Exhibit 1
$150,000,000
▇. ▇. ▇▇▇▇▇▇▇ CORPORATION
6.150% SENIOR NOTES
DUE 2019
UNDERWRITING AGREEMENT
AUGUST 19, 2004
August 19, 2004
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
DEUTSCHE BANK SECURITIES INC.
As Representatives of the Several Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
▇. ▇. ▇▇▇▇▇▇▇ Corporation, a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "UNDERWRITERS") $150,000,000 principal amount of its 6.150% Senior
Notes due 2019 (the "SECURITIES") to be issued pursuant to the provisions of an
Indenture, dated as of February 14, 2003, as supplemented by the Third
Supplemental Indenture, to be dated as of August 24, 2004 (the "INDENTURE"),
between the Company and The Bank of New York, as Trustee (the "TRUSTEE").
The Company has filed with the Securities and Exchange Commission
(the "COMMISSION") a registration statement on Form S-3 (No. 333-109621) and
pre-effective amendment nos. 1 and 2 thereto covering the registration of the
securities of the Company, including the Securities, under the Securities Act of
1933, as amended (the "SECURITIES ACT"), including the related preliminary
prospectus or prospectuses, and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the Securities Act (the "RULES AND REGULATIONS") and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
this Agreement. Promptly after execution and delivery of this Agreement, the
Company will prepare and file a final prospectus and final prospectus supplement
in accordance with the provisions of paragraph (b) of Rule 424 of the Rules and
Regulations. Such registration statement, as amended, including the exhibits and
schedules thereto, if any, and the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the Rules and Regulations (the "RULE 430A
INFORMATION") is referred to herein as the "REGISTRATION STATEMENT," and the
final prospectus and the final prospectus supplement relating to the offering of
the Securities, in the form first furnished to the Underwriters by the Company
for use in connection with the offering of the Securities, are collectively
referred to herein as the "PROSPECTUS;" provided, however, that all references
to the "Registration Statement" and the "Prospectus" shall be deemed to include
all documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), prior to the execution of
this Agreement. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the applicable registration statement became effective
and any amendment or supplement thereto that omitted the Rule 430A Information
that was used after such effectiveness and prior to the execution and delivery
of the applicable underwriting agreement. For purposes of this Agreement, all
references to the Registration Statement, Prospectus or any preliminary
prospectus or to any amendment or supplement to any of them
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission.
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all material respects to the
requirements of the Securities Act and the Rules and Regulations and did
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 on the date of this Agreement, the
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Securities Act and the Rules and
Regulations; the Prospectus does not include and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein, in light of the circumstances under which
they were made, or necessary to make the statements therein not
misleading, except that the foregoing does not apply to (A) statements in
or omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the representatives or
representatives of the Underwriters, if any ("REPRESENTATIVES"),
specifically for use therein or (B) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under
the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"),
of the Trustee; and the documents incorporated by reference in the
Prospectus, at the time they were, or hereafter, are filed with the
Commission, complied and, at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act in
connection with sales by any Underwriter or dealer, will comply as to form
in all material respects with the requirements of the Exchange Act and the
rules and regulations thereunder.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except in such
jurisdictions where the failure to be so qualified would not individually
or in the aggregate have a material adverse effect on the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(d) Each Significant Subsidiary (as defined below) of the Company
has been duly incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its
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properties and conduct its business as described in the Prospectus; and
each Significant Subsidiary of the Company is, to the extent applicable,
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not individually or in the aggregate have
a Material Adverse Effect; all of the issued and outstanding capital stock
of each Significant Subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital stock
of each Significant Subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects. As used
herein, "SIGNIFICANT SUBSIDIARIES" means Berkley Regional Insurance
Company, Berkley Insurance Company and Admiral Insurance Company, which
are currently the only operating insurance companies that are "significant
subsidiaries" of the Company as that term is defined in Rule 1-02(w) of
Regulation S-X of the Rules and Regulations.
(e) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, and on the Closing Date (as defined
below) will be duly executed and delivered by the Company and a valid and
binding Agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(f) The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement on the Closing Date, such Securities will be duly
executed, authenticated, issued and delivered and entitled to the benefits
of the Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability; and the Securities and the Indenture
will conform to the descriptions thereof in the Prospectus.
(g) Except as disclosed in the Prospectus, 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 this offering.
(h) 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.
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(i) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
performance by the Company of its obligations under this Agreement, the
Indenture or the Securities, except such as have been obtained and made
under the Securities Act, as contemplated under Section 5(a) hereof, and
such as may be required under state securities laws.
(j) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement, the Indenture and the
Securities will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any
Significant Subsidiaries of the Company or any of their material
properties, or any material agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or the charter or by-laws of the Company
or any such subsidiary, and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by this
Agreement.
(k) This Agreement has been duly authorized, executed and delivered
by the Company.
(l) Except as disclosed in the Prospectus, the Company and its
Significant Subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each case
free from liens, encumbrances and defects that would affect the value
thereof or interfere with the use made or to be made thereof by them,
other than liens, encumbrances and defects that would not individually or
in the aggregate have a Material Adverse Effect; and except as disclosed
in the Prospectus, the Company and its subsidiaries hold any leased real
or personal property under valid and enforceable leases with no exceptions
that would individually or in the aggregate have a Material Adverse
Effect.
(m) The Company and its Significant Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them
and have not received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its Significant
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(n) The Company has made all required filings under applicable
insurance holding company statutes, and has received approvals of
acquisition of control and/or affiliate transactions, in each jurisdiction
in which such filings or approvals are required, except where the failure
to have made such filings or receive such approvals in any such
jurisdiction would not have individually or in the aggregate a Material
Adverse Effect; each of the Company's Significant Subsidiaries that is
required to be organized and licensed as an insurance or reinsurance
company (the "INSURANCE SUBSIDIARIES") in its jurisdiction of
incorporation is duly organized and licensed as an insurance or
reinsurance company in its respective jurisdiction of incorporation, and
each such Significant
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Subsidiary is duly licensed or authorized as an insurer or reinsurer (the
"INSURANCE LICENSES") in each other jurisdiction in which such licensing
or authorization is required, except where the failure to be so licensed
or authorized in any such jurisdiction would not have individually or in
the aggregate a Material Adverse Effect; there is no pending or, to the
knowledge of the Company, threatened action, suit, proceeding or
investigation that would reasonably be expected to lead to the revocation,
termination or suspension of any such Insurance Licenses, the revocation,
termination or suspension of which would have individually or in the
aggregate a Material Adverse Effect; and except as disclosed in the
Prospectus, no insurance regulatory agency or body has issued any order or
decree impairing, restricting or prohibiting the payment of dividends of
any Company subsidiary to its respective parent which would have
individually or in the aggregate a Material Adverse Effect.
(o) The Company and each of its Significant Subsidiaries is in
compliance with the requirements of all laws, ordinances, governmental
rules or regulations or court decrees to which it may be subject, and has
filed all notices, reports, documents or other information required to be
filed thereunder, except where the failure to so comply or file would not
individually or in the aggregate have a Material Adverse Effect.
(p) Except as disclosed in the Prospectus, neither the Company nor
any of its Insurance Subsidiaries is in violation of, or in default in the
performance, observance or fulfillment of, any obligation, agreement,
covenant or condition contained in reinsurance treaties, contracts,
agreements and arrangements to which the Company or any of its Insurance
Subsidiaries is a party, except for such violations or defaults which
would not individually or in the aggregate have a Material Adverse Effect;
neither the Company nor any of its Insurance Subsidiaries has received any
notice from any of the other parties to such treaties, contracts,
agreements or arrangements that such other party intends not to perform
its obligations thereunder and none of them has any reason to believe that
any of the other parties to such treaties, contracts, agreements or
arrangements will be unable to perform its obligations thereunder, except
to the extent that such nonperformance would not individually or in the
aggregate have a Material Adverse Effect.
(q) To the knowledge of the Company and its Insurance Subsidiaries,
no change in any insurance law or regulation is pending that would
reasonably be expected to have individually or in the aggregate a Material
Adverse Effect, except as described in the Prospectus.
(r) No labor dispute with the employees of the Company or any
Significant Subsidiary exists or, to the knowledge of the Company, is
imminent that would reasonably be expected to have individually or in the
aggregate a Material Adverse Effect.
(s) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
materially necessary to conduct the business now operated by them and have
not received any notice of infringement of or
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conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(t) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which would
reasonably be expected to lead to such a claim.
(u) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that would individually
or in the aggregate have a Material Adverse Effect, or would materially
and adversely affect the ability of the Company to perform its obligations
under this Agreement; and no such actions, suits or proceedings are, to
the Company's knowledge, threatened or contemplated.
(v) KPMG LLP, who have certified the financial statements and
supporting schedules of the Company and its subsidiaries contained in the
Prospectus, are independent public accountants within the meaning of the
Securities Act and the Rules and Regulations; except as disclosed in the
Prospectus, the financial statements included or incorporated by reference
in the Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries as of
the dates shown and their results of operations and cash flows for the
periods shown; except as disclosed in the Prospectus, such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis;
except as disclosed in the Prospectus, the schedules included or
incorporated in the Registration Statement present fairly the information
required to be stated therein; and except as disclosed in the Prospectus,
the Company and its Insurance Subsidiaries have made no material change in
their insurance reserving practices since the most recent audited
financial statements included in the Prospectus.
(w) The statutory annual and quarterly statements of the Insurance
Subsidiaries required to file such statutory statements and the statutory
balance sheets and income statements included in such statutory annual and
quarterly statements, most recently filed in each jurisdiction, have been
prepared in conformity with required or permitted or prescribed statutory
accounting principles or practices applied on a consistent basis, except
as may otherwise be indicated in the notes thereto, and present fairly the
financial position of the Insurance Subsidiaries (on a statutory basis)
for the period covered thereby.
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(x) The Company and its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with United
States generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(y) Except as disclosed in the Prospectus and except for regular
dividends declared or paid consistent with past practice, since the date
of the latest audited financial statements included in the Prospectus, (i)
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, (ii) there have not been
any transactions entered into by the Company or any of its subsidiaries
other than in the ordinary course of business which are material to the
Company and its subsidiaries taken as a whole, and, (iii) there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(z) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amount of Securities set forth in Schedule I
hereto opposite its name at 98.700% of their principal amount (the "PURCHASE
PRICE") plus accrued interest, if any, from August 24, 2004 to the date of
payment and delivery.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Securities as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Securities are to be offered to the public initially at
99.375% of their principal amount (the "PUBLIC OFFERING PRICE") plus accrued
interest, if any, from August 24, 2004 to the date of payment and delivery and
to certain dealers selected by you at a price that represents a concession not
in excess of 0.400% of their principal amount under the Public Offering Price,
and that any Underwriter may allow, and such dealers may reallow, a concession
to certain other dealers not to exceed 0.25% of the principal amount of the
Securities.
4. Payment and Delivery. Payment for the Securities shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Securities at 9:00 a.m., New York City time, on August
24, 2004, or at such other time on
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the same or such other date, not later than August 31, 2004, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "CLOSING DATE."
Certificates for the Securities shall be in global form and
registered in such names and in such denominations as you shall request in
writing not later than one full business day prior to the Closing Date. The
certificates evidencing the Securities shall be delivered to you on the Closing
Date for the respective accounts of the several Underwriters, with any transfer
taxes payable in connection with the transfer of the Securities to the
Underwriters duly paid, against payment of the Purchase Price therefor plus
accrued interest, if any, to the date of payment and delivery.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b) not later than the second
business day following the execution and delivery of this Agreement.
(b) The Company will advise ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
promptly of any proposal to amend or supplement the Registration Statement
or the Prospectus and will afford ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated a
reasonable opportunity to comment on any such proposed amendment or
supplement; provided, however, the Company shall not file any such
proposed amendment or supplement to which ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated reasonably objects; and the Company will also advise ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated promptly of the filing of any such amendment or
supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part
thereof and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities as
in the opinion of counsel for the Underwriters is required to be delivered
under the Securities Act in connection with sales by any Underwriter or
dealer, any event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if for any other reason it shall be necessary during the
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the provisions of the Securities Act, the Exchange
Act or the Trust Indenture Act, the Company promptly will notify ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated of such event, and if such event shall occur or
if, in the opinion of counsel for the Underwriters, it is necessary at any
time to amend the Prospectus to comply with the Securities Act, the
Company will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated's consent to, nor the Underwriters' delivery
of, any such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 6 hereof.
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(d) As soon as practicable, but not later than 16 months, after the
date of this Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Securities, (ii) the effective date
of the most recent post-effective amendment to the Registration Statement
to become effective prior to the date of this Agreement and (iii) the date
of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of this Agreement, which will satisfy the
provisions of Section 11(a) of the Securities Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case prior
to 3:00 P.M. New York City time on the business day next succeeding the
date of this Agreement or as soon as possible, with respect to any
amendment or supplement, during the period mentioned in Section 5(c) above
and in such quantities as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated reasonably
requests. The Company will pay the expenses of printing and distributing
to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated reasonably designates and will continue such qualifications
in effect so long as required for the distribution; provided, that in
connection therewith the Company shall not be required to qualify to do
business in any jurisdiction or to file or consent or otherwise subject
itself to service of process or taxation in any jurisdiction where it is
not already so subject.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated may reasonably request.
(h) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under
this Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Securities under the Securities Act and
all other fees or expenses in connection with the preparation and filing
of the Indenture, the Registration Statement, any preliminary prospectus,
the Prospectus and amendments and supplements to any of the foregoing,
including all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to
the transfer and delivery of the Securities to the Underwriters, including
any transfer or other taxes payable thereon, (iii) the cost of printing
certificates representing the
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Securities, (iv) any fees charged by securities rating services for rating
the Securities, (v) the fees and expenses of the Trustee and any agent of
the Trustee and the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, (vi) travel and lodging
expenses of officers and employees of the Company for any "road show"
undertaken in connection with the marketing of the offering of the
Securities, and one-half of the cost of any aircraft chartered in
connection with the road show, and (vii) all other costs and expenses
incident to the performance of the obligations of the Company hereunder
for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 7
entitled "Indemnity and Contribution", and the last paragraph of Section 9
below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, transfer taxes payable
on resale of any of the Securities by them and any advertising expenses
connected with any offers they may make.
6. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Securities to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Securities on the
Closing Date are subject to the following conditions:
(a) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(b) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard
& Poor's Ratings Group, a division of McGraw Hill, Inc.; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus.
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(c) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, outside counsel for the Company,
dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware;
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement;
(iii) The Indenture has been duly qualified under the Trust
Indenture Act, has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (B) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(iv) The Securities have been duly authorized by all necessary
corporate action, have been executed, authenticated, issued and
delivered and are entitled to the benefits of the Indenture and are
valid and binding obligations of the Company, enforceable in
accordance with their terms except as (A) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability; and the Securities and the
Indenture conform in all material respects to the descriptions
thereof contained in the Prospectus;
(v) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for
the consummation of the transactions contemplated by this Agreement
in connection with the issuance or sale of the Securities by the
Company, except such as have been obtained and made under the
Securities Act and such as may be required under state securities
and insurance laws, and the execution and delivery of this Agreement
and the consummation of the transactions herein contemplated will
not conflict with or constitute a breach of, or default under, the
certificate of incorporation or by-laws of the Company;
(vi) The Registration Statement has become effective under the
Securities Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Securities Act, and the
Registration Statement and the Prospectus (but not including the
Form T-1 heretofore referred to or any
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document incorporated by reference in the Registration Statement or
the Prospectus), as of the date of this Agreement, and any amendment
or supplement thereto, and as of its date, complied as to form in
all material respects with the requirements of the Securities Act
and the Rules and Regulations; it being understood that such counsel
need express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus;
(vii) This Agreement has been duly authorized, executed and
delivered by the Company;
(viii) The information in the Prospectus under the captions
"Description of the Debt Securities," "Description of Notes," "Plan
of Distribution" and "Underwriters," to the extent that such
information is applicable to the Securities and constitutes matter
of law or legal conclusions or descriptions of documents referred to
therein, has been reviewed by such counsel and is correct in all
material respects; and
(ix) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940.
The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP described in this
Section 6(c) above shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
In rendering such opinions, such counsel may state that (i) its
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 corporate law
of the State of Delaware and (ii) it has relied, as to matters of fact and
to the extent it deems proper, on certificates of responsible officers of
the Company or public officials. In addition to the matters set forth
above, such counsel shall state that it has no reason to believe that the
Registration Statement, as of the date of this Agreement or as of the
Closing Date, or any amendment thereto, as of its date or as of the
Closing Date, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of
the date of this Agreement or as of such Closing Date, or any amendment or
supplement thereto, as of its date or as of the Closing Date, contained
any untrue statement of a material fact or omitted 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; it being
understood that such counsel need express no view as to (A) the financial
statements or other financial data contained in the Registration Statement
or the Prospectus and (B) that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to.
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(d) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President - General Counsel and
Secretary of the Company, dated the Closing Date, to the effect that:
(i) The Company has an authorized capitalization as is set
forth in the Prospectus;
(ii) The Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not individually or in the aggregate have a Material
Adverse Effect;
(iii) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, has
the corporate power and authority to own, lease and operate its
properties and to conduct the business described in the Registration
Statement and, to the extent applicable, is duly qualified as a
foreign corporation to transact business and is in good standing as
such in each jurisdiction in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification (except in such jurisdictions where the failure to be
so qualified would not individually or in the aggregate have a
Material Adverse Effect) (such counsel may note in his opinion that
insurance laws of certain of such jurisdictions where the
Significant Subsidiaries hold an insurance license do not require
such due qualification as a foreign corporation); except as set
forth in the Registration Statement, all of the issued and
outstanding shares of capital stock of each Significant Subsidiary
have been duly authorized and validly issued and are owned directly
or indirectly by the Company, free and clear of any pledges, liens,
encumbrances, claims or equities; and all such shares are fully paid
and nonassessable;
(iv) There are no contracts, agreements or understandings
known to such counsel 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;
(v) To the best of such counsel's knowledge, there are no
licenses, franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described in the Registration Statement or to be filed as an exhibit
thereto other than those described therein or filed or incorporated
by reference as exhibits thereto;
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(vi) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement, the Indenture and
the Securities will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any
Significant Subsidiary of the Company or the charter or by-laws of
any such subsidiary, or, to the best of such counsel's knowledge,
any of their material properties, or any material agreement,
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any such subsidiary is a party or
by which the Company or any such subsidiary is bound or to which any
of the properties of the Company or any such subsidiary is subject;
(vii) The Company has made all required filings under
applicable insurance holding company statutes, and has received
approvals of acquisition of control and/or affiliate transactions,
in each jurisdiction in which such filings or approvals are
required, except where the failure to have made such filings or
receive such approvals in any such jurisdiction would not reasonably
be expected to have individually or in the aggregate a Material
Adverse Effect; each of the Insurance Subsidiaries is duly organized
and licensed as an insurance or reinsurance company in its
respective jurisdiction of incorporation, and each such Insurance
Subsidiary owns the Insurance Licenses in each other jurisdiction in
which such licensing or authorization is required, except where the
failure to be so licensed or authorized in any such jurisdiction
would not reasonably be expected to have individually or in the
aggregate a Material Adverse Effect; there is no pending or, to the
best of such counsel's knowledge, threatened action, suit,
proceeding or investigation that would be reasonably likely to lead
to the revocation, termination or suspension of any such Insurance
Licenses, the revocation, termination or suspension of which would
reasonably be expected to have individually or in the aggregate a
Material Adverse Effect; and except as disclosed in the Prospectus,
no insurance regulatory agency or body has issued any order or
decree impairing, restricting or prohibiting the payment of
dividends of any Company subsidiary to its respective parent which
would reasonably be expected to have individually or in the
aggregate a Material Adverse Effect;
(viii) Except as would not individually or in the aggregate
have a Material Adverse Effect and except as described in the
Prospectus, (i) to the best of such counsel's knowledge, there are
no legal or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other than
those disclosed therein, and (ii) there are no pending legal or
governmental proceedings, to the best of such counsel's knowledge,
to which the Company or any subsidiary is a party or of which any of
their property is the subject which are not described in the
Registration Statement but are required to be so described in the
Registration Statement, including ordinary routine litigation
incidental to the business;
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(ix) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Securities Act (other than
the financial statements, supporting schedules and other financial
information included or incorporated by reference therein, as to
which no opinion need to be rendered), at the time they were filed
with the Commission or delivered to the security holders, as the
case may be, complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder; and
(x) The descriptions in the Registration Statement and
Prospectus of legal and governmental proceedings and contracts and
other documents are accurate in all material respects and fairly
present the information required to be shown; and, to the best of
such counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act.
In rendering such opinions, such counsel may state that (i) its
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 corporate law
of the State of Delaware and (ii) it has relied, as to matters of fact and
to the extent it deems proper, on certificates of responsible officers of
the Company or public officials. In addition to the matters set forth
above, such counsel shall state that it has no reason to believe that the
Registration Statement, as of the date of this Agreement or as of the
Closing Date, or any amendment thereto, as of its date or as of the
Closing Date, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of
the date of this Agreement or as of such Closing Date, or any amendment or
supplement thereto, as of its date or as of the Closing Date, contained
any untrue statement of a material fact or omitted 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; it being
understood that such counsel need express no view as to (A) the financial
statements or other financial data contained in the Registration Statement
or the Prospectus and (B) that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to.
(e) The Underwriters shall have received on the Closing Date an
opinion of LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the
Underwriters, dated the Closing Date, with respect to the incorporation of
the Company, the execution and delivery of this Agreement, the
qualification, execution, delivery and enforceability of the Indenture,
the authorization, validity and enforceability of the Securities, the
Registration Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(f) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date, of the President or any Vice
President and a principal financial or accounting officer of the Company
in which such officers, to the best of their knowledge and after
reasonable investigation, shall state that the representations and
warranties of
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the Company in this Agreement are true and correct, that the Company has
complied with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date, that
no stop order suspending the effectiveness of the Registration Statement
or of any part thereof has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in the
Prospectus, (i) there has not occurred any downgrading, nor has any notice
been given of any intended or potential downgrading or any review for a
possible change that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities by ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., and (ii) there has been no material adverse change, nor
any development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole except as
set forth in or contemplated by the Prospectus or as described in such
certificate.
(g) The Underwriters shall have received on the Closing Date a
letter dated the day immediately preceding the Closing Date, in form and
substance agreed to by LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for
the Underwriters, from KPMG LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus, which letter shall use a
"cut-off date" not earlier than the date hereof.
7. Indemnity and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in subsection (b) below; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Securities, or any person controlling
such Underwriter, if a copy of the Prospectus (as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or
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prior to the written confirmation of the sale of the Securities to such person,
and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities, unless such
failure is the result of noncompliance by the Company with Section 5(e) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from
the Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for all such indemnified parties and that all such fees and expenses shall
be reimbursed as they are incurred. Such firm shall be designated in
writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of parties
indemnified pursuant to Section 7(a), and by the Company, in the case of
parties indemnified pursuant to Section 7(b). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such
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settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a)
or 7(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or (ii)
if the allocation provided by clause 7(d)(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 7(d)(i) above but also the
relative fault of the Company on the one hand and of the Underwriters on
the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Securities shall be deemed to be in
the same respective proportions as the net proceeds from the offering of
the Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate Public Offering Price of the Securities. The
relative fault of the Company on the one hand and the Underwriters on the
other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are
several in proportion to the respective principal amount of Securities
they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 7(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages
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that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(e) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Securities.
8. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if: (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange or the National Association
of Securities Dealers, Inc., (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred, (iv) any moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (v) there shall have occurred any outbreak or escalation
of hostilities or, any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse; and (b) in the case of any of
the events specified in clauses 8(a)(i) through 8(a)(v), such event, singly or
together with any other such event, makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Securities on the
terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities that it has or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the principal amount of
Securities set forth opposite their respective names in Schedule I bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided,
that in no event shall the principal amount of Securities that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Underwriter. If, on the
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Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to you and
the Company for the purchase of such Securities are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Finance Execution, or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at
address and numbers of the Company set forth in the Registration Statement,
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President - General Counsel and
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Very truly yours,
▇. ▇. ▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Deutsche Bank Securities Inc.
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule I hereto
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
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SCHEDULE I
PRINCIPAL AMOUNT
OF SECURITIES
UNDERWRITER TO BE PURCHASED
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 90,000,000
Deutsche Bank Securities Inc. 60,000,000
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Total............... $ 150,000,000
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