$125,000,000
PRIMUS GUARANTY, LTD.
7.0% SENIOR NOTES DUE 2036
UNDERWRITING AGREEMENT
December 19, 2006
WACHOVIA CAPITAL MARKETS LLC
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXX BROTHERS INC.
As Representatives of the
several Underwriters named in Schedule 1 hereto
c/o WACHOVIA SECURITIES
0000 X. XX Xxxxxx Xxxx.
Xxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Primus Guaranty, Ltd., a Bermuda exempted company (the "COMPANY"),
proposes to issue and sell $125,000,000 aggregate principal amount of its 7.0%
Senior Notes due 2036 (the "NOTES") to the several underwriters named in the
Schedule 1 hereto (the "UNDERWRITERS"), for whom you are acting as
representatives (the "REPRESENTATIVES"). The Notes will (i) have terms and
provisions which are summarized in the Disclosure Package as of the Applicable
Time and the Prospectus dated as of the date hereof (each as defined in Section
1(a) hereof) and (ii) be issued pursuant to an Indenture to be dated as of
December 27, 2006 (the "INDENTURE") between the Company and Deutsche Bank Trust
Company Americas, as Trustee (the "TRUSTEE"). This agreement (this "AGREEMENT")
is to confirm the agreement concerning the purchase of the Notes from the
Company by the Underwriters.
SECTION 1. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, each Underwriters that:
(a) A "shelf registration statement" on Form S-3 in respect of the Notes
(File No. 333-135108) has (i) been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "SECURITIES
ACT") and the rules and regulations (the "RULES AND REGULATIONS") of the United
States Securities and Exchange Commission (the "COMMISSION") thereunder, (ii)
been filed with the Commission under the Securities Act and (iii) become
effective and remains effective under the Securities Act. Copies of such
registration statement and each of the amendments thereto (excluding exhibits to
such registration statement
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but including all documents incorporated by reference in each prospectus
contained therein) have been delivered by the Company to you; and no other
document with respect to such registration statement or any such document
incorporated by reference therein has heretofore been filed or transmitted for
filing with the Commission. For purposes of this Agreement, the following terms
have the specified meanings:
"APPLICABLE TIME" means 10:00 a.m. (New York City time) on the date
of this Agreement;
"BASE PROSPECTUS" means the base prospectus filed as part of the
Registration Statement, in the form in which it has most recently been
amended on or prior to the date hereof, relating to the Notes;
"DISCLOSURE PACKAGE" means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with each Issuer Free Writing
Prospectus filed or used by the Company on or before the Applicable Time
and identified on Schedule 2 hereto, other than a road show that is an
Issuer Free Writing Prospectus under Rule 433 of the Rules and
Regulations;
"EFFECTIVE DATE" means any date as of which any part of the
Registration Statement or any post-effective amendment thereto relating to
the Notes became, or is deemed to have become, effective under the
Securities Act in accordance with the Rules and Regulations (including
pursuant to Rule 430B of the Rules and Regulations);
"FINAL TERM SHEET" means the term sheet prepared pursuant to Section
6(a) of this Agreement and substantially in the form attached in Schedule
3 hereto;
"ISSUER FREE WRITING PROSPECTUS" means each "free writing
prospectus" (as defined in Rule 405 of the Rules and Regulations) prepared
by or on behalf of the Company or used or referred to by the Company in
connection with the offering of the Notes, including the Final Term Sheet;
"PRELIMINARY PROSPECTUS" means any preliminary prospectus relating
to the Notes, including the Base Prospectus and any preliminary prospectus
supplement thereto, included in the Registration Statement or as filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations
and provided to the Representatives for use by the Underwriters;
"PROSPECTUS" means the final prospectus relating to the Notes,
including the Base Prospectus and the final prospectus supplement thereto
relating to the Notes, as filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations and provided to the Representatives
for use by the Underwriters; and
"REGISTRATION STATEMENT" means, collectively, the various parts of
the above-referenced registration statement, each as amended as of the
Effective Date for such part, including any Preliminary Prospectus or the
Prospectus and all exhibits to such registration statement.
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Any reference to the "MOST RECENT PRELIMINARY PROSPECTUS" will be deemed
to refer to the latest Preliminary Prospectus included in the Registration
Statement or filed pursuant to Rule 424(b) of the Rules and Regulations prior to
or on the date hereof (including, for purposes of this Agreement, any documents
incorporated by reference therein prior to or on the date of this Agreement).
Any reference to any Preliminary Prospectus or the Prospectus will be deemed to
refer to and include any documents incorporated by reference therein pursuant to
Form S-3 under the Securities Act as of the date of such Preliminary Prospectus
or the Prospectus, as the case may be. Any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus will be deemed to
refer to and include any document filed under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated by reference
in such Preliminary Prospectus or the Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement will be deemed to
include any annual report of the Company on Form 10-K filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date
that is incorporated by reference in the Registration Statement.
(b) The Commission has not issued any order preventing or suspending the
effectiveness of the Registration Statement or preventing or suspending the use
of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the
Prospectus; and no proceeding for any such purpose or pursuant to Section 8A of
the Securities Act against the Company or related to the offering has been
instituted or threatened by the Commission. The Commission has not issued any
order directed to any document incorporated by reference in the most recent
Preliminary Prospectus or the Prospectus, and no proceeding has been instituted
or threatened by the Commission with respect to any document incorporated by
reference in the most recent Preliminary Prospectus or the Prospectus. The
Commission has not notified the Company of any objection to the use of the
Registration Statement.
(c) The Company has not been, and continues not to be, an "ineligible
issuer" (as defined in Rule 405 of the Rules and Regulations), in each case at
all times relevant under the Securities Act in connection with the offering of
the Notes.
(d) The Registration Statement conformed on the Effective Date and
conforms, and any amendment to the Registration Statement filed after the date
hereof will conform, in all material respects to the requirements of the
Securities Act and the Rules and Regulations. The most recent Preliminary
Prospectus conforms on the date hereof, and the Prospectus, and any amendment or
supplement thereto, will conform as of its date and as of the Closing Date, in
all material respects to the requirements of the Securities Act and the Rules
and Regulations. The documents incorporated by reference in the most recent
Preliminary Prospectus or the Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the Rules and Regulations, and any further documents so filed
and incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform, in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and the
Rules and Regulations; and no such documents have been filed with the Commission
since the close of business of the Commission on the Business Day immediately
prior to the date hereof.
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(e) The Registration Statement did not, as of the Effective Date,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that no representation or warranty is made as
to information contained in or omitted from the Registration Statement in
reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein (which information is specified in Section
8(e) hereof).
(f) The Disclosure Package did not, as of the Applicable Time, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that no representation or warranty is made as to information
contained in or omitted from the Disclosure Package in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein (which information is specified in Section 8(e) hereof).
(g) The Prospectus, and any amendment or supplement thereto, will not,
as of its date and on the Closing Date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that no
representation or warranty is made as to information contained in or omitted
from the Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein (which information is specified
in Section 8(e) hereof).
(h) The documents incorporated by reference in any Preliminary
Prospectus or the Prospectus did not, and any further documents incorporated by
reference therein will not, when filed with the Commission, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) The Company and each of its subsidiaries (as defined in Section
17(b) and listed in Schedule 4) have been duly organized or formed and are
validly existing as companies, corporations or other entities in good standing
under the laws of their respective jurisdictions of organization or formation,
are duly qualified to do business and are in good standing (including as an
exempted company) as foreign corporations or companies in each jurisdiction in
which their respective ownership, lease or operation of property or the conduct
of their respective businesses requires such qualification, and have all power
and authority necessary to own, lease, hold or operate their respective
properties and to conduct the businesses in which they are engaged. None of the
subsidiaries of the Company other than Primus Financial Products, LLC ("PRIMUS
FINANCIAL") is a "significant subsidiary", as such term is defined in Rule 405
of the Rules and Regulations.
(j) The Company has an authorized capitalization as set forth in the
most recent Preliminary Prospectus and the Prospectus. All of the issued shares
of share capital of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable, were issued in compliance with
applicable laws and conform to the description thereof contained
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in the most recent Preliminary Prospectus and the Prospectus; and all of the
issued shares of share capital of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims. Except as set forth in the most recent
Preliminary Prospectus and the Prospectus, no options, warrants or other rights
to purchase or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of share capital of or ownership
interests in the Company and each subsidiary of the Company are outstanding. All
options, warrants and other rights to purchase shares of share capital of, or
other ownership interests in, the Company and each subsidiary of the Company
have been duly and validly authorized and issued, were issued in compliance with
federal and state securities laws and applicable Bermuda law and conform to the
description thereof contained in the most recent Preliminary Prospectus and the
Prospectus.
(k) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws relating to or affecting creditors' rights generally, by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law) or by considerations of public policy.
(l) The Indenture has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or similar laws
relating to or affecting creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law). The Indenture (i) has been duly qualified under
the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), (ii)
complies as to form with the requirements of the Trust Indenture Act and (iii)
conforms to the description thereof in the most recent Preliminary Prospectus
and the Prospectus.
(m) The Notes have been duly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in accordance with the
Indenture and delivered to the Underwriters against payment therefor in
accordance with the terms of this Agreement, will be validly issued and
delivered, and will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and the Notes conform, or will conform, to
the description thereof in the Disclosure Package and the Prospectus.
(n) The execution, delivery and performance of this Agreement by the
Company, the consummation of the transactions contemplated hereby, the execution
and delivery of the Indenture and the Notes by the Company or compliance by the
Company with all of the provisions of this Agreement, the Indenture and the
Notes will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries
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is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any violation of the
provisions of the memorandum of association or bye-laws of the Company or any of
its subsidiaries or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and except for the
registration of the Notes under the Securities Act, and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and under applicable state or foreign securities laws or
regulations which have been made or obtained and are in full force and effect in
connection with the purchase and distribution of the Notes by the Underwriters,
no consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company, the consummation of
the transactions contemplated hereby, the execution and delivery of the
Indenture and the Notes by the Company or compliance by the Company with all of
the provisions of this Agreement, the Indenture and the Notes.
(o) Except as described in the most recent Preliminary Prospectus and
the Prospectus, there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities Act.
Neither the filing of the Registration Statement, the most recent Preliminary
Prospectus or the Prospectus nor the offer or sale of the Notes as contemplated
by this Agreement gives rise to any rights, other than those which have been
duly waived or satisfied, for or relating to the registration of any securities
of the Company.
(p) Neither the Company nor any of its subsidiaries has sustained, since
the respective dates as of which information is given in the most recent
Preliminary Prospectus and the Prospectus, any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since such date, there has not been any change in the share capital or
long-term debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, management, consolidated financial position,
shareholders' equity, results of operations, business or prospects of the
Company and its subsidiaries, otherwise than as set forth or contemplated in the
most recent Preliminary Prospectus and the Prospectus.
(q) (i) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included or
incorporated by reference in the most recent Preliminary Prospectus and the
Prospectus present fairly the financial condition and results of operations of
the entities purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis
throughout the periods involved and comply as to form in all material respects
with the Rules and Regulations, except as otherwise noted therein; (ii) the
supporting schedules included or incorporated by reference in the most recent
Preliminary Prospectus and the Prospectus present fairly in all materials
respects the
6
information required to be stated therein; and (iii) there are no material
off-balance sheet arrangements (as defined in Regulation S-K Item 303(a)(4)(ii))
that may have a material current or future effect on the Company's financial
condition, changes in financial condition, results of operations, liquidity,
capital expenditures or capital resources.
(r) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock or membership interests, as
applicable, from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such subsidiary's
property or assets to the Company or any other subsidiary of the Company, except
as described in the Disclosure Package.
(s) Ernst & Young LLP, who have certified certain financial statements
of the Company and its subsidiaries, whose report appears in the most recent
Preliminary Prospectus and the Prospectus, who have delivered the initial letter
referred to in Section 7(f) hereof, and who have audited the Company's internal
control over financial reporting and management's assessment thereof, are
independent public accountants as required by the Securities Act, the Rules and
Regulations and the rules and regulations of the Public Company Accounting
Oversight Board. Except as described in the most recent Preliminary Prospectus
and the Prospectus and as preapproved in accordance with the requirements set
forth in Section 10A of the Exchange Act, since May 6, 2003, Ernst & Young LLP
has not engaged in any "PROHIBITED ACTIVITIES" (as defined in Section 10A of the
Exchange Act) on behalf of the Company.
(t) The Company and each of its subsidiaries have good and marketable
title in fee simple to all real property, if any, and good and marketable title
to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, except such as are described in the most recent
Preliminary Prospectus and the Prospectus or such as do not materially affect
the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries; and
all assets held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(u) The Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the conduct
of their respective businesses and the value of their respective properties.
(v) The Company and each of its subsidiaries own or possess adequate
rights to use all material trademarks, service marks, service names, trade
names, trademark registrations, service xxxx registrations, copyrights and
licenses (collectively, the "INTELLECTUAL PROPERTY") necessary for the conduct
of their respective businesses and have no reason to believe that the conduct of
their respective businesses will conflict with, and have not received any notice
of any pending or threatened claim of conflict with, any such rights of others,
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect (as defined below).
7
(w) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject which, (i) if
determined adversely to the Company or any of its subsidiaries, might have a
material adverse effect on the general affairs, management, consolidated
financial position, shareholders' equity, results of operations, business or
prospects of the Company and its subsidiaries (a "MATERIAL ADVERSE EFFECT") or
(ii) is required to be disclosed in the most recent Preliminary Prospectus and
the Prospectus and is not disclosed; and to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(x) There are no contracts or other documents which are required to be
described in the Registration Statement, any Preliminary Prospectus or the
Prospectus or filed as exhibits to the Registration Statement or to a document
incorporated by reference into the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been described or filed as
required. Each material contract, agreement or arrangement to which the Company
or any of its subsidiary is a party or by which it may be bound, or to which any
of the property or assets of the Company or any of its subsidiary is subject,
has been duly and validly authorized, executed and delivered by the Company;
neither the Company nor any of its subsidiaries knows of any present condition
or fact which would prevent compliance in all material respects by the Company
or any of its subsidiaries or any other party thereto with the terms of any such
contract, agreement or arrangement in accordance with its terms; neither the
Company nor any of its subsidiaries has a present intention to exercise any
right that it may have to cancel any such contract, agreement or arrangement or
otherwise to terminate its rights and obligations thereunder other than in the
ordinary course of business or which would not have a Material Adverse Effect,
and the Company or any of its subsidiaries has no knowledge that any other party
to any such contract, agreement or arrangement has any intention not to render
performance in all material respects as contemplated by the terms thereof.
(y) Except as required to be and as are described in the most recent
Preliminary Prospectus and the Prospectus, no relationships (including, without
limitation, any loans or advances), direct or indirect, exist, nor has any
transaction been entered into since January 1, 2001, between or among the
Company and its subsidiaries on the one hand, and the directors, officers,
shareholders or counterparties of the Company or any subsidiary on the other
hand. Since July 30, 2002, the Company has not, directly or indirectly,
including through any subsidiary, extended or maintained credit, or arranged for
the extension of credit, or renewed or amended any extension of credit, in the
form of a personal loan to or for any of its directors or executive officers.
(z) No labor disturbance by the employees of the Company exists or, to
the knowledge of the Company, is imminent, which might be expected to have a
Material Adverse Effect.
(aa) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "REPORTABLE EVENT" (as defined in ERISA) has occurred
with respect to any "PENSION PLAN" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to the termination of,
or withdrawal from, any "PENSION PLAN" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as
8
amended, including the regulations and published interpretations thereunder (the
"CODE"); and, to the knowledge of the Company, each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification.
(bb) The Company and each of its subsidiaries have filed all material tax
returns required to be filed through the date hereof and has paid all taxes due
thereon, and no tax deficiency has been determined adversely to the Company or
any of its subsidiaries which has had (nor does the Company have any knowledge
of any asserted or pending tax deficiency which, if determined adversely to the
Company or any of its subsidiaries, might have) a Material Adverse Effect.
(cc) Since the respective dates as of which information is given in the
most recent Preliminary Prospectus and the Prospectus through the date hereof,
and except as may otherwise be disclosed in the most recent Preliminary
Prospectus and the Prospectus, the Company has not (i) issued any securities,
(ii) incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its share capital.
(dd) The Company (on a consolidated basis) (i) makes and keeps accurate
books and records and (ii) maintains a system of internal accounting controls
(as described under Section 13b(2)(B) of the Exchange Act) which provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability for its
assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the recorded accountability for their assets
is compared with existing assets at reasonable intervals and appropriate action
is taken with respect thereto.
(ee) Neither the Company nor any of its subsidiaries (i) is in violation
of its memorandum of association or bye-laws or other governing documents, as
applicable, (ii) is in default, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject or (iii) is in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property or
assets may be subject or has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business, except, in the case
of clauses (ii) and (iii), for such defaults, violations or failures to obtain
as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(ff) Neither the Company nor any of its subsidiaries, nor any director,
officer, agent, employee or other person associated with or acting on behalf of
the Company or any of its subsidiaries, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds;
9
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(gg) To our knowledge, there are no costs or liabilities associated with
any and all applicable laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or any
permit, license or approval, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect on the Company and its subsidiaries,
taken as a whole.
(hh) Neither the Company nor any of its subsidiaries is, and on the
Closing Date and, after giving effect to the offering of the Notes and the
application of the proceeds therefrom as described under "Use of Proceeds" in
each of the most recent Preliminary Prospectus and the Prospectus will be, an
"investment company" as defined in the Investment Company Act of 1940, as
amended (the "INVESTMENT COMPANY ACT").
(ii) There are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the Company
or any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the offering and sale of the Notes contemplated by
this Agreement.
(jj) The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act),
which (i) are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the Company's
principal executive officer and its principal financial officer by others within
those entities, particularly during the preparation of the Registration
Statement, and in the future, during the periods in which the periodic reports
required under the Exchange Act are being prepared; (ii) comply with the
requirements of the Exchange Act; and (iii) are effective in all material
respects to perform the functions for which they were established.
(kk) The Company's internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the Exchange Act) are effective in all
material respects to perform the functions for which they were established, and
the Company is not aware of (i) any significant deficiency or material weakness
in the design or operation of internal control over financial reporting which is
reasonably likely to adversely affect the Company's ability to record, process,
summarize and report financial information; or (ii) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the Company's internal control over financial reporting.
(ll) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on behalf of
the Underwriters to the Bermuda Government or any political subdivision or
taxing authority thereof or therein in connection with the sale and delivery by
the Company of the Notes to or for the respective accounts of the Underwriters
or the sale and delivery by the Underwriters of the Notes to the initial
purchasers thereof.
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No stamp or other issuance or transfer taxes or duties are payable by or
on behalf of the Underwriters to the United States government or any political
subdivision or taxing authority thereof or therein in connection with the sale
and delivery by the Company of the Notes to or for the respective accounts of
the Underwriters or the sale and delivery by the Underwriters of the Notes to
the initial purchasers thereof.
(mm) The Company has no knowledge of any threatened or pending
downgrading of its corporate debt credit rating or Primus Financial's
counterparty credit ratings by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(nn) Neither the Company nor any of its subsidiaries has taken or will
take, directly or indirectly, any action (i) designed to cause or which has
caused or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of the Notes to facilitate the sale
or resale of the Notes or (ii) prohibited by Regulation M under the Securities
Act.
(oo) The Notes will be pari passu with all existing and future senior and
unsecured indebtedness of the Company.
(pp) There is, and has been, no material failure on the part of the
Company or any of the Company's directors or officers, in their capacities as
such, to comply with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated in connection therewith.
Each certificate signed by any officer of the Company and delivered to the
Underwriters or counsel to the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby. Further, for purposes of this Section 1, as well as for Section
7 hereof, references to "the most recent Preliminary Prospectus and the
Prospectus" or "the Disclosure Package and the Prospectus" are to each of the
most recent Preliminary Prospectus or the Disclosure Package, as the case may
be, and the Prospectus as separate or stand-alone documentation (and not the
most recent Preliminary Prospectus or the Disclosure Package, as the case may
be, and the Prospectus taken together), so that representations, warranties,
agreements, conditions and legal opinions will be made, given or measured
independently in respect of each of the most recent Preliminary Prospectus or
the Disclosure Package, as the case may be, and the Prospectus.
SECTION 2. Purchase of the Notes by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to issue and sell to the
several Underwriters and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company, at a price equal to 96.85% of the principal
amount thereof, plus accrued interest, if any, from December 27, 2006, the
principal amount of the Notes set forth opposite such Underwriter's name in
Schedule 1 hereto.
SECTION 3. Delivery of and Payment for the Notes. Delivery of the Notes
shall be made at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, at 10:00 A.M., New York City time, on December 27, 2006 or at
such other time, date or place as
11
shall be determined by agreement between the Representatives and the Company.
This date and time are referred to as the "CLOSING DATE."
Delivery of the Notes will be made to the Representatives by or on behalf
of the Company against payment of the purchase price therefor by wire transfer
of immediately available funds. Delivery of the Notes will be made through the
facilities of The Depository Trust Company ("DTC") unless the Representatives
will otherwise instruct. Delivery of the Notes at the time and place specified
in this Agreement is a further condition to the obligations of each Underwriter.
SECTION 4. Covenants of the Company. The Company covenants and agrees with
each Underwriter that:
(a) the Company (i) will prepare the Prospectus in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b) of the
Rules and Regulations within the time period prescribed by such Rule; (ii) will
not file any amendment or supplement to the Registration Statement or to the
Prospectus or file any document under the Exchange Act before the termination of
the offering of the Notes by the Underwriters if such document would be deemed
to be incorporated by reference into the Prospectus, except as permitted herein;
(iii) will advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment or supplement to the Registration
Statement, the most recent Preliminary Prospectus or the Prospectus has been
filed or becomes effective and will furnish the Representatives with copies
thereof; (iv) will prepare the Final Term Sheet, substantially in the form of
Schedule 3 hereto and approved by the Representatives and file the Final Term
Sheet pursuant to Rule 433(d) of the Rules and Regulations within the time
period prescribed by such Rule; (v) will advise the Representatives, promptly
after it receives notice thereof, of the issuance by the Commission or any state
or other regulatory body of any stop order or of any order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of
any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus
or suspending the qualification of the Notes for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose or pursuant to Section 8A of the Securities Act, of receipt by the
Company from the Commission of any notice of objection to the use of the
Registration Statement or any post-effective amendment thereto or of any request
by the Commission for the amending or supplementing of the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus or for
additional information; and, (vi) will use its best efforts to prevent the
issuance of any stop order or other such order or any such notice of objection
and, in the event of the issuance of any stop order or of other such order or
any such notice of objection, will use promptly its best efforts to obtain the
lifting or withdrawal thereof;
(b) the Company will furnish promptly to each of the Representatives and
to counsel for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) The Company (i) will deliver promptly to the Representatives and to
counsel for the Underwriters, without charge, such number of the following
documents as the Representatives shall reasonably request: (A) conformed copies
of the Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding
12
exhibits) and (B) each Preliminary Prospectus, the Final Term Sheet and any
other Issuer Free Writing Prospectus, the Prospectus, and all amendments and
supplements to any of such documents (including any document filed under the
Exchange Act and deemed to be incorporated by reference in the Registration
Statement, any Preliminary Prospectus or the Prospectus); (ii) during the period
in which the Prospectus relating to the Notes (or in lieu thereof, the notice
referred to in Rule 173(a) of the Rules and Regulations) is required to be
delivered under the Securities Act, will comply with all requirements imposed
upon it by the Securities Act and by the Rules and Regulations, as from time to
time in force, so far as is necessary to permit the continuance of sales of or
dealings in the Notes as contemplated by the provisions of this Agreement and by
the Prospectus; and (iii) if during such period any events shall have occurred
as a result of which the Disclosure Package or the Prospectus as then amended or
supplemented would include an 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 when such Disclosure Package or
the Prospectus is delivered, not misleading, or, if during such period for any
other reason it shall be necessary to amend the Registration Statement or amend
or supplement the Disclosure Package or the Prospectus or file any document in
order to comply with the Securities Act, will notify the Representatives and,
subject to (a) hereof, amend the Registration Statement, amend or supplement the
Disclosure Package or the Prospectus, as the case may be, or file any document
(in each case, at the expense of the Company) so as to correct such statement or
omission or to effect such compliance, and upon the request of the
Representatives, furnish without charge to each Underwriter as many written and
electronic copies as the Representatives may from time to time reasonably
request of such amendment or supplement;
(d) the Company will prepare and file with the Commission promptly upon
the request of the Representatives, any amendment or supplement to the
Registration Statement, the Disclosure Package or the Prospectus that may, in
the reasonable judgment of the Company or the Representatives, be required by
the Securities Act or requested by the Commission or may be necessary or
advisable in connection with the offering of the Notes;
(e) prior to filing with the Commission any amendment or supplement to
the Registration Statement or the Prospectus or any document under the Exchange
Act before the termination of the offering of the Notes by the Underwriters if
such document would be deemed to be incorporated by reference into the
Prospectus, the Company will furnish a copy thereof to the Representatives and
counsel for the Underwriters and obtain the consent of the Representatives to
the filing, such consent not to be unreasonably withheld or delayed;
(f) as soon as practicable, the Company will make generally available to
its security holders and to deliver to the Representatives an earnings statement
of the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158);
(g) the Company will promptly from time to time take such action as the
Representatives may reasonably request to qualify the Notes for offering and
sale by the Underwriters and by dealers under the securities laws of such
jurisdictions as the Representatives may designate and comply with such laws so
as to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Notes;
provided that in connection therewith the Company shall not be required to
qualify as a
13
foreign corporation or to file a general consent to service of process in suits,
other than for actions or proceedings arising out of the offering or sale of the
Notes, in any jurisdiction in which it is not otherwise subject;
(h) Until 60 days following the Closing Date, the Company will not,
without the prior written consent of the Representatives, directly or
indirectly, issue, sell, offer to sell, grant any option for the sale of or
otherwise dispose of, any debt securities that are substantially similar to the
Notes (including, without limitation, with respect to the maturity, currency,
interest rate and other material terms of the Notes);
(i) the Company will apply the net proceeds from the sale of the Notes
as set forth in the most recent Preliminary Prospectus and the Prospectus;
(j) the Company will comply, in all material respects, with all
effective applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002;
(k) Until termination of the offering of the Notes, the Company will
timely file all reports, documents and amendments to previously filed documents
required to be filed by it pursuant to Section 12, 13(a), 13(c), 14 or 15(d) of
the Exchange Act,
(l) If required by Rule 430B(h) of the Rules and Regulations, the
Company will prepare a prospectus in a form approved by the Representatives and
file such prospectus pursuant to Rule 424(b) of the Rules and Regulations not
later than may be required by such Rule; and the Company will make no further
amendment or supplement to such prospectus that will be disapproved by the
Representatives promptly after reasonable notice thereof;
(m) the Company will not take, directly or indirectly, any action
designed to cause or result in, or that might cause or result in, stabilization
or manipulation of the price of the Notes to facilitate the sale or resale of
the Notes; and
(n) the Company will comply with all agreements set forth in the
representation letters of the Company to DTC relating to the acceptance of the
Notes for "book-entry" transfer through the facilities of DTC.
SECTION 5. Expenses. The Company agrees to pay, whether or not this
Agreement becomes effective or is terminated or the sale of the Notes to the
Underwriters is consummated, (a) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration Statement (including any
exhibits thereto), any Preliminary Prospectus, any Issuer Free Writing
Prospectus, the Prospectus and any amendments or supplements thereto; (b) the
costs of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in each
case, exhibits), any Preliminary Prospectus, any Issuer Free Writing Prospectus,
the Prospectus and any amendment or supplement thereto, all as provided in this
Agreement; (c) the costs of printing, producing, copying and distributing this
Agreement, the Indenture, closing documents (including any compilations thereof)
and any other agreements, memoranda, correspondence and any other related
documents in connection with the offering, purchase, sale and delivery of the
Notes; (d) the filing fees, if any, incident to securing the review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Notes (including related fees and expenses of counsel to the Underwriters); (e)
the costs incidental to the services of the Company's independent
14
registered public accounting firm and the Company's counsel; (f) the required
Commission filing fees relating to the Notes (it being understood that the
Company will pay the fee in accordance with Rules 456(b) of the Rules and
Regulations); (g) the fees and expenses of qualifying the Notes under the
securities laws of the several jurisdictions as provided in Section 4(g), if
any, and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriters); (h) the
costs incidental to any rating of the Notes by rating agencies; (i) the costs
incidental to the services of the Trustee and any agent of the Trustee
(including the fees and disbursements of counsel for the Trustee); (j) the costs
and expenses of the Company relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering of the Notes,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered in
connection with the road show and (k) all other costs and expenses incident to
the performance of the obligations of the Company under this Agreement; provided
that, except as provided in this Section 5 and in Section 11, the Underwriters
shall pay their own costs and expenses, including the costs and expenses of
their counsel and the expenses of advertising any offering of the Notes made by
the Underwriters.
SECTION 6 Free Writing Prospectuses.
(a) The Company represents and warrants to, and agrees with, each
Underwriter that (i) the Company has not made, and will not, make any offer
relating to the Notes that would constitute an Issuer Free Writing Prospectus
without the prior consent of the Representatives (which consent being deemed to
have been given with respect to (A) the Final Term Sheet prepared and filed
pursuant to Section 4(a) hereof and (B) any other Issuer Free Writing Prospectus
identified on Schedule 2 hereto); (ii) each Issuer Free Writing Prospectus
conformed or will conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations on the date of first use, and the
Company has complied with any filing requirements applicable to such Issuer Free
Writing Prospectus pursuant to Rule 433 of the Rules and Regulations; (iii) each
Issuer Free Writing Prospectus will not, as of its issue date and through the
time the Notes are delivered pursuant to Section 3 hereof, include any
information that conflicts with the information contained in the Registration
Statement, the most recent Preliminary Prospectus and the Prospectus; and (iv)
each Issuer Free Writing Prospectus, when considered together with the
information contained in the most recent Preliminary Prospectus, did not, as of
the Applicable Time, does not, as of the date hereof, and will not, as of the
Closing Date, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(b) Each Underwriter represents and warrants to, and agrees with, the
Company and each other Underwriter that it has not made, and will not make any
offer relating to the Notes that would constitute a "free writing prospectus"
(as defined in Rule 405 of the Rules and Regulations) required to be filed with
the Commission, without the prior consent of the Company and the
Representatives.
15
(c) The Company agrees that if at any time following issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a result of which
such Issuer Free Writing Prospectus would conflict with the information in the
Registration Statement, the most recent Preliminary Prospectus or the Prospectus
or would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the Representatives,
will prepare and furnish without charge to each Underwriter an Issuer Free
Writing Prospectus or other document which will correct such conflict, statement
or omission.
SECTION 7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, as of the
date hereof and the Closing Date (as if made at the Closing Date), of the
representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 4(a); all filings (including, without limitation, the
Final Term Sheet) required by Rule 424(b) or Rule 433 of the Rules and
Regulations shall have been made within the time periods prescribed by such
Rules and Regulations, and no such filings will have been made without the
consent of the Representatives; no stop order suspending the effectiveness of
the Registration Statement or any amendment or supplement thereto, preventing or
suspending the use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, or suspending the qualification of the Notes for
offering or sale in any jurisdiction or any part thereof shall have been issued;
no proceeding for that purpose shall have been initiated or threatened by the
Commission; no notice of objection of the Commission to use the Registration
Statement or any post-effective amendment thereto shall have been received by
the Company; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been disclosed to the Representatives and complied with.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Notes, the Registration
Statement and the Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Underwriters, and the
Company shall have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such matters.
(c) Xxxxxx, Xxxxx & Bockius LLP, as U.S. counsel to the Company shall
have furnished to the Representatives its written opinion addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in the form
attached hereto as Exhibit A.
(d) Xxxxxxx Xxxx & Xxxxxxx, as special Bermuda counsel to the Company,
shall have furnished to the Representatives their written opinion addressed to
the Underwriters and dated such Closing Date, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in the form
attached hereto as Exhibit B.
16
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Notes, the Indenture, the
Registration Statement and the Disclosure Package and other related matters as
the Representatives may reasonably require, in form and substance set forth in
Exhibit C hereto, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon such matters.
(f) On the date hereof and the Closing Date, the Representatives shall
have received from Ernst & Young LLP letters (the "COMFORT LETTERS"), dated the
date hereof and the Closing Date, in form and substance satisfactory to the
Representatives, addressed to the Representatives on behalf of the Underwriters
and dated the date hereof (i) confirming that they are independent registered
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission and (ii)
stating, as of the date thereof (or, with respect to matters involving changes
or developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than three days
prior to the Closing Date and not earlier than the date hereof), the conclusions
and findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(g) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, of its Chief Executive Officer and Chief
Financial Officer stating that:
(i) The representations, warranties and agreements of the Company
in Section 1 are true and correct as if made at and as of the Closing
Date; the Company has complied with all its agreements contained herein;
and the conditions set forth in Sections 7(a), 7(h) and 7(k) have been
fulfilled;
(ii) They have carefully examined the Registration Statement, the
most recent Preliminary Prospectus, the Disclosure Package and the
Prospectus and any amendments or supplements thereto (including any
documents incorporated or deemed to be incorporated by reference into the
most recent Preliminary Prospectus and the Prospectus) and, in their
opinion (A) the Registration Statement as of the Effective Date, the
Disclosure Package, as of the Applicable Time, and the Prospectus, as of
its date, including in each case any document incorporated or deemed
incorporated by reference therein, did not and, on the Closing Date, do
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (B) since the initial Effective Date
of the Registration Statement, there has occurred no event required to be
set forth in an amendment or supplement to the Registration Statement, the
most recent Preliminary Prospectus or the Prospectus which has not been so
set forth and there has been no document required to be filed under the
Securities Act and the Rules and Regulations or the Exchange Act and the
rules and regulations thereunder that upon such filing would be deemed to
be incorporated by reference into the Registration Statement, the most
recent Preliminary Prospectus or the Prospectus that has not been so
filed;
(iii) There has been never been any credit event on any credit
default swap sold by the Company or any of its subsidiaries; and
17
(iv) Except as set forth in the most recent Preliminary Prospectus,
none of the counterparties of the Company or any of its subsidiaries has
ever required the Company or any of its subsidiaries to post any
collateral.
The officers signing and delivering such certificate may rely upon the
best of their knowledge as to proceedings threatened.
(h) Except as described in the most recent Preliminary Prospectus and
the Prospectus, neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the most recent Preliminary Prospectus (A) any loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree or (B) since such date, there shall not
have been any change in the share capital or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, the effect of which, in any such case described in clause (A) or
(B), is, in the judgment of the Representatives, so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
Notes on the terms and in the manner contemplated in the Prospectus.
(i) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on, or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the Nasdaq National Market or in the over-the-counter
market, or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or materially limited or the
settlement of such trading generally shall have been materially disrupted or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or any state authority, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or there shall have occurred
any other calamity or crisis or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions,
including, without limitation, as a result of terrorist activities after the
date hereof (or the effect of international conditions on the financial markets
in the United States shall be such) as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the public
offering of the Notes on the terms and in the manner contemplated in the
Prospectus.
(j) The New York Stock Exchange, Inc. shall have approved the Notes for
listing, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the Company's corporate credit rating and the
rating of the Notes, Primus Financial's counterparty credit rating or the rating
accorded to the debt securities of Primus Financial by any "NATIONALLY
RECOGNIZED STATISTICAL RATING ORGANIZATION"(as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations), and
(ii) no
18
such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, the Company's corporate credit
rating and the rating of the Notes, Primus Financial's counterparty credit
rating or the rating accorded to the debt securities of Primus Financial.
(l) No Underwriter shall have been advised by the Company, or shall have
discovered and disclosed to the Company, that the Registration Statement, the
most recent Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact which, in the reasonable opinion of the counsel for the Underwriters,
is material or omits to state a fact which, in the reasonable opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading and has not been cured by any
amendment or supplement thereto filed on or prior to the date hereof.
(m) Prior to or on the Closing Date, the Representatives shall have been
furnished by the Company such additional documents and certificates as the
Representatives or counsel for the Underwriters may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
SECTION 8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter, its
directors, officers and employees, each person, if any, who controls any
Underwriter within the meaning of the Securities Act, and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Notes), to which that
Underwriter, any such director, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any
amendment or supplement thereto, the Disclosure Package, any Issuer Free Writing
Prospectus or any "issuer information" filed or required to be filed pursuant to
Rule 433(d) of the Rules and Regulations, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any amendment or supplement thereto, the Disclosure Package, or any
Issuer Free Writing Prospectus, any such issuer information, a material fact
required to be stated therein or necessary to make the statements therein not
misleading or (iii) any act or failure to act or any alleged act or failure to
act by any Underwriter in connection with, or relating in any manner to, the
offering contemplated hereby, and which is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the Company shall not
be liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct), and shall reimburse each Underwriter and each
such director, officer, employee or controlling person
19
promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter, director, officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus, any amendment or supplement thereto, the Disclosure Package or
any Issuer Free Writing Prospectus in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein which information consists solely of the information specified
in Section 8(e). The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
director, officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its directors, officers and employees and each
person, if any, who controls the Company within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Company or any such director,
officer or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, any amendment or supplement thereto, the Disclosure
Package, or any Issuer Free Writing Prospectus, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any amendment or supplement thereto, the Disclosure Package, or any
Issuer Free Writing Prospectus, any material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of that Underwriter specifically for
inclusion therein, which information is limited to the information set forth in
Section 8(e), and shall reimburse the Company and any such director, officer,
employee or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer, employee or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any such director,
officer, or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate
20
therein and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ one separate counsel (in
addition to any local counsel) to represent jointly the Representatives and
those other Underwriters and their respective directors, officers, employees and
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Underwriters against the Company
under this Section 8 if, in the reasonable judgment of the Representatives, it
is advisable for the Representatives and those Underwriters, directors,
officers, employees and controlling persons to be jointly represented by
separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Sections 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering of the Notes
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by each of the Company on the one
hand and the Underwriters on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Notes purchased under this Agreement (before deducting expenses) received
by the Company, as the case may be, on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
Notes, on the other hand, bear to the total gross proceeds from the offering of
the Notes under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a
21
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 8 were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section shall be deemed to
include, for purposes of this Section 8(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes underwritten by
it and distributed to the public was offered to the public exceeds the amount of
any damages which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm and the Company acknowledges that
the information appearing in the list of names of each of the Underwriters under
the caption "Underwriting" in the most recent Preliminary Prospectus and the
Prospectus and the statements in the 5th, 6th, 7th and 10th paragraphs under
the caption "Underwriting" in the most recent Preliminary Prospectus and the
Prospectus are correct and constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement, the most
recent Preliminary Prospectus and the Prospectus.
SECTION 9. Defaulting Underwriters.
If any Underwriter defaults in the performance of its obligation to
purchase the principal amount of the Notes which it has agreed to purchase under
this Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the principal amount of the Notes which the defaulting Underwriter
agreed but failed to purchase in the respective proportions which the principal
amount of the Notes set opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total principal amount of the
Notes, less the principal amount of the Notes the defaulting Underwriter agreed
to purchase, set forth in Schedule 1 hereto; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Notes if the total principal amount of the Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase exceeds 9.09% of the
total principal amount of the Notes, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the principal
amount of the Notes set forth opposite its name in Schedule 1 hereto. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the Representatives who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Notes. If the remaining Underwriters or
other underwriters satisfactory to the Representatives do not elect to purchase
the Notes which the defaulting
22
Underwriter or Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the payment of
expenses to the extent set forth in Sections 5 and 11. As used in this
Agreement, the term "UNDERWRITER" includes, for all purposes of this Agreement
unless the context requires otherwise, any party not listed in Schedule 1 hereto
who, pursuant to this Section 9, purchases Notes which a defaulting Underwriter
agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If
non-defaulting Underwriters or the other underwriters satisfactory to the
Representatives are obligated or agree to purchase the Notes of a defaulting or
withdrawing Underwriter, either the Representatives or the Company may postpone
the Closing Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement, and the Company agrees to file promptly
any amendments or any supplements to the Registration Statement or the
Prospectus which, in the opinion of the Representatives, may thereby be made
necessary.
SECTION 10. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company until the Closing Date if, prior to that time, any of the events
described in Sections 7(h), 7(i) or 7(k), shall have occurred or if the
Underwriters shall decline to purchase the Notes for any reason permitted under
this Agreement.
SECTION 11. Reimbursement of Underwriters' Expenses. If the Company shall
fail to tender the Notes for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel to the
Underwriters) incurred by the Underwriters in connection with this Agreement and
the proposed purchase of the Notes, and upon demand the Company shall pay the
full amount thereof to the Representatives. If this Agreement is terminated
pursuant to Section 9 by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
SECTION 12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to Wachovia Capital Markets, LLC, 0000 X. XX Xxxxxx
Xxxx., Xxxxxxxxx, XX 00000-0000, Attention: Syndicate Operations, Xxxxxx Xxxxxxx
& Co. Incorporated, 0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attn: Fixed
Income Syndicate, Phone: (000) 000-0000, Fax: (000) 000-0000, Xxxxxx Brothers
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Debt Capital Markets,
Financial Institutions Group (with a copy to the General Counsel at the same
address);
23
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to Primus Guaranty, Ltd., Clarendon House, 0 Xxxxxx
Xxxxxx, Xxxxxxxx XX 00, Xxxxxxx, Xxxxxxxxx: Xxxxx Xxxxx (Fax: 000-000-0000),
with a copy to Primus Asset Management, Inc., 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, Attention: Xxxxxx Xxxxxx (Fax: 000-000-0000); and
(c) provided, however, that any notice to an Underwriter pursuant to
Section 8(c) shall be delivered or sent by mail, telex or facsimile transmission
to such Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by Wachovia Securities on behalf of the
Representatives.
SECTION 13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the directors,
officers and the person or persons, if any, who control any Underwriter within
the meaning of Section 15 of the Securities Act and (B) the indemnity agreement
of the Underwriters contained in Section 8(b) of this Agreement shall be deemed
to be for the benefit of the directors of the Company, officers of the Company
who have signed the Registration Statement and any person controlling the
Company within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 15, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
SECTION 14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Notes and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
SECTION 15. Research Analyst Independence. The Company acknowledges that
the Underwriters' research analysts and research departments are required to be
independent from their respective investment banking divisions and are subject
to certain regulations and internal policies, and that such Underwriters'
research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Company
and/or the offering of the Notes that differ from the views of their respective
investment banking divisions. The Company hereby waives and releases, to the
fullest extent permitted by law, any claims that the Company may have against
the Underwriters with respect to any conflict of interest that may arise from
the fact that the views expressed by their independent research analysts and
research departments may be different from or inconsistent with the views or
advice communicated to the Company by such Underwriters' investment banking
divisions. The Company acknowledges that each of the Underwriters is a full
service securities firm and as such from time to time, subject to applicable
securities laws, may effect transactions for its own account or the account of
its customers and hold long or short positions in debt or equity
24
securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
SECTION 16 Nature of Relationship. The Company acknowledges and agrees
that in connection with the offering and the sale of the Notes or any other
services the Underwriters may be deemed to be providing hereunder,
notwithstanding any preexisting relationship, advisory or otherwise, between the
parties or any oral representations or assurances previously or subsequently
made by the Underwriters: (i) no fiduciary or agency relationship between the
Company and any other person, on the one hand, and the Underwriters, on the
other hand, exists; (ii) the Underwriters are not acting as advisors, experts or
otherwise, to the Company, including, without limitation, with respect to the
determination of the public offering price of the Notes, and such relationship
between the Company, on the one hand, and the Underwriters, on the other hand,
is entirely and solely a commercial relationship, based on arms-length
negotiations; (iii) any duties and obligations that the Underwriters may have to
the Company shall be limited to those duties and obligations specifically stated
herein; and (iv) the Underwriters and their respective affiliates may have
interests that differ from those of the Company. The Company hereby waives any
claims that the Company may have against the Underwriters with respect to any
breach of fiduciary duty in connection with this offering.
SECTION 17. Definition of the Terms "BUSINESS DAY" and "SUBSIDIARY". For
purposes of this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "SUBSIDIARY" has the meaning set forth in Rule 405 of the Rules
and Regulations.
SECTION 18. Governing Law; Submission To Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of New York.
The Company irrevocably agrees that any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated
hereby ("RELATED PROCEEDINGS") may be instituted in the federal courts of the
United States of America located in the City of New York or the courts of the
State of New York in each case located in the Borough of Manhattan in the City
of New York (collectively, the "SPECIFIED COURTS"), and irrevocably submits to
the non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company further agree that service of any process, summons,
notice or document by mail to their respective addresses set forth above shall
be effective service of process for any lawsuit, action or other proceeding
brought in any such court. The Company hereby irrevocably and unconditionally
waives any objection to the laying of venue of any lawsuit, action or other
proceeding in the Specified Courts, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such lawsuit, action or other proceeding brought in any such court has been
brought in an inconvenient forum.
With respect to any Related Proceedings, the Company irrevocably waives,
to the fullest extent permitted by applicable law, all immunity (whether on the
basis of sovereignty or otherwise) from jurisdiction, service of process,
attachment (both before and after judgment) and execution to which it might
otherwise be entitled in the Specified Courts, and with respect to any judgment
by Specified Court ("RELATED JUDGMENT"), the Company waives any such immunity in
the Specified Courts or any other court of competent jurisdiction, and will not
raise or claim or
25
cause to be pleaded any such immunity at or in respect of any such Related
Proceeding or Related Judgment, including, without limitation, any immunity
pursuant to the United States Foreign Sovereign Immunities Act of 1976, as
amended.
Nothing herein shall be construed to prevent or impair the right of any
Underwriter to serve process in any other manner permitted by law or to bring
any suit, action or proceeding in any other jurisdiction.
SECTION 19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
26
If the foregoing correctly sets forth the agreement among the Company and
the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
PRIMUS GUARANTY, LTD.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
Confirmed and accepted as of
the date first above mentioned:
WACHOVIA CAPITAL MARKETS LLC
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXX BROTHERS INC.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By: WACHOVIA CAPITAL MARKETS LLC
By: /s/ Illegible
---------------------------
Authorized Representative
By: XXXXXX XXXXXXX & CO.
INCORPORATED
By: /s/ Illegible
---------------------------
Authorized Representative
By: XXXXXX BROTHERS INC.
By: /s/ Illegible
---------------------------
Authorized Representative
27
SCHEDULE 1
PRINCIPAL AMOUNT
OF NOTES TO BE
UNDERWRITERS PURCHASED
Wachovia Capital Markets LLC.............................. $33,333,350
Xxxxxx Xxxxxxx & Co. Incorporated......................... $33,333,325
Xxxxxx Brothers Inc....................................... $33,333,325
Banc of America Securities LLC............................ 6,250,000
Calyon Securities (USA) Inc............................... 1,250,000
Xxxxx, Xxxxxxxx & Xxxxx, Inc.............................. 1,250,000
Xxxxxx, Xxxxxxxx & Company, Incorporated.................. 1,250,000
Xxxxxxx Xxxxx & Company, LLC.............................. 1,250,000
X.X. Xxxxxxx & Sons, Inc. ................................ 1,250,000
Xxxxxxx Xxxxxx & Co. ..................................... 1,250,000
Xxxxxx, Xxxxx Xxxxx, Incorporated......................... 1,250,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC............................... 1,250,000
Xxxxxxxxx & Company, Inc. ................................ 1,250,000
X.X. Xxxxxxx & Co. ....................................... 1,250,000
Xxxxxx Xxxxxx & Company, Inc. ............................ 1,250,000
Xxxxxxx Xxxxx & Associates, Inc........................... 1,250,000
RBC Xxxx Xxxxxxxx Inc. ................................... 1,250,000
Xxxx Xxxx & Co. .......................................... 1,250,000
Xxxxx Fargo Securities, LLC............................... 1,250,000
----------------
TOTAL..................................... 125,000,000
================
1-1
SCHEDULE 2
ISSUER FREE WRITING PROSPECTUSES
o Final Term Sheet, dated December 19, 2006, relating to the Notes, as filed
pursuant to Rule 433 under the Securities Act and attached as Schedule 3
hereto.
2-1
SCHEDULE 3
PRIMUS GUARANTEE, LTD.
SENIOR NOTES
--------------------------------------------------------------------------------
ISSUER: Primus Guaranty, Ltd.
DESCRIPTION: Senior Notes due 2036
EXPECTED RATINGS: Baa1/BBB+ (Stable/Stable)
COUPON: 7.000%
PRINCIPAL AMOUNT: $125,000,000 (5,000,000 Notes)
MATURITY DATE: December 27, 2036
PRICE TO PUBLIC: 100.000%
DENOMINATIONS: $25 and integral multiples thereof
PRICING DATE: December 19, 2006
SETTLEMENT DATE: December 27, 2006 (T+5)
PAYMENT DATES: Interest on the Notes will be payable
quarterly in arrears on the 27th day of
March, June, September, and December of each
year, commencing March 27, 2007.
DAY COUNT CONVENTION: 30 / 360
OPTIONAL REDEMPTION: On or after December 27, 2011, the Issuer may
redeem the Notes in whole at any time, or in
part from time to time, at a redemption price
equal to par plus accrued interest.
NET PROCEEDS TO ISSUER: $121,062,500
CUSIP NUMBER: G72457 11 5
JOINT BOOK RUNNERS: Wachovia Capital Markets, LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
CO-MANAGER: Banc of America Securities LLC
LISTING: New York Stock Exchange
--------------------------------------------------------------------------------
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 WACHOVIA CAPITAL MARKETS, LLC, XXXXXX
XXXXXXX & CO. INCORPORATED, AND/OR XXXXXX
3-1
BROTHERS INC. WILL ARRANGE TO SEND YOU THE PROSPECTUS IF YOU REQUEST IT BY
CALLING WACHOVIA CAPITAL MARKETS, LLC TOLL-FREE AT 0-000-000-0000, XXXXXX
XXXXXXX &CO. INCORPORATED TOLL-FREE AT 0-000-000-0000 OR XXXXXX BROTHERS INC.
TOLL-FREE AT 0-000-000-0000.
3-2
SCHEDULE 4
As used in this Agreement, the "SUBSIDIARIES" of the Company are as follows:
1. PRS Trading Strategies, LLC, a Delaware limited liability company;
2. Primus (Bermuda), Ltd., a Bermuda exempted company
3. Primus Guarantee (UK), Ltd., a United Kingdom limited company;
4. Primus Group Holdings, LLC, a Delaware limited liability company;
5. Primus Financial Products, LLC, a Delaware limited liability
company;
6. Primus Asset Management, Inc., a Delaware corporation; and
7. Primus Re, Ltd., a Bermuda exempted company.
4-1
EXHIBIT A
FORM OF OPINION OF XXXXXX, XXXXX & XXXXXXX LLP
Xxxxxx, Xxxxx & Bockius LLP, as U.S. counsel to the Company, shall
have furnished to the Representatives their written opinion addressed to
the Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
(i) The U.S. subsidiaries of the Company have been duly
incorporated or formed and are validly existing as corporations or
limited liability companies in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing in each jurisdiction in which
their respective ownership, lease or operation of property or the
conduct of their respective businesses requires such qualification
and have power and authority as a corporation or limited liability
company, as applicable, necessary to own or hold their respective
properties and conduct the businesses in which they are engaged.
(ii) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened or contemplated to
which the Company or any of its subsidiaries is a party or of which
any property or assets of the Company or any of its subsidiaries is
the subject that are required to be described in the most recent
Preliminary Prospectus and the Prospectus but are not so described.
(iii) The Registration Statement has been declared effective
under the Securities Act, the Prospectus was timely filed with the
Commission pursuant to the subparagraph of Rule 424(b) of the Rules
and Regulations and no stop order suspending the effectiveness of
the Registration Statement or preventing or suspending the use of
any Preliminary Prospectus or Issuer Free Writing Prospectus has
been issued and, to the knowledge of such counsel, no proceeding for
that purpose is pending or threatened by the Commission and the
Commission has not notified the Company of any objection to the use
of the form of the Registration Statement.
(iv) The Registration Statement, as of the Effective Date,
and the Prospectus, as of its date and as of the Closing Date, and
any further amendments or supplements thereto made by the Company as
of their respective effective or issue dates and as of the Closing
Date (except for the financial statements and related notes and
schedules therein, and other financial and statistical data derived
therefrom, as to which such counsel need express no opinion) comply
as to form in all material respects with
A-1
the requirements of the Securities Act and the Rules and Regulations
and the Trust Indenture Act and the rules and regulations
thereunder; and the documents incorporated by reference in the most
recent Preliminary Prospectus and the Prospectus, when they became
effective or were filed with the Commission, as the case may be,
conformed, in all material respects, to the requirements of the
Securities Act and the Rules and Regulations or the Exchange Act or
the rules and regulations thereunder, as applicable (except that no
opinion need be expressed as to the financial statements and notes
thereto and the other financial data contained therein or omitted
therefrom).
(v) The statements contained in the Prospectus under the
caption "Certain U.S. Federal Income Tax Considerations", insofar as
they constitute summaries of U.S. federal income tax laws or
regulations, fairly and accurately present the matters therein
described in all material respects. As indicated therein, counsel is
not providing an opinion as to whether the Company's activities or
those of the Company's subsidiaries are such that the Company should
be treated as engaged in a U.S. trade or business for U.S. federal
income tax purposes.
(vi) The statements set forth in the most recent Preliminary
Prospectus and the Prospectus under the caption "Description of
Notes", insofar as they purport to describe certain terms and
provisions of the Notes and the Indenture, are fair summaries of
such terms and provisions.
(vii) To such counsel's knowledge, there are no contracts or
other documents which are required to be described in the Prospectus
or filed as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been described or
filed as exhibits to the Registration Statement.
(viii) To the extent governed by New York law, this Agreement
and the Indenture have been duly executed and delivered by the
Company; to the extent governed by the New York law, the Notes have
been duly authorized and executed by the Company and, when
authenticated by the Trustee in accordance with the Indenture and
delivered to the Underwriters against payment therefor in accordance
with the terms of this Agreement, will have been validly issued and
delivered and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar
laws relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
A-2
(ix) The issue and sale of the Notes being delivered on the
Closing Date by the Company pursuant to this Agreement and the
execution, delivery and compliance by the Company with all of the
provisions of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any agreement or instrument filed as an
exhibit to the Registration Statement or the Company's annual report
on Form 10-K for 2005, nor will such actions result in any violation
of the provisions of any law, statute or any order, rule or
regulation that, in such counsel's experience, is generally
applicable to transactions of the type contemplated by this
Agreement, or, to such counsel's knowledge, any decree, judgment or
order of any governmental body, agency or court having jurisdiction
over the Company or any of its subsidiaries; and, except for the
registration of the Notes under the Securities Act, and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and under applicable state
or foreign securities laws or regulations which have been made or
obtained and are in full force and effect in connection with the
purchase and distribution of the Notes by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement by the Company, the consummation of the transactions
contemplated hereby, the execution and delivery of the Indenture and
the Notes by the Company or compliance by the Company with all of
the provisions of this Agreement, the Indenture and the Notes.
(x) Except as described in the most recent Preliminary
Prospectus and the Prospectus, to such counsel's knowledge, there
are no contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company
to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities
Act; neither the filing of the Registration Statement, the most
recent Preliminary Prospectus or the Prospectus nor the offer or
sale of the Notes as contemplated by this Agreement gives rise to
any rights, other than those which have been duly waived or
satisfied, for or relating to the registration of any securities of
the Company.
(xi) Neither the Company nor any of its subsidiaries is, and
on the Closing Date and, after giving effect to the offering and
sale of the Notes and the application of the net proceeds therefrom
as described in
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each of the most recent Preliminary Prospectus and the Prospectus
will be, an "investment company" as defined in the Investment
Company Act.
(xii) No U.S. subsidiary of the Company is currently
prohibited, directly or indirectly, by its constitutive documents
from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock or membership
interests, as applicable, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any
other subsidiary of the Company, except as described in the
Disclosure Package.
(xiii) Subject to the comment below, under the laws of the
State of New York relating to the submission to personal
jurisdiction, Section 18 of this Agreement is sufficient to validly
and irrevocably submit a person or entity to the personal
jurisdiction of any New York state court or United States federal
court sitting in the Borough of Manhattan, The City of New York, and
any appellate court thereof, in any suit, action or proceeding
arising out of or based upon this Agreement, and Section 18 is
sufficient to validly and irrevocably waive any objection to the
venue of a proceeding in any such court and validly appoint the
authorized agent named in Section 18 of this Agreement for the
purposes described therein, and service of process effected in the
manner set forth in Section 18 of this Agreement will be effective
to confer valid personal jurisdiction.
With respect to the opinion set forth in paragraph (xvi)
above, such counsel may note the limitations of 28 U.S.C. ss.ss.1331
and 1332 on federal court jurisdiction, and may also note that the
submission to the jurisdiction of such court cannot supersede such
court's discretion in determining whether to transfer an action from
one U.S. federal court to another under 28 U.S.C. ss.1404(a). Such
counsel may further note that submission to the jurisdiction of a
New York state court cannot supersede the discretion of such court
in determining whether to transfer the place of trial under NYCPLR
ss.510.
In rendering such opinion, such counsel may state that their opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law
of the State of Delaware.
We refer you to the Registration Statement, the Disclosure Package
and the Prospectus. As counsel to the Company, we reviewed the
Registration Statement, the Disclosure Package and the Prospectus and
participated in conferences with your representatives and representatives
of the Company, its independent public accountants and your counsel at
which the contents of the
A-4
Registration Statement, the Disclosure Package and the Prospectus and
related matters were discussed.
The purpose of our professional engagement was not to establish or
confirm factual matters set forth in the Registration Statement, the
Disclosure Package and the Prospectus, and we have not undertaken any
obligation to verify independently any of the factual matters set forth in
the Registration Statement, the Disclosure Package and the Prospectus.
Moreover, many of the determinations required to be made in the
preparation of the Registration Statement, the Disclosure Package and the
Prospectus involve matters of a non-legal nature.
Subject to the foregoing, we confirm to you that, on the basis of
the information we gained in the course of performing the services
referred to above, nothing came to our attention that caused us to believe
that (i) the Registration Statement, on the most recent effective date,
pursuant to Rule 430B(f)(2) under the Securities Act, of the part of the
Registration Statement relating to the Notes for purposes of the liability
of the Underwriters under Section 11 of the Securities Act, 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 ; (ii) the Disclosure Package, considered as a whole at the
Applicable Time, contained any 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 (iii) the Prospectus, as of its date, or as of the date
hereof, contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that (a) we are not passing
upon and do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement, the
Disclosure Package and the Prospectus (except as and to the extent set
forth in paragraphs (v) and (vi) above), (b) we do not express any belief
with respect to the financial statements or other financial, statistical
or accounting data contained in the Registration Statement, the Disclosure
Package or the Prospectus), (c) we do not express any belief with respect
to any statement in a document incorporated by reference in the
Registration Statement or the Prospectus, to the extent that, pursuant to
Rule 412 under the Securities Act, such statement is deemed modified or
superseded in the Registration Statement or the Prospectus, as the case
may be, at the respective times as of which the advisements set forth in
this paragraph are provided and (d) we do not express any belief with
respect to the representations and warranties contained in the exhibits to
the Registration Statement or in the exhibits to the documents
incorporated by reference in the Registration Statement or the Prospectus.
A-5
EXHIBIT B
FORM OF OPINION OF XXXXXXX XXXX & XXXXXXX
1. Each of the Company, Primus (Bermuda), Ltd. and Primus Re, Ltd.
("Primus Re") is duly incorporated and existing under the laws of
Bermuda in good standing (meaning solely that it has not failed to
make any filing with any Bermuda governmental authority or to pay
any Bermuda government fee or tax which would make it liable to be
struck off the Register of Companies and thereby cease to exist
under the laws of Bermuda).
2. The Company has the necessary corporate power and authority to
execute and file the Registration Statement under the Securities Act
and under the Act and to execute, deliver and perform its
obligations under the Agreement, the Indenture and the Notes. The
Company and Primus (Bermuda), Ltd. have the necessary corporate
power to be holding companies and Primus Re has the necessary
corporate power to conduct its business as described in the most
recent Preliminary Prospectus and the Prospectus. The execution and
delivery of this Agreement, the Indenture and the Notes by the
Company and the performance by the Company of its obligations
thereunder, and the execution and filing of the Registration
Statement by the Company under the Securities Act and under the Act,
will not violate the said memorandum of association or bye laws of
the Company, nor any applicable law, regulation, order or decree in
Bermuda.
3. The Company has taken all corporate action required to authorise its
execution and filing of the Registration Statement under the
Securities Act and under the Act and its execution, delivery and
performance of this Agreement, the Indenture and the Notes. The
Registration Statement has been duly authorized and executed by or
on behalf of the Company. The Agreement, the Indenture and the Notes
have been duly executed and delivered by or on behalf of the
Company, and constitutes the valid and binding obligations of the
Company, enforceable against the Company in accordance with the
terms thereof.
4. No order, consent, approval, license, authorisation or validation
of, filing with or exemption by any government or public body or
authority of Bermuda or any sub division thereof is required (i) to
authorize or in connection with the execution and filing of the
Registration Statement under the Securities Act and under the Act,
or (ii) to authorise or is required in connection with the
execution, delivery, performance and enforcement of the Agreement,
the Indenture and the Notes (including, without limitation, in
connection with the sale of the Notes), except such as have been
duly obtained or filed in accordance with Bermuda law.
B-1
5. It is not necessary or desirable to ensure the enforceability in
Bermuda of this Agreement, the Indenture and the Notes that they be
registered in any register kept by, or filed with, any governmental
authority or regulatory body in Bermuda.
6. The Agreement, the Indenture and the Notes will not be subject to ad
valorem stamp duty in Bermuda and no registration, documentary,
recording, transfer or other similar tax, fee or charge is payable
in Bermuda in connection with the execution, delivery, filing,
registration or performance of the Agreement, the Indenture and the
Notes by the Company other than in connection with the filing of the
Prospectus under the Act. There is no income or other tax of Bermuda
imposed by withholding or otherwise on any payment to be made to or
by the Company pursuant to the Agreement, the Indenture and the
Notes. There is no income or other tax of Bermuda imposed by
withholding or otherwise on any payment to be made by the Company to
registered holders of the Notes or any payment to be made by the
Company pursuant to the Agreement, the Indenture and the Notes.
7. The Company, Primus (Bermuda), Ltd. and Primus Re have been
designated as non resident of Bermuda for the purposes of the
Exchange Control Act, 1972 and, as such, are free to acquire, hold,
transfer and sell foreign currency (including the payment of
dividends or other distributions) and securities without
restriction. Each of the Company, Primus (Bermuda), Ltd. and Primus
Re is an "exempted company" under the Act.
8. The statements set forth in: (a) The Shelf Prospectus under the
caption "Description of Share Capital,", and (b) the Prospectus
Supplement under the caption "Risk Factors - Risks Related to Our
Status as a Bermuda company" (excluding the last paragraph of that
captioned section); and "Certain Bermuda Tax Considerations", to the
extent that they constitute statements of Bermuda law, are accurate
in all material respects. The authorised share capital of the
Company (not including any issued share capital) conforms, as to
matters of Bermuda law, to the description thereof contained in the
Shelf Prospectus under the heading "Description of Share Capital" in
all material respects.
9. The choice of the Foreign Laws as the governing law of the
Agreement, the Indenture and the Notes is a valid choice of law and
would be recognised and given effect to in any action brought before
a court of competent jurisdiction in Bermuda, except for those laws
(i) which such court considers to be procedural in nature, (ii)
which are revenue or penal laws or (iii) the application of which
would be inconsistent with public policy, as such term is
interpreted under the laws of Bermuda. The
B-2
submission in the Agreement, the Indenture and the Notes to the
non-exclusive jurisdiction of the Foreign Courts, the waiver of any
objection related to inconvenient forum with respect to the Foreign
Courts, and the appointment of an agent for service pursuant thereto
are valid and binding upon the Company.
10. The courts of Bermuda would recognise as a valid judgment, a final
and conclusive judgment in personam obtained in the Foreign Courts
against the Company based upon the Agreement, the Indenture and the
Notes under which a sum of money is payable (other than a sum of
money payable in respect of multiple damages, taxes or other charges
of a like nature or in respect of a fine or other penalty) and would
give a judgment based thereon provided that (a) such courts had
proper jurisdiction over the parties subject to such judgment, (b)
such courts did not contravene the rules of natural justice of
Bermuda, (c) such judgment was not obtained by fraud, (d) the
enforcement of the judgment would not be contrary to the public
policy of Bermuda, (e) no new admissible evidence relevant to the
action is submitted prior to the rendering of the judgment by the
courts of Bermuda and (f) there is due compliance with the correct
procedures under the laws of Bermuda.
11. Each of the Company, Primus (Bermuda), Ltd. and Primus Re has
received an assurance from the Minister of Finance under The
Exempted Undertakings Tax Protection Act 1966 in Bermuda that in the
event of there being enacted in Bermuda any legislation imposing tax
computed on profits or income or computed on any capital asset, gain
or appreciation, or any tax in the nature of estate duty or
inheritance tax, then the imposition of any such tax shall not be
applicable to the Company, the Notes or any of its operations or its
shares, debentures or other obligations of the Company, until 28
March 2016 (subject to the proviso expressed in such assurance as
described in the most recent Preliminary Prospectus and the
Prospectus).
12. Based solely upon a search of the Cause Book of the Supreme Court of
Bermuda conducted at [o] [am/pm] on [o], 2006 (which would not
reveal details of proceedings which have been filed but not actually
entered in the Cause Book at the time of our search), there are no
judgments against the Company, Primus (Bermuda), Ltd. or Primus Re,
nor any legal or governmental proceedings pending in Bermuda to
which the Company, Primus (Bermuda), Ltd. or Primus Re is subject.
13. The Company is not entitled to any immunity under the laws of
Bermuda, whether characterized as sovereign immunity or otherwise,
from any legal proceedings to enforce the Agreement, the Indenture
or the Notes in respect of itself or its property.
B-3
14. Consummation by the Company of the transactions contemplated by the
Agreement, the Indenture and the Notes to be taken by the Company,
including but not limited to any actions taken pursuant to the
indemnification and contribution provisions set forth therein, will
not constitute unlawful financial assistance by the Company under
Bermuda law.
15. The obligations of the Company under the Notes will rank at least
pari passu in priority of payment with all other unsecured
unsubordinated indebtedness of the Company, other than indebtedness
which is preferred by virtue of any provision of the laws of Bermuda
of general application.
X-0
XXXXXXX X
XXXX XX XXXXXXX XX XXXXX XXXX & XXXXXXXX
Xxxxx Xxxx & Xxxxxxxx, as U.S. counsel to the Underwriters, shall
have furnished to the Representatives their written opinion addressed to
the Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
1. The statements relating to legal matters or documents included
in the most recent Preliminary Prospectus and the Prospectus under the
caption "Underwriting" fairly summarize in all material respects such
matters or documents.
Such counsel may state that such counsel has not itself checked the
accuracy, completeness or fairness of, or otherwise verified, the
information furnished with respect to other matters in the Registration
Statement, the most recent Preliminary Prospectus or the Prospectus. Such
counsel has generally reviewed and discussed with the Representatives and
with certain officers and employees of, and counsel and independent public
accountants for, the Company the information furnished, whether or not
subject to its check and verification. On the basis of such consideration,
review and discussion, but without independent check or verification
except as stated above, nothing has come to the attention of such counsel
that causes it to believe that (i) as of the applicable Effective Date,
the Registration Statement or any amendment thereto, including in each
case any document incorporated or deemed incorporated by reference
therein, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, (ii) as of the
Applicable Time, the Disclosure Package, including in each case any
document incorporated or deemed incorporated by reference therein,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; or (iii) as of its date and as of the Closing
Date, the Prospectus or any supplement or amendment thereto, including in
each case any document incorporated or deemed incorporated by reference
therein, contained or contains any untrue statement of a material fact or
omitted or omits 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. In expressing
the foregoing belief, such counsel has not been called to pass upon, and
need express no belief as to, the financial statements and notes thereto
or financial schedules or other financial or statistical data contained
therein.
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