UNDERWRITING AGREEMENT

 

June 4, 2009

 

J.P. Morgan Securities Inc.

270 Park Avenue

New York, New York  10017

 

BNP Paribas Securities Corp.

787 7 th  Avenue

New York, New York  10019

 

HSBC Securities (USA) Inc.

HSBC Tower 3

425 5 th  Avenue

New York, New York  10018

 

RBS Securities Inc.

600 Steamboat Road

Greenwich, CT  06830

 

As representatives of the several Underwriters listed in Schedule I hereto

 

Dear Sirs and Mesdames:

 

Bunge Limited Finance Corp., a Delaware corporation (the “ Company ”), proposes to issue and sell to the several Underwriters listed in Schedule I hereto (collectively, the “ Underwriters ”) U.S.$600,000,000 aggregate principal amount of its 8.50% Senior Notes due 2019 (the “ Securities ”). The Securities will be issued pursuant to an Indenture to be dated as of June 9, 2009 among the Company, Bunge Limited, a Bermuda company (the “ Guarantor ”), and U.S. Bank National Association, as trustee (the “ Trustee ”), and will be fully and unconditionally guaranteed by the Guarantor (the “ Guarantee ”).

 

For purposes of this Agreement:

 

“ 430B Information ” means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430B(e) or then deemed to be a part of the Registration Statement pursuant to Rule 430B(f).

 

“ 430C Information ” means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430C.

 

“ Act ” means the Securities Act of 1933, as amended.

 

“ Applicable Time ” means 1:00 pm (Eastern time) on the date of this Agreement.

 

“ Closing Date ” has the meaning defined in Section 4 hereof.

 

 

“ Commission ” means the Securities and Exchange Commission.

 

“ Effective Time ” of the Registration Statement relating to the Securities means the date and time as of which the Registration Statement became effective upon filing pursuant to Rule 462(e).

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

“ Prospectus ” means the Statutory Prospectus or “final prospectus supplement” that discloses the public offering price, other 430B Information and other final terms of the Securities and otherwise satisfies Section 10(a) of the Act.

 

“ General Use Issuer Free Writing Prospectus ” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being so specified in Schedule II to this Agreement.

 

“ Issuer Free Writing Prospectus ” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).

 

“ Limited Use Issuer Free Writing Prospectus ” means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.

 

“ Rules and Regulations ” means the rules and regulations of the Commission.

 

“ Statutory Prospectus ” with reference to any particular time means the prospectus relating to the Securities that is included in the Registration Statement immediately prior to that time, including all 430B Information and all 430C Information with respect to the Registration Statement. For purposes of the foregoing definition, 430B Information shall be considered to be included in the Statutory Prospectus only as of the actual time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and not retroactively.

 

Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Act.

 

1.             Representations and Warranties of the Company and the Guarantor . The Company and the Guarantor jointly and severally represent and warrant to and agree with each of the Underwriters that:

 

(a)           The Company and the Guarantor have filed with the Commission post-effective amendment no. 3 to registration statement No. 333-138662, including a related prospectus or prospectuses, covering the registration of, among others, the Securities under the Act, which has become effective. “ Registration Statement ” at any particular time means such registration statement in the form then filed with the Commission, including any amendment thereto, any document incorporated by reference therein and all 430B Information and all 430C Information with respect to such registration statement, that in any case has not been

 

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superseded or modified. “ Registration Statement ” without reference to a time means the Registration Statement as of the Effective Time. For purposes of this definition, 430B Information shall be considered to be included in the Registration Statement as of the time specified in Rule 430B.

 

(b)           (i) (A) At the time the Registration Statement initially became effective, (B) at the Applicable Time relating to the Securities and (C) on the Closing Date, the Registration Statement conformed and will conform in all material respects to the requirements of the Act and the Rules and Regulations and did not and will 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 (ii) (A) on its date, (B) at the time of filing the Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Prospectus will conform in all material respects to the requirements of the Act and the Rules and Regulations, and will 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. The preceding sentence does not apply to statements in or omissions from any such document based upon written information furnished to the Guarantor by the Underwriters specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof.

 

(c)           (i) (A)  At the time of initial filing of the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (C) at the time any of the Company, the Guarantor or any person acting on their behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption of Rule 163, the Guarantor was a “well known seasoned issuer” as defined in Rule 405, and the Guarantor was not and is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433; (ii) The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405; (iii) Neither the Company nor the Guarantor has received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form; and (iv) the Company and the Guarantor shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) and otherwise in accordance with Rules 456(b) and 457(r).

 

(d)           As of the Applicable Time, neither (i) the General Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, if any, and the preliminary prospectus supplement, dated June 4,

 

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2009 including the base prospectus, dated March 12, 2008 (the “ Preliminary Prospectus Supplement ”), and the other information, if any, stated in Schedule I to this Agreement to be included in the General Disclosure Package, all considered together (collectively, the “ General Disclosure Package ”), nor (ii) any individual Limited Use Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included 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. The preceding sentence does not apply to statements in or omissions from the Preliminary Prospectus Supplement, any Issuer Free Writing Prospectus or any other information stated in Schedule I to this Agreement in reliance upon and in conformity with written information furnished to the Guarantor by the Underwriters specifically 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 Section 7(b) hereof.

 

(e)           Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities or until any earlier date that the Company or the Guarantor notified or notify the Underwriters as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement or as a result of which such Issuer Free Writing Prospectus, if republished immediately following such event or development, would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (i) the Company or the Guarantor have promptly notified or will promptly notify the Underwriters and (ii) the Company and the Guarantor have promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.

 

(f)            Each of the Company and the Guarantor has been duly formed or incorporated, as applicable, is validly existing in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to execute and deliver this Agreement, the Indenture (including the Guarantee set forth therein) and, in the case of the Company, the Securities, to perform its obligations hereunder, to own its property and to conduct its business as described in the General Disclosure

 

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Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Guarantor and its subsidiaries, taken as a whole.

 

(g)           Each significant subsidiary of the Guarantor (as such term is defined in Rule 1-02 of Regulation S-X, a “ Significant Subsidiary ”) has been duly incorporated, is validly existing as a company and, if applicable, is in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the General Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Guarantor and its subsidiaries, taken as a whole; all of the outstanding capital stock of the Company and the issued shares of capital stock of each Significant Subsidiary of the Guarantor have been duly and validly authorized and issued, and, in the case of the capital stock, are fully paid and non-assessable and, except as described in the General Disclosure Package and to the extent disclosed in the General Disclosure Package, are owned directly or indirectly by the Guarantor, free and clear of all liens, encumbrances, equities or claims. As of December 31, 2008, the Significant Subsidiaries of the Guarantor consist of Bunge Fertilizantes S.A., Bunge Alimentos S.A., Bunge N.A. Holdings, Inc., Fertilizantes Fosfatados S.A.-Fosfertil, Bunge Argentina S.A. and Koninklijke Bunge B.V.

 

(h)           This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor.

 

(i)            The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and the Guarantor and, when duly executed and delivered by each of the other parties thereto, will be a valid and binding agreement of, the Company and the Guarantor, enforceable against the Company and the Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).

 

(j)            The Securities have been duly authorized by the Company and, when duly executed and authenticated, issued and delivered 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,

 

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will be valid and binding obligations of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).

 

(k)           The Guarantee, forming part of the Indenture, has been duly authorized by the Guarantor and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will constitute a valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency reorganization, moratorium, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).

 

(l)            The authorized share capital of the Guarantor conforms as to legal matters in all material respects to the description thereof contained in each of the General Disclosure Package and the Prospectus.

 

(m)          The execution and delivery by each of the Company and the Guarantor of, and the performance by each of the Company and the Guarantor of its obligations under, this Agreement, and the Indenture and the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Securities, will not contravene any provision of applicable law or the Certificate of Incorporation and by-laws of the Company, the memoranda of association or bye-laws of the Guarantor, or other organizational documents or any agreement or other instrument binding upon the Company or the Guarantor or any of its subsidiaries that is material to the Guarantor and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, the Guarantor or any subsidiary, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Guarantor or any of its subsidiaries that are material to the Guarantor and its subsidiaries taken as a whole, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by each of the Company or the Guarantor of its obligations under this Agreement, and the Indenture and the Company of its obligations under the Securities, except such as have already been obtained or filings to be made in Bermuda prior to the Closing Date or as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities.

 

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(n)           Neither the Company nor the Guarantor is (i) in violation of (A) any provision of applicable law, which violation is material to the Guarantor and its subsidiaries taken as a whole or (B) their respective certificate of incorporation or memorandum of association, as the case may be, by-laws or other organizational documents, (ii) in breach or violation of, or default under, any agreement, indenture, mortgage, deed of trust, loan agreement or other instrument binding upon the Company or the Guarantor or any of its subsidiaries, which is material to the Guarantor and its subsidiaries taken as a whole, or (iii) in violation of any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or the Guarantor or any of its subsidiaries, which violation is material to the Guarantor and its subsidiaries taken as a whole.

 

(o)           The consolidated financial statements of the Guarantor and the related notes thereto included and incorporated by reference in each of the General Disclosure Package and the Prospectus present fairly, in all material respects, the consolidated financial position of the Guarantor as of the dates indicated and its consolidated results of operations and cash flows for the periods specified, and such financial statements have been prepared in conformity with generally accepted accounting principles in the United States (“ U.S. GAAP ”) applied on a consistent basis throughout the periods covered thereby; and the other financial information relating to the Guarantor and its Significant Subsidiaries included or incorporated by reference in each of the General Disclosure Package and the Prospectus has been derived from the accounting records of the Guarantor and its Significant Subsidiaries and presents fairly, in all material respects, the information shown thereby.

 

(p)           There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Guarantor and its subsidiaries, taken as a whole, from that set forth in the General Disclosure Package.

 

(q)           There are no legal or governmental proceedings pending or, to the knowledge of the Company or the Guarantor, threatened to which the Company, the Guarantor or any of its subsidiaries is a party or to which any of the properties of the Company, the Guarantor or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.

 

(r)            Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed

 

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pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.

 

(s)           The documents incorporated by reference in the Registration Statement, when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act and did not and will not contain an untrue statement of material fact or omit to state a 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.

 

(t)            Neither the Company nor the Guarantor is, 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 be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

 

(u)           Neither the Company nor the Guarantor believes that it is currently a “passive foreign investment company” as defined in Section 1296 of the Internal Revenue Code, as amended, and the Treasury Regulations promulgated thereunder.

 

(v)           Except as described in each of the General Disclosure Package and the Prospectus, the Guarantor and its Significant Subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“ Environmental Laws ”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except in any such case for any failure to comply or violations, or failure to receive required permits, licenses or other approvals as would not, singly or in the aggregate, have a material adverse effect on the Guarantor and its subsidiaries, taken as a whole.

 

(w)          To the knowledge of the Guarantor, there are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, individually or in the aggregate, have a material adverse effect on the Guarantor and its subsidiaries, taken as a whole.

 

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(x)            Except as described in each of the General Disclosure Package and the Prospectus, there are no contracts, agreements or understandings between the Guarantor and any person granting such person the right to require the Guarantor to file a registration statement under the Securities Act with respect to any securities of the Guarantor or to require the Guarantor to include such securities with the Securities registered pursuant to the Registration Statement.

 

(y)           Subsequent to the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, (i) the Guarantor and its subsidiaries have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction not in the ordinary course of business; (ii) the Guarantor has not purchased any of its issued and outstanding common shares, nor declared, paid or otherwise made any dividend or distribution of any kind on its share capital other than ordinary and customary dividends; and (iii) there has not been any material change in the share capital, short-term debt or long-term debt of the Guarantor and its subsidiaries, except in each case as described in the General Disclosure Package and the Prospectus.

 

(z)            Each of the Company, the Guarantor and the Significant Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is material to the business of the Guarantor and its subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as are described in the General Disclosure Package and the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company, the Guarantor and the Significant Subsidiaries; any real property and buildings held under lease by the Company, the Guarantor and the Significant 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, the Guarantor and the Significant Subsidiaries, in each case except as described in the General Disclosure Package and the Prospectus.

 

(aa)         Each of the Company, the Guarantor and the Significant Subsidiaries owns or possesses, or can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names currently employed by them in connection with the business now operated by them, and none of the Company, the Guarantor or any of the Significant Subsidiaries has received any notice of infringement of or conflict with asserted rights of

 

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others with respect to any of the foregoing which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Guarantor and its subsidiaries, taken as a whole.

 

(bb)         No material labor dispute with the employees of the Guarantor or any of the Significant Subsidiaries exists, or, to the knowledge of the Guarantor, is imminent, except as described in the General Disclosure Package and the Prospectus; and the Guarantor is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that could have a material adverse effect on the Guarantor and its subsidiaries, taken as a whole.

 

(cc)         The Guarantor and each of the Significant Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; neither the Guarantor nor any of its Significant Subsidiaries has been refused any insurance coverage sought or applied for; and neither the Guarantor nor any of its Significant Subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a material adverse effect on the Guarantor and its subsidiaries, taken as a whole, except as described in the General Disclosure Package and the Prospectus.

 

(dd)         Each of the Company, the Guarantor and the Significant Subsidiaries possesses all licenses, certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and none of the Company, the Guarantor or any of its Significant Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such license, certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Guarantor and its subsidiaries, taken as a whole, except as described in the General Disclosure Package and the Prospectus.

 

(ee)         The Guarantor and each of the Significant 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 U.S. 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

 

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(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.

 

(ff)           Deloitte & Touche LLP, who have certified certain consolidated financial statements of the Guarantor, are independent public accountants with respect to the Guarantor and its subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants and its interpretations and rulings thereunder.

 

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 principal amount of the Securities set forth in Schedule II hereto opposite its name at a purchase price (the “ Purchase Price ”) of 99.347% of the principal amount thereof plus accrued interest, if any, from June 4, 2009 to the Closing Date (as defined in Section 4).

 

Each of the Company and the Guarantor hereby agree that during the period from the date hereof through and including June 9, 2009, the Company and the Guarantor will not, without the prior written consent of the Underwriters, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or the Guarantor and having a tenor of more than one year.

 

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 this Agreement has 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 upon the terms set forth in the Prospectus.

 

4.             Payment and Delivery. The Company will deliver against payment of the Purchase Price the Securities in the form of permanent global securities (the “ Global Securities ”) deposited with the Trustee as custodian for The Depository Trust Company (“ DTC ”) and registered in the name of Cede & Co., as nominee for DTC.  Interests in any permanent Global Securities will be held only in book-entry form through DTC, except in the limited circumstances described in the General Disclosure Package.  Payment for the Securities shall be made by the Underwriters in immediately available funds by wire transfer to an account specified by the Company drawn to the order of the Company at the office of Davis Polk & Wardwell, 450 Lexington Avenue, New York, NY 10017, at 9:00 A.M. (New York time) on June 9, 2009, or at such other time not later than seven full business days thereafter as the Underwriters, the Company and the Guarantor determine, such time being referred to as the “ Closing Date ,” against delivery to the Trustee as custodian for DTC of the Global Securities representing all of the

 

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Securities.  The Global Securities will be made available to Davis Polk & Wardwell for checking prior to the Closing Date.

 

5.        Conditions to the Underwriters’ Obligations . The obligations of each of the Underwriters are subject to the following conditions:

 

(a)           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 securities of the Company or the Guarantor by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; 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 Guarantor and its subsidiaries, taken as a whole, from that set forth in the General Disclosure Package on 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 General Disclosure Package.

 

(b)           The Underwriters shall have received on the Closing Date certificates, dated the Closing Date and signed by an executive officer of each of the Company and the Guarantor, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company and the Guarantor contained in this Agreement are true and correct as of the Closing Date and that the Company and the Guarantor have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.

 

The officers signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.

 

(c)           The Underwriters shall have received on the Closing Date an opinion of Conyers Dill & Pearman, special Bermuda counsel for the Guarantor, dated the Closing Date, in substantially the form attached hereto as Exhibit B.

 

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(d)           The Underwriters shall have received on the Closing Date an opinion of Shearman & Sterling LLP, special U.S. counsel for the Company and the Guarantor, dated the Closing Date, in substantially the form attached hereto as Exhibit C.

 

(e)           The Underwriters shall have received on the Closing Date an opinion of Jonathan Biller, General Counsel for the Guarantor, dated the Closing Date, in substantially the form attached hereto as Exhibit D.

 

(f)            The Underwriters shall have received on the Closing Date an opinion of Reed Smith LLP, special U.S. counsel for the Company and the Guarantor, dated the Closing Date, in substantially the form attached hereto as Exhibit E.

 

(g)           The Underwriters shall have received on the Closing Date an opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated the Closing Date, with respect to this Agreement, the General Disclosure Package and the Prospectus.

 

Shearman & Sterling LLP and Davis Polk & Wardwell may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements thereto and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified.

 

The opinions of Conyers Dill & Pearman, Shearman & Sterling LLP, Jonathan Biller and Reed Smith LLP as described in Sections 5(c), (d), (e) and (f) above, shall each be rendered to the Underwriters at the request of the Company and the Guarantor and shall so state therein.

 

(h)           The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche, 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, the General Disclosure Package and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.

 

6.        Covenants of the Company . The Company and the Guarantor jointly and severally covenant with each Underwriter as follows:

 

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(a)           The Company and the Guarantor have filed or will file each Statutory Prospectus (including the Prospectus) pursuant to and in accordance with Rule 424(b).  The Company and the Guarantor have complied and will comply with Rule 433.

 

(b)           The Company or the Guarantor will promptly advise the Underwriters of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus at any time and will offer the Underwriters a reasonable opportunity to comment on any such amendment or supplement; and the Company or the Guarantor will also advise the Underwriters promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose.  Each of the Company and the Guarantor will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.

 

(c)           Upon request, to furnish to the Underwriters, without charge, a signed copy of the Registration Statement (including exhibits thereto) and to furnish to the Underwriters in New York City, without charge, promptly following the date of this Agreement, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Underwriters may reasonably request.

 

(d)           To furnish to the Underwriters a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Guarantor and not to use or refer to any proposed free writing prospectus to which you reasonably object.

 

(e)           Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.

 

(f)            If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the

 

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light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the General Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the General Disclosure Package to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the General Disclosure Package so that the statements in the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances under which they were made when delivered to a prospective purchaser, be misleading or so that the General Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the General Disclosure Package, as amended or supplemented, will comply with applicable law.

 

(g)           If, during such period after the first date of the public offering of the Securities as in the re