exv10w40



 



Exhibit 10.40



Execution Copy



$75,000,000 AGGREGATE PRINCIPAL AMOUNT


ODYSSEY RE HOLDINGS CORP.


7.65% SENIOR NOTES


DUE 2013


Underwriting Agreement


dated November 13, 2003











BANC OF AMERICA SECURITIES LLC


CREDIT SUISSE FIRST BOSTON LLC


J.P. MORGAN SECURITIES INC.


 






 


TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 	 	 	 	 	 	

	SECTION 1.
	 	Representations and Warranties	 	 	2	 
	SECTION 2.
	 	Purchase and Sale	 	 	8	 
	SECTION 3.
	 	Delivery and Payment	 	 	9	 
	SECTION 4.
	 	Offering by Underwriters	 	 	9	 
	SECTION 5.
	 	Agreements	 	 	9	 
	SECTION 6.
	 	Conditions to the Obligations of the Underwriters	 	 	11	 
	SECTION 7.
	 	Payment of Expenses	 	 	13	 
	SECTION 8.
	 	Indemnification and Contribution	 	 	14	 
	SECTION 9.
	 	Default by an Underwriter	 	 	17	 
	SECTION 10.
	 	Termination	 	 	17	 
	SECTION 11.
	 	Representations and Indemnities to Survive	 	 	18	 
	SECTION 12.
	 	Notices	 	 	18	 
	SECTION 13.
	 	Successors	 	 	19	 
	SECTION 14.
	 	GOVERNING LAW	 	 	19	 
	SECTION 15.
	 	Counterparts	 	 	19	 
	SECTION 16.
	 	Headings	 	 	20	 
	SECTION 17.
	 	Definitions	 	 	20	 



 






 



ODYSSEY RE HOLDINGS CORP.


(a Delaware corporation)


$75,000,000


7.65% SENIOR NOTES due 2013


UNDERWRITING AGREEMENT


November 13, 2003



BANC OF AMERICA SECURITIES LLC

CREDIT SUISSE FIRST BOSTON LLC

J.P. MORGAN SECURITIES INC.
     as
Representatives of the several Underwriters
     named
in Schedule I hereto


BANC OF AMERICA SECURITIES LLC

9 West 57th Street

New York, New York 10019


CREDIT SUISSE FIRST BOSTON LLC

11 Madison Avenue

New York, New York 10010-3629


J.P. MORGAN SECURITIES INC.

270 Park Avenue, 7th Floor

New York, New York 10017


Ladies and Gentlemen:


     Odyssey Re Holdings Corp., a Delaware corporation (the “Company”),
proposes to sell to the several underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the “Representatives”) are acting as
representatives, $75,000,000 principal amount of its 7.65% Senior Notes due
2013 (the “Securities”), to be issued under an indenture (the “Base
Indenture”), dated as of October 31, 2003, between the Company and The Bank of
New York, as trustee (the “Trustee”), as supplemented and amended, being
referred to as the “Indenture”. To the extent there are no additional
Underwriters listed on Schedule I other than you, the term Representatives as
used herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires.


     Certain terms used herein are defined in Section 17 hereof. Any reference
herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before


 






 


the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; any reference herein to the Registration Statement shall be
deemed to refer to and include any post-effective amendments thereto which were
filed under the Act after the Effective Date of the Registration Statement as
each was declared effective; and any reference herein to the terms “amend”,
“amendment” or “supplement” with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference.


     SECTION 1. Representations and Warranties.


     (a)  Representations and Warranties. The Company represents and warrants
to and agrees with each Underwriter as of the date hereof and as of the Closing
Date (as defined in Section 3 below) (each, a “Representation Date”) as
follows:



		
	 	     (i) Registration Statement and Prospectus. The Company meets the
requirements for use of Form S-3 under the Act and has prepared and filed
with the Commission a registration statement (Registration No. 333-97819)
on Form S-3 (the “Registration Statement”), including a related basic
prospectus, for registration under the Act of the offering and sale of
the Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which has
previously been furnished to you. The Registration Statement, as so
amended, has been declared effective by the Commission. The Company will
next file with the Commission a final prospectus supplement relating to
the Securities in accordance with Rules 430A and 424(b). The Company has
included in the Registration Statement, as amended, all information
(other than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Registration Statement and the Final
Prospectus. As filed, such final prospectus supplement or such amendment
and form of final prospectus supplement shall contain all Rule 430A
Information, together with all other such required information, and shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein.
	 
	 	     (ii) Compliance With Registration Requirements. On the Effective
Date, the Registration Statement did, and when the Final Prospectus is
first filed in accordance with Rule 424(b) and on the Closing Date (as
defined herein), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of the
Act, the Exchange Act and the Trust Indenture Act and the respective
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did 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



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	 	therein not misleading; the Indenture complies in all material
respects with the applicable requirements of the Trust Indenture Act and
the rules thereunder; and, on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include 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, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).




		
	 	     (iii) Offering Materials Furnished to Underwriters. The Company has
delivered to each of the Representatives one complete copy of the
Registration Statement and of each consent and certificate of experts
filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits) and the Basic Prospectus, as amended or
supplemented, in such quantities and at such places as the
Representatives have reasonably requested for each of the Underwriters.




		
	 	     (iv) Distribution of Offering Material By the Company. The Company
has not distributed and will not distribute, prior to the completion of
the Underwriters’ distribution of the Securities, any offering material
in connection with the offering and sale of the Securities other than the
Preliminary Final Prospectus, the Final Prospectus or the Registration
Statement.




		
	 	     (v) No Applicable Registration or Other Similar Rights. Except as
disclosed in the Final Prospectus, there are no persons with registration
or other similar rights to have any equity or debt securities registered
for sale under the Registration Statement or included in the offering
contemplated by this Agreement, except for such rights as have been duly
waived.




		
	 	     (vi) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Final Prospectus are
independent public accountants with respect to the Company and its
subsidiaries as required by the Act and the rules and regulations of the
Commission thereunder.




		
	 	     (vii) Financial Statements. The financial statements of the Company
included or incorporated by reference in the Registration Statement and
the Final Prospectus, together with the related schedules and notes,
present fairly the financial position of the Company and its consolidated
subsidiaries and as at the dates indicated and the statement of
operations and comprehensive income, stockholders’ equity and cash flows
of the Company and its consolidated subsidiaries for the periods
specified. Such financial statements have been prepared in conformity
with generally accepted accounting



3






 





		
	 	principles (“GAAP”) applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included or
incorporated by reference in the Registration Statement and the Final
Prospectus present fairly in accordance with GAAP the information
required to be stated therein.




		
	 	     (viii) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Final Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or otherwise,
or in the earnings, business, operations or prospects of the Company and
its subsidiaries, in each case whether or not arising in the ordinary
course of business, considered as one entity (a “Material Adverse
Change”), (B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries, and (C) except for regular quarterly dividends on the
Common Stock, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.




		
	 	     (ix) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Final Prospectus and to enter into and perform its
obligations under each of the Operative Agreements to which it is a
party; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Change.




		
	 	     (x) Good Standing of Subsidiaries. Each “significant subsidiary” of
the Company (as such term is defined in Rule 1-02 of Regulation S-X)
(each a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly
organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Final Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Change; except as otherwise disclosed in
the Registration Statement, all of the capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the preemptive
or other similar rights of any securityholder of such Subsidiary. The
only subsidiaries of the Company are (A) the subsidiaries listed on
Schedule II hereto and (B) certain other subsidiaries which, considered
in the aggregate as a single subsidiary, do not constitute a “significant
subsidiary” as defined in Rule 1-02 of Regulation S-X.



4






 








		
	 	     (xi) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Final Prospectus under the
captions “Description of Preferred Stock” and “Description of Common
Stock”. The shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights
of any securityholder of the Company.




		
	 	     (xii) Solicitation. The Company has not paid or agreed to pay to
any person any compensation for soliciting another to purchase any
Securities (except as contemplated by this Agreement).




		
	 	     (xiii) Authorization of this Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.




		
	 	     (xiv) Authorization of the Indenture and the Securities. The
Indenture has been duly authorized, executed and delivered by the
Company, and, assuming due authorization, execution and delivery of the
Indenture by the Trustee, the Indenture constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar
laws affecting the enforcement of creditors’ rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law). The Securities have been
duly authorized by the Company and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar
laws affecting the enforcement of creditors’ rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law). The Securities will be
in the form contemplated by, and each registered holder thereof will be
entitled to the benefits of, the Indenture.




		
	 	     (xv) Description of the Operative Agreements. The Operative
Agreements, as of each Representation Date, conform and will conform, as
applicable, in all material respects to the statements relating thereto
contained in the Final Prospectus and will be in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit to
the Registration Statement.




		
	 	     (xvi) Absence of Defaults and Conflicts. None of the Company or any
of the Subsidiaries is in violation of its charter or bylaws or other
constitutive documents or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or any



5






 





		
	 	Subsidiary is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any subsidiary
of the Company is subject (collectively, “Agreements and Instruments”),
except for such defaults that would not result in a Material Adverse
Change. The execution, delivery and performance by the Company of the
Operative Agreements and the consummation of the transactions
contemplated therein or in the Registration Statement and the Prospectus
(including, the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Final
Prospectus under the caption “Use of Proceeds”) and the compliance by the
Company with their obligations hereunder and thereunder do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any Subsidiary pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Change), nor
will such actions result in any violation of the provisions of the
charter or bylaws or other constitutive documents of the Company or any
Subsidiary or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
Subsidiary or any of their assets, properties or operations. As used
herein, a “Repayment Event” means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or a Subsidiary.




		
	 	     (xvii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, that, individually or in the
aggregate, may reasonably be expected to result in a Material Adverse
Change.




		
	 	     (xviii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company or
any subsidiary of the Company, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which,
individually or in the aggregate, might reasonably be expected to result
in a Material Adverse Change, or which, individually or in the aggregate,
might reasonably be expected to materially and adversely affect the
properties or assets thereof, the consummation of the transactions
contemplated in the Operative Agreements or the performance by the
Company of its obligations under any of the Operative Agreements; the
aggregate of all pending legal or governmental proceedings to which the
Company or any subsidiary of the Company is a party or of which any of
their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Change.



6






 








		
	 	     (xix) Accuracy of Exhibits. There are no material contracts or
documents which are required to be described in the Registration
Statement, the Final Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto which have not been
so described or filed as required.




		
	 	     (xx) Possession of Intellectual Property. Except as disclosed in
the Final Prospectus, the Company and its subsidiaries own or possess, or
can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade
names or other intellectual property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by them, other
than those the absence of which would not have a Material Adverse Change;
and neither the Company nor any of its subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property,
which infringement or conflict, if the subject of an unfavorable
decision, would result in a Material Adverse Change.




		
	 	     (xxi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required in connection with the offering of the
Securities, for the due authorization, execution and delivery by the
Company of the Operative Agreements or for the performance by the Company
of its obligations under any of the Operative Agreements to which it is a
party, except such as has been already obtained or as may be required
under the Act and the rules and regulations of the Commission thereunder
or state securities or blue sky laws.




		
	 	     (xxii) Possession of Licenses and Permits. The Company and its
Subsidiaries own or possess such permits, licenses, approvals, consents
and other authorizations (collectively, “Governmental Licenses”) issued
by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them other
than those the absence of which would not have a Material Adverse Change;
the Company and its Subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, have a Material Adverse
Change; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not result in a Material Adverse Change; and neither the Company
nor any of its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Change.




		
	 	     (xxiii) Title to Property. The Company and its subsidiaries have
good and marketable title to all material real properties owned by the
Company and its subsidiaries and good title to all other properties owned
by them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the Final Prospectus or (b) do not,
singly or in the



7






 





		
	 	aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Final Prospectus, are in
full force and effect, and neither the Company nor any subsidiary has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of
the leased or subleased premises under any such lease or sublease.




		
	 	     (xxiv) Investment Company Act. The Company is not, and upon the
issuance and sale (as applicable) of the Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Final Prospectus, will not be required to register as an
“investment company” as such term is defined in the Investment Company
Act of 1940, as amended (the “1940 Act”).




		
	 	     (xxv) No Price Stabilization or Manipulation. The Company has not
taken, directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation
of the price of the Securities to facilitate the sale or resale of the
Securities.




		
	 	     (xxvi) Company’s Accounting System. The Company maintains a system
of accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization;
and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.



     (b)  Officer’s Certificates. Any certificate signed by any officer of the
Company and delivered to the Underwriters or to counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a representation
and warranty by the Company, as applicable, to the Underwriters as to the
matters covered thereby.


     SECTION 2. Purchase and Sale.


     Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, the Securities, in the respective principal amounts
set forth opposite such Underwriter’s name in Schedule I hereto, at a purchase
price equal to 99.6325% of the principal amount thereof (the “Purchase Price”).


8






 


     SECTION 3. Delivery and Payment.


     Delivery of and payment for the Securities shall be made at 9:00 a.m., New
York City time, on November 18, 2003, or at such time on such later date not
more than three Business Days after the foregoing date as the Representatives
shall designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
“Closing Date”). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters,
against payment by the several Underwriters through the Representatives, of the
Purchase Price thereof to or upon the order of the Company by wire transfer
payable in immediately available funds to an account specified by the Company
or in such other manner of payment as the Company and the Representatives may
agree. Delivery of the Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.


     SECTION 4. Offering by Underwriters.


     It is understood that the several Underwriters propose to offer the
Securities for sale to the public as set forth in the Final Prospectus.


     SECTION 5. Agreements.


     The Company agrees with the several Underwriters that:



		
	 	     (a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment to the Registration Statement or any
supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy of the same.
Subject to the foregoing sentence, the Company will cause the Final
Prospectus and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide reasonable evidence to the
Representatives of such timely filing. The Company will promptly advise
the Representatives (1) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (2) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (3) of any request by the
Commission or its staff for any amendment of the Registration Statement,
or any Rule 462(b) Registration Statement, or for any supplement to the
Final Prospectus or for any additional information, (4) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (5) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will use its reasonable
best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.



9






 








		
	 	     (b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then 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
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company will promptly (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Final Prospectus to you in such quantities as you
may reasonably request.




		
	 	     (c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.




		
	 	     (d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of each Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.




		
	 	     (e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of the
Securities and will pay any fee of the National Association of Securities
Dealers, Inc. (the “NASD”), in connection with its review of the
offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale of
the Securities, in any jurisdiction where it is not now so subject.




		
	 	     (f) The Company will not, without the prior written consent of Banc
of America Securities LLC (“BAS”), Credit Suisse First Boston LLC
(“CSFB”) and J.P. Morgan Securities, Inc. (“JPMorgan”), offer, sell,
contract to sell, pledge, or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company
or any affiliate of the Company or any person in privity with the Company
or any affiliate of the Company) directly or indirectly, including the
filing (or participation in the filing) of a registration statement with
the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section



10






 





		
	 	16 of the Exchange Act, any debt securities issued or guaranteed by
the Company (other than the Securities) or publicly announce an intention
to effect any such transaction, within 30 days after the Closing Date.




		
	 	     (g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities. The Company will use
the proceeds of the offering as described in the Final Prospectus under
“Use of Proceeds.”




		
	 	     (h) The Company, during the period when the Final Prospectus is
required to be delivered under the Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to the Act
and the Exchange Act within the time periods required by the same.




		
	 	     (i) Until the second anniversary of the date hereof, the Company
will furnish upon request to Banc of America Securities LLC at 9 West
57th Street, 49th Floor, New York, NY 10019, Attention: Robert Giammarco,
Credit Suisse First Boston LLC at 11 Madison Avenue, New York, New York
10010-3629, Attention: Transactions Advisory Group and J.P. Morgan
Securities Inc. at 270 Park Avenue, 7th Floor, New York, New York 10017,
Attention: Transaction Execution Group: (i) as soon as practicable after
the end of each fiscal year, copies of the Annual Report of the Company
containing the balance sheet of the Company as of the close of such
fiscal year and statements of operations and comprehensive income,
stockholders’ equity and cash flows for the year then ended and the
opinion thereon of the Company’s independent public or certified public
accountants; (ii) as soon as practicable after the filing thereof, copies
of each proxy statement, Annual Report on Form 10-K, Quarterly Report on
Form 10-Q, Current Report on Form 8-K or other report filed by the
Company with the Commission; and (iii) from time to time, such other
public information concerning the Company as the Representatives may
reasonably request; provided, however, that the Company shall not be
required to provide BAS, CSFB or JPMorgan with any such information,
reports or similar forms that have been filed or furnished with the
Commission by an electronic transmission pursuant to the Electronic Data
Gathering Analysis and Retrieval System (EDGAR) or an equivalent
electronic database authorized by the Commission.



     SECTION 6. 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 Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:



		
	 	     (a) If filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order



11






 





		
	 	suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened.




		
	 	     (b) The Company shall have requested and caused Shearman & Sterling
LLP, counsel for the Company, and Donald L. Smith, Esq., Senior Vice
President, General Counsel and Corporate Secretary of the Company, to
have furnished to the Representatives their opinions in the Forms
provided in Schedule III and Schedule IV, respectively, dated the Closing
Date and addressed to the Representatives.




		
	 	     (c) The Representatives shall have received from Simpson Thacher &
Bartlett LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect
to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.




		
	 	     (d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the President and Chief Executive
Officer or the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signer of such certificate
has carefully examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:




		
	 	     (i) the representations and warranties of the Company 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 Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;




		
	 	     (ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company’s knowledge,
threatened; and




		
	 	     (iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
change in the condition (financial or otherwise), earnings,
business or properties or prospects of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).




		
	 	     (e) The Company shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives, at
the Closing Date, letters (which may refer to letters previously
delivered to one or more of the Representatives), dated as of the Closing
Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable rules and
regulations adopted by the Commission



12






 





		
	 	thereunder and that they have conducted an audit of the consolidated
financial information of the Company for the year ended December 31, 2002
and as of December 31, 2002 and have performed a review of the unaudited
interim financial information of the Company for the nine-month period
ended September 30, 2003, and as at September 30, 2003, in accordance
with Statement on Auditing Standards Nos. 71 and 100.




		
	 	     (f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of
any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or decrease
in the items specified in the letter or letters referred to in paragraph
(f) of this Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), earnings, business, properties or prospects of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the reasonable judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).




		
	 	     (g) Subsequent to the Execution Time, there shall not have been any
decrease in the financial strength rating of any of the Company’s debt
securities by any “nationally recognized statistical rating organization”
(as defined for purposes of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such rating or of a
possible adverse change to a rating.




		
	 	     (h) Prior to the Closing Date, the Company 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 6 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 and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.


     The documents required to be delivered by this Section 6 shall be
delivered at the office of Simpson Thacher & Bartlett LLP, counsel for the
Underwriters, at 425 Lexington Avenue, New York, New York 10017, on the Closing
Date.


     SECTION 7. Payment of Expenses.


     (a) The Company will pay all expenses incident to the performance of the
obligations of the Company under this Agreement, including (i) the costs
associated with the preparation,


13






 


printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto (ii)
the costs associated with the preparation, issuance and delivery of the
Securities to the Underwriters, including any transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Securities to
the Underwriters, (iii) the fees and disbursements of the counsel, accountants
and other advisors or agents (including transfer agents and registrars) to the
Company, as well as the fees and disbursements of the Trustee and any
Depositary, and their respective counsel, (iv) the printing and delivery to the
Underwriters of copies of the Basic Prospectus, each preliminary prospectus,
including the Preliminary Final Prospectus, and the Final Prospectus, and any
amendments or supplements thereto, (v) the fees charged by nationally
recognized statistical rating organizations for the rating of the Securities,
(vi) the qualification of the Securities under securities laws in accordance
with the provisions of Section 5(e) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and any
supplement thereto, and (vii) the cost of making the Securities eligible for
clearance and settlement through the facilities of The Depository Trust
Company.


     (b)  If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters attributable to
the Company set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10(i) hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
the Representatives on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been reasonably
incurred by them in connection with the proposed purchase and sale of the
Securities.


     SECTION 8. Indemnification and Contribution.


     (a) The Company agrees to indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter and each
person who controls any Underwriter within the meaning of either the Act or the
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 Act, the
Exchange Act or other 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 the Registration Statement, or in the Basic
Prospectus, any preliminary prospectus, including the Preliminary Final
Prospectus 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 each such
indemnified party, as incurred, 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 the Company 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


14






 


conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion therein; and provided, further, that with respect to any preliminary
prospectus, including the Preliminary Final Prospectus, the foregoing indemnity
agreement shall not inure to the benefit of any Underwriter from whom the
person asserting any loss, claim, damage, liability or expense purchased
Securities, or any person controlling such Underwriter, if copies of the Final
Prospectus were timely delivered to the Underwriter and a copy of the Final
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 at or prior to the written confirmation of the
sale of the Securities to such person, and if such Final Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage, liability or expense. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.


     (b)  Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the table in the first paragraph, and the third, fourth
and fifth paragraphs under the heading “Underwriting” by the Underwriters
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Final Prospectus or the
Final Prospectus.


     (c) Promptly after receipt by an indemnified party under this Section 8 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 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint one counsel of the indemnifying party’s choice at the
indemnifying party’s reasonable expense to represent the indemnified party in
any action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as set
forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party’s
election to appoint counsel to represent the indemnified party in an action,
the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably


15






 


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, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party, it being understood
that the indemnifying party shall not be liable for more than one separate firm
(in addition to one local firm in each jurisdiction) for all indemnified
parties in each jurisdiction in which any claim or action arising out of the
same general allegations or circumstances is brought. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. An indemnifying party will not, without the prior written
consent of the indemnified party, enter into any settlement or compromise or
consent to the entry of any judgment.


     (d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively “Losses”) to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on the
one hand and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the
Company on the one hand or the Underwriters on the other, and the relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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.


16






 


For purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).


     SECTION 9. 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 principal amount of Securities set forth
opposite their names in Schedule I hereto bears to the aggregate principal
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 principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth in Schedule I 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 Company. In the event
of a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business 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 Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.


     SECTION 10. Termination.


     Prior to the Closing Date this Agreement may be terminated by the
Underwriters by notice given to the Company if at any time (i) trading or
quotation in any of the Company’s securities shall have been suspended or
limited by the Commission or the New York Stock Exchange (the “NYSE”), or
trading in securities generally on either of the Nasdaq Stock Market or the
NYSE shall have been suspended or limited, or minimum or maximum prices shall
have been generally established on any of such stock exchanges by the
Commission or the NASD; (ii) a general banking moratorium shall have been
declared by any U.S. federal or New York authority; (iii) there shall have
occurred any outbreak or escalation of hostilities or any crisis or calamity
involving or affecting the United States, or any change in the United States or
international financial markets, or any substantial change or development
involving a prospective substantial change in U.S. or international political,
financial or economic conditions, as in the judgment of the Representatives is
material and adverse and makes it impracticable to market the Securities in the
manner and on the terms described in the Final Prospectus (exclusive of any
supplement thereto) or to enforce contracts for the sale of securities; or (iv)
there shall have


17






 


occurred any change, or any development that could reasonably be expected
to result in a change, in the condition, financial or otherwise, or in the
earnings, business, operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and its
subsidiaries, considered as one entity, the effect of which is, in the judgment
of the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated in the Final Prospectus (exclusive of any supplement thereto).
Any termination pursuant to this Section 10 shall be without liability on the
part of (a) the Company to the Underwriters, except that the Company shall be
obligated to reimburse the expenses of the Representatives and the Underwriters
pursuant to Section 7 hereof, (b) the Underwriters to the Company, or (c) of
any party hereto to any other party except that the provisions of Section 8 and
Section 9 shall at all times be effective and shall survive such termination.


     SECTION 11. Representations and Indemnities to Survive.


     The respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers 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 any Underwriter
or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.


     SECTION 12. Notices.


     All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or
telefaxed to:



	 	Banc of America Securities LLC

9 West 57th Street

New York, New York 10019

Facsimile: 212-847-5184

Attention: High Grade Capital Markets Transaction Management




	 	and




	 	Credit Suisse First Boston LLC

11 Madison Avenue

New York, New York 10010-3629

Facsimile: 212 325-4296

Attention: Transactions Advisory Group



18






 



	 	and




	 	J.P. Morgan Securities Inc.

270 Park Avenue, 7th Floor

New York, New York 10017

Facsimile: (212) 834-6702

Attention: Transaction Execution Group




	 	or, if sent to the Company, will be mailed, delivered or telefaxed to:




	 	Odyssey Re Holdings Corp.

140 Broadway

39th Floor

New York, New York 10005

Facsimile: 212-571-6452

Attention: Andrew A. Barnard,

President and Chief Executive Officer





	 	with a copy to:




	 	Odyssey Re Holdings Corp.

300 Stamford Place

Stamford, Connecticut 06902

Facsimile: 203-965-7960

Attention: Donald L. Smith, Esq.

Senior Vice President,

General Counsel and Corporate

Secretary




     SECTION 13. Successors.


     This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors,
employees, agents and controlling persons referred to in Section 8 hereof, and
no other person will have any right or obligation hereunder.


     SECTION 14. GOVERNING LAW.


     THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.


     SECTION 15. Counterparts.


     This Agreement may be signed in one or more counterparts, each of which
shall constitute an original and all of which together shall constitute one and
the same agreement.


19






 


     SECTION 16. Headings.


     The section headings used herein are for convenience only and shall not
affect the construction hereof.


     SECTION 17. Definitions.


     The terms which follow, when used in this Agreement, shall have the
meanings indicated.


     “Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.


     “Basic Prospectus” shall mean the prospectus referred to in Section 1(a)
above contained in the Registration Statement at the Effective Date including
any Preliminary Final Prospectus.


     “Business Day” shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law executive order or regulation to close in New
York City.


     “Commission” shall mean the Securities and Exchange Commission.


     “Effective Date” shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.


     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.


     “Execution Time” shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.


     “Final Prospectus” shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.


     “Investment Grade” shall mean BBB- or above in the case of ratings
assigned by Standard & Poor’s Rating Services and its successors (or its
equivalent under any successor ratings category of Standard & Poor’s Rating
Services and its successors), or Baa3 on the case or ratings assigned by
Moody’s Investors Service, Inc. and its successors (or its equivalent under any
successor ratings category of Moody’s Investors Service, Inc. and its
successors).


     “Operative Agreements” shall refer collectively to the Indenture, the
Securities and this Agreement.


     “Preliminary Final Prospectus” shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.


20






 


     “Registration Statement” shall mean the registration statement referred to
in Section 1(a) above, including exhibits and financial statements, as amended
at the Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto or any Rule 462(b) Registration Statement becomes effective
prior to the Closing Date, shall also mean such registration statement as so
amended or such Rule 462(b) Registration Statement, as the case may be. Such
term shall include any Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A.


     “Rule 415”, “Rule 424”, “Rule 430A” and “Rule 462” refer to such rules
under the Act.


     “Rule 430A Information” shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.


     “Rule 462(b) Registration Statement” shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.


     “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.


21






 


     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 Company and the several Underwriters.



	 	 	 	 	 
	 	 	Very truly yours,
	 	 	 	 	 
	 	 	ODYSSEY RE HOLDINGS CORP.
	 	 	 	 	 
	 	 	
By
	 	/s/ Donald L. Smith
	 	 	 	 	

	 	 	 	 	Name: Donald L. Smith
	 	 	 	 	Title: Senior Vice President
	 	 	 	 	 
	 	 	
By
	 	/s/ Anthony Narciso, Jr.
	 	 	 	 	

	 	 	 	 	Name: Anthony J. Narciso, Jr.
	 	 	 	 	Title: Senior Vice President



22






 



The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.


BANC OF AMERICA SECURITIES LLC

CREDIT SUISSE FIRST BOSTON LLC

J.P. MORGAN SECURITIES INC.

     as Representatives of the several Underwriters

     named in Schedule I hereto


By:


BANC OF AMERICA SECURITIES LLC



	 	 	 	 	 
	By:	 	
/s/ Lily Chang
	 	 
	 	 	

	 	 
	 	 	
Name: Lily Chang	 	 
	 	 	
Title: Principal	 	 



CREDIT SUISSE FIRST BOSTON LLC




	 	 	 	 	 
	 	 	 	 	 
	By:	 	
/s/ Sharon Harrison	 	 
	 	 	

	 	 
	 	 	
Name: Sharon Harrison	 	 
	 	 	
Title: Director	 	 



J.P. MORGAN SECURITIES INC.



	 	 	 	 	 
	 	 	 	 	 
	By:	 	
/s/ Carl J. Mehldau, Jr.	 	 
	 	 	

	 	 
	 	 	
Name: Carl J. Mehldau, Jr.	 	 
	 	 	
Title: Vice President	 	 



23






 



SCHEDULE I



	 	 	 	 	 
	 	 	Principal Amount
	Underwriters	 	of Securities to be Purchased
	
	 	

	Banc of America Securities LLC
	 	$	25,000,000.00	 
	Credit Suisse First Boston LLC
	 	$	25,000,000.00	 
	J.P. Morgan Securities Inc.
	 	$	25,000,000.00	 
	 
	 	 	
	 
	Total
	 	$	75,000,000.00	 



 






 



SCHEDULE II


Subsidiaries


Odyssey America Reinsurance Corporation


Odyssey Reinsurance Corporation


Hudson Insurance Company


Odyssey UK Holdings Corp.


Newline Holdings UK Limited


Newline Underwriting Management Limited


Newline Corporate Name Limited


Newline Underwriting Limited


Odyssey Holdings Latin America, Inc.


Odyssey Latin America Inc.


First Capital Insurance Limited


Hudson Specialty Insurance Company (formerly General Security

Indemnity Company)


 






 


SCHEDULE III


The final opinion in draft form should be attached as Schedule III at the time
this Agreement is executed.


     Opinion of Shearman & Sterling LLP, counsel for the Company to be
delivered pursuant to Section 6(b) of this Agreement.


     References to the Final Prospectus in this Schedule III include any
supplements thereto at the Closing Date.



		
	 	     (i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware.




		
	 	     (ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Final Prospectus and to enter into and perform its obligations under this
Agreement.




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




		
	 	     (iv) The Indenture has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery of
the Indenture by the Trustee, constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by any applicable
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and subject to
the effect of general principles of equity, including without limitation,
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether enforcement is considered in a proceeding in
equity or at law).




		
	 	     (v) The Securities have been duly authorized and executed by the
Company and assuming the due authentication of the Securities by the
Trustee in the manner described in its certificate delivered to you today
(which fact we have not determined by an inspection of the Securities),
when delivered to and paid for by the Underwriters in accordance with the
terms of this Agreement, the Securities will have been duly issued, will
be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company enforceable in accordance with their
terms, except as the enforcement thereof may be limited by any applicable
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and by the effect of
general principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether enforcement is considered in a proceeding in equity or at law).




		
	 	     (vi) The Registration Statement, has been declared effective by the
Commission under the Securities Act. To the best knowledge of such
counsel, no stop










 





		
	 	order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for such purpose
have been instituted or are pending or are contemplated or threatened by
the Commission. The Final Prospectus has been filed pursuant to Rule
424(b) under the Securities Act in the manner and within the time period
required by such Rule 424(b).




		
	 	     (vii) Each document filed pursuant to the Exchange Act and
incorporated by reference in the Final Prospectus appears on its face to
have been appropriately responsive in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder when it was filed.




		
	 	     (viii) The statements (i) in the Final Prospectus under the captions
“Description of the Notes” and “Certain U.S. Federal Income Tax
Considerations to Non-U.S. Holders” and (ii) in Item 15 of the
Registration Statement, insofar as such statements constitute matters of
law, summaries of legal matters, the Company’s certificate of
incorporation or by-law provisions, documents or legal proceedings, or
legal conclusions, fairly present and summarize, in all material
respects, the matters referred to therein.




		
	 	     (ix) Based upon such counsel’s review of the New York State
statutes, rules or regulations, the Delaware General Corporation Law and
the relevant U.S. federal laws (the “Requirements of Law”) which in such
counsel’s experience are normally applicable to transactions of the type
provided for in this Agreement, but without having made any special
investigation concerning any other Requirements of Law, no consent,
approval, or authorization is required for the Company’s execution,
delivery and performance of this Agreement and consummation of the
transactions contemplated thereby and by the Final Prospectus, except as
required under the Securities Act, applicable state securities or blue
sky laws or by the NASD.




		
	 	     (x) The Company is not, and after receipt of payment for the
Securities will not be, required to register as an “investment company”
under the Investment Company Act of 1940, as amended.



     In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware, the laws of the State New York or the
federal law of the United States, to the extent they deem proper and specified
in such opinion, upon the opinion (which shall be dated the Closing Date, shall
be satisfactory in form and substance to the Underwriters, shall expressly
state that the Underwriters may rely on such opinion as if it were addressed to
them and shall be furnished to the Representatives) of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters; provided, however, that such counsel shall further state
that they believe that they and the Underwriters are justified in relying upon
such opinion of other counsel, and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company and
public officials.


     In addition, such counsel shall state the following in a letter delivered
simultaneously with its opinion:


III-2






 


     Such counsel has examined this Agreement and the originals, or copies
identified to their satisfaction, of such corporate records of the Company,
certificates of public officials, officers of the Company and other persons,
and such other documents, agreements and instruments as such counsel deemed
necessary or appropriate as a basis for the opinions hereinafter expressed. In
their examinations, such counsel has assumed the genuineness of all signatures,
the authenticity of all documents submitted to them as originals and the
conformity with the originals of all documents submitted to them as copies. In
rendering the opinions expressed below, such counsel has relied as to factual
matters, to the extent such counsel deemed proper, upon the representations and
warranties of the Company contained in or made pursuant to this Agreement,
certificates of officers of the Company and certificates of public officials.
Such counsel has also reviewed and participated in discussions concerning the
preparation of the Registration Statement and the Final Prospectus (in each
case other than the documents incorporated by reference therein) with certain
officers or employees of the Company and its auditors, and with representatives
of and counsel to the Underwriters. The limitations inherent in the
independent verification of factual matters and in the role of outside counsel
are such, however, that such counsel cannot and does not assume any
responsibility for the accuracy, completeness or fairness of any of the
statements made in the Registration Statement and the Final Prospectus, except
as set forth in paragraph (viii) of such counsel’s opinion letter addressed to
you, dated the date hereof.


     Subject to the limitations set forth in the immediately preceding
paragraph, such counsel advises you that, on the basis of the information such
counsel gained in the course of performing the services referred to above, no
facts came to such counsel’s attention which gave it reason to believe that (i)
in such counsel’s opinion, the Registration Statement and the Final Prospectus
(other than the financial statements, related schedules and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel has not been requested to comment) appear on their face to be
appropriately responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder; and (ii) no facts came to such counsel’s attention which gave it
reason to believe that (i) the Registration Statement (other than the financial
statements, related schedules and other financial or statistical data included
therein or omitted therefrom, as to which such counsel has not been requested
to comment) at the time the Registration Statement became effective, 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 (i) the Final Prospectus (other than the financial statements,
related schedules and other financial or statistical data contained therein or
omitted therefrom, as to which such counsel has not been requested to comment),
as of its date or the date hereof, 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.


III-3






 


SCHEDULE IV


The final opinion in draft form should be attached as Schedule IV at the time
this Agreement is executed.


     Opinion of Donald L. Smith, Esq., General Counsel of the Company to be
delivered pursuant to Section 6(b) of this Agreement.


     References to the Final Prospectus in this Schedule IV include any
supplements thereto at the Closing Date.



		
	 	     (i) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of Connecticut and
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except for such jurisdictions (other than the State of
Connecticut) where the failure to so qualify or to be in good standing
would not, individually or in the aggregate, result in a Material Adverse
Change.




		
	 	     (ii) Each significant subsidiary of the Company (as defined in Rule
405 under the Securities Act) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Final Prospectus and, to the best knowledge of such
counsel, is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except for such jurisdictions where the failure
to so qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change.




		
	 	     (iii) All of the issued and outstanding capital stock of each such
significant subsidiary of the Company has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or, to the best knowledge
of such counsel, any pending or threatened claim.




		
	 	     (iv) Except as described in the Final Prospectus, no stockholder of
the Company or any other person has any preemptive right, right of first
refusal or other similar right to subscribe for or purchase securities of
the Company arising (i) by operation of the certificate of incorporation
or by-laws of the Company or the General Corporation Law of the State of
Delaware or (ii) to the best knowledge of such counsel, otherwise.




		
	 	     (v) To the best knowledge of such counsel, there are no legal or
governmental actions, suits or proceedings pending or threatened which
are required to be disclosed in the Registration Statement, other than
those disclosed therein.




		
	 	     (vi) Each of Odyssey America Reinsurance Corporation, Odyssey
Reinsurance Corporation, Hudson Insurance Company and Newline Syndicate
1218 (each an



 






 





		
	 	“Insurance Subsidiary”, collectively the “Insurance Subsidiaries”)
is duly licensed to conduct an insurance or a reinsurance business, as
the case may be, under the insurance statutes of each jurisdiction in
which the conduct of its business requires such licensing, except for
such jurisdictions in which the failure of the Insurance Subsidiaries to
be so licensed would not, individually or in the aggregate, result in a
Material Adverse Change (as defined in this Agreement). The Insurance
Subsidiaries have made all required filings under applicable insurance
statutes in each jurisdiction where such filings are required, except for
such jurisdictions in which the failure to make such filings would not,
individually or in the aggregate, result in a Material Adverse Change.
Each of the Insurance Subsidiaries has all other necessary
authorizations, approvals, orders, consents, certificates, permits,
registrations and qualifications of and from all insurance regulatory
authorities necessary to conduct their respective businesses as described
in the Final Prospectus, except where the failure to have such
authorizations, approvals, orders, consents, certificates, permits,
registrations or qualifications would not, individually or in the
aggregate, result in a Material Adverse Change, and the Company and each
of its Insurance Subsidiaries has not received any notification from any
insurance regulatory authority to the effect that any additional
authorization, approval, order, consent, certificate, permit,
registration or qualification is needed to be obtained by the Company or
any of its Insurance Subsidiaries in any case where it could be
reasonably expected that (x) the Company and each of its Insurance
Subsidiaries would be required either to obtain such additional
authorization, approval, order, consent, certificate, permit,
registration or qualification or to cease or otherwise limit the writing
of certain business and (y) the failure to obtain such additional
authorization, approval, order, consent, certificate, permit,
registration or qualification or the limiting of the writing of such
business would result in a Material Adverse Change; and no insurance
regulatory authority having jurisdiction over the Company or any of its
Insurance Subsidiaries has issued any order or decree impairing,
restricting or prohibiting (i) the payment of dividends by any of the
Insurance Subsidiaries to its parent or (ii) the continuation of the
business of the Company or any of the Insurance Subsidiaries in all
material respects as presently conducted.




		
	 	     (vii) The descriptions in the Final Prospectus of U.S. insurance
statutes and regulations are accurate in all material respects and fairly
summarize in all material respects the information required to be shown
and such counsel does not know of any U.S. insurance statutes or
regulations required to be described in the Final Prospectus that are not
described as required.




		
	 	     (viii) The execution and delivery of this Agreement by the Company
and the performance by the Company of its obligations thereunder (other
than performance by the Company of its obligations under the
indemnification section of this Agreement, as to which no opinion need be
rendered) (i) have been duly authorized by all necessary corporate action
on the part of the Company; (ii) will not result in any violation of the
provisions of the certificate of incorporation or by-laws of the Company
or any subsidiary, (iii) will not constitute a breach of, or Default or a
Repayment Event under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to the best knowledge of such counsel
under any material Agreements and Instruments except for such conflicts,



IV-2






 





		
	 	breaches, Defaults, liens, changes or encumbrances as would not,
individually or in the aggregate, result in a Material Adverse Change; or
(iv) to the best knowledge of such counsel, will not result in any
violation of any law, administrative regulation or administrative or
court decree applicable to the Company or any subsidiary.




		
	 	     (ix) Except as disclosed in the Final Prospectus, to the best
knowledge of such counsel, there are no persons with registration or
other similar rights to have any equity or debt securities registered for
sale under the Registration Statement or included in the offering
contemplated by this Agreement, except for such rights as have been duly
waived.




		
	 	     (x) To the best knowledge of such counsel, neither the Company nor
any subsidiary is in violation of its certificate of incorporation or
by-laws or any law, administrative regulation or administrative or court
decree applicable to the Company or any subsidiary or is in Default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any material Agreements and Instruments, except in
each such case for such violations or Defaults as would not, individually
or in the aggregate, result in a Material Adverse Change.




		
	 	     (xi) To the best knowledge of such counsel, there are no Agreements
and Instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto; and the descriptions thereof and
references thereto are correct in all material respects.




		
	 	     (xii) Each document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Final Prospectus complied when it was
filed in all material respects with the Exchange Act and the rules and
regulations of the Commission thereunder.



     In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware, the laws of the State New York or the
federal law of the United States, to the extent they deem proper and specified
in such opinion, upon the opinion (which shall be dated the Closing Date, shall
be satisfactory in form and substance to the Underwriters, shall expressly
state that the Underwriters may rely on such opinion as if it were addressed to
them and shall be furnished to the Representative) of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters; provided, however, that such counsel shall further state
that they believe that they and the Underwriters are justified in relying upon
such opinion of other counsel, and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company and
public officials.


IV-3






 


     In addition, such counsel shall state the following in a letter delivered
simultaneously with his opinion:


     Such counsel has examined this Agreement and the originals, or copies
identified to their satisfaction, of such corporate records of the Company,
certificates of public officials, officers of the Company and other persons,
and such other documents, agreements and instruments as such counsel deemed
necessary or appropriate as a basis for the opinions hereinafter expressed. In
their examinations, such counsel has assumed the genuineness of all signatures,
the authenticity of all documents submitted to them as originals and the
conformity with the originals of all documents submitted to them as copies. In
rendering the opinions expressed below, such counsel has relied as to factual
matters, to the extent such counsel deemed proper, upon the representations and
warranties of the Company contained in or made pursuant to this Agreement,
certificates of officers of the Company and certificates of public officials.
Such counsel has also reviewed and participated in discussions concerning the
preparation of the Registration Statement and the Final Prospectus with certain
officers or employees of the Company and its auditors, and with representatives
of and counsel to the Underwriters. The limitations inherent in the
independent verification of factual matters and in the role of general counsel
are such, however, that such counsel cannot and does not assume any
responsibility for the accuracy, completeness or fairness of any of the
statements made in the Registration Statement and the Final Prospectus, except
as set forth in paragraph (vii) of such counsel’s opinion letter addressed to
you, dated the date hereof.


     Subject to the limitations set forth in the immediately preceding
paragraph, such counsel advises you that, on the basis of the information such
counsel gained in the course of performing the services referred to above, (i)
in such counsel’s opinion, the Registration Statement and the Final Prospectus
(other than the financial statements, related schedules and other financial or
statistical data contained therein or omitted therefrom, as to which such
counsel has not been requested to comment) appear on their face to be
appropriately responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder; and (ii) no facts came to such counsel’s attention which gave him
reason to believe that (a) the Registration Statement (other than the financial
statements, related schedules 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 the Registration Statement became effective, 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 (b) the Final Prospectus (other than the financial statements,
related schedules and other financial or statistical data contained therein or
omitted therefrom, as to which such counsel has not been requested to comment),
as of its date or the date hereof, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.



IV-4