Exhibit 1.1
Dated as of February 13, 2007
PROVINCE OF NEW BRUNSWICK
U.S.$500,000,000
5.20% Bonds due February 21, 2017
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UNDERWRITING AGREEMENT
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PROVINCE OF NEW BRUNSWICK
UNDERWRITING AGREEMENT
February 13, 2007
CIBC World Markets Corp.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
RBC Capital Markets Corporation
As representatives of the several Underwriters
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, NY 10080
U.S.A.
Dear Sirs:
The Province of New Brunswick (the "PROVINCE") proposes to sell the
principal amount of its securities identified in Schedule I hereto (the
"SECURITIES") to the underwriters named in Schedule II hereto (the
"UNDERWRITERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"). The Securities will be issued in the form of one or more
fully registered permanent global securities (the "GLOBAL SECURITIES")
registered in the name of Cede & Co., as the nominee of The Depository Trust
Company ("DTC"), subject to the provisions of the fiscal agency agreement
identified on Schedule I hereto (the "FISCAL AGENCY AGREEMENT"). As of February
13, 2007 (the "TIME OF SALE"), the Province had prepared the following
information (collectively, the "TIME OF SALE INFORMATION"): a Preliminary Final
Prospectus (as defined below) dated February 12, 2007, and the Issuer Free
Writing Prospectus (as defined below) in the form of Schedule I hereto. As used
herein, "ISSUER FREE WRITING PROSPECTUS" shall have the meaning assigned to the
term "issuer free writing prospectus" in Section 433 under the U.S. Securities
Act of 1933, as amended (the "U.S. SECURITIES ACT"). This Agreement is to
confirm the arrangements with respect to the purchase of the Securities by the
Underwriters.
1. Representations and Warranties. The Province represents and
warrants to, and agrees with, the Underwriters that:
(i) The Time of Sale Information, at the Time of Sale and at the
Closing Date (as hereinafter defined), did not and will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Province makes no representation or warranty with respect to any statements
or omissions made in reliance upon and in conformity with information
furnished to the Province in writing by an Underwriter through the
Representatives expressly for use in such Time of Sale Information. The
Issuer Free Writing Prospectus in the form of Schedule I hereto complies in
all material respects with the U.S. Securities Act.
(ii) The Province has filed with the U.S. Securities and Exchange
Commission (the "SEC") a registration statement or registration statements
under Schedule B of the U.S. Securities Act, which has or have become
effective, for the registration of any Securities which may be sold in the
United States under the U.S. Securities Act. Each such registration
statement, as amended at the date of this Agreement, complies in all
material respects with the requirements of the U.S. Securities Act and the
rules and regulations thereunder. The Province has filed a Preliminary
Final Prospectus (as defined below) with the SEC pursuant to Rule 424 under
the U.S. Securities Act, which has been furnished to the Underwriters, and
proposes to file with the SEC pursuant to Rule 424 under the U.S.
Securities Act a supplement to the form of prospectus included in the most
recent registration statement, or amendment thereto, filed with the SEC
relating to the Securities and the plan of distribution thereof and has
advised you of all further information (financial and other) with respect
to the Province to be set forth therein. The registration statement or
registration statements, including the exhibits thereto and the documents
incorporated by reference therein, as amended at the date of this
Agreement, is or are herein called the "REGISTRATION STATEMENT"; the
prospectus in the form in which it appears in the Registration Statement,
including the documents incorporated by reference therein, is herein called
the "BASIC PROSPECTUS"; such supplemented form of prospectus, in the form
in which it shall be first filed with the SEC pursuant to Rule 424 after
the date hereof (including the Basic Prospectus as so supplemented),
including the documents incorporated by reference therein, is herein called
the "FINAL PROSPECTUS"; and any preliminary form of the Final Prospectus
which has heretofore been filed pursuant to Rule 424 (including the Basic
Prospectus as so supplemented), including the documents incorporated by
reference therein, is herein called the "PRELIMINARY FINAL PROSPECTUS".
(iii) The documents filed by the Province with the SEC pursuant to the
U.S. Securities Exchange Act of 1934, as amended (the "U.S. EXCHANGE ACT")
that are incorporated by reference in the Preliminary Final Prospectus or
the Final Prospectus, at the time they were filed with the SEC, complied in
all material respects with the requirements of the U.S. Exchange Act and
the rules and regulations thereunder.
(iv) The Province will use all reasonable efforts to publish a
prospectus approved by the UK Listing Authority as soon as possible after
the Closing Date (as defined below) (the "UKLA PROSPECTUS") in compliance
with Directive 2003/71/EC (the "EUROPEAN PROSPECTUS DIRECTIVE") and all
laws, regulations and rules implementing the European Prospectus Directive,
as amended from time to time and shall submit (or procure the submission on
its behalf of) such reports or information as may from time to time be
required and otherwise comply with the European Prospectus Directive and
all laws, regulations and rules implementing the European Prospectus
Directive.
(v) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the U.S. Securities Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective, when any supplement to the Final Prospectus is
filed with the SEC and at the Closing Date, (a) the Registration Statement,
as amended as of any such time and the Final Prospectus, as amended or
supplemented as of any such time, complied and will comply in all material
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respects with the applicable requirements of the U.S. Securities Act and
the rules and regulations thereunder and (b) the Registration Statement, as
amended as of any such time, did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, and the Final Prospectus, as amended or supplemented as of any
such time, will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and the summary set out in the
Final Prospectus is not misleading, inaccurate or inconsistent when read
with other parts of the Final Prospectus; provided, however, that the
Province makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance upon
and in conformity with information furnished in writing to the Province by
or on behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration Statement or
the Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Province
agrees to sell to each Underwriter, and each Underwriter, severally and not
jointly, agrees to purchase from the Province, at the purchase price set forth
in Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at the offices of Shearman & Sterling LLP, Commerce Court West,
Suite 4405, Toronto, Ontario, Canada (or such other place as may be agreed to by
the Representatives and the Province) at 9:00 a.m., Toronto time, on February
21, 2007 (or at such time on such later date not later than five business days
after such specified date as the Representatives and the Province shall agree
upon), which date and time may be postponed by agreement between the
Representatives and the Province or as provided in Section 10 hereof (such date
and time of delivery and payment for the Securities being herein called the
"CLOSING DATE"). Delivery of the Global Securities shall be made to the
Representatives or to their order for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to the Province in immediately
available (same day) funds by transfer to a U.S. dollar account specified by the
Province. The Global Securities shall be substantially in the form annexed to
the Fiscal Agency Agreement and registered in the name of Cede & Co., as nominee
of DTC.
The Global Securities shall be made available for inspection and
checking by the Representatives in Toronto, Ontario not later than 3:00 P.M.
(Toronto time) on the business day prior to the Closing Date. For purposes of
this Agreement, "BUSINESS DAY" shall mean a day on which banking institutions in
the City of Toronto are not authorized or obligated by law or executive order to
be closed.
4. Listing. The Province agrees with the Underwriters to file or cause
to be filed an application to the Financial Services Authority in its capacity
as competent authority under the Financial Services and Markets Act 2000, as
amended (the "UK LISTING AUTHORITY"), for the
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Securities to be admitted to the Official List of the UK Listing Authority (the
"OFFICIAL LIST") and for the Securities to be admitted to trading on the Gilt
Edged and Fixed Interest Market of the London Stock Exchange plc (the "STOCK
EXCHANGE") as soon as possible after the Closing Date. References herein to
"list", "listed" or "listing" when used in relation to the Stock Exchange shall
mean admitted to the Official List and admitted to trading on the Gilt Edged and
Fixed Interest Market of the Stock Exchange, which is a regulated market for the
purposes of the Investment Services Directive (93/22/EEC). The Province shall
use all reasonable efforts to cause the Securities to be listed on the Stock
Exchange as soon as possible after the Closing Date. The Province further agrees
to furnish to the UK Listing Authority and the Stock Exchange all documents,
instruments, information and undertakings and to publish all advertisements or
other material that may be necessary in order to effect the listing of the
Securities and to cause the listing of the Securities on the Stock Exchange to
be continued for so long as any of the Securities remain outstanding; provided,
however, that if in the opinion of the Province, the continuation of such
listing shall become unduly onerous, then the Province may delist the Securities
from the Stock Exchange; provided, further, that if the Securities are to be so
delisted from the Stock Exchange, the Province will use its best efforts to
obtain the admission to listing, trading and/or quotation of the Securities by
another listing authority, securities exchange and/or quotation system
reasonably acceptable to the Representatives and the Province prior to the
delisting of the Securities from the Stock Exchange. The provisions of this
Section 4 shall apply to any other listing authority, securities exchange and/or
quotation system on which the Securities may be admitted to listing, trading
and/or quotation mutatis mutandis.
5. Agreements. (a) The Province and the Underwriters agree that:
(i) Prior to the termination of the offering of the Securities, the
Province will not file any amendment to the Registration Statement, any
supplement to the Time of Sale Information or the Final Prospectus, or any
document that would as a result thereof be incorporated by reference in the
Time of Sale Information or the Final Prospectus, unless the Province has
furnished to the Underwriters a copy for their review prior to filing and
will not file any such proposed amendment, supplement or document to which
the Underwriters reasonably object, except that the Underwriters may not
object to the filing, as exhibits to an amendment on Form 18-K/A to the
Province's Annual Report on Form 18-K, of reports prepared by the Province
and the NB Power Group in the ordinary course. Subject to the foregoing
sentence, the Province will cause any Preliminary Final Prospectus and the
Final Prospectus to be filed (or mailed for filing) with the SEC pursuant
to Rule 424 and the Province will file any Issuer Free Writing Prospectus
to the extent required by Rule 433 under the U.S. Securities Act. The
Province will promptly advise the Representatives (i) when the Time of Sale
Information, the Final Prospectus or any document that would as a result
thereof be incorporated by reference in the Time of Sale Information or the
Final Prospectus shall have been filed (or mailed for filing) with the SEC,
(ii) when any amendment to the Registration Statement relating to the
Securities shall have become effective, (iii) of any request by the SEC for
any amendment of the Registration Statement or amendment of or supplement
to the Time of Sale Information or the Final Prospectus or for any
additional information relating thereto or to any document incorporated by
reference in the Preliminary Final Prospectus or the Final Prospectus, (iv)
of the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
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proceeding for that purpose and (v) of the receipt by the Province of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Province will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(ii) Before using or filing any Issuer Free Writing Prospectus, other
than the Issuer Free Writing Prospectus in the form of Schedule I hereto,
the Province will furnish to the Representatives and counsel for the
Underwriters a copy of the proposed Issuer Free Writing Prospectus for
review and will not use or file any such Issuer Free Writing Prospectus to
which the Representatives reasonably object provided that the
Representatives may not object to a filing that is required.
(iii) If, at any time when a prospectus relating to the Securities is
required to be delivered under the U.S. Securities Act, any event occurs as
a result of which the Time of Sale Information or the Final Prospectus as
then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend or supplement the
Time of Sale Information or the Final Prospectus to comply with the U.S.
Securities Act or the rules and regulations thereunder, the Province
promptly will prepare and file with the SEC, subject to the first sentence
in paragraph (a)(i) of this Section 5, an amendment or supplement at its
own expense which will correct such statement or omission or an amendment
which will effect such compliance.
(iv) Subject to the UKLA Prospectus being approved and published in
accordance with Section 1(iv), the Province shall update or amend the UKLA
Prospectus by the publication in accordance with the European Prospectus
Directive of a supplement thereto or an update thereof in the event that
(A) a significant new factor, material mistake or inaccuracy relating to
the information included in the UKLA Prospectus which is capable of
affecting the assessment of the Securities arises or is noted, or (B) if
there is any Significant (as defined below) change affecting any matter
contained in the UKLA Prospectus or a Significant new matter arises, the
inclusion of information in respect of which would have been so required if
it had arisen when the UKLA Prospectus was prepared, or if such supplement
or update would be required by the UK Listing Authority prior to the
listing of such Securities. Without prejudice to the generality of the
foregoing, the Province undertakes that in the period from and including
the date when the UKLA Prospectus is approved by the UK Listing Authority
to and including the date when the Securities are issued it will only
prepare and publish a supplement to, or update of, the UKLA Prospectus if
it is required, or has reasonable grounds to believe that it is required,
to do so in order to comply with Section 87G of the Financial Services and
Markets Act 2000. For the purposes of this clause, "Significant" means
significant for the purposes of making an informed assessment of (A) the
assets and liabilities, financial position, profits and losses and
prospects of the Province and (B) the rights attaching to the Securities.
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(v) The Province will make generally available to its security holders
and to the Representatives as soon as practicable after the close of its
first fiscal year beginning after the date hereof, statements of its
revenues and expenditures for such fiscal year which will satisfy the
provisions of Section 11(a) of the U.S. Securities Act and the applicable
rules and regulations thereunder.
(vi) The Province will furnish to the Representatives, upon request,
copies of the Registration Statement (including exhibits thereto and
documents incorporated by reference therein) and each amendment thereto
which shall become effective on or prior to the Closing Date and, so long
as delivery of a prospectus by an Underwriter or a dealer may be required
by the U.S. Securities Act or publication of a prospectus may be required
by the European Prospectus Directive, as many copies of any Preliminary
Final Prospectus, any Issuer Free Writing Prospectus, the Final Prospectus
and the UKLA Prospectus and any amendments thereof and supplements thereto
as the Representatives may reasonably request.
(vii) The Province will arrange for the qualification of the
Securities for offer and sale and the determination of their eligibility
for investment under the securities laws of such states and other
jurisdictions of the United States as the Representatives may designate and
will maintain such qualifications in effect so long as required for the
distribution of the Securities; provided, however, that the Province shall
not be obligated to consent to general service of process under the laws of
any state or other jurisdiction.
(viii) If the Province has agreed with the relevant Representative(s)
that the UK Listing Authority will be requested to provide a certificate of
approval to the competent authority of one or more EEA Member State(s)
under Article 17 and Article 18 of the European Prospectus Directive, the
arrangements relating to such request (including, but not limited to, the
cost of preparing any summary required pursuant to Article 19 of the
European Prospectus Directive) will be agreed between the Province and the
relevant Representative(s) at the relevant time.
In any such case, the Province undertakes that it will use all
reasonable endeavors to procure the delivery of a certificate of approval
by the competent authority in the United Kingdom to the competent authority
in each such EEA Member State as agreed between the Province and the
relevant Representative(s).
Any translation of the summary pursuant to Article 19 of the
European Prospectus Directive shall be accurate and complete in all
material respects and shall not be misleading, inaccurate or inconsistent
when read together with the UKLA Prospectus.
For the purposes of the above, "EEA Member State" means the
member states of the European Union, together with Iceland, Norway and
Liechtenstein.
(ix) The Province will pay (i) all expenses in connection with (a) the
preparation, issue, execution and delivery of the Securities (including
fees of the registrar, fiscal agent, transfer agent and paying agents and
the fees and expenses of the Province's legal advisors), (b) the fee
incurred in filing the Registration Statement
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(including all amendments thereto), any Issuer Free Writing Prospectus and
any Time of Sale Information with the SEC, (c) all costs, expenses, fees or
commissions, payable on or in connection with the approval of the UKLA
Prospectus by the UK Listing Authority and the granting of listing for the
Securities on the Stock Exchange and (d) any fee payable to rating services
in connection with the rating of the Securities, (ii) the cost of copying
the documents incorporated by reference in the Time of Sale Information and
the Final Prospectus in such quantities as the Representatives may
reasonably request and the cost of delivering the same to locations
designated by the Representatives and satisfactory to the Province in its
reasonable judgment, (iii) all stamp duties or other like taxes and duties
or value added taxes payable under the laws of the United Kingdom upon and
in connection with the execution, issue and subscription of the Securities
or the execution and delivery of this Agreement and the Fiscal Agency
Agreement and (iv) an amount up to US$125,000 to be applied in
reimbursement of the reasonable out-of-pocket expenses and costs of the
Underwriters (including any value added or equivalent tax on such expenses
and costs) directly attributable to the offering and sale of the
Securities. Except as provided in this Section 5(a)(ix) and Section 9
hereof, the Province shall not be required to pay or bear any fees or
expenses of the Underwriters. In respect of clause (iv) above, the
Representatives shall deduct the amount of US$125,000 from the purchase
price for the Securities, shall supply the Province with an itemized
account for such expenses within 90 days of the Closing Date and shall
repay the Province within 90 days of the Closing Date any shortfall between
the expenses so itemized and US$125,000.
(x) The Province will pay all costs incurred in connection with the
printing of the Final Prospectus, the UKLA Prospectus and each Preliminary
Final Prospectus (including all amendments thereof or supplements thereto),
any Issuer Free Writing Prospectus and the cost of delivering the same to
locations designated by the Underwriters, the Province and each of their
counsel.
(b) Each Underwriter agrees that:
(i) It will cause the Representatives to deliver to the Province a
letter prior to the Closing Date containing the total sales of the
Securities made in the initial distribution in the United States together
with an estimate of the number of Securities reasonably expected to be sold
within the United States in secondary market transactions within 40 days of
the Closing Date; provided, however, that the Underwriters shall bear no
responsibility for any discrepancy between such estimate and the actual
number of Securities sold within the United States pursuant to such
secondary market transactions in such time period.
(ii) It has not and will not use, authorize use of, refer to, or
participate in the planning for use of, any "FREE WRITING PROSPECTUS" (as
defined in Rule 405 under the U.S. Securities Act) (which term includes use
of any written information furnished to the SEC by the Province and not
incorporated by reference into the Registration Statement and any press
release issued by the Province) other than (A) the Issuer Free Writing
Prospectus in the form of Schedule I hereto or prepared pursuant to Section
5(a)(ii) above, or (B) any "free writing prospectus" prepared by such
Underwriter and provided
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to and consented to by the Province in advance in writing (each such "free
writing prospectus" referred to in this clause (B), an "UNDERWRITER FREE
WRITING PROSPECTUS"); provided that the Underwriters may use a Bloomberg
term sheet in accordance with Section 5(b)(iv) below.
(iii) It has not and will not distribute any Underwriter Free Writing
Prospectus referred to in Section 5(b)(ii)(B) in a manner reasonably
designed to lead to its broad unrestricted dissemination unless the
Province has consented in advance in writing to such dissemination.
(iv) It has not used and will not use, without the prior written
consent of the Province, any "free writing prospectus" that contains the
final terms of the Securities unless such terms have previously been
included in an Issuer Free Writing Prospectus filed or to be filed with the
SEC; provided that the Underwriters may use a Bloomberg term sheet that
contains some or all of the information in Schedule I hereto without the
consent of the Province.
(v) It is not subject to any pending proceeding under Section 8A of
the U.S. Securities Act with respect to the offering (and will promptly
notify the Province if any such proceeding against it is initiated during
the period that delivery of a prospectus by an Underwriter or a dealer may
be required by the U.S. Securities Act).
6. Selling Restrictions.
(a) European Economic Area.
In relation to each Member State of the European Economic Area which
has implemented the European Prospectus Directive (each, a "RELEVANT MEMBER
STATE"), each of the Underwriters, on behalf of itself and each of its
affiliates that participates in the initial distribution of the Securities, has
represented and agreed that with effect from and including the date on which the
European Prospectus Directive is implemented in that Relevant Member State (the
"RELEVANT IMPLEMENTATION DATE") it has not made and will not make an offer of
Securities to the public in that Relevant Member State prior to the publication
of a prospectus in relation to the Securities which has been approved by the
competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the European
Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of Securities to the public in that
Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in
the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at
least 250 employees during the last financial year; (2) a total balance
sheet of more than E43,000,000 and (3) an annual net turnover of more
than E50,000,000, as shown in its last annual or consolidated
accounts; or
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(iii) in any other circumstances which do not require the publication
by the Province of a prospectus pursuant to Article 3 of the European
Prospectus Directive.
For the purposes of this provision, the expression an "offer of
Securities to the public" in relation to any Securities in any Relevant Member
State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Securities to be offered so as to
enable an investor to decide to purchase or subscribe the Securities, as the
same may be varied in that Member State by any measure implementing the European
Prospectus Directive in that Member State and the expression "EUROPEAN
PROSPECTUS DIRECTIVE" means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
(b) United Kingdom. Each of the Underwriters, on behalf of itself and
each of its affiliates that participates in the initial distribution of the
Securities, represents and agrees that:
(i) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the
Financial Services and Markets Act 2000 ("FSMA")) received by it in
connection with the issue or sale of the Securities in circumstances in
which Section 21(1) of the FSMA does not apply to the Province; and
(ii) it has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the Securities
in, from or otherwise involving the United Kingdom.
(c) Japan. The Securities have not been and will not be registered
under the Securities and Exchange Law of Japan and, accordingly, the
Underwriters, on behalf of themselves and each of their respective affiliates
that participates in the initial distribution of the Securities, each undertake
that they have not offered or sold and will not offer or sell any Securities,
directly or indirectly, in Japan or to, or for the benefit of, any Japanese
Person or to others for re-offering or resale, directly or indirectly, in Japan
or to or for the benefit of any Japanese Person except pursuant to an exemption
from the registration requirements of the Securities and Exchange Law of Japan,
and under circumstances which will result in compliance with all applicable
laws, regulations and guidelines promulgated by the relevant Japanese
governmental and regulatory authorities and in effect at the relevant time. For
the purposes of this paragraph, "JAPANESE PERSON" shall mean any person resident
in Japan, including any corporation or other entity organized under the laws of
Japan. As part of the offering of the Securities, the Underwriters may offer the
Securities in Japan to a list of 49 offerees in accordance with this Section
6(c).
(d) Hong Kong. Each of the Underwriters, on behalf of itself and each
of its affiliates that participates in the initial distribution of the
Securities, represents and agrees that (1) it has not offered or sold and will
not offer or sell in Hong Kong, by means of any document, any Securities other
than (i) to "professional investors" within the meaning of the Securities and
Futures Ordinance (Cap. 571) of Hong Kong ("SFO") and any rule made under the
SFO, or (ii) in other circumstances which do not result in the document being a
"prospectus" within the
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meaning of the Companies Ordinance (Cap. 32) of Hong Kong or which do not
constitute an offer to the public within the meaning of that Ordinance; and (2)
it has not issued or had in its possession for the purposes of issue, and will
not issue or have in its possession for the purposes of issue, whether in Hong
Kong or elsewhere, any advertisement, invitation or document relating to the
Securities, which is directed at, or the contents of which are likely to be
accessed or read by, the public in Hong Kong (except if permitted to do so under
the securities laws of Hong Kong) other than with respect to Securities which
are intended to be disposed of only to persons outside Hong Kong or only
"professional investors" within the meaning of the SFO and any rules made
thereunder.
(e) Italy. Until such time as the offering of the Bonds has been
registered with CONSOB (the Italian Securities Exchange Commission) pursuant to
Italian securities legislation (including the passporting of the Prospectus), no
Bonds may be offered, sold or delivered, nor may copies of this prospectus
supplement or any other document relating to the Bonds be distributed in the
Republic of Italy, except:
(i) to professional investors (operatori qualificati), as defined in
Article 31, second paragraph, of CONSOB Regulation No. 11522 of July 1,
1998, as amended ("Regulation No. 11522"); or
(ii) in circumstances which are exempted from the rules on
solicitation of investments pursuant to Article 100 of Legislative Decree
No. 58 of February 24, 1998, as amended (the "Financial Services Act") and
Article 33, first paragraph, of CONSOB Regulation No. 11971 of May 14,
1999, as amended ("Regulation No. 11971").
At any time (both before and after registration with CONSOB) any
offer, sale or delivery of the Bonds or distribution of copies of this
prospectus supplement or any other document relating to the Bonds in the
Republic of Italy must be:
(iii) made by an investment firm, bank or financial intermediary
permitted to conduct such activities in the Republic of Italy in accordance
with the Financial Services Act, Regulation No. 11522 and Legislative
Decree No. 385 of September 1, 1993, as amended (the "Banking Act"); and
(iv) in compliance with Article 129 of the Banking Act and the
implementing guidelines of the Bank of Italy, as amended from time to time;
and
(v) in compliance with any other applicable laws and regulations or
requirement imposed by CONSOB or the Bank of Italy.
(f) Belgium. Each of the Underwriters, on behalf of itself and each of
its affiliates that participates in the initial distribution of the Securities,
represents and agrees that it has not sold and will not sell Bonds to any person
qualifying as a consumer within the meaning of Article 1.7 of the Belgian law of
July 14, 1991 on consumer protection and trade practices unless such sale is
made in compliance with this law and its implementing regulation.
Only the persons or entities listed in article 56 of the Act of June
16, 2006 on the public offer of investment instruments and the admission to
trading of investment instruments on a regulated market may act as intermediary
in the context of a public offer of investment instruments.
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(g) Sale and Distribution. In addition to the provisions of Sections
6(a), (b), (c), (d), (e) and (f) above, each of the Underwriters, on behalf of
itself and each of its respective affiliates that participates in the initial
distribution of the Securities, represents to and agrees with the Province that
it and each of its respective affiliates has not offered, sold or delivered and
will not offer, sell or deliver, directly or indirectly, any of the Securities
or distribute the Basic Prospectus, any Preliminary Final Prospectus, the Final
Prospectus, the Time of Sale Information, any "free writing prospectus", or any
other offering material relating to the Securities, in or from any jurisdiction
except under circumstances that will, to the best of its knowledge and belief,
after reasonable investigation, result in compliance with the applicable laws
and regulations thereof and which will not impose any obligations on the
Province except as contained in this Agreement.
(h) Authorizations. Without prejudice to the provisions of Sections
6(a), (b), (c), (d), (e), (f) and (g) and except for the registration of the
Securities under the U.S. Securities Act and the qualification of the Securities
for offer and sale and the determination of their eligibility for investment
under the applicable securities laws of such jurisdictions as the
Representatives may designate pursuant to Section 5(a)(vii), the Province shall
not have any responsibility for, and the Underwriters agree with the Province
that the Underwriters and their respective affiliates will obtain, any consent,
approval or authorization required by them for the subscription, offer, sale or
delivery by them of any of the Securities under the laws and regulations in
force in any jurisdiction to which they are subject or in or from which they
make such subscription, offer, sale or delivery of any of the Securities.
7. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Province contained
herein as of the date hereof, as of the date of the effectiveness of any
amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Province made in
any certificates pursuant to the provisions hereof, to the performance by the
Province of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and the
Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not
later than 5:00 P.M., New York City time, on the second business day following
the date hereof or transmitted by a means reasonably calculated to result in
filing with the SEC by such date; and each Issuer Free Writing Prospectus, to
the extent required by Rule 433 under the U.S. Securities Act, shall have been
filed with the SEC under the U.S. Securities Act.
(b) The Province shall have furnished to the Representatives, on
behalf of the Underwriters, on or prior to the Closing Date, a written opinion
dated the Closing Date of the Deputy Attorney General, Acting Deputy Attorney
General, Assistant Deputy Attorney General Legal Services or Acting Assistant
Deputy Attorney General Legal Services, addressed to the Minister of Finance of
the Province to the effect that, based on the assumptions and subject to the
qualifications set forth therein:
11
(i) this Agreement has been duly authorized, executed and delivered by
the Province in accordance with the laws of the Province and the Order or
Orders of the Lieutenant-Governor in Council applicable thereto, and
constitutes a legal, valid and binding agreement of the Province
enforceable in accordance with its terms;
(ii) the Fiscal Agency Agreement has been duly authorized, executed
and delivered by the Province in accordance with the laws of the Province
and the Order or Orders of the Lieutenant-Governor in Council applicable
thereto, and, assuming due execution and delivery by the Fiscal Agent,
constitutes a legal, valid and binding agreement of the Province
enforceable in accordance with its terms;
(iii) the Securities have been duly authorized and the Global
Securities have been duly executed by the Province in accordance with the
laws of the Province and the Order or Orders of the Lieutenant-Governor in
Council applicable thereto, and, when authenticated in accordance with the
provisions of the Fiscal Agency Agreement and delivered to and paid for by
the Underwriters pursuant to this Agreement, will constitute legal, valid
and binding obligations of the Province, enforceable in accordance with
their terms;
(iv) the statements in the Preliminary Final Prospectus, read together
with the Time of Sale Information, and the Final Prospectus under the
caption "Description of Debt Securities -- Canadian Income Tax
Considerations," as supplemented by "Taxation -- Canadian Taxation" are
accurate in all material respects subject to the qualifications therein
stated;
(v) the payment of principal of and interest on the Securities will be
a charge on and payable out of the Consolidated Fund of the Province of New
Brunswick;
(vi) no authorization, consent, waiver or approval of, or filing,
registration, qualification or recording with, any governmental authority
of the Province of New Brunswick or of Canada is required in connection
with the execution, delivery and performance by the Province of this
Agreement or the Fiscal Agency Agreement or the sale of the Securities by
the Province in the manner contemplated in this Agreement and the Final
Prospectus, except for the Order or Orders of the Lieutenant-Governor in
Council and an approval under the Provincial Loans Act (New Brunswick),
which have been obtained;
(vii) no stamp or other similar duty or levy is payable under the laws
of the Province of New Brunswick or the laws of Canada applicable in the
Province in connection with the execution, delivery and performance by the
Province of this Agreement and the Fiscal Agency Agreement, or in
connection with the issue and sale of the Securities by the Province in the
manner contemplated in this Agreement, the Time of Sale Information and the
Final Prospectus; and
(viii) Her Majesty the Queen in Right of New Brunswick may be sued in
the courts of the Province of New Brunswick with regard to any claims
arising out of or relating to the obligations of the Province under the
Securities. No law in the Province of
12
New Brunswick requires the consent of any public official or authority for
suit to be brought or judgment to be obtained against Her Majesty the Queen
in Right of New Brunswick arising out of or relating to the obligations of
the Province under the Securities, though prior notice and particulars of a
claim must be given to Her Majesty the Queen in Right of New Brunswick. An
amount payable by Her Majesty the Queen in Right of New Brunswick under an
order of a court of the Province of New Brunswick that is final and not
subject to appeal is payable out of the Consolidated Fund of the Province
of New Brunswick pursuant to the Proceedings Against the Crown Act (New
Brunswick).
(c) The Representatives, on behalf of the Underwriters, shall have
received on the Closing Date from Shearman & Sterling LLP, United States counsel
to the Province, favorable opinions dated the Closing Date to the effect that:
(i) the statements in the Preliminary Final Prospectus, read together
with the Time of Sale Information, and the Final Prospectus under the
caption "Description of Bonds", "Clearing and Settlement" and
"Underwriting", in each case, insofar as such statements constitute
summaries of documents referred to therein, fairly summarize in all
material respects the documents referred to therein;
(ii) the statements in the Preliminary Final Prospectus, read together
with the Time of Sale Information, and the Final Prospectus under the
caption "Description of Debt Securities -- United States Income Tax
Considerations", as supplemented by "Taxation -- United States Taxation",
in each case, insofar as such statements constitute summaries of legal
matters referred to therein, fairly summarize in all material respects the
legal matters referred to therein;
(iii) each of the Registration Statement and the Final Prospectus,
excluding the documents incorporated by reference therein, and any
supplements or amendments thereto (other than the financial statements and
other financial or statistical data contained therein or omitted therefrom,
as to which such counsel need not express any opinion) appears on its face
to be appropriately responsive in all material respects to the requirements
of the U.S. Securities Act and the applicable rules and regulations of the
SEC thereunder; and
(iv) each of the documents incorporated by reference in the
Preliminary Final Prospectus, read together with the Time of Sale
Information, and the Final Prospectus (other than the financial statements
and other financial or statistical data contained therein or omitted
therefrom, as to which such counsel need express no opinion), except to the
extent that any statement therein is modified or superseded in the
Preliminary Final Prospectus or the Final Prospectus, at the time it was
filed with the SEC, appears on its face to be appropriately responsive in
all material respects to the requirements of the U.S. Exchange Act and the
applicable rules and regulations of the SEC thereunder.
Such counsel shall also state that although they have not verified,
are not passing upon and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Time of Sale Information or the Final
13
Prospectus (including the documents incorporated by reference therein), such
counsel has, however, generally reviewed and discussed such statements with
representatives of the Department of Finance of the Province and, in the course
of such review and discussion, no facts have come to such counsel's attention
which gives them reason to believe that (A) that the Registration Statement
(including the documents incorporated by reference therein, other than the
financial statements and other financial or statistical data contained therein
or omitted therefrom, as to which such counsel has not been requested to
comment), at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, (B) the
Final Prospectus as amended or supplemented, if applicable (including the
documents incorporated by reference therein, other than the financial statements
and other financial or statistical data contained therein or omitted therefrom,
as to which such counsel has not been requested to comment), as of the date of
such Final Prospectus as amended or supplemented, if applicable, or the Closing
Date, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (C) the Time of Sale Information, at the Time of Sale (which such
counsel may assume to be the date of the Underwriting Agreement) (other than the
financial statements and other financial or statistical data contained therein
or omitted therefrom, as to which such counsel has not been requested to
comment), contained any untrue statement of a material fact or omitted 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.
In giving such opinions, such counsel may rely, without independent
investigation, as to matters relating to the federal law of Canada or the laws
of the Province of New Brunswick, on the opinion of the Deputy Attorney General,
Acting Deputy Attorney General, Assistant Deputy Attorney General Legal Services
or Acting Assistant Deputy Attorney General Legal Services of the Province,
rendered pursuant to Section 7(b) hereof.
(d) The Representatives, on behalf of the Underwriters, shall have
received on the Closing Date from Sullivan & Cromwell LLP, United States counsel
for the Underwriters, and Stewart, McKelvey, Stirling & Scales, Canadian counsel
for the Underwriters, favorable opinions dated the Closing Date as to the form
and validity of the Securities and as to the proceedings and other related
matters incident to the issuance and sale of the Securities on the Closing Date,
and the Representatives, on behalf of the Underwriters, shall have received on
the Closing Date from Sullivan & Cromwell LLP a favorable opinion dated the
Closing Date with respect to the Registration Statement, the Time of Sale
Information and the Final Prospectus and other related matters as the
Representatives may reasonably require. In giving their opinion, Sullivan &
Cromwell LLP may rely upon the opinion of Stewart, McKelvey, Stirling & Scales
as to matters of Canadian and New Brunswick law.
(e) The Province shall have furnished to the Representatives, on
behalf of the Underwriters, on the Closing Date a certificate of the Province,
signed by the duly authorized officer of the Province (who may rely as to
proceedings pending or contemplated upon the best of his knowledge), dated the
Closing Date, to the effect that:
14
(i) the representations and warranties of the Province in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Province has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued and no proceedings for that purpose
have been instituted or, to the Province's knowledge, threatened; and
(iii) there has been no material adverse change in the financial,
economic or political conditions of the Province from those set forth in or
contemplated by the Registration Statement, the Time of Sale Information
and the Final Prospectus.
(f) Subsequent to the execution of this Agreement and on or prior to
the Closing Date, there shall not have been any decrease in the ratings of any
of the Province's long-term debt securities by Moody's Investors Service or
Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
(g) Prior to the Closing Date, the Province shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives, this Agreement and all obligations of the
Underwriters hereunder may be cancelled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Province in writing or by telephone or facsimile transmission, in either case
confirmed in writing.
8. Stabilization and Over-allotment. Any over-allotment or
stabilization transaction by the Underwriters in connection with the
distribution of the Securities shall be effected by them on their own behalf and
not as agents of the Province, and any gain or loss arising therefrom shall be
for their own account. The Underwriters acknowledge that the Province has not
been authorized to issue Securities in excess of the principal amount set forth
in Schedule I hereto. The Underwriters also acknowledge that the Province has
not authorized the carrying out by the Underwriters of stabilization
transactions other than in conformity with applicable rules, including those
made pursuant to applicable United Kingdom legislation and Regulation M under
the U.S. Exchange Act (if applicable).
9. Indemnification and Contribution.
(a) The Province agrees to indemnify and hold harmless each
Underwriter and each of its affiliates that participates in the initial
distribution of the Securities and each person who controls any Underwriter or
any such affiliate within the meaning of either the U.S. Securities Act or the
U.S. Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the laws
of any
15
jurisdiction, including but not limited to the U.S. Securities Act, the U.S.
Exchange Act or other United States Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement for the registration of the Securities as originally
filed or in any amendment thereof, including all documents incorporated by
reference, or in the Basic Prospectus, any Preliminary Final Prospectus, any
Issuer Free Writing Prospectus, any Time of Sale Information or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse, as incurred, each such indemnified
party, for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Province will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Province by or on behalf of any
Underwriter through the Representatives specifically for use in connection with
the preparation thereof and (ii) such indemnity with respect to the Basic
Prospectus, any Preliminary Final Prospectus, any Issuer Free Writing Prospectus
or any Time of Sale Information shall not enure to the benefit of any
Underwriter or affiliate thereof (or any person controlling any Underwriter or
affiliate) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such person
did not receive the Time of Sale Information at or prior to the sale of such
Securities to such person and the untrue statement or omission of a material
fact contained in the Basic Prospectus, any Preliminary Final Prospectus or any
Issuer Free Writing Prospectus was corrected in the Time of Sale Information,
the Underwriter was notified in an email message or otherwise in writing of the
correction and was provided with the corrected Basic Prospectus, Preliminary
Prospectus or Issuer Free Writing Prospectus prior to delivery or conveyance of
the Time of Sale Information to such person. This indemnity agreement will be in
addition to any liability which the Province may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Province:
(i) to the same extent as the foregoing indemnity from the Province to
such Underwriter, but only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Province by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity; and
(ii) against any and all losses, claims, damages or liabilities, joint
or several, to which the Province may become subject under the laws of any
jurisdiction, including but not limited to the U.S. Securities Act, the
U.S. Exchange Act or other United States Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in any document prepared by such Underwriter and distributed
by it in connection with
16
the offering of the Securities, including any "free writing prospectus", or
which arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein not
misleading, and which statement or omission is not contained in the Time of
Sale Information, the Final Prospectus or the agreed press releases.
Each Underwriter, severally and not jointly, agrees to reimburse, as
incurred, any legal or other expenses reasonably incurred by the Province in
connection with investigating or defending any such loss, claim, damage,
liability or action referred to in clauses (i) and (ii) above. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Province acknowledges, for the purposes of clause (i) above,
that the statements set forth under the heading "Underwriting" (except for the
statements in the paragraphs relating to the European Economic Area, the FSMA
and the securities laws of Italy, Belgium, Japan and Hong Kong and the sentence
relating to stamp taxes and other charges and expenses of the offering) in any
Preliminary Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the Underwriters for
inclusion in any of the documents referred to in the foregoing indemnity, and
the Underwriters confirm that such statements are correct; provided that such
acknowledgement by the Province does not extend to any "free writing prospectus"
other than the Issuer Free Writing Prospectus in the form of Schedule I hereto.
(c) Each of the Province and the Underwriters agree that the
Underwriters shall have and hold the covenants of the Province contained in this
Section 9 in respect of the Underwriters' controlling persons (as defined above)
and affiliates in trust for the benefit of their controlling persons and
affiliates. The Underwriters agree to accept the trusts in this paragraph (c)
declared and provided for and agree to enforce those covenants on behalf of such
persons.
(d) Promptly after receipt by an indemnified party under this Section
9 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9.
In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to appoint counsel satisfactory to such indemnified party
to represent the indemnified party in such action; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. An indemnifying party will not, without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld or delayed), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such
17
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding. In order to be entitled to an
indemnity with respect to a claim hereunder, an indemnified party will not,
without the prior written consent of the indemnifying parties (which consent
shall not be unreasonably withheld or delayed), settle or compromise or consent
to the entry of any judgment with respect to such pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnifying parties are actual or
potential parties to such claim or action).
Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to appoint counsel to defend such action and approval
by the indemnified party of such counsel, the indemnifying party will not be
liable to such indemnified party under this Section 9 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless:
(i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the first sentence of the next preceding
paragraph (it being understood, however, that the indemnifying party shall
not be liable for the expenses of more than one separate counsel, approved
by the Representatives in the case of paragraph (a) of this Section 9,
representing the indemnified parties under such paragraph (a) who are
parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action, or
(iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall be
only in respect of the counsel referred to in such clause (i) or (iii).
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 9 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Province on grounds of policy or otherwise, the
Province and the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Province and
the Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount specified in Schedule I hereto bears to the sum of such discount and
the purchase price of the Securities specified in Schedule I hereto and the
Province is responsible for the balance; provided, however, that (a) in no case
shall any Underwriter be responsible for any amount in excess of the
underwriting discount applicable to the Securities purchased by such Underwriter
hereunder and (b) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the U.S. Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who controls an
Underwriter within the meaning of the U.S. Securities Act shall have the same
rights to contribution as the
18
Underwriters, and each person who controls the Province within the meaning of
the U.S. Securities Act and each official of the Province who shall have signed
the Registration Statement shall have the same rights to contribution as the
Province. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this paragraph (e), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (e).
10. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Province. In the event of a default by any Underwriter as set
forth in this Section 10, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Province and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives or the Province, by notice given to
the Province or the Representatives, as the case may be, prior to delivery and
payment for the Securities, if prior to that time, there shall have occurred
such a change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which, in the
reasonable judgment of the Representatives or the Province, as the case may be,
is material and adverse and such changes, singly or together with any other such
change, makes it, in the reasonable judgment of the Representatives or the
Province, as the case may be, impracticable to market the Securities on the
terms and in the manner contemplated in the Time of Sale Information or the
Final Prospectus. Notwithstanding any such termination, the provisions of
Sections 9, 12, and 15 hereof shall remain in effect.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Province and of the Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of the Underwriters or the Province or any of
19
the officers, directors or controlling persons referred to in Section 9 hereof,
and will survive delivery of and payment for the Securities.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives on behalf of the
Underwriters, will be mailed, delivered, telecopied or telegraphed and confirmed
to them care of Merrill Lynch, Pierce, Fenner & Smith Incorporated, 4 World
Financial Center, New York, New York 10080, or, if sent to the Province, will be
mailed, delivered, telecopied or telegraphed and confirmed at the Department of
Finance, Treasury Division, 670 King Street, Room 376, Fredericton, New
Brunswick, E3B 5H1, attention: Managing Director Debt Management, Treasury
Division, Department of Finance (Telecopier No. 506-453-2053).
14. Successors and Assigns. This Agreement will enure to the benefit
of and be binding upon the parties hereto and their respective successors and
permitted assigns and the officials and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation
hereunder. Neither this Agreement nor any interest or obligation in or under
this Agreement may be assigned by the Underwriters without the prior written
consent of the Province or by the Province without the prior written consent of
the Representatives on behalf of the Underwriters.
15. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the Province of New Brunswick and the laws of Canada
applicable in New Brunswick.
16. Counterparts. This Agreement may be executed in one or more
counterparts (including counterparts by facsimile) and when a counterpart has
been executed by each party hereto all such counterparts taken together shall
constitute one and the same agreement.
17. Advertisements. All advertisements of the issue of the Securities
or publication of such formal notice as may be required by the rules of the
Stock Exchange in connection with the listing of the securities on the Stock
Exchange shall be published in a form or forms and manner to which the Province
consents in writing prior to the date of publication. The Province may withhold
its consent in its discretion regarding the use of any symbol in any such
advertisement and the publication in which such advertisement is to appear.
18. Time of the Essence. Time shall be of the essence in this
Agreement.
19. Representation of Underwriters. In all dealings hereunder, the
Representatives shall, and have all necessary authority to, act on behalf of
each of the Underwriters, and the Province shall be entitled to act and rely
upon any statement, request, notice or agreement given by the Representatives,
jointly or individually, on behalf of any of the Underwriters.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Province and the Underwriters.
Very truly yours,
PROVINCE OF NEW BRUNSWICK
By: /s/ Leonard Lee-White
------------------------------------
Name: Leonard Lee-White
Title: Managing Director,
Debt Management
Treasury Division,
Department of Finance
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Nancy Kennan
---------------------------------
Authorized Signatory
Name: Nancy Kennan
Title: Authorized Signatory
For itself and on behalf of the several Representatives and the several
Underwriters.
SCHEDULE I
Final Pricing Announcement
Approved for External Use
Issuer: Province of New Brunswick
Expected Ratings: Aa1(stable)/AA-(stable)
Format: SEC Registered Global Offering
Ranking: Direct, unconditional debt
Size: U.S.$500,000,000
Trade Date: February 13, 2007
Settlement Date: February 21, 2007
Maturity: February 21, 2017
Interest Payment Dates: February 21 and August 21
First Payment Date: August 21, 2007
Spread to Benchmark: T+ 43bps
Benchmark Treasury: 4.625% due February 2017
UST Spot: 4.818%
Yield: 5.248%
Coupon: 5.20% payable semi-annually
Price: 99.63%
Day Count: 30/360
Minimum Denominations: U.S.$5,000 x U.S.$1,000
I-1
Joint Lead Managers: CIBC World Markets Corp.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
RBC Capital Markets Corporation
Co-managers: National Bank Financial Inc.
Scotia Capital (USA) Inc.
TD Securities (USA) LLC
Bank of Montreal, London Branch
Cusip#/ISIN#: 642866FY8/US642866FY80
Listing: Admission to UKLA's Official List and to trading
on London Stock Exchange's regulated market may
be completed following settlement.
Governing Law: Province of New Brunswick and Canada
Prospectus and Prospectus http://www.sec.gov/Archives/edgar/data/862406/
Supplement: 000090956707000173/o34394e424b2.htm
Stabilization: Reg M/FSA Rules
Legends: This communication is intended for the sole use
of the person to whom it is provided by us.
The issuer has filed a registration statement
(including a prospectus) with the SEC for the
offering to which this communication relates.
Before you invest, you should read the prospectus
in that registration statement and other
documents the issuer has filed with the SEC for
more complete information about the issuer and
this offering. You may get these documents for
free by visiting EDGAR on the SEC Web site at
www.sec.gov. Alternatively, the issuer, any
underwriter or any dealer participating in the
offering will arrange to send you the prospectus
if you request it by calling toll-free 1-866 500
5408.
European Economic Area
Legends: If and to the extent that this announcement is
communicated in, or the offer of the Bonds to
which it relates is made in, any EEA Member State
that has implemented the Prospectus Directive
(2003/71/EC) (a "Relevant Member State")
(together with any applicable implementing
measures in each Relevant Member State, the
"Prospectus Directive"), this announcement and
the offer
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are only addressed to and directed at persons in
that Member State who are qualified investors
within the meaning of the Prospectus Directive
(or who are other persons to whom the offer may
lawfully be addressed) and must not be acted upon
by other persons in that Relevant Member State.
This is not a prospectus under the Prospectus
Directive but an advertisement as defined in the
Prospectus Directive and investors in the EEA
should not subscribe for or purchase Bonds once
admitted to trading on the London Stock Exchange
plc's regulated market except on the basis of
information in the Listing Prospectus (as defined
below). The Province intends to file a single
prospectus (the "Listing Prospectus") pursuant to
Section 5.3 of the Prospectus Directive with the
Financial Services Authority in its capacity as
competent authority under the Financial Services
and Markets Act 2000 as amended for the purpose
of having the Bonds admitted to trading on the
London Stock Exchange plc's regulated market as
soon as possible after closing of this issue.
Once approved, the Listing Prospectus will be
published in accordance with the Prospectus
Directive and investors will be able to view the
Listing Prospectus on the website of the
Regulatory News Service operated by the London
Stock Exchange at
http://www.londonstockexchange.com/engb/
pricesnews/marketnews/ under the name of the
Province of New Brunswick and the headline
"Publication of Prospectus" and investors shall
be able to obtain copies without charge from the
office of the Department of Finance, Treasury
Division, 670 King Street, Room 376, Fredericton,
New Brunswick, Canada E3B 5H1.
This announcement is only being distributed to
and is only directed at (i) persons who are
outside the United Kingdom or (ii) to investment
professionals falling within Article 19(5) of the
Financial Services and Markets Act 2000
(Financial Promotion) Order 2005 (the "Order") or
(iii) high net worth entities, and other persons
to whom it may lawfully be communicated, falling
within Article 49(2)(a) to (d) of the Order (all
such persons together being referred to as
"relevant persons"). The Bonds are only available
to, and any invitation, offer or agreement or
subscribe, purchase or otherwise acquire such
Bonds will be engaged in only with, relevant
persons. Any person who is not a relevant person
should not act or rely on this document or
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any of its contents.
Other: ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR
BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION
AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR
OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A
RESULT OF THIS COMMUNICATION BEING SENT VIA
BLOOMBERG OR ANOTHER EMAIL SYSTEM.
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SCHEDULE II
Principal Amount
of Securities to
Underwriter be Purchased
- ----------- ----------------
CIBC World Markets Corp. .................................... US$140,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated .......... 140,000,000
RBC Capital Markets Corporation ............................. 140,000,000
National Bank Financial Inc. ................................ 25,000,000
TD Securities (USA) LLC ..................................... 25,000,000
Scotia Capital (USA) Inc. ................................... 25,000,000
Bank of Montreal, London Branch ............................. 5,000,000
----------------
Total .................................................... U.S.$500,000,000
================
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