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Exhibit 1.2
CHUBB CAPITAL CORPORATION
Debt Securities
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Underwriting Agreement
_____________, 19__
[Name(s) and address(es)
of Representatives.]
Dear Sirs/Mesdames:
From time to time Chubb Capital Corporation, a New Jersey
corporation (the "Company") and The Chubb Corporation, a New Jersey
corporation, as guarantor (the "Guarantor"), propose to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue and
sell to the firms named in Schedule I to the applicable Pricing Agreement (such
firms constituting the "Underwriters" with respect to such Pricing Agreement
and the securities specified therein) certain of the Company's (i) senior debt
securities (the "Senior Securities") issued pursuant to the senior indenture
dated October 25, 1989 (the "Senior Indenture") between the Company, The Chubb
Corporation, as Guarantor, and The First National Bank of Chicago, as Trustee,
and (ii) subordinated debt securities (the "Subordinated Securities") issued
pursuant to the subordinated indenture dated ______, 199_ between the Company,
The Chubb Corporation, as Guarantor, and The First National Bank of Chicago, as
Trustee, (the "Subordinated Indenture") (the Senior Securities together with
the Subordinated Securities, the "Securities") specified in Schedule II to such
Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities"). The Securities are to be unconditionally guaranteed (the
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"Guarantees") as to payment of principal, premium, if any, and interest by the
Guarantor upon the basis and on the terms specified in the applicable
Indenture.
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the applicable Indenture identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company or the
Guarantor to sell any of the Securities (including the Guarantees) or as an
obligation of any of the Underwriters to purchase the Securities (including the
Guarantees). The obligation of the Company and the Guarantor to issue and sell
any of the Securities (including the Guarantees) and the obligation of any of
the Underwriters to purchase any of the Securities (including the Guarantees)
shall be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the applicable
Indenture and the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
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2. The Company and the Guarantor jointly and severally
represent and warrant to, and agree with, each of the Underwriters that:
(a) A registration statement in respect of the Securities and the
Guarantees has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus
contained therein, to the Representatives for each of the other
Underwriters have been declared effective by the Commission in such form;
no other document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed or transmitted
for filing with the Commission; and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary Prospectus";
the various parts of such registration statement, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the registration statement, at the time such part of the
registration statement became effective but excluding Form T-1, each as
amended at the time such part of the registration statement became
effective, being hereinafter called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"),
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and incorporated by reference in such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company and the Guarantor filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any reference
to the Prospectus as amended or supplemented shall be deemed to refer to
the Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any document incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, complied as to form in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will comply as to form in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company or the
Guarantor by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities and such Guarantees;
(c) The Registration Statement and the Prospectus comply as to
form, and any further amendments or supplements to the Registration
Statement or the
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Prospectus will comply as to form, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as
to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company or the Guarantor by an Underwriter of Designated
Securities through the Representatives expressly for use in the Prospectus
as amended or supplemented relating to such Securities and such Guarantees;
(d) Neither the Guarantor nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with their businesses from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, which loss or interference
would have a material adverse effect on the business or financial condition
of the Guarantor and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there has not been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Guarantor and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus and has been duly qualified as a foreign corporation for the
transaction of business in each other jurisdiction in which it owns
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or leases property, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(f) All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable and are owned directly or indirectly by the Guarantor;
(g) The Guarantor has been duly incorporated and is validly
existing as a corporation under the laws of the jurisdiction of its
incorporation with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and has
been duly qualified as a foreign corporation for the transaction of
business in each other jurisdiction in which it owns or leases property, or
conducts any business, so as to require such qualification, or is subject
to no material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(h) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this Agreement
and any Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the applicable Indenture,
which will be substantially in the form incorporated by reference as an
exhibit to the Registration Statement; the Guarantees have been duly
authorized, and, upon due execution, authentication and delivery of the
Securities and the placement of the Guarantees thereon, the Guarantees will
have been duly executed, issued and delivered and will constitute valid and
binding obligations of the Guarantor entitled to the benefits provided by
the applicable Indenture; each Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, at the Time of Delivery for
such Designated Securities (as defined in Section 4 hereof), each Indenture
will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and
each Indenture conforms, and the Designated Securities and the Guarantees
will
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conform, to the descriptions thereof contained in the Prospectus as amended
or supplemented with respect to such Designated Securities and such
Guarantees;
(i) The issue and sale of the Securities and the Guarantees and
the compliance by the Company and the Guarantor with all of the provisions
of the Securities, the Guarantees, the Indentures, this Agreement and any
Pricing Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Guarantor or any of its subsidiaries
is a party or by which the Company, the Guarantor or any of its
subsidiaries is bound or to which any of the property or assets of the
Company, the Guarantor or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or By-Laws of the Company or the Restated Certificate of
Incorporation or By-Laws of the Guarantor or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, the Guarantor or any of its subsidiaries or
any of their properties except for such conflicts, breaches, violations or
defaults which would not have a material adverse effect on the business,
financial condition or results of operations of the Guarantor and its
subsidiaries taken as a whole or on the Company's or Guarantor's ability to
perform their respective obligations under this Agreement, the Securities
and the Guarantees; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities and the
Guarantees or the consummation by the Company or the Guarantor of the other
transactions contemplated by this Agreement or any Pricing Agreement or the
Indentures, except such as have been, or will have been prior to the Time
of Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities and the Guarantees by the
Underwriters; and
(j) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending (including proceedings of any insurance
regulatory
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authority) to which the Guarantor or any of its subsidiaries is a party or
of which any property of the Guarantor or any of its subsidiaries is the
subject which, if determined adversely to the Guarantor or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the consolidated financial position, stockholders' equity
or results of operations of the Guarantor and its subsidiaries; and, to the
best of the Company's and the Guarantor's knowledge, no such proceedings
are threatened.
3. Upon the execution of the Pricing Agreement applicable to
any Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable and with the Guarantees placed thereon, and in such
authorized denominations and registered in such names as the Representatives
may request upon at least forty-eight hours' prior notice to the Company, shall
be delivered by or on behalf of the Company to the Representatives for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by certified or official bank check or
checks, payable to the order of the Company in the funds specified in such
Pricing Agreement, all at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "Time of Delivery" for such Securities.
5. Each of the Company and the Guarantor agrees with each of
the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus
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as amended or supplemented after the date of the Pricing Agreement relating
to such Securities and prior to the Time of Delivery for such Securities
which shall be disapproved by the Representatives for such Securities
promptly after reasonable notice thereof, and such disapproval shall not be
unreasonable; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the Representative
with copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company or the
Guarantor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it received
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith neither the Company nor the Guarantor
shall be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
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(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to their respective
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an earnings statement of the Guarantor and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including at the option of the Company Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company and the Guarantor by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company or the Guarantor, or guaranteed by the
Guarantor, which debt securities mature more than one year after such Time
of Delivery and which are substantially similar to such Designated
Securities, without the prior written consent of the Representatives.
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6. Each of the Company and the Guarantor covenants and agrees
with the several Underwriters that the Company and the Guarantor will pay or
cause to be paid the following: (i) the reasonable fees, disbursements and
expenses of the Company's and the Guarantor's counsel and independent auditors
in connection with the registration of the Securities and the Guarantees under
the Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, the Indentures, any Blue Sky Memoranda and any other documents in
connection with the offering, purchase, sale and delivery of the Securities and
the Guarantees; (iii) all expenses in connection with the qualification of the
Securities and the Guarantees for offering and sale under state securities laws
as provided in section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky surveys; (iv) any fees charged by securities
rating services for rating the Securities and the Guarantees; (v) any filing
fees incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities and the Guarantees;
(vi) the cost of preparing the Securities and the Guarantees; (vii) the
reasonable fees and expenses of any Trustee and any agent of any Trustee and
the fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities and the Guarantees; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this section. It is understood,
however, that, except as provided in this Section, Section 8 and Section 11
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company and
the Guarantor in or incorporated by reference in the Pricing Agreement relating
to such Designated Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct in all material respects, the condition
that the Company and the Guarantor shall have
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performed all of their obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the validity of the applicable
Indenture, the Designated Securities, the Guarantees, the Registration
Statement, the Prospectus as amended or supplemented and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Robert Rusis, Senior Vice President and General Counsel of
the Guarantor shall have furnished to the Representatives his written
opinion, dated the Time of Delivery for such Designated Securities, in form
and substance satisfactory to the Representatives, to the effect that:
(i) Each of the Company and the Guarantor has been duly
qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each foreign
jurisdiction in which it owns or leases property, or conducts any
business, so as to require such qualification, or is subject to no
material liability or disability by reason of failure to be so
qualified in any such jurisdiction (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates
of officers of the Guarantor or its subsidiaries, provided that
such counsel shall state that he believes that both the
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Representatives and he are justified in relying upon such opinions
and certificates);
(ii) To the best of such counsel's knowledge and other than
as set forth in the Prospectus there are no legal or governmental
proceedings pending to which the Guarantor or any of its
subsidiaries is a party or of which any property of the Guarantor
or any of its subsidiaries is the subject which, if determined
adversely to the Guarantor or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on
the consolidated financial position, stockholders' equity or
results of operations of the Guarantor and its subsidiaries; and,
to the best of such counsel's knowledge, no such proceedings are
threatened;
(iii) The issue and sale of the Designated Securities,
including the Guarantees, and the compliance by the Company and
the Guarantor with all of the provisions of the Designated
Securities, the Guarantees, the applicable Indenture, this
Agreement and the Pricing Agreement with respect to the Designated
Securities and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed or trust, loan
agreement or other agreement or instrument known to such counsel
to which the Guarantor or any of its subsidiaries is a party or by
which the Guarantor or any of its subsidiaries is bound or to
which any of the property or assets of the Guarantor or any of its
subsidiaries is subject, nor will such actions result in any
violation, of the provisions of the Certificate of Incorporation
or By-laws of the Company, the Restated Certificate of
Incorporation or By-Laws of the Guarantor or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Guarantor
or any of its subsidiaries or of any of their properties, such as
would be material to the business of the Company or the Guarantor
and their subsidiaries taken as a whole;
(iv) No consent, approval, authorization order, registration
or qualification of or with
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any such court or governmental agency or body is required for the
issue and sale of the Designated Securities or the issue of the
Guarantees or the consummation by the Company of the other
transactions contemplated by this Agreement or such Pricing
Agreement or the applicable Indenture, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
In rendering the foregoing opinion such counsel may rely as to
matters of law of the State of New Jersey upon the opinion of New Jersey
counsel satisfactory to the Representatives, provided such counsel shall state
therein that he believes that both the Underwriters and he are justified in
relying upon such opinion.
(d) Davis Polk & Wardwell, special counsel for the Company, shall
have furnished to the Representatives their written opinion, dated the Time
of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) Each of the Company and the Guarantor has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus
as amended or supplemented;
(ii) This Agreement and any Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Company and the Guarantor;
(iii) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the applicable Indenture; and
the Designated Securities, the Guarantees and the Indentures
conform to the descriptions thereof in the Prospectus as amended
or supplemented;
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(iv) The Guarantees have been duly authorized, and,
when the Securities have been executed, authenticated, delivered
in accordance with the applicable Indenture and paid for pursuant
to this Agreement, will constitute valid and binding obligations
of the Guarantor entitled to the benefits provided by the
applicable Indenture subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(v) The applicable Indenture has been duly
authorized, executed and delivered by the Company and the
Guarantor and constitutes a valid and legally binding instrument
of the Company and the Guarantor, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditor's rights and to general equity principles;
and each Indenture has been duly qualified under the Trust
Indenture Act;
(vi) The Company is exempt from all provisions of the
Investment Company Act; and
(vii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company and the Guarantor prior to the Time of
Delivery for the Designated Securities (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder; they have no reason
to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company and
the Guarantor prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus as
amended or supplemented or any
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16
further amendment or supplement thereto made by the Company prior
to the Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Company
and the Guarantor prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion) contains an untrue statement
of a material fact or omits to state a material fact necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading;
In rendering the foregoing opinion such counsel may rely as to
matters of law of the State of New Jersey upon the opinion of New Jersey
counsel satisfactory to the Representatives, provided such counsel shall state
therein that they believe that both the Underwriters and they are justified in
relying upon such opinion.
(e) At the Time of Delivery for such Designated Securities, the
independent auditors of the Guarantor who have certified the financial
statements of the Guarantor and its subsidiaries included or incorporated
by reference in the Registration Statement shall have furnished to the
Representatives a letter, dated such Time of Delivery, to the effect set
forth in Annex II hereto, and as to such other matters as the
Representatives may reasonably request, and in form and substance
satisfactory to the Representatives;
(f) (i) Neither the Guarantor nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute [or court] or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which information
is given in the Prospectus as amended or supplemented
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there shall not have been any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Guarantor and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus as amended or supplemented, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities (including the Guarantees) on the terms and in the
manner contemplated in the Prospectus as amended or supplemented;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities no downgrading shall have occurred in the rating
accorded the Company's or the Guarantor's debt securities by Moody's
Investors Service, Inc. or Standard & Poor's Corporation;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York State
authorities; or (iii) the engagement by the United States in hostilities
which have resulted in the declaration, on or after the date of such
Pricing Agreement, of a national emergency or war if the effect of any such
event specified in this Clause (iii) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities (including the Guarantees) on
the terms and in the manner contemplated in the Prospectus as amended or
supplemented; and
(i) The Company and the Guarantor shall have furnished or caused
to be furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers of the
Company and the Guarantor satisfactory to the Representatives as to the
accuracy in all material respects of the representations and warranties of
the Company and the Guarantor herein at and as of such Time of Delivery, as
to the performance by the Company and the Guarantor of all of its
obligations
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hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (f) of this Section and as to such
other matters as the Representatives may reasonably request.
8. (a) The Company and the Guarantor will jointly and severally
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, to which such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities or the Guarantees, or any amendment 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 will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company and the Guarantor by any Underwriter of
Designated Securities through the Representatives expressly for use in the
prospectus as amended or supplemented relating to such Securities or such
Guarantees; provided, however, that the foregoing indemnity agreement with
respect to the Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Securities, or any person controlling such Underwriter,
if a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter to such person, if required by law so
to have been delivered, at or prior to the written confirmation of the sale of
the Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities.
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(b) Each Underwriter will indemnify and hold harmless the
Company, the Guarantor, the officers and directors of the Company and the
Guarantor, and each person, if any, who controls the Company or the Guarantor
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or the Guarantor may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities or the Guarantees, or any amendment 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company and the Guarantor by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company or the Guarantor for any legal or other expenses reasonably incurred by
the Company or the Guarantor in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from
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the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Guarantor on the one hand
and the Underwriters of the Designated Securities on the other from the
offering of the Designated Securities (including the Guarantees) to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and the Guarantor on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Guarantor on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company and the Guarantor
bear to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantor on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company, the Guarantor and the Underwriters agree that it would
not be just and equitable if contribution pursuant to subsection
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21
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Securities and not joint.
(e) The obligations of the Company and the Guarantor under this
Section 8 shall be in addition to any liability which the Company and the
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
8 shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or the Guarantor and to each person, if
any, who controls the Company or the Guarantor within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained herein.
If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Designated Securities,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or
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other parties to whom the Representatives shall not unreasonably object to
purchase such Designated Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company and
the Guarantor that they have so arranged for the purchase of such Designated
Securities, or the Company and the Guarantor the Representatives that it has so
arranged for the purchase of such Designated Securities, the Representatives or
the Company and the Guarantor shall have the right to postpone the Time of
Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company and the Guarantor agree to
file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company and the Guarantor as provided in subsection (a)
above, the aggregate principal amount of such Designated Securities which
remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount of Designated Securities which such Underwriter agreed
to purchase under such Pricing Agreement) of the Designated Securities of such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company and the Guarantor as provided in subsection (a)
above, the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of
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23
the Designated Securities, as referred to in subsection (b) above, or if the
Company and the Guarantor shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase Designated
Securities of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Designated Securities shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Guarantor, except for the expenses to be borne by the Company, the
Guarantor and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, the Guarantor or any officer or director or
controlling person of the Company or the Guarantor, and shall survive delivery
of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company and the Guarantor shall not then be under any
liability to any Underwriter with respect to the Designated Securities covered
by such Pricing Agreement except as provided in Section 6 and Section 8
thereof; but, if for any reason Designated Securities are not delivered by or
on behalf of the Company and the Guarantor as provided herein, the Company and
the Guarantor will reimburse the Underwriters through the Representatives for
all out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of such
Designated Securities, but the Company and the Guarantor shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriter, and the parties hereto shall be entitled to act and rely upon any
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statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement. All
statements, requests, notices and agreements hereunder shall be in writing, and
if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Representatives as set forth in the Pricing
Agreement; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company or the Guarantor set forth
in the Registration Statement; provided, however, that any notice to an
Underwriter pursuant to section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by the Representatives upon
request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company, the
Guarantor and, to the extent provided in Section 8 and Section 10 hereof, the
officers and directors of the Company, the Guarantor and each person who
controls the Company and the Guarantor or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
such Pricing Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of each Pricing Agreement.
As used herein, "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please
sign and return to us ___ counterparts hereof.
Very truly yours,
CHUBB CAPITAL CORPORATION
By:__________________________
Name:
Title:
THE CHUBB CORPORATION
By:__________________________
Name:
Title:
Accepted as of the date hereof:
By: ____________________________
Name:
Title:
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ANNEX I
Pricing Agreement
[Name and Address of Representative(s)]
__________, 19__
Dear Sirs:
Chubb Capital Corporation, a New Jersey corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated _______, 199_ (the "Underwriting Agreement"),
between the Company and The Chubb Corporation (the "Guarantor") on the one hand
and _________________________________ on the other hand, to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of
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the representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us ___ counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters, the Company and the Guarantor. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company and the Guarantor for
examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
CHUBB CAPITAL CORPORATION
By:______________________
Name:
Title:
THE CHUBB CORPORATION
By:______________________
Name:
Title:
Accepted as of the date hereof:
[Name of Representatives]
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_______________________________
On behalf of each of the Underwriters
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SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriters Purchased
------------ ----------
[Names of Underwriters] . . . . . . . . . . . $
------------
Total . . . . . . . . . . . . . $
============
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SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate Principal Amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from [and accrued amortization, if any, from ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from ] [and accrued amortization, if any,
from ]
Specified funds for payment of purchase price:
[New York] Clearing House funds
Indenture and Ranking:
The Designated Debt Securities will be [senior/subordinated] indebtedness
of the Company issued under the [Senior/Subordinated] Indenture dated
________ __, 19__, between the Company, the Guarantor and _______________,
as Trustee
Guarantees:
The Designated Securities will be unconditionally guaranteed as to payment
of principal, premium, if any, and interest by the Guarantors
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
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Interest Payment Dates:
[months and dates]
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Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, [in the
amount of [$] or an integral multiple thereof,] [on or after , at
the following redemption prices (expressed in percentages of principal
amount). If [redeemed on or before , and if] redeemed during
the 12-month period beginning
Redemption
Year Price
---- ----------
and thereafter] at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling in or after ,
at the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$] principal amount of Designated Securities on
in each of the years through at 100% of their principal
amount plus accrued interest] [, together with [cumulative] [noncumulative]
redemptions at the option of the Company to retire an additional [$]
principal amount of Designated Securities in the years through at
100% of their principal amount plus accrued interest].
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[If Securities are extendable debt Securities, insert--
Extendable provisions:
Securities are repayable on , [insert date
and years], at the option of the holder, at their principal amount with
accrued interest. Initial annual interest rate will be % , and
thereafter annual interest rate will be adjusted on ,
and to a rate not less than % of the effective
annual interest rate on U.S. Treasury obligations with -year
maturities as of the [insert date 15 days prior to maturity date] prior to
such [interest maturity date].]
[If Securities are Floating Rate debt Securities, insert--
Floating rate provisions:
Initial annual interest rate will be % through
[and thereafter will be adjusted [monthly] [on each ,
and ] [to an annual rate of
% above the average rate for -year
[month] [securities] [certificates of deposit] issued by
and [insert names of banks].] [and the annual interest
rate [thereafter] [from through ] will be the
interest yield equivalent of the weekly average per annum market discount
rate for -month Treasury bills plus % of Interest Differential (the
excess, if any, of (i) then current weekly average per annum secondary
market yield for -month certificates of deposit over (ii) then current
interest yield equivalent of the weekly average per annum market discount
rate for -month Treasury bills); [from and
thereafter the rate will be the then current interest yield equivalent plus
% of Interest Differential].]
Defeasance provisions:
Time of Delivery:
Closing Location:
Names and addresses of representatives:
Designated Representatives:
Address for Notices, etc.:
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[Other Terms]:
5
35
ANNEX II
Pursuant to Section 7 (e) of the Underwriting Agreement, the
independent auditors shall furnish letters to the Underwriters to the effect
that:
(i) They are independent auditors with respect to the Guarantor and
its subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, prospective
financial statements and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations thereunder;
and, if applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data, pro
forma financial information, prospective financial statements and/or
condensed financial statements derived from audited financial statements of
the Guarantor for the periods specified in such letter, as indicated in
their reports thereon, copies of which have been furnished to the
representatives of the Underwriters (the "Representatives"):
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Guarantor
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Guarantor's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Guarantor's Annual Reports on
Form 10-K for such fiscal years;
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(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Guarantor and its subsidiaries, inspection of the minute
books of the Guarantor and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Guarantor and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came of their
attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included or incorporated by reference in the
Guarantor's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by
reference in the Guarantor's Annual Report on Form 10-K for the
most recent fiscal year;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Guarantor's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which
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were derived the unaudited condensed financial statements referred
to in clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred to in
Clause (B) were not determined on a basis substantially consistent
with the basis for the audited financial statements included or
incorporated by reference in the Guarantor's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
of the Company upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or in the combined net case reserves
with respect to the business managed by Chubb & Son Inc., or any
increase in the consolidated long-term debt or in notes and
mortgages payable of the Guarantor and its subsidiaries, combined
net premiums receivable with respect to the business managed by
Chubb & Son Inc. or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts as of the date of the latest
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in Clause (E) there
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were any decreases in combined net premiums with respect to the
business managed by Chubb & Son Inc. or in the investment income of
the Guarantor and its property and casualty insurance subsidiaries
or any increases in the combined net loss and loss adjustment
expenses incurred (exclusive of changes in incurred but not
reported losses) with respect to the business managed by Chubb &
Son Inc. or any increases or decreases in any items specified by
the Representatives, in each case as compared with the comparable
period of corresponding length specified by the Representatives,
except in each case for increases and decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(v) In addition to the audit referred to in their
report(s) included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above, they have
carried out certain specified procedures, not constituting an examination
in accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Guarantor and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference) or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the amounts included in
or which can be derived from audited financial statements or with the
accounting records of the Guarantor and its subsidiaries and have found
them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for
such Designated Securities.
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