Exhibit-99.N
Province of New Brunswick
(Canada)
UNDERWRITING AGREEMENT
New York, New York
October 16, 2002
To the Representatives
named in Schedule I hereto
of the Underwriters named
in Schedule II hereto
Dear Sirs:
The Province of New Brunswick (the "Province") proposes to sell to
the underwriters named in Schedule II hereto (the "Underwriters"), for whom
you are acting as representatives (the "Representatives"), the principal
amount of its securities identified in Schedule I hereto (the "Securities") to
be issued under a fiscal agency agreement (the "Fiscal Agency Agreement")
dated as of October 23, 2002, between the Province and Royal Bank of Canada as
fiscal agent (the "Fiscal Agent"). If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives", as used herein, shall each be
deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Province represents and
warrants to, and agrees with, each Underwriter that:
(a) The Province has filed with the Securities and Exchange
Commission (the "Commission") one or more registration statements (the file
numbers of which are set forth in Schedule I hereto) for the registration
under the Securities Act of 1933, as amended (the "Act") of the Securities.
The Province may have filed one or more amendments to such registration
statements, and such registration statements, as so amended, have become
effective. The Province proposes to file with the Commission pursuant to Rule
424(b) under the Act a supplement to the form of prospectus included in such
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registration statements relating to the Securities and the plan of
distribution thereof and has previously advised you of all further information
(financial and other) with respect to the Province to be set forth therein.
Such registration statements, including the incorporated documents and
exhibits thereto, as amended at the date of this Agreement are hereinafter
collectively called the "Registration Statement"; such prospectus in the form
in which it appears in the Registration Statement is hereinafter called the
"Basic Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424(b) (including
the Basic Prospectus as so supplemented) is hereinafter called the "Final
Prospectus". Any preliminary form of the Final Prospectus which has heretofore
been filed pursuant to Rule 424(b) is hereinafter called the "Preliminary
Final Prospectus". Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein which were filed under the Securities Exchange Act of 1934
(the "Exchange Act") on or before the date of this Agreement or the issue date
of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective, when any supplement to the Final Prospectus is filed with the
Commission and at the Closing Date, (i) the Registration Statement, as amended
as of any such time, and the Final Prospectus, as amended or supplemented as
of any such time, will comply in all material respects with the applicable
requirements of the Act and the rules thereunder and (ii) neither the
Registration Statement, as amended as of any such time, nor the Final
Prospectus, as amended or supplemented as of any such time, will 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; provided, however, that the Province
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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 and the Final Prospectus.
(c) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, except as set
forth in the Registration Statement and the Final Prospectus, there has not
been any material adverse change in the financial, economic or political
condition of the Province, other than changes arising in the ordinary and
normal course.
(d) All necessary action by or on behalf of the Province has been
taken or will have been taken prior to the Closing Date, and prior to such
date any necessary approvals or consents required under the laws of Canada and
the Province will have been duly obtained, and on such date will be in full
force and effect, for the authorization, execution and delivery of this
Agreement and of the Securities by the Province and for the issuance and sale
of the Securities by the Province under this Agreement.
(e) The Securities are to be issued under the authority of the
Provincial Loans Act, and any Other Applicable Statutes appearing in Schedule
I hereto, and Orders of the Lieutenant-Governor in Council of the Province,
and in conformity with the provisions of said Statutes and Orders-in-Council.
(f) When issued, executed and delivered against payment therefor in
accordance with the terms hereof, the Securities will be validly issued, the
Securities and covenants therein contained will constitute valid and legally
binding direct and unconditional general obligations of the Province in
accordance with their terms, for the payment and performance of which the full
faith and credit of the Province will be pledged, and the Securities will rank
pari passu with all other general obligations of the Province outstanding at
the date of issue of the Securities or issued thereafter without any
preference granted by the Province one above the other by reason of priority
of date of issue, currency of payment or otherwise.
(g) The Province is not in default under the provisions of any
agreement or of any instrument evidencing or relating to any outstanding
indebtedness; and neither the
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execution and delivery of, nor the compliance with, this Agreement, the
Securities or the covenants contained therein will conflict with, or
constitute a breach of, or a default under, any agreement or other instrument
to which the Province is a party or by which it is bound, or any law or
regulation.
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 agrees,
severally and not jointly, 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, except that,
if Schedule I hereto provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective principal amounts of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II hereto less
the respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities".
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase Securities from the Province pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form
of Schedule III hereto but with such changes therein as the Province may
authorize or approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Province will pay to the Representatives,
for the account of the Underwriters, on the Closing Date, the percentage set
forth in Schedule I hereto of the principal amount of the Securities for which
Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Province will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have
been approved by the Province but, except as the Province may otherwise agree,
each such Delayed Delivery Contract must be for not less than the minimum
principal amount set forth in Schedule I hereto and the aggregate principal
amount of Contract Securities may not exceed the maximum aggregate principal
amount set forth in Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity
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or performance of Delayed Delivery Contracts. The principal amount of
Securities to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount which shall bear the same proportion to
the total principal amount of Contract Securities as the principal amount of
Securities set forth opposite the name of such Underwriter bears to the
aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Province in writing; provided, however, that the
total principal amount of Securities to be purchased by all Underwriters shall
be the total principal amount set forth in Schedule II hereto less the
aggregate principal amount of Contract Securities.
3. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for all the Underwriters' Securities agreed to be
purchased by such Underwriter or 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 principal amounts of Securities set forth opposite their names in
Schedule II hereto bear to the aggregate principal amount of Underwriters'
Securities set forth opposite the names of all the remaining Underwriters, or
in such other proportions as you may specify in accordance with the provisions
of the agreement among Underwriters relating to the offering of the
Securities) the Underwriters' Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Underwriters' Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Underwriters' 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
Underwriters' Securities, and if such nondefaulting Underwriters do not
purchase all the Underwriters' Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Province. In the
event of a default by any Underwriter as set forth in this Section 3, 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 herein contained shall relieve any
defaulting Underwriter of its liability, if any, to the
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Province and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
4. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwriters' Securities shall be made at the place, on the date and at the
time specified in Schedule I hereto (or such later date not later than five
business days after such specified date as the Representatives shall
designate), which date and time may be postponed by agreement between the
Representatives and the Province or as provided in Section 3 hereof (such date
and time of delivery and payment for the Underwriters' Securities being herein
called the "Closing Date"). Delivery of the Underwriters' Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Province by wire transfer or by certified or official bank check or checks
payable in Federal (same day) funds. Certificates for the Underwriters'
Securities shall be registered in such names and in such denominations as the
Representatives may request not less than two full business days in advance of
the Closing Date.
5. AGREEMENTS. The Province agrees with the Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Province will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless the
Province shall have furnished you a copy of such proposed amendment or
supplement for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, the Province will cause the Final Prospectus to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Province will promptly advise the
Representatives (i) when the Final Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b), (ii) when,
prior to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iii) of any
request by the Commission for any amendment of the Registration Statement or
amendment of or supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
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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.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
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 the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or supplement
the Final Prospectus to comply with the Act or the rules thereunder, the
Province promptly will prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 5, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance.
(c) The Province will make generally available to its security
holders and to the Representatives as soon as practicable after the close of
each of the next two fiscal years, the statement of its revenues and
expenditures for such fiscal years.
(d) The Province will furnish to the Representatives, without
charge, copies of the Registration Statement (five copies of which will be
signed and will include all financial statements and exhibits) 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 dealer may be
required by the Act, as many copies of any Preliminary Final Prospectus and
the Final Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(e) The Province will furnish such information, execute such
instruments and take such actions as may be required to qualify the Securities
for sale under the laws of such jurisdictions as the Representatives may
designate and will maintain such qualifications in effect so long as required
for the distribution of the Securities.
(f) Until the business day following the Closing Date, the Province
will not, without the consent of the Representatives, offer, sell or contract
to sell, or
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announce the offering of, any debt securities covered by the Registration
Statement or any other registration statement filed under the Act.
(g) So long as any of the Securities are outstanding, the Province
will furnish to you, and upon request, to each of the other Underwriters, as
soon as practicable after the approval thereof, its annual budget, and, as
soon as practicable after the determination thereof, its annual statement of
its revenues and expenditures.
(h) Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Province will pay all costs
and expenses incident to the performance of its obligations hereunder,
including, without limiting the generality of the foregoing, all costs, taxes
and expenses incident to the issuance and delivery of the Securities to the
Underwriters, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), all
preliminary prospectuses, the Final Prospectus and any amendments thereof or
supplements thereto, all costs and expenses (including fees of counsel for the
Underwriters and their disbursements) incurred in connection with "blue sky"
qualifications and determining the legality of the Securities for investment,
all costs and expenses in connection with the printing of this Agreement and
the furnishing to underwriters and dealers of copies of the Registration
Statement, the Preliminary Final Prospectus and the Final Prospectus,
including mailing and shipping, as herein provided, and any fees payable to
rating services in connection with the rating of the Securities.
6. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Province prior to delivery of and payment for the Securities, if after the
date hereof and prior to such time (i) there shall have occurred any change,
or development involving a prospective change, in or affecting particularly
the financial, economic or political condition of the Province, which, in the
judgment of the Underwriters including you, materially impairs the investment
quality of the Securities, (ii) there shall have been any decrease in the
rating of any of the Province's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act) or any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not indicate the
direction of the possible change, (iii) trading in securities generally on the
New York Stock Exchange shall
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have been suspended or limited or minimum prices shall have been established
on such Exchange, (iv) a banking moratorium shall have been declared either by
Federal, New York State or Canadian authorities or (v) there shall have
occurred any outbreak or escalation of hostilities or other calamity or crisis
the effect of which on financial markets is such as to make it, in the
judgment of the Representatives, impractical or inadvisable to proceed with
the completion of the sale and payment for the Securities.
7. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Underwriters' 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 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 the following
additional conditions:
(a)(i) The Province shall have complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to the Closing Date and the representations and warranties of the Province
herein contained shall be true and correct on the date hereof and on the
Closing Date; (ii) at the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or shall be pending,
or, to the knowledge of the Province, shall be contemplated by the Commission
and the Final Prospectus shall have been filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) in the manner and within the time
period required by such Rule; and (iii) there shall have been no material
adverse change in the financial, economic or political condition of the
Province from that set forth in the Registration Statement and the Final
Prospectus other than changes arising in the ordinary and normal course and
you shall have received, on the Closing Date, a certificate, dated the Closing
Date, signed by the Minister of Finance, the Deputy Minister of Finance or the
Assistant Deputy Minister, Treasury Division of the Province, to the effect
set forth in (i), (ii) and (iii) above (to the best of his knowledge after
reasonable investigation).
(b) The Province shall have furnished to the Representatives a copy,
certified by the Minister of Finance, the Deputy Minister of Finance or the
Assistant
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Deputy Minister, Treasury Division of the Province, of a written opinion dated
the Closing Date, of the Attorney General or Deputy Attorney General,
addressed to the Minister of Finance, to the effect that:
(i) all necessary action has been duly taken by or on behalf of the
Province, and all necessary approvals and consents required under the
laws of the Province and Canada have been obtained, to authorize the
issuance and sale of the Securities; the Securities have been duly
executed, issued and delivered in accordance with the laws of the
Province and Canada and the order or orders of the Lieutenant-Governor in
Council of the Province applicable thereto; the Securities and the
covenants therein contained constitute valid and legally binding, direct
and unconditional general obligations of the Province in accordance with
their terms, for the payment and performance of which the full faith and
credit of the Province is and will be pledged; and the Securities rank
pari passu with all other general obligations of the Province outstanding
at the date of issue thereof without any preference granted by the
Province one above the other by reason of priority of date of issue,
currency of payment or otherwise;
(ii) this Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Province in accordance
with the laws of the Province and Canada and the Order or Orders of the
Lieutenant-Governor in Council of the Province;
(iii) the Fiscal Agency Agreement has been fully authorized,
executed and delivered by the Province in accordance with the laws of the
Province and any laws of Canada applicable thereto and the Order or
Orders of the Lieutenant-Governor in Counsel of the Province applicable
thereto and, assuming due execution and delivery by the other party
thereto, constitutes a valid and legally binding agreement of the
Province enforceable in accordance with its terms; and
(iv) he has no reason to believe that either the Registration
Statement or the Final Prospectus, or any amendment or supplement
thereto, contains any untrue statement of a material fact or omits to
state a material fact necessary to make such statements therein not
misleading (except that no opinion need be expressed as to the financial
statements or other financial data contained in the Registration
Statement and Final Prospectus); the descriptions in the
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Registration Statement and Final Prospectus of the Securities, of
statutes, legal and governmental proceedings and of other contracts and
documents are accurate and fairly present the information purported to be
shown; and he does not know of any material legal or governmental
proceedings which are not described in the Final Prospectus, nor of any
contracts or documents of a character required to be described in the
Registration Statement or Final Prospectus or to be filed as exhibits to
the Registration Statement which are not described and filed as required.
Such opinion shall also cover the matters set forth under the
captions "Description of Debt Securities-- Enforceability" and "Tax
Matters--Canadian Taxation" in the Final Prospectus and such other matters
incident to the transactions contemplated by this Agreement as you may
reasonably request, including the form of all papers, and the validity of all
proceedings.
(c) The Representatives shall have received from Xxxxxxx XxXxxxxx
Stirling Scales, special Canadian counsel for the Underwriters, who may assume
that the Securities have been duly executed by or on behalf of the Province in
the manner evidenced by a specimen Security, a favorable opinion or opinions,
dated as of the Closing Date, as to the matters specified in subparagraphs
(i), (ii) and (iii) of paragraph (b) of this Section 7; to the further effect
that on the basis of the information which was developed in the course of the
performance of their services, considered in the light of their understanding
of the applicable law and the experience they have gained through their
practice thereunder, such counsel has no reason to believe that the
Registration Statement or the Final Prospectus or any amendment or supplement
thereto contains any untrue statement of a material fact or omits to state any
material fact necessary to make the statements therein not misleading; it
being understood, however, that in giving such opinion such counsel may state
that the limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration
process are such that such counsel need not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Final Prospectus or any amendment or supplement
thereto, except for those made in the Final Prospectus under the caption
"Description of Debt Securities" and "Tax Matters--Canadian Taxation" insofar
as they relate to provisions of Canadian or Provincial statutes or the
application of Canadian or Provincial law to the documents therein described;
and that such counsel need not
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express any opinion or belief as to financial statements or other financial
data contained in the Registration Statement and the Final Prospectus; and as
to such other matters incident to the transactions contemplated by this
Agreement as you may reasonably request.
(d) The Representatives shall have received from Cravath, Swaine &
Xxxxx, counsel for the Underwriters, who may rely on counsel named in
paragraphs (b) and (c) of this Section 7 such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, any
Delayed Delivery Contracts, the Registration Statement, the Final Prospectus,
any amendment or supplement thereto and other related matters as the
Representatives may reasonably require, and the Province shall have furnished
to such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(e) The purchase and sale of the Securities in accordance with the
provisions hereof shall not be prohibited by any statute, order, rule or
regulation formally proposed or promulgated by any legislature or regulatory
body or authority of Canada, the United States of America, the Province or the
State of New York.
(f) The Representatives shall have received a certificate of the
Auditor General or Deputy Auditor General of the Province, dated the Closing
Date, in the form previously agreed to by the Representatives and the
Province.
(g) The Representatives shall have received a certificate of the
Comptroller of the Province, dated the Closing Date, confirming that the
figures for revenues and expenditures of the Province set forth in Exhibit (d)
to the Province's most recent annual report on Form 18-K (the "Annual Report")
filed under the Exchange Act and incorporated in the Final Prospectus, under
the caption "Tables and Supplementary Information of the Province", for the
fiscal years set forth in Schedule I hereto, were extracted from the public
documents described in Schedule I hereto.
(h) The Representatives shall have received a certificate of the
Assistant Deputy Minister, Treasury Division, dated the Closing Date,
confirming that the financial information filed with the Commission under the
Exchange Act was as listed in Schedule I hereto.
(i) The Representatives shall have received a certificate or
certificates of Deloitte & Touche, Chartered
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Accountants, auditors for New Brunswick Power Corporation, dated the Closing
Date, in the form previously agreed to by the Representatives and the
Province.
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 and its counsel,
this Agreement and all obligations of the Underwriters hereunder may be
canceled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancelation shall be given to the Province in writing or by
telephone or telegraph confirmed in writing.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not
satisfied, because of any termination pursuant to Section 6 hereof or because
of any refusal, inability or failure on the part of the Province to perform
any agreement herein or comply with any provision hereof other than by reason
of a default by any of the Underwriters, the Province will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Province agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the 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 Act, the 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, or in the Basic Prospectus, any Preliminary
Final Prospectus 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
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each such indemnified party, as incurred, 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 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 or any Preliminary Final
Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) 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 a copy of the Final Prospectus (or the
Final Prospectus as amended or supplemented), excluding documents incorporated
therein by reference, at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the
Act and the untrue statement or omission of a material fact contained in the
Basic Prospectus or any Preliminary Final Prospectus was corrected in the
Final Prospectus (or the Final Prospectus as amended or supplemented). This
indemnity agreement will be in addition to any liability which the Province
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Province, to the same extent as the foregoing indemnity from the Province
to each Underwriter, but only with reference to written information relating
to such Underwriter 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. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Province acknowledges that the statements set forth in
the second, ninth and tenth paragraphs of text under the heading
"Underwriting" in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of
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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 participate therein, and, to the extent that it may elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have 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. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 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 connection with the
assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel and
local 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 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).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification
16
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 one or more of 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 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 (y) in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount applicable to the Securities purchased by
such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter. 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 (d), notify such
party or parties from whom contribution may be sought, but the omission so to
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 (d).
10. LISTING. The Province agrees with the Underwriters to cooperate
in the filing of an application to list the Securities on the Luxembourg Stock
Exchange (the "Stock Exchange") prior to the Closing Date. The Province
further agrees to furnish to 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 such listing 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 shall use its best efforts to obtain, as promptly as
possible, the listing of the Securities on some other
17
securities exchange reasonably acceptable to the
Representatives and the Province.
11. OFFERING BY UNDERWRITERS. (a) It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Final Prospectus.
(b) Each Underwriter, on behalf of itself and each of its affiliates
that participates in the initial distribution of the Securities,
severally and not jointly, represents to and agrees with the Province
that:
(i) in addition to the provisions of clauses (ii) to (iv) of this
paragraph (b), it and each such affiliate has not offered, sold or
delivered and it and they will not offer, sell or deliver, directly or
indirectly, any of the Securities or distribute the Final Prospectus, any
preliminary 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 or their knowledge and belief, after reasonable
inquiry, 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;
(ii) it and each such affiliate has complied and will comply with
all applicable provisions of the Financial Services and Markets Xxx 0000,
as amended, with respect to anything done by it or them in relation to
the Securities in, from or otherwise involving the United Kingdom;
(iii) it and each such affiliate has not offered or sold, and it and
they will not offer or sell, directly or indirectly, any of the
Securities in or to residents of Japan or to any persons for reoffering
or resale, directly or indirectly, in Japan or to any resident of Japan
except pursuant to an exemption from the registration requirements of the
Securities and Exchange Law available thereunder and in compliance with
the other relevant laws of Japan; and
(iv) it and each such affiliate (A) has not offered or sold and will
not offer or sell, directly or indirectly, in Hong Kong by means of any
document, any of the Securities other than to persons whose ordinary
business it is to buy or sell shares or debentures, whether as principal
or agent, or in circumstances
18
which do not constitute an offer to the public within the meaning of the
Companies Ordinance (Cap. 32) of Hong Kong, and (B) has not issued and
will not issue, directly or indirectly, any invitation or advertisement
relating to the Securities in Hong Kong (except if permitted to do so
under the securities laws of Hong Kong) other than with respect to
Securities intended to be disposed of to persons outside Hong Kong or to
be disposed of in Hong Kong only to persons whose business involves the
acquisition, disposal or holding of securities, whether as principal or
as agent.
(c) The Province shall not have any responsibility for, and each
Underwriter severally agrees with the Province that each such Underwriter
and its respective affiliates will obtain, any consent, approval or
authorization required by them for the 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
offer, sale or delivery of any of the Securities.
(d) 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 11.
12. EXPENSE REIMBURSEMENT. If the sale of the Securities is
consummated hereunder, the Province agrees to pay to the Representatives on
behalf of the Underwriters on the Closing Date an amount of up to U.S.$90,000
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. The Representatives shall be entitled to deduct the said sum of
U.S.$90,000 from the payment of the purchase price as provided in Section 2
hereof. The Representatives shall supply the Province with an itemized
account, together with supporting information in a form satisfactory to the
Province, for such expenses and shall repay to the Province, in U.S. dollars
and within 90 days of the Closing Date, any shortfall between the expenses so
itemized and U.S.$90,000.
13. STABILIZATION AND OVER-ALLOTMENT. The Representatives may, to
the extent permitted by applicable laws, over-allot and effect transactions in
any over-the- counter market or otherwise in connection with the distribution
of the Securities with a view to supporting the market price of the Securities
at levels higher than those which might otherwise prevail in the open market.
Any over-
19
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. 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 Parts IV and V of the United Kingdom
Financial Services and Markets Xxx 0000, as amended, and Regulation M
promulgated by the Commission (if applicable).
14. 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 any Underwriter or the Province, and
will survive delivery of and payment for the Securities.
15. NOTICES. All communications hereunder will be in writing and
except as otherwise provided in Section 9, if sent to the Underwriters or
Representatives, will be mailed, delivered or telegraphed and confirmed to
them, at the address specified in Schedule II hereto or such other address as
they may have designated by written notice to the Province; or, if sent to the
Province, will be mailed or delivered to the Minister of Finance of the
Province of New Brunswick, X.X. Xxx 0000, Xxxxxxxxxxx, Xxx Xxxxxxxxx, Xxxxxx
X0X 0X0, with a copy (which shall not constitute notice) to the Assistant
Deputy Minister, Treasury Division of the Province.
16. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 9
hereof, and no other person will have any right or obligation hereunder.
17. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us
20
the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Province and the several Underwriters.
Very truly yours,
PROVINCE OF NEW BRUNSWICK,
by
/s/ Xxxxx XxxXxxxxx
---------------------------------
Name: Xxxxx XxxXxxxxx
Title: Assistant Deputy Minister,
Treasury Division
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
For the Representatives named
in Schedule I hereto
BY: XXXXXXX XXXXX XXXXXX INC.
by /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
For themselves and the other several
Underwriters, if any, named in Schedule
II to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated October 16, 2002
Registration Statement No. 333-96779
Representatives: Xxxxxxx Xxxxx Barney Inc. and CIBC World
Markets plc
Title, Purchase Price and Description of Securities:
Title: 3.50% Notes Due October 23, 2007
Principal amount: U.S. $500,000,000
Initial public offering price: 99.429% of principal amount plus
accrued interest, if any, from October 23, 2002 to the date of
delivery
Purchase price: 99.179% of principal amount plus accrued interest, if
any, from October 23, 2002, to the date of delivery (U.S.
$495,895,000, plus accrued interest, if any)
Interest Payment Dates: April 23 and October 23 commencing
April 23, 2003
Sinking fund provisions: As described in the Final
Prospectus
Redemption provisions: None
Other provisions: Principal and interest payments and
settlement for the Notes will be made in immediately
available funds
Closing Date, Time and Location: October 23, 2002 at 10:00 a.m. New York City
time at the offices of Cravath, Swaine & Xxxxx in New York, New York
Delayed Delivery Arrangements: None
Registrar and Paying Agent: The Royal Bank of Canada
Other Applicable Statutes: The Loan Act 2000 and the Electric
Power Act.
Fiscal years and public documents for purposes of Section 7(g): Revenue and
expenditure for the four fiscal years ended March 31, 1998 through March 31,
2001 were extracted from the Public Accounts for such years (subject to
certain adjustments for purposes of comparability) and for the fiscal year
ended March 31, 2002 were extracted from the forecast of
2
revenue and expenditure published in the Main Estimates for such year
Financial information for purposes of Section 7(h): Amendment No. 1 to the
Annual Report contained an excerpt from Budget 2002- 2003; Amendment No. 2 to
the Annual Report contained an excerpt from the Audited Financial Statements
of New Brunswick Power Corporation for the fiscal year ended March 31, 2002;
and Amendment No. 3 to the Annual Report contained Audited Financial
Statements of the Province of New Brunswick for the fiscal year ended March
31, 2002.
SCHEDULE II
Principal Amount of
Securities to be
Underwriters Purchased
------------ ---------
CIBC WORLD MARKETS PLC X.X.x000,000,000
Xxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Xxxxxx Xxxxxxx
XXXXXXX XXXXX XXXXXX INC. 206,250,000
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
XXX
CREDIT SUISSE FIRST BOSTON CORPORATION 30,000,000
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
XXX
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX 12,500,000
INCORPORATED
4 World Financial Center, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
XXX
NATIONAL BANK FINANCIAL INC. 12,500,000
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Xxxxxx
RBC DOMINION SECURITIES CORPORATION 12,500,000
0 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
XXX
BANK OF MONTREAL 5,000,000
00 Xxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
5,000,000
BNP PARIBAS SECURITIES CORP.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
XXX
5,000,000
CASGRAIN & COMPANY (USA) LIMITED
000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx X0X 0X0
Xxxxxx
SCOTIA CAPITAL INC. 5,000,000
Scotia Plaza, 68th Floor
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx ___________
TOTAL U.S.$500,000,000
SCHEDULE III
Delayed Delivery Contract
-------------------------
, 20
[Name of Underwriter]
[Address of Underwriter]
Dear Sirs:
The undersigned hereby agrees to purchase from the Province
of New Brunswick (the "Province"), and the Province agrees to sell to the
undersigned, on , 20 (the "Delivery Date"), $ principal amount of the
Province's Securities (the "Securities") offered by the Province's Prospectus
dated , 20 , and related Prospectus Supplement dated , 20 , receipt of
a copy of which is hereby acknowledged, at a purchase price of % of the
principal amount thereof, plus [accrued interest or amortization of original
issue discount], if any, thereon from , 20 , to the date of payment and
delivery, and on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall
be made on or before 11:00 a.m., New York City time, on the Delivery Date to
or upon the order of the Province in Federal (same day) funds, at your office
or at such other place as shall be agreed between the Province and the
undersigned, upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Province not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal
to the aggregate principal amount of Securities to be purchased by the
undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the
Province to sell and deliver Securities on the Delivery Date, shall be subject
to the conditions (and neither party shall incur any liability by reason of
the failure thereof) that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not prohibited on
the date hereof, shall not on the Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject, and (2) the Province,
on or before the Delivery Date, shall have sold to certain Underwriters (the
2
"Underwriters") such principal amount of the Securities as is to be sold to
them pursuant to the Underwriting Agreement referred to in the Prospectus and
Prospectus Supplement mentioned above. Promptly after completion of such sale
to the Underwriters, the Province will mail or deliver to the undersigned at
its address set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Province delivered to the Underwriters in
connection therewith. The obligation of the undersigned to take delivery of
and make payment for the Securities, and the obligation of the Province to
cause the Securities to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Province's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Province, it is required that the Province sign the form
of acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Province and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
3
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
by
--------------------------
(Name of Purchaser)
by
--------------------------
Title:
Accepted:
Province of New Brunswick,
by
------------------------
Title:
