Province will arrange for the qualification of the Securities for offer and
sale and the determination of their eligibility for investment under the securities laws of
such states and other jurisdictions of the United States as the Representatives may
designate and will maintain such qualifications in effect so long as required for the
distribution of the Securities; provided, however, that the Province shall not be obligated
to take any action in connection with such qualification that would subject it to service of
process generally or require it to qualify as a dealer in securities.
(viii) If the Province has agreed with the relevant Representative(s) that the UK
Listing Authority will be requested to provide a certificate of approval to the competent
authority of one or more EEA Member State(s) under Article 17 and Article 18 of the European
Prospectus Directive, the arrangements relating to such request (including, but not limited
to, the cost of preparing any summary required pursuant to Article 19 of the European
Prospectus Directive) will be agreed between the Province and the relevant Representative(s)
at the relevant time.
In any such case, the Province undertakes that it will use all reasonable endeavors to
procure the delivery of a certificate of approval by the competent authority in the United
Kingdom to the competent authority in each such EEA Member State as agreed between the
Province and the relevant Representative(s).
Any translation of the summary set out in the UKLA Prospectus required pursuant to
Article 19 of the European Prospectus Directive shall be accurate and complete in all
material respects and shall not be misleading, inaccurate or inconsistent when read together
with the UKLA Prospectus.
For the purposes of the above, “EEA Member State” means the member states of the
European Union, together with Iceland, Norway and Liechtenstein.
6
(ix) The Province will pay (i) all expenses in connection with (a) the preparation,
issue, execution and delivery of the Securities (including fees of the registrar, fiscal
agent, transfer agent and paying agents and the fees and expenses of the Province’s legal
advisors), (b) the fee incurred in filing the Registration Statement (including all
amendments thereto), any Issuer Free Writing Prospectus and any Time of Sale Information
with the SEC, (c) all costs, expenses, fees or commissions, payable on or in connection with
the approval of the UKLA Prospectus by the UK Listing Authority and the granting of listing
for the Securities on the Stock Exchange and (d) any fee payable to rating services in
connection with the rating of the Securities, (ii) the cost of copying the documents
incorporated by reference in the Time of Sale Information and the Final Prospectus in such
quantities as the Representatives may reasonably request and the cost of delivering the same
to locations designated by the Representatives and satisfactory to the Province in its
reasonable judgment, (iii) all stamp duties or other like taxes and duties or value added
taxes payable under the laws of the United Kingdom upon and in connection with the
execution, issue and subscription of the Securities or the execution and delivery of this
Agreement and the Fiscal Agency Agreement and (iv) an amount up to US$125,000 to be applied
in reimbursement of the reasonable out-of-pocket expenses and costs of the Underwriters
(including any value added or equivalent tax on such expenses and costs) directly
attributable to the offering and sale of the Securities. Except as provided in this Section
5(a)(ix) and Section 9 hereof, the Province shall not be required to pay or bear any fees or
expenses of the Underwriters. In respect of clause (iv) above, the Representatives shall
deduct the amount of US$125,000 from the purchase price for the Securities, shall supply the
Province with an itemized account for such expenses within 90 days of the Closing Date and
shall repay the Province within 90 days of the Closing Date any shortfall between the
expenses so itemized and US$125,000.
(x) The Province will pay all costs incurred in connection with the printing of the
Final Prospectus, the UKLA Prospectus and each Preliminary Final Prospectus (including all
amendments thereof or supplements thereto), any Issuer Free Writing Prospectus and the cost
of delivering the same to locations designated by the Underwriters, the Province and each of
their counsel.
(b) Each Underwriter agrees that:
(i) It will cause the Representatives to deliver to the Province a letter prior to the
Closing Date containing the total sales of the Securities made in the initial distribution
in the United States together with an estimate of the number of Securities reasonably
expected to be sold within the United States in secondary market transactions within 40 days
of the Closing Date; provided, however, that the Underwriters shall bear no responsibility
for any discrepancy between such estimate and the actual number of Securities sold within
the United States pursuant to such secondary market transactions in such time period.
(ii) It has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any “free writing prospectus” (as defined in Rule 405 under the U.S.
Securities Act) (which term includes use of any written information furnished to the
7
SEC by the Province and not incorporated by reference into the Registration Statement
and any press release issued by the Province) other than (A) the Issuer Free Writing
Prospectus substantially in the form of Schedule I hereto or prepared pursuant to Section
5(a)(ii) above, or (B) any “free writing prospectus” prepared by such Underwriter and
provided to and consented to by the Province in advance in writing (each such “free writing
prospectus” referred to in this clause (B), an “Underwriter Free Writing Prospectus”);
provided that the Underwriters may use a Bloomberg term sheet in accordance with Section
5(b)(iv) below.
(iii) It has not and will not distribute any Underwriter Free Writing Prospectus
referred to in Section 5(b)(ii)(B) in a manner reasonably designed to lead to its broad
unrestricted dissemination unless the Province has consented in advance in writing to such
dissemination.
(iv) It has not used and will not use, without the prior written consent of the
Province, any “free writing prospectus” that contains the final terms of the Securities
unless such terms have previously been included in an Issuer Free Writing Prospectus filed
or to be filed with the SEC; provided that the Underwriters may use a Bloomberg term sheet
that contains some or all of the information in Schedule I hereto without the consent of the
Province; and provided further that such Bloomberg term sheet, solely as a result of use by
the Underwriters, would not trigger an obligation to file such free writing prospectus with
the SEC pursuant to Rule 433 under the U.S. Securities Act.
(v) It is not subject to any pending proceeding under Section 8A of the U.S. Securities
Act with respect to the offering (and will promptly notify the Province if any such
proceeding against it is initiated during the period that delivery of a prospectus by an
Underwriter or a dealer may be required by the U.S. Securities Act).
6. Selling Restrictions.
(a) European Economic Area. In relation to each Member State of the European Economic
Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each of the
underwriters has represented and agreed that with effect from and including the date on which the
Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation
Date”) it has not made and will not make an offer of Bonds which are the subject of the offering
contemplated by this prospectus supplement to the public in that Relevant Member State other than
any offers in the United Kingdom from the time the UKLA Prospectus has been approved by the UK
Listing Authority and published in accordance with the Prospectus Directive until such later date
as the Province may permit, and provided that the Province has consented in writing to use of the
UKLA Prospectus for any such offers, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of such Bonds to the public in that Relevant Member
State:
(i) to any legal entity which is a qualified investor as defined in the Prospectus
Directive;
8
(ii) to fewer than 100 or, if the Relevant Member State has implemented the relevant
provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than
qualified investors as defined in the Prospectus Directive), as permitted under the
Prospectus Directive, subject to obtaining the prior consent of the relevant underwriter or
underwriters nominated by the Province for any such offer; or
(iii) in any other circumstances falling within Article 3(2) of the Prospectus
Directive,
provided that no such offer of Bonds shall require the Province or any underwriter to publish a
prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to
Article 16 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer of Bonds to the public” in
relation to any Bonds in any Relevant Member State means the communication in any form and by any
means of sufficient information on the terms of the offer and the Bonds to be offered so as to
enable an investor to decide to purchase or subscribe the Bonds, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive in that Member State. In this
document, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto,
including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State),
and includes any relevant implementing measure in the Relevant Member State and the expression
“2010 PD Amending Directive” means Directive 2010/73/EU.
(b) United Kingdom. Each of the underwriters, on behalf of itself and each of its
affiliates that participates in the initial distribution of the Bonds, has represented and agreed
that:
(i) it has only communicated or caused to be communicated and will only communicate or
cause to be communicated an invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) received by it in connection with the issue
or sale of the Bonds in circumstances in which Section 21(1) of the FSMA does not apply to
the Province; and
(ii) it has complied and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Bonds in, from or otherwise involving the
United Kingdom.
Unless and until this document has been approved by the UK Listing Authority as part of the
UKLA Prospectus:
(i) this document is for distribution only to persons who (a) have professional
experience in matters relating to investments falling within Article 19(5) of the Financial
Services and Markets Xxx 0000 (Financial Promotion) Order 2005 (as amended, the “Financial
Promotion Order”), (b) are persons falling within Article 49(2)(a) to (d) (“high net worth
companies, unincorporated associations, etc.”) of the Financial Promotion Order, (c) are
outside the United Kingdom, or (d) are persons to whom an invitation or inducement to engage
in investment activity (within the meaning of section 21 of the FSMA) in connection with the
issue or sale of any securities may otherwise lawfully be
9
communicated or caused to be communicated (all such persons together being referred to
as “relevant persons”);
(ii) this document is directed only at relevant persons and must not be acted on or
relied on by persons who are not relevant persons; and
(iii) any investment or investment activity to which this document relates is available
only to relevant persons and will be engaged in only with relevant persons.
(c) Japan. The Bonds have not been and will not be registered under the Financial
Instruments and Exchange Law of Japan (Law No. 25 of 1948, as amended) and, accordingly, each of
the underwriters, on behalf of itself and each of its affiliates that participates in the initial
distribution of the Bonds, has undertaken that it has not offered or sold and will not offer or
sell any Bonds, directly or indirectly, in Japan or to, or for the benefit of, any Japanese Person
or to others for re-offering or resale, directly or indirectly, in Japan or to, or for the benefit
of, any Japanese Person except pursuant to an exemption from the registration requirements of the
Financial Instruments and Exchange Law of Japan (Law No. 25 of 1948, as amended), and under
circumstances which will result in compliance with all applicable laws, regulations and guidelines
promulgated by the relevant Japanese governmental and regulatory authorities and in effect at the
relevant time. For the purposes of this paragraph, “Japanese Person” shall mean any person resident
in Japan, including any corporation or other entity organized under the laws of Japan.
(d) Hong Kong. In addition, each of the underwriters, on behalf of itself and each of
its affiliates that participates in the initial distribution of the Bonds, has represented and
agreed that (1) it has not offered or sold and will not offer or sell in Hong Kong, by means of
this prospectus or any document, any Bonds other than (i) to “professional investors” within the
meaning of the Securities and Futures Ordinance (Cap. 571) of Hong Kong (the “SFO”) and any rules
made under the SFO, or (ii) in other circumstances which do not result in the document being a
''prospectus’’ within the meaning of the Companies Ordinance (Cap. 32) of Hong Kong or which do not
constitute an offer to the public within the meaning of such ordinance; and (2) it has not issued
or had in its possession for the purposes of issue, and will not issue or have in its possession
for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or
document relating to the Bonds, which is directed at, or the contents of which are likely to be
accessed or read by, the public of Hong Kong (except if permitted to do so under the securities
laws of Hong Kong) other than with respect to the Bonds which are or are intended to be disposed of
only to persons outside Hong Kong or only to “professional investors” within the meaning of the SFO
and any rules made thereunder.
(e) Italy. Until such time as the offering of the Bonds has been registered with
CONSOB (the Italian Securities Exchange Commission) pursuant to Italian securities legislation
(including the passporting of the Prospectus), no Bonds may be offered, sold or delivered, nor may
copies of this prospectus supplement or any other document relating to the Bonds be distributed in
the Republic of Italy, except:
10
(i) to professional investors (operatori qualificati) (the Professional
Investors), as defined in Article 31, second paragraph, of CONSOB Regulation No. 11522 of 1
July 1998, as amended (Regulation No. 11522); or
(ii) in circumstances which are exempted from the rules on solicitation of investments
pursuant to Article 100 of Legislative Decree No. 58 of 24 February 1998, as amended (the
Financial Services Act) and Article 33, first paragraph, of CONSOB Regulation No. 11971 of
14 May 1999, as amended (Regulation No. 11971).
At any time (both before and after registration with CONSOB) any offer, sale or delivery of
the Bonds or distribution of copies of this prospectus supplement or any other document relating to
the Bonds in the Republic of Italy must be:
(i) made by an investment firm, bank or financial intermediary permitted to conduct
such activities in the Republic of Italy in accordance with the Financial Services Act,
Regulation No. 11522 and Legislative Decree No. 385 of 1 September 1993, as amended (the
Banking Act); and
(ii) in compliance with Article 129 of the Banking Act and the implementing guidelines
of the Bank of Italy, as amended from time to time; and
(iii) in compliance with any other applicable laws and regulations or requirement
imposed by CONSOB or Bank of Italy.
In addition to the above (which shall continue to apply to the extent not inconsistent with
the implementing measures of the Prospective Directive in Italy), after the implementation of the
Prospectus Directive in Italy, the restrictions, warranties and representations set out under the
Prospectus Directive shall apply to the Republic of Italy.
Please note that in accordance with Article 100-bis of the Financial Services Act, where no
exemption from the rules on solicitation of investments applies, the subsequent distribution of the
Bonds on the secondary market in Italy must be made in compliance with the provisions set out in
the Basic Prospectus, this prospectus supplement and any amendments or supplements thereto and the
prospectus requirement rules provided under the Financial Services Act and Regulation No. 11971.
Failure to comply with such rules may result in a violation of public offering rules and/or the
sale of such Bonds being declared null and void and in the liability of the intermediary
transferring the financial instruments for any damages suffered by the investors.
(f) Belgium. Each underwriter has represented and agreed that it has not sold and
will not sell Bonds to any person qualifying as a consumer within the meaning of Article 1.7° of
the Belgian law of 14th July 1991 on consumer protection and trade practices unless such sale is
made in compliance with this law and its implementing regulation.
Only the persons or entities listed in article 56 of the Act of 16 June 2006 on the public
offer of investment instruments and the admission to trading of investment instruments on a
regulated market may act as intermediary in the context of a public offer of investment
instruments.
11
(g) Switzerland. Each of the underwriters, on behalf of itself and each of its
affiliates that participates in the initial distribution of the Bonds, has represented and agreed
that it has not offered or sold and will not offer or sell any Bonds, directly or indirectly, to
the public in Switzerland.
(h) Sale and Distribution. In addition to the provisions of Sections 6(a), (b), (c),
(d), (e), (f) and (g) above, each of the Underwriters, on behalf of itself and each of its
respective affiliates that participates in the initial distribution of the Securities, severally
represents to and agrees with the Province that it and each of its respective affiliates has not
offered, sold or delivered and will not offer, sell or deliver, directly or indirectly, any of the
Securities or distribute the Basic Prospectus, any Preliminary Final Prospectus, the Final
Prospectus, the Time of Sale Information, any “free writing prospectus”, or any other offering
material relating to the Securities, in or from any jurisdiction except under circumstances that
will, to the best of its knowledge and belief, after reasonable investigation, result in compliance
with the applicable laws and regulations thereof and which will not impose any obligations on the
Province except as contained in this Agreement. In addition, the Representatives agree with the
Province to cause each selling group member to agree to comply with the restrictions on offers and
sales of the Securities set forth in this Section 6.
(i) Authorizations. Without prejudice to the provisions of Sections 6(a), (b), (c),
(d), (e), (f) and (g) and except for the registration of the Securities under the U.S. Securities
Act and the qualification of the Securities for offer and sale and the determination of their
eligibility for investment under the applicable securities laws of such jurisdictions as the
Representatives may designate pursuant to Section 5(a)(vii), the Province shall not have any
responsibility for, and Underwriters severally agrees with the Province that each Underwriter and
their respective affiliates will obtain, any consent, approval or authorization required by them
for the subscription, offer, sale or delivery by them of any of the Securities under the laws and
regulations in force in any jurisdiction to which they are subject or in or from which they make
such subscription, offer, sale or delivery of any of the Securities.
7. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties on the part of the Province contained herein as of the date hereof, as of the date of
the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as of the Closing
Date, to the accuracy of the statements of the Province made in any certificates pursuant to the
provisions hereof, to the performance by the Province of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from
time to time, shall have been issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Province or the Representatives shall be contemplated by the SEC; and
the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00
P.M., New York City time, on the second business day following the date hereof or transmitted by a
means reasonably calculated to result in filing with the SEC by such date; and each Issuer Free
Writing Prospectus, to the extent required by Rule 433 under the U.S. Securities Act, shall have
been filed with the SEC under the U.S. Securities Act.
12
(b) The Province shall have furnished to the Representatives, on behalf of the Underwriters,
on or prior to the Closing Date, a written opinion dated the Closing Date of the Deputy Attorney
General, Acting Deputy Attorney General, Assistant Deputy Attorney General Legal Services or Acting
Assistant Deputy Attorney General Legal Services, addressed to the Minister of Finance of the
Province to the effect that, based on the assumptions and subject to the qualifications set forth
therein:
(i) this Agreement has been duly authorized, executed and delivered by the Province in
accordance with the laws of the Province and the Order or Orders of the Lieutenant-Governor
in Council applicable thereto, and constitutes a legal, valid and binding agreement of the
Province enforceable in accordance with its terms;
(ii) the Fiscal Agency Agreement has been duly authorized, executed and delivered by
the Province in accordance with the laws of the Province and the Order or Orders of the
Lieutenant-Governor in Council applicable thereto, and, assuming due execution and delivery
by the Fiscal Agent, constitutes a legal, valid and binding agreement of the Province
enforceable in accordance with its terms;
(iii) the Securities have been duly authorized and the Global Securities have been duly
executed by the Province in accordance with the laws of the Province and the Order or Orders
of the Lieutenant-Governor in Council applicable thereto, and, when authenticated in
accordance with the provisions of the Fiscal Agency Agreement and delivered to and paid for
by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding
obligations of the Province, enforceable in accordance with their terms;
(iv) the statements in the Preliminary Final Prospectus, read together with the Time of
Sale Information, and the Final Prospectus under the caption “Description of Debt Securities
— Canadian Income Tax Considerations,” as supplemented by “Taxation — Canadian Taxation” are
accurate in all material respects subject to the qualifications therein stated;
(v) the payment of principal of and interest on the Securities will be a charge on and
payable out of the Consolidated Fund of the Province of New Brunswick;
(vi) no authorization, consent, waiver or approval of, or filing, registration,
qualification or recording with, any governmental authority of the Province of New Brunswick
or of Canada is required in connection with the execution, delivery and performance by the
Province of this Agreement or the Fiscal Agency Agreement or the sale of the Securities by
the Province in the manner contemplated in this Agreement and the Final Prospectus, except
for the Order or Orders of the Lieutenant-Governor in Council and an approval under the
Provincial Loans Act (New Brunswick) and Loan Xxx 0000 (New Brunswick), which have been
obtained;
(vii) no stamp or other similar duty or levy is payable under the laws of the Province
of New Brunswick or the laws of Canada applicable in the Province in connection with the
execution, delivery and performance by the Province of this
13
Agreement and the Fiscal Agency
Agreement, or in connection with the issue and sale of the Securities by the Province in the
manner contemplated in this Agreement, the Time of Sale Information and the Final
Prospectus; and
(viii) Her Majesty the Queen in Right of the Province of New Brunswick may be sued in
the courts of the Province of New Brunswick with regard to any claims arising out of or
relating to the obligations of the Province under the Securities. No law in the Province of
New Brunswick requires the consent of any public official or authority for suit to be
brought or judgment to be obtained against Her Majesty the Queen in Right of the Province of
New Brunswick arising out of or relating to the obligations of the Province under the
Securities, though prior notice and particulars of a claim must be given to Her Majesty the
Queen in Right of the Province of New Brunswick. An amount payable by Her Majesty the Queen
in Right of the Province of New Brunswick under an order of a court of the Province of New
Brunswick that is final and not subject to appeal is payable out of the Consolidated Fund of
the Province of New Brunswick pursuant to the Proceedings Against the Crown Act (New
Brunswick).
(c) The Representatives, on behalf of the Underwriters, shall have received on the Closing
Date from Shearman & Sterling LLP, United States counsel to the Province, favorable opinions dated
the Closing Date, subject to such qualifications and based upon such assumptions as are customary
in the United States in respect of such opinion, to the effect that:
(i) the statements in the Time of Sale Information and the Final Prospectus under the
caption “Description of Bonds” and “Underwriting”, in each case, insofar as such statements
constitute summaries of documents referred to therein, fairly summarize in all material
respects the documents referred to therein; and
(ii) the statements in the Time of Sale Information and the Final Prospectus under the
caption “Description of Debt Securities — United States Income Tax Considerations”, as
supplemented by “Taxation — United States Taxation”, in each case, insofar as such
statements constitute summaries of legal matters referred to therein, fairly summarize in
all material respects the legal matters referred to therein.
Such counsel shall also state that based upon such counsel’s participation in conferences with
representatives of the Province, counsel for the Province and their examination of specified
documents, no facts have come to such counsel’s attention which caused such counsel to believe that
(A) the Registration Statement (other than the financial statements and other financial or
statistical data contained therein or omitted therefrom, as to which such counsel has not been
requested to comment), as of the date of this Agreement, 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; (B) the Time of Sale Information (other than the
financial statements and other financial or statistical data contained therein or omitted
therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale,
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 under which they were made, not
misleading; or (C) the Final Prospectus (other than the financial statements and other financial or
statistical data contained therein or omitted therefrom, as to which such
14
counsel has not been
requested to comment), as of its date or the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were made, not
misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus
(other than the financial statements and other financial or statistical data contained therein or
omitted therefrom, as to which such counsel has not been requested to comment) appear on their face
to be appropriately responsive in all material respects to the requirements of the U.S. Securities
Act and the applicable rules and regulations of the SEC thereunder.
In giving such opinions, such counsel may rely, without independent investigation, as to
matters relating to the federal law of Canada or the laws of the Province of New Brunswick, on the
opinion of the Deputy Attorney General, Acting Deputy Attorney General, Assistant Deputy Attorney
General Legal Services or Acting Assistant Deputy Attorney General Legal Services of the Province,
rendered pursuant to Section 7(b) hereof.
(d) The Representatives, on behalf of the Underwriters, shall have received on the Closing
Date from Xxxxxxxx & Xxxxxxxx LLP, United States counsel for the Underwriters, and Stewart,
McKelvey, Stirling & Scales, Canadian counsel for the Underwriters, favorable opinions dated the
Closing Date as to the form and validity of the Securities and as to the proceedings and other
related matters incident to the issuance and sale of the Securities on the Closing Date, and the
Representatives, on behalf of the Underwriters, shall have received on the Closing Date from
Xxxxxxxx & Xxxxxxxx LLP a favorable opinion dated the Closing Date with respect to the Registration
Statement, the Time of Sale Information and the Final Prospectus and other related matters as the
Representatives may reasonably require. In giving their opinion, Xxxxxxxx & Xxxxxxxx LLP may rely
upon the opinion of Stewart, McKelvey, Stirling & Scales as to matters of Canadian and New
Brunswick law.
(e) The Province shall have furnished to the Representatives, on behalf of the Underwriters,
on the Closing Date a certificate of the Province, signed by the duly authorized officer of the
Province (who may rely as to proceedings pending or contemplated upon the best of his knowledge),
dated the Closing Date, to the effect that:
(i) the representations and warranties of the Province in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same effect as if
made on the Closing Date and the Province has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, as
amended, has been issued and no proceedings for that purpose have been instituted or, to the
Province’s knowledge, threatened; and
(iii) there has been no material adverse change in the financial, economic or political
conditions of the Province from those set forth in or contemplated by the Registration
Statement, the Time of Sale Information and the Final Prospectus.
15
(f) Subsequent to the execution of this Agreement and on or prior to the Closing Date, there
shall not have been any decrease in the ratings of any of the Province’s long-term debt securities
by Xxxxx’x Investors Service or Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc.
(g) Prior to the Closing Date, the Province shall have furnished to the Representatives such
further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have been fulfilled in all
material respects when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives, this Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the Province in writing
or by telephone or facsimile transmission, in either case confirmed in writing.
8. Stabilization and Over-allotment. Any over-allotment or stabilization transaction
by the Underwriters in connection with the distribution of the Securities shall be effected by them
on their own behalf and not as agents of the Province, and any gain or loss arising therefrom shall
be for their own account. The Underwriters acknowledge that the Province has not been authorized
to issue Securities in excess of the principal amount set forth in Schedule I hereto. The
Underwriters also acknowledge that the Province has not authorized the carrying out by the
Underwriters of stabilization transactions other than in conformity with applicable rules,
including those made pursuant to applicable United Kingdom legislation and Regulation M under the
U.S. Exchange Act (if applicable).
9. Indemnification and Contribution.
(a) The Province agrees to indemnify and hold harmless each Underwriter and each of its
affiliates that participates in the initial distribution of the Securities and each person who
controls any Underwriter or any such affiliate within the meaning of either the U.S. Securities Act
or the U.S. Exchange Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the laws of any jurisdiction,
including but not limited to the U.S. Securities Act, the U.S. Exchange Act or other United States
Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Securities as originally filed or in any amendment thereof,
including all documents incorporated by reference, or in the Basic Prospectus, any Preliminary
Final Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information or the Final
Prospectus, or in any amendment thereof 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 agrees to reimburse, as incurred, each
such indemnified party, for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or action; provided,
however, that (i) the Province will not be liable in any such
16
case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Province by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the preparation thereof and
(ii) such indemnity with respect to the Basic Prospectus, any Preliminary Final Prospectus, any
Issuer Free Writing Prospectus or any Time of Sale Information shall not enure to the benefit of
any Underwriter or affiliate thereof (or any person controlling any Underwriter or affiliate) from
whom the person asserting any such loss, claim, damage or liability purchased the Securities which
are the subject thereof if such person did not receive the Time of Sale Information at or prior to
the sale of such Securities to such person and the untrue statement or omission of a material fact
contained in the Basic Prospectus, any Preliminary Final Prospectus or any Issuer Free Writing
Prospectus was corrected in the Time of Sale Information, the Underwriter was notified in an email
message or otherwise in writing of the correction and was provided with the corrected Basic
Prospectus, Preliminary Prospectus or Issuer Free Writing Prospectus prior to delivery or
conveyance of the Time of Sale Information to such person. This indemnity agreement will be in
addition to any liability which the Province may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the
Province:
(i) to the same extent as the foregoing indemnity from the Province to such
Underwriter, but only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity with written
information furnished to the Province by or on behalf of such Underwriter through the
Representatives specifically for use in the preparation of the documents referred to in the
foregoing indemnity; and
(ii) against any and all losses, claims, damages or liabilities, joint or several, to
which the Province may become subject under the laws of any jurisdiction, including but not
limited to the U.S. Securities Act, the U.S. Exchange Act or other United States Federal or
state statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact contained in any
document prepared by such Underwriter and distributed by it in connection with the offering
of the Securities, including any “free writing prospectus”, or which arise out of or are
based upon the omission or alleged omission to state therein a material fact necessary to
make the statements therein not misleading, and which statement or omission is not contained
in the Time of Sale Information, the Final Prospectus or the agreed press releases.
Each Underwriter, severally and not jointly, agrees to reimburse, as incurred, any legal or
other expenses reasonably incurred by the Province in connection with investigating or defending
any such loss, claim, damage, liability or action referred to in clauses (i) and (ii) above. This
indemnity agreement will be in addition to any liability which any Underwriter may otherwise have.
The Province acknowledges, for the purposes of clause (i) above, that the statements set forth
under the heading “Underwriting” (except for the statements in the paragraphs relating to the
European Economic Area, the FSMA and the securities laws of Italy,
00
Xxxxxxx, Xxxxx and Hong Kong and the sentence relating to stamp taxes and other charges and expenses of the offering) in any
Preliminary Final Prospectus or the Final Prospectus constitute the only information furnished in
writing by or on behalf of the Underwriters for inclusion in any of the documents referred to in
the foregoing indemnity, and the Underwriters confirm that such statements are correct; provided
that such acknowledgement by the Province does not extend to any “free writing prospectus” other
than the Issuer Free Writing Prospectus in the form of Schedule I hereto.
(c) Each of the Province and the Underwriters agree that the Underwriters shall have and hold
the covenants of the Province contained in this Section 9 in respect of the Underwriters’
controlling persons (as defined above) and affiliates in trust for the benefit of their controlling
persons and affiliates. The Underwriters agree to accept the trusts in this paragraph (c) declared
and provided for and agree to enforce those covenants on behalf of such persons.
(d) Promptly after receipt by an indemnified party under this Section 9 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 9, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than under this
Section 9.
In case any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be entitled to appoint
counsel satisfactory to such indemnified party to represent the indemnified party in such action;
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 reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to defend such action on behalf of such indemnified party
or parties. An indemnifying party will not, without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld or delayed), 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. In order to be entitled to an
indemnity with respect to a claim hereunder, an indemnified party will not, without the prior
written consent of the indemnifying parties (which consent shall not be unreasonably withheld or
delayed), settle or compromise or consent to the entry of any judgment with respect to such pending
or threatened claim, action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnifying parties are actual or potential parties to
such claim or action).
Upon receipt of notice from the indemnifying party to such indemnified party of its election
so to appoint counsel to defend such action and approval by the indemnified party of such counsel,
the indemnifying party will not be liable to such indemnified party under this
18
Section 9 for any
legal or other expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless:
(i) the indemnified party shall have employed separate counsel in accordance with the
proviso to the first sentence of the next preceding paragraph (it being understood, however,
that the indemnifying party shall not be liable for the expenses of more than one separate
counsel, approved by the Representatives in the case of paragraph (a) of this Section 9,
representing the indemnified parties under such paragraph (a) who are parties to such
action),
(ii) the indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable time after
notice of commencement of the action, or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
(e) In order to provide for just and equitable contribution in circumstances in which the
indemnification provided for in paragraph (a) of this Section 9 is due in accordance with its terms
but is for any reason held by a court to be unavailable from the Province on grounds of policy or
otherwise, the Province and the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection with
investigating or defending same) to which the Province and the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion represented by the percentage
that the underwriting discount specified in Schedule I hereto bears to the sum of such discount and
the purchase price of the Securities specified in Schedule I hereto and the Province is responsible
for the balance; provided, however, that (a) in no case shall any Underwriter be responsible for
any amount in excess of the underwriting discount applicable to the Securities purchased by such
Underwriter hereunder and (b) no person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the U.S. Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this Section 9, each person
who controls an Underwriter within the meaning of the U.S. Securities Act shall have the same
rights to contribution as the Underwriters, and each person who controls the Province within the
meaning of the U.S. Securities Act and each official of the Province who shall have signed the
Registration Statement shall have the same rights to contribution as the Province. Any party
entitled to contribution will, promptly after receipt of notice of commencement of any action, suit
or proceeding against such party in respect of which a claim for contribution may be made against
another party or parties under this paragraph (e), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this paragraph (e).
10. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or
19
Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such non-defaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to any non-defaulting
Underwriter or the Province. In the event of a default by any Underwriter as set forth in this
Section 10, the Closing Date shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the Registration Statement
and the Final Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Province and any non-defaulting Underwriter for damages occasioned by its default hereunder.
11. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives or the Province, by notice given to the Province or the
Representatives, as the case may be, prior to delivery and payment for the Securities, if prior to
that time, there shall have occurred such a change in national or international financial,
political or economic conditions or currency exchange rates or exchange controls which, in the
reasonable judgment of the Representatives or the Province, as the case may be, is material and
adverse and such changes, singly or together with any other such change, makes it, in the
reasonable judgment of the Representatives or the Province, as the case may be, impracticable to
market the Securities on the terms and in the manner contemplated in the Time of Sale Information
or the Final Prospectus. Notwithstanding any such termination, the provisions of Sections 9, 12,
and 15 hereof shall remain in effect.
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Province and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or the Province or any of
the officers, directors or controlling persons referred to in Section 9 hereof, and will survive
delivery of and payment for the Securities.
13. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives on behalf of the Underwriters, will be mailed,
delivered, telecopied or telegraphed and confirmed to them care of Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, or, if sent to the Province, will be
mailed, delivered, telecopied or telegraphed and confirmed at the Department of Finance, Treasury
Division, 000 Xxxx Xxxxxx, Xxxx 000, Xxxxxxxxxxx, Xxx Xxxxxxxxx, X0X 0X0, attention: Assistant
Deputy Minister, Treasury Division, Department of Finance (Telecopier No. 506-453-2053).
20
14. Successors and Assigns. This Agreement will enure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted assigns and the
officials and controlling persons referred to in Section 9 hereof, and no other person will have
any right or obligation hereunder. Neither this Agreement nor any interest or obligation in or
under this Agreement may be assigned by the Underwriters without the prior written consent of the
Province or by the Province without the prior written consent of the Representatives on behalf of
the Underwriters.
15. Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the Province of New Brunswick and the laws of Canada applicable in New Brunswick.
16. No Fiduciary Relationship. The Province acknowledges and agrees that: (a) the
purchase and sale of the Bonds pursuant to this Agreement is an arm’s-length commercial transaction
between the Province, on the one hand, and the Underwriters, on the other hand; (b) in connection
with the offerings contemplated hereby and the process leading to such transaction the Underwriters
are and have been acting as a principal and are not the agent or fiduciary of the Province, or its
respective creditors, employees or any other party; and (c) the Underwriters have not provided any
legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and
the Province has consulted its own respective legal, accounting, regulatory and tax advisors to the
extent it deemed appropriate.
17. Counterparts. This Agreement may be executed in one or more counterparts
(including counterparts by facsimile) and when a counterpart has been executed by each party hereto
all such counterparts taken together shall constitute one and the same agreement.
18. Advertisements. All advertisements of the issue of the Securities or publication
of such formal notice as may be required by the rules of the Stock Exchange in connection with the
listing of the securities on the Stock Exchange shall be published in a form or forms and manner to
which the Province consents in writing prior to the date of publication. The Province may withhold
its consent in its discretion regarding the use of any symbol in any such advertisement and the
publication in which such advertisement is to appear.
19. Time of the Essence. Time shall be of the essence in this Agreement.
20. Representation of Underwriters. In all dealings hereunder, the Representatives
shall, and have all necessary authority to, act on behalf of each of the Underwriters, and the
Province shall be entitled to act and rely upon any statement, request, notice or agreement given
by the Representatives, jointly or individually, on behalf of any of the Underwriters.
21
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Province and the Underwriters.
Very truly yours, Province of New Brunswick |
||||
By: | /s/ Xxxxxxx Xxx-Xxxxx | |||
Name: | Xxxxxxx Xxx-Xxxxx | |||
Title: | Assistant Deputy Minister Department of Finance |
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
Agreement is hereby confirmed
and accepted as of the date
first above written.
RBC Capital Markets, LLC |
||||
By: | /s/ Jigme Shingsar | |||
Name: | Jigme Shingsar | |||
Title: | Authorized Signatory | |||
Acting for itself and on behalf of
the several Representatives
and the several Underwriters
the several Representatives
and the several Underwriters
SCHEDULE I
Province of New Brunswick
(Canada)
(Canada)
US$750,000,000 2.750% Bonds, Series HD, due June 15, 2018
Final Term Sheet
Approved for External Use
Issuer:
|
Province of New Brunswick | |
Title:
|
2.750% Bonds, Series HD, due June 15, 2018 | |
Format:
|
SEC Registered Global Offering | |
Ranking:
|
Direct, unconditional debt | |
Size:
|
US$750,000,000 | |
Trade Date:
|
June 9, 2011 | |
Settlement Date:
|
June 16, 2011 | |
Maturity:
|
June 15, 2018 | |
Interest Payment Dates:
|
June 15 and December 15 of each year | |
First Interest Payment Date:
|
December 15, 2011, short first coupon | |
Spread to Benchmark Treasury:
|
T+ 54.55bps | |
Spread to Mid-Swaps:
|
+ 35bps | |
Benchmark Treasury:
|
2.375% due 5/31/2018 | |
UST Spot/Yield:
|
100-25+ /2.251% | |
Yield to Maturity:
|
2.797% | |
Coupon:
|
2.750% payable semi-annually | |
Price:
|
99.703%, plus accrued interest, if any, from June 16, 2011 |
I-1
Day Count:
|
30/360 | |
Minimum Denominations:
|
US$5,000 and integral multiples of US$1,000 for amounts in excess of US$5,000 | |
Joint Lead Managers:
|
BofA Xxxxxxx Xxxxx | |
CIBC | ||
RBC Capital Markets | ||
Co-managers:
|
National Bank of Canada Financial | |
Scotia Capital | ||
TD Securities | ||
BMO Capital Markets | ||
Cusip#/ISIN#:
|
642869 AC5/US642869AC54 | |
Listing:
|
Admission to UKLA’s Official List and to trading on London Stock Exchange’s regulated market may be completed following settlement. | |
Governing Law:
|
Province of New Brunswick and Canada. | |
Prospectus and Prospectus
Supplement:
|
Prospectus dated as of December 15, 2006 and Preliminary Prospectus Supplement dated as of June 9, 2011 | |
xxxx://xxx.xxx.xxx/Xxxxxxxx/xxxxx/xxxx/000000/000000000000000000/x00000x000x0.xxx | ||
United States Taxation:
|
Notwithstanding any express limitation to the contrary, the discussion in the Prospectus describes the material United States federal income tax considerations regarding the purchase, ownership and disposition of the Bonds to U.S. Holders (as defined in the Prospectus) who are initial purchasers of Bonds purchasing Bonds at the price set forth in this term sheet, even though the Bonds are issued with de minimis original issue discount. | |
Recent developments: Certain U.S. Holders who are individuals, estates or trusts are required to pay an additional 3.8% tax on, among other things, interest and capital gains for taxable years beginning after December 31, 2012. In addition, certain U.S. Holders who are individuals that hold certain foreign financial assets (which may include the |
I-2
Bonds) are required to report information relating to such assets, subject to certain exceptions. U.S. Holders should consult their tax advisors regarding the effect, if any, of these requirements on their ownership and disposition of the Bonds. | ||
Stabilization:
|
Reg M/FSA Rules | |
Legends:
|
This communication is intended for the sole use of the person to whom it is provided by us. | |
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated at 1-800-294-1322, CIBC World Markets Corp. at 0-000-000-0000 or RBC Capital Markets, LLC at 0-000-000-0000. | ||
European Economic Area
Legends:
|
If and to the extent that this announcement is communicated in, or the offer of the Bonds to which it relates is made in, any European Economic Area Member State that has implemented Directive 2003/71/EC (and amendments thereto, including Directive 2010/73/EU, to the extent implemented in that Member State and including any relevant implementing measure in that Member State) (the “Prospectus Directive”) (other than the United Kingdom, once the UKLA Prospectus as defined below has been approved by the Financial Services Authority), this announcement and the offer are only addressed to and directed at persons in that Member State who are qualified investors as defined in the Prospectus Directive (or who are other persons to whom the offer may lawfully be addressed) and must not be acted upon by other persons in that Member State. |
I-3
This document does not constitute or form part of any offer or invitation to sell these Bonds and is not soliciting any offer to buy these Bonds in any jurisdiction where such offer or sale is not permitted. | ||
This document is, for the purposes of Article 15 of the Prospectus Directive, not a prospectus but an advertisement, and investors in the European Economic Area should not subscribe for or purchase these Bonds once admitted to trading on the London Stock Exchange plc’s Regulated Market except on the basis of information in the UKLA Prospectus (as defined below). The Province intends to file a single prospectus (the “UKLA Prospectus”) pursuant to Section 5.3 of the Prospectus Directive with the Financial Services Authority in its capacity as competent authority under the Financial Services and Markets Xxx 0000, as amended, for the purpose of having these Bonds admitted to trading on the London Stock Exchange plc’s Regulated Market as soon as possible after closing of this issue. Once approved, the UKLA Prospectus will be published in accordance with the Prospectus Directive and investors will be able to view the UKLA Prospectus on the website of the Regulatory News Service operated by the London Stock Exchange at xxxx://xxx.xxxxxxxxxxxxxxxxxxx.xxx/xxxxxxxx/xxxxxx-xxx-xxxx/xxxx/xxxxxx-xxxx/xxxxxx-xxxxxxxx.xxxx under the name “Province of New Brunswick” and the headline “Publication of Prospectus” and investors will be able to obtain copies without charge from the office of the Department of Finance, Treasury Division, 000 Xxxx Xxxxxx, Xxxx 000, Xxxxxxxxxxx, Xxx Xxxxxxxxx, Xxxxxx X0X 0X0. As from the date the UKLA Prospectus is published, investors in the European Economic Area should refer to the UKLA Prospectus and not to this advertisement for the purpose of considering whether to subscribe for or purchase any bonds. | ||
This announcement is only being distributed to and is only directed at (i) persons who are outside the United Kingdom or (ii) to investment professionals |
I-4
falling within Article 19(5) of the Financial Services and Markets Xxx 0000 (Financial Promotion) Order 2005 (the “Order”) or (iii) high net worth entities, and other persons to whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order (all such persons together being referred to as “relevant persons”). The Bonds are only available to, and any invitation, offer or agreement or subscribe, purchase or otherwise acquire such Bonds will be engaged in only with, relevant persons. Any person who is not a relevant person should not act or rely on this document or any of its contents. | ||
Other:
|
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM. |
I-5
SCHEDULE II
Principal Amount | ||||
of Securities to | ||||
Underwriter | be Purchased | |||
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
US$ | 210,000,000 | ||
CIBC World Markets Corp. |
210,000,000 | |||
RBC Capital Markets, LLC |
210,000,000 | |||
National Bank Financial Inc. |
37,500,000 | |||
Scotia Capital (USA) Inc. |
37,500,000 | |||
TD Securities (USA) LLC |
37,500,000 | |||
Bank of Montreal, London Branch |
7,500,000 | |||
Total |
U.S.$ | 750,000,000 | ||
II-1