DISTRIBUTION AGREEMENT

Exhibit 1

 

 

GE L IFE AND A NNUITY A SSURANCE C OMPANY

 

$5,000,000,000

 

S ECURED M EDIUM -T ERM N OTES P ROGRAM

G ENWORTH D IRECT N OTES ^SM P ROGRAM

 

D ISTRIBUTION A GREEMENT

 

December 9, 2005

 

T ABLE OF C ONTENTS

 

 

i

 

ii

 

iii

 

iv

 

v

GE L IFE AND A NNUITY A SSURANCE C OMPANY

 

$5,000,000,000

 

S ECURED M EDIUM -T ERM N OTES P ROGRAM

G ENWORTH D IRECT N OTES ^SM P ROGRAM

 

D ISTRIBUTION A GREEMENT

 

December 9, 2005

 

Morgan Stanley & Co. Incorporated

1585 Broadway

New York, NY 10036

 

Each other institution named on Schedule A hereto

 

Ladies and Gentlemen:

 

SECTION 1. I NTRODUCTORY . GE Life and Annuity Assurance Company, a stock life insurance company operating under a charter granted by the Commonwealth of Virginia (the “ Company ”), in connection with the Company’s Secured Medium-Term Notes Program (the “ Institutional Program ”) and the Genworth DirectNotes ^SM Program (the “ Retail Program ” and, together with the Institutional Program, the “ Programs ”), confirms its agreement with Morgan Stanley & Co. Incorporated and each other institution named on Schedules A-1 and A-2 hereto and any institution appointed as an agent pursuant to Section 19 hereof (each, an “ Agent ”, and, collectively, the “ Agents ”), and each Co-Agent (as defined herein), with respect to the secured medium-term notes due between nine months and thirty years from the date of issuance under the Programs (the “ Notes ”) to be offered by separate and distinct special purpose common law trusts from time to time (each, a “ Trust ” and, collectively, the “ Trusts ”), each of which shall be formed in a jurisdiction located in the United States of America pursuant to a trust agreement, as amended or modified from time to time, which will adopt and incorporate the standard trust terms (each, a “ Trust Agreement ” and, collectively, the “ Trust Agreements ”), in each case between The Bank of New York, or another entity specified therein, as trustee (the “ Trustee ”), and GSS Holdings II, Inc., or another entity specified therein, as trust beneficial owner (the “ Trust Beneficial Owner ”).

 

From time to time, upon the formation of a new Trust, in connection with the offer and sale of a particular series of Notes by such Trust, upon execution and delivery by such Trust and the applicable Agent or Agents of the terms agreement (the “ Terms Agreement ”) substantially in the form set forth in Section C of the pricing instrument to be executed, among others by such Trust and the applicable Agent or Agents specified therein (the “ Pricing Instrument ”), such Trust shall become a party hereto in relation to such series of Notes (the time of such execution and delivery referred to herein as such Trust’s “ Trust Effective Time ”), with all the authority, rights, powers, duties and obligations of a Trust as if originally named as a Trust hereunder. Any agreement, covenant, acknowledgment, representation or warranty made by a Trust hereunder shall

be deemed to have been made by each Trust at its Trust Effective Time and at the Applicable Time (as defined below) for such Trust, unless another time or times are specified herein, in which case such specified time or times shall instead apply.

 

“ Applicable Time ”, with respect to the offering of a series of Notes by a Trust, has the meaning set forth in the applicable Terms Agreement.

 

Each series of Notes is to be issued pursuant to an indenture, as amended or modified from time to time, which will adopt and incorporate the standard indenture terms (each, an “ Indenture ” and, collectively, the “ Indentures ”), between the relevant Trust and JPMorgan Chase Bank, N.A., as indenture trustee (the “ Indenture Trustee ”). Each Trust shall issue only one series of Notes. As of the date of this Agreement (this “ Agreement ”), the Trusts are authorized to issue collectively up to U.S. $5,000,000,000 aggregate initial offering price of Notes (or its equivalent as determined pursuant to Section 5(a)(xv) hereof) through the Agents, as principal or agent, pursuant to the terms of this Agreement. It is understood, however, that the Company, as depositor of the Funding Agreements (as defined below), may from time to time increase the aggregate amount of Notes and that such additional Notes may be sold through the Agents, as principal or agent, pursuant to the terms of this Agreement, all as though the issuance of such Notes were authorized as of the date of this Agreement.

 

Each Trust will use the proceeds from the sale of its series of Notes to purchase a funding agreement (each, a “ Funding Agreement ” and, collectively, the “ Funding Agreements ”) issued by the Company. The series of Notes issued by a Trust will be secured by the relevant Funding Agreement that will be assigned by such Trust to the Indenture Trustee pursuant to the relevant Indenture with respect to such series of Notes for the benefit of the holders of such series of Notes and any other person for whose benefit the Indenture Trustee is or will be holding the relevant Collateral (as defined in the relevant Indenture). In connection with the sale of a series of Notes, the Company and the relevant Trust will prepare a pricing supplement (the “ Pricing Supplement ”) including or incorporating by reference a description of the terms of such series of Notes, the terms of the offering and a description of such Trust.

 

If any institution is appointed as an Agent or Co-Agent only with respect to a particular series of Notes, such institution shall only be an Agent or Co-Agent with respect to such series of Notes. This Agreement provides for the offer of Notes by one or more Trusts: (x) to one or more Agents as principal for resale to investors and other purchasers; (y) if so agreed among the Company, the Lead Retail Agent (as defined herein) and each applicable Co-Agent, to the Lead Retail Agent for resale to such Co-Agent(s); and (z) directly to investors (as may from time to time be agreed to by the Company, such Trust, the relevant Agent and/or, if applicable, the Lead Retail Agent and each applicable Co-Agent), in which case the relevant Agent(s) and/or, if applicable, the Lead Retail Agent and each applicable Co-Agent, will act as an agent of such Trust in soliciting offers for the purchase of Notes.

 

The Company has filed with the Securities and Exchange Commission (the “ Commission ”) (i) a registration statement on Form S-3 (No. 333-128718) and pre-

 

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effective amendment No. 1 thereto for the registration of Funding Agreements and Notes to be issued through one or more Trusts under the Securities Act of 1933, as amended (the “ 1933 Act ”), and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the Commission under the 1933 Act (the “ 1933 Act Regulations ”); (ii) the prospectus dated December 9, 2005 covering the Notes offered under the Programs (the “ Base Prospectus ”); (iii) the prospectus supplement to the Base Prospectus, dated December 9, 2005, covering the Notes offered under the Institutional Program (the “ Institutional Prospectus Supplement ” and together with the Base Prospectus, the “ Institutional Base Prospectus ”); and (iv) the prospectus supplement to the Base Prospectus, dated December 9, 2005, covering the Notes offered under the Retail Program (the “ Retail Prospectus Supplement ” and, together with the Base Prospectus, the “ Retail Base Prospectus ”). Such registration statement (as so amended, if applicable) has been declared effective by the Commission and the form of Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the “ 1939 Act ”). The Company has filed such post-effective amendments thereto as may be required prior to any acceptance by a Trust of an offer for the purchase of a series of Notes, and each such post-effective amendment has been declared effective by the Commission. Such registration statement, at any relevant time, including the amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time and the documents otherwise deemed to be a part thereof or included therein by 1933 Act Regulations is referred to herein as the “ Registration Statement .” If the Company files a registration statement with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the “ Rule 462(b) Registration Statement ”), or any further registration statement for the purpose of registering additional Notes and in connection with which this Agreement is included or incorporated by reference as an exhibit, then, after such filing, all references to the “ Registration Statement ” shall also be deemed to include the Rule 462(b) Registration Statement or any such further registration statement or statements. With respect to the offering of a series of Notes under the Institutional Program, the Institutional Base Prospectus, and with respect to the offering of a series of Notes under the Retail Program, the Retail Base Prospectus, in each case including the Pricing Supplement relating to the offering of such series of Notes, in the form filed with the Commission pursuant to Rule 424(b) (or in the form first made available to the applicable Agent(s) by the Company and the applicable Trust to meet requests of purchasers pursuant to Rule 173 under the 1933 Act), are referred to herein as the “ Prospectus. ” The term “ preliminary prospectus ” means any preliminary form of the Prospectus. For all purposes of this Agreement, the term “ free writing prospectus ” has the meaning set forth in Rule 405 under the 1933 Act and the term “ Time of Sale Prospectus ” means (i) with respect to the offer and sale of any series of Notes under the Institutional Program, the Institutional Base Prospectus and (ii) with respect to the offer and sale of any series of Notes under the Retail Program, the Retail Base Prospectus, in each case as amended or supplemented from time to time and together with any other preliminary prospectus relating to the offer and sale of such series of Notes and each free writing prospectus attached as, or identified in, Exhibit A to the applicable Terms Agreement and any other information identified in Exhibit A to the applicable Terms Agreement. All references to the “ Registration Statement ”, the “ Institutional Base Prospectus ”, the “ Retail Base Prospectus ”, any

 

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“ preliminary prospectus ”, the “ Time of Sale Prospectus ” and the “ Prospectus ” shall also be deemed to include all documents incorporated by reference therein. For purposes of this Agreement, all references to the Registration Statement, Time of Sale Prospectus, Prospectus, any preliminary prospectus or free writing prospectus, or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“ EDGAR ”).

 

All references in this Agreement to financial statements and schedules and other information which is “disclosed”, “contained”, “included” or “stated” (or other references of like import) in the Registration Statement, Time of Sale Prospectus, Prospectus, any preliminary prospectus or free writing prospectus shall be deemed to include all such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, Time of Sale Prospectus, Prospectus, any preliminary prospectus or free writing prospectus, as the case may be. The terms “ amend ,” “ amendments ,” or “ supplements ” as used herein with respect to the Registration Statement, Time of Sale Prospectus, Institutional Base Prospectus, Retail Base Prospectus, Prospectus, any preliminary prospectus or free writing prospectus shall be deemed to include all documents subsequently filed with the Commission pursuant to the Securities Exchange act of 1934, as amended (the “ 1934 Act ”) which are incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, Time of Sale Prospectus, Institutional Base Prospectus, Retail Base Prospectus, Prospectus, any preliminary prospectus or free writing prospectus, as the case may be.

 

SECTION 2. A PPOINTMENT OF A GENTS AND C O -A GENTS .

 

(a) Appointment . Subject to the terms and conditions stated herein, the Company and each Trust hereby agree that Notes will be sold to or through the Agents. Each of the Company and each Trust agrees that it will not appoint any other agents to act on the Trust’s behalf, or to assist the Trust, in the placement of the Notes; provided, however , that with respect to transactions in which the sales of Notes will be targeted to institutional purchasers under the Institutional Program, the Company and a Trust may enter into arrangements with other agent(s) not a party to this Agreement provided that such agent(s) enter into an agreement with terms substantially identical to those contained herein. Each of the Company and each Trust agrees that it hereby appoints LaSalle Financial Services, Inc. (the “ Lead Retail Agent ”) and each other institution named on Schedule A-2 hereto (collectively, with the Lead Retail Agent, each, a “ Retail Agent ”, and, collectively, the “ Retail Agents ”, which term shall include any additional institution appointed as a Retail Agent pursuant to Section 19 hereof) to act on such Trust’s behalf or to assist such Trust in connection with transactions in which the sale of Notes will be targeted to retail purchasers under the Retail Program. For purposes of this Agreement, all references to any Agent shall be deemed to include the Retail Agents, unless the context otherwise requires. Each of the Company and each Trust agrees that it hereby appoints each institution named on Schedule A-3 hereto (each a “ Co-Agent ” and, collectively, the “ Co-Agents ”, which term shall include any additional institution appointed as a Co-Agent pursuant to section 19 hereof) to solicit offers for the purchase

 

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Notes and, on completion of such solicitations, to enter into an agreement with the Lead Retail Agent for the purchase of the applicable Notes for resale. For all purposes of this Agreement and the Program, each Retail Agent that is also a Co-Agent (each, a “ Dual Role Agent ”) shall be deemed to be acting at all times as a Retail Agent except in connection with: (i) any purchase of Notes from the Company by such Dual Role Agent as principal, in its capacity as a Co-Agent through the Lead Retail Agent pursuant to Section 2(e); and (ii) any placement of Notes through such Dual Role Agent in its capacity as a Co-Agent pursuant to Section 2(f).

 

(b) Sale of Notes . The Trusts shall not sell or approve the solicitation of offers for the purchase of Notes in excess of the amount which shall be authorized by the Company from time to time or in excess of the aggregate initial offering price of Notes registered pursuant to the Registration Statements and any further registration statement filed for the purpose of registering additional Notes. The Agents and Co-Agents shall have no responsibility for maintaining records with respect to the aggregate initial offering price of Notes sold, or of otherwise monitoring the availability of Notes for sale, under the Registration Statement or any such further registration statement.

 

(c) Purchases by Agents as Principal . The Agents shall not have any obligation to purchase Notes issued through any Trust as principal. However, absent an agreement between an Agent and the Company and the relevant Trust that such Agent shall be acting solely as an agent for such Trust, such Agent shall be deemed to be acting as principal in connection with any offering of Notes by such Trust through such Agent. Accordingly, the Agents, individually or in a syndicate, may agree from time to time to purchase Notes from a Trust as principal for resale to investors and other purchasers determined by such Agents. Any purchase of Notes from a Trust by an Agent as principal shall be made in accordance with Section 4(a) hereof.

 

(d) Solicitations by Agents . If agreed upon between an Agent and a Trust, such Agent, acting solely as an agent for such Trust and not as principal, will use its reasonable efforts to solicit offers for the purchase of Notes. Such Agent will communicate to such Trust, orally, each offer for the purchase of Notes solicited by it on an agency basis other than those offers rejected by such Agent. Such Agent shall have the right, reasonably exercised in its discretion, to reject any offer for the purchase of Notes, in whole or in part, and any such rejection shall not be deemed a breach of its agreement contained herein. Such Trust may accept or reject any offer for the purchase of Notes, in whole or in part. Such Agent shall make reasonable efforts to assist such Trust in obtaining performance by each purchaser whose offer for the purchase of Notes has been solicited by it on an agency basis and accepted by such Trust. Unless agreed to in writing by the Company, such Trust and such Agent, such Agent shall not have any liability to such Trust in the event that any such purchase is not consummated for any reason. If such Trust shall default on its obligation to deliver Notes to a purchaser whose offer has been solicited by such Agent on an agency basis and accepted by such Trust, the Company and such Trust, jointly and severally, shall (i) hold such Agent harmless against any loss, claim or damage arising from or as a result of such default by such Trust and (ii) pay to such Agent any commission to which it would otherwise be entitled absent such default.

 

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(e) Purchases by Co-Agents as Principal . The Co-Agents shall not have any obligation to purchase Notes issued through any Trust as principal. Each purchase of Notes by any of the Co-Agents as principal shall be conducted through the Lead Retail Agent in accordance with the terms of this Agreement and a Terms Agreement to be entered into among the Company, the relevant Trust and the Lead Retail Agent on behalf of such Co-Agent(s), which Terms Agreement will provide for the sale of such Notes by the relevant Trust. The applicable Terms Agreement may specify certain provisions relating to the reoffering and resale of such Notes by the Lead Retail Agent to the applicable Co-Agent(s). The Lead Retail Agent shall resell such Notes to the applicable Co-Agent(s) on terms agreed between the Lead Retail Agent and such Co-Agent(s), which terms shall not be inconsistent with the provisions of the applicable Terms Agreement.

 

In connection with the resale of the Notes purchased by a Co-Agent, without the consent of the Company and the relevant Trust, such Co-Agent shall not be authorized to appoint subagents or to engage the service of any other broker or dealer. Unless authorized by the Lead Retail Agent in each instance, each Co-Agent agrees not to purchase and sell Notes for which an order from a client has not been received.

 

(f) Solicitations by Co-Agents . Each Co-Agent, acting solely as an agent for such Trust and not as principal, will use its reasonable efforts to solicit offers for the purchase of Notes. Each such Co-Agent will communicate to the Lead Retail Agent each offer for the purchase of Notes solicited by such Co-Agent on an agency basis other than those offers rejected by such Co-Agent. Such Co-Agent shall have the right, reasonably exercised in its discretion, to reject any offer for the purchase of Notes, in whole or in part, and any such rejection shall not be deemed a breach of its agreement contained herein. Such Trust may accept or reject any offer for the purchase of Notes, in whole or in part. Such Co-Agent shall make reasonable efforts to assist such Trust in obtaining performance by each purchaser whose offer for the purchase of Notes has been solicited by such Co-Agent on an agency basis and accepted by such Trust. Unless agreed to in writing by the Company, such Trust, the Lead Retail Agent and such Co-Agent, the Lead Retail Agent and such Co-Agent shall not have any liability to such Trust in the event that any such purchase is not consummated for any reason. If such Trust shall default on its obligation to deliver Notes to a purchaser whose offer has been solicited by such Co-Agent on an agency basis and accepted by such Trust, the Company and such Trust, jointly and severally, shall (i) hold the Lead Retail Agent and such Co-Agent harmless against any loss, claim or damage arising from or as a result of such default by such Trust and (ii) pay to the Lead Retail Agent the commission to which it would otherwise be entitled pursuant to Section 4(b) absent such default. The Co-Agents are not authorized to appoint subagents or engage the services of any other broker or dealer in connection with any offer or sale of the Notes without the consent of the Company and the relevant Trust. All solicitations of offers to purchase Notes by the Co-Agents will be conducted upon the terms and conditions set forth in this Agreement and in the Registration Statement and upon the terms communicated to the applicable Co-Agent(s) from time to time by the Company on behalf of the Trusts.

 

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(g) Reliance . The Company, each Trust, the Agents and the Co-Agents agree that (i) any series of Notes purchased from a Trust by one or more Agents as principal shall be purchased, and any series of Notes the placement of which an Agent arranges as an agent of such Trust shall be placed by such Agent, and any Notes purchased and resold by a Co-Agent shall be purchased and resold by such Co-Agent, in reliance on the representations, warranties, covenants and agreements of such Trust and the Company contained herein and in the applicable Terms Agreement and on the terms and conditions and in the manner provided herein and therein, (ii) any Funding Agreement sold by the Company to such Trust in connection with the issuance of such Trust’s series of Notes will be sold in reliance on the representations, warranties, covenants and agreements of such Trust and the Agent(s) (to or through whom such series of Notes is being sold), as applicable, contained herein and in the applicable Terms Agreement and on the terms and conditions and in the manner provided herein and therein, (iii) any Notes issued by such Trust to the Lead Retail Agent and resold by the Lead Retail Agent to one or more Co-Agents, will be issued and sold in reliance on the covenants and agreements of the Lead Retail Agent and each such Co-Agent contained herein and (iv) the series of Notes issued by such Trust to or through the applicable Agent(s) will be issued in reliance on the covenants and agreements of each such Agent contained herein and in the applicable Terms Agreement and on the terms and conditions and in the manner provided herein and therein.

 

(h) No Fiduciary Duty . The Company and such Trust each acknowledge and agree that (i) the purchase and sale of Notes issued by such Trust, including the determination of the offering price of such Notes and any related discounts and commissions, is an arm’s-length commercial transaction between such Trust and the Company, on the one hand, and each applicable Agent and Co-Agent, on the other hand; (ii) each applicable Agent and Co-Agent is acting solely in the capacity of an arm’s length contractual counterparty to each of the Company and such Trust in connection with the offering of such Notes and the process leading to such transaction (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to the Company or such Trust; and (iii) no Agent and/or Co-Agent has assumed or will assume an advisory or fiduciary responsibility in favor of such Trust or the Company with respect to the offering of such Notes or the process leading thereto (irrespective of whether such Agent and/or Co-Agent has advised or is currently advising the Company on other matters) and no Agent and/or Co-Agent has any obligation to such Trust or the Company with respect to the offering of the Notes issued by such Trust except the obligations expressly set forth in this Agreement.

 

SECTION 3. R EPRESENTATIONS AND W ARRANTIES ; A DDITIONAL C ERTIFICATIONS .

 

(a) Representations and Warranties of the Company . The Company represents and warrants to each Agent as of the date of this Agreement, to the applicable Agent(s) as of the Applicable Time for the relevant Trust, to the applicable Agent(s) as of the date of each delivery of Notes (whether to such Agent as principal or through such Agent as agent) (the date of each such delivery to such Agent as principal is referred to herein as a “ Settlement Date ”), to the applicable Agent(s) as of any time the Time of

 

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Sale Prospectus shall be amended or supplemented, to each Agent as of any time that the Registration Statement or the Prospectus shall be amended or supplemented and to the applicable Co-Agent(s) as of the date of each delivery of the Notes by the Lead Retail Agent to the applicable Co-Agent(s) or to any purchaser of any Notes placed through such Co-Agent(s) (each of the times referenced above is referred to herein as a “ Company Representation Date ”), as follows:

 

(i) Registration Statement, Preliminary Prospectuses, Time of Sale Prospectus and Prospectus . The Company is eligible to use Form S-3 under the 1933 Act. The Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are threatened by the Commission, and any request on the part of the Commission for additional information has been complied with. The form of Indenture has been duly qualified under the 1939 Act. At the respective times that each part of the Registration Statement, became effective and at each Company Representation Date, the Registration Statement and any amendments thereto complied and will comply in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act, the rules and regulations of the Commission under the 1934 Act (the “ 1934 Act Regulations ”), the 1939 Act and the rules and regulations of the Commission under the 1939 Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Each preliminary prospectus and Prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus and the Prospectus delivered to the applicable Agent(s) for use in connection with the offering of Notes are identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. At the date of this Agreement, at the date of the Base Prospectus and each amendment or supplement thereto and at each Company Representation Date, neither the Base Prospectus nor any amendment or supplement thereto included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Time of Sale Prospectus does not, and at the time of each sale of the Notes of the applicable Trust in connection with the offering and at the applicable Settlement Date, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding anything to the contrary contained herein, the representations and warranties in this Section 3(a)(i) shall not apply to (A) statements in or omissions from the Registration Statement, the Base Prospectus, the Time of Sale Prospectus or the Prospectus, in each case as amended or

 

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supplemented, made in reliance upon and in conformity with information furnished to the Company in writing by the Agents expressly for use in the Registration Statement, the Base Prospectus, the Time of Sale Prospectus or Prospectus, in each case as amended or supplemented, or (B) that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification (Form T-1) under the 1939 Act of the Indenture Trustee.

 

(ii) Incorporated Documents . The documents incorporated or deemed to be incorporated by reference in the Time of Sale Prospectus or the Base Prospectus, as amended or supplemented, at the time they were filed with the Commission, complied in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations and, at the time they were filed with the Commission, did not include an 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.

 

(iii) Free Writing Prospectuses . At the time of initial filing of the Registration Statement, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of any Notes and at each Company Representation Date, the Company was not and is not an “ineligible issuer,” as defined in Rule 405. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the 1933 Act has been, or will be, filed with the Commission in accordance with the requirements of the 1933 Act and the 1933 Act Regulations. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the 1933 Act or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the applicable 1933 Act Regulations. Except for any electronic road shows furnished to the Agents before first use, and with respect to the offering of any series of Notes, the free writing prospectuses attached as, or identified in, Exhibit A to the applicable Terms Agreement, the Company and the Trusts have not prepared, used or referred to, and will not, without the prior consent of the applicable Agents, prepare, use or refer to, any free writing prospectus or any other marketing materials relating to or to be used in connection with any offer or sale of the Notes.

 

(iv) Independent Registered Public Accounting Firm . The accounting firm which opined on the financial statements and any supporting schedules thereto included in, or incorporated by reference into, the Registration Statement and the Base Prospectus, as amended or supplemented, is an independent registered public accounting firm with respect to the Company as required by the 1933 Act and the 1933 Act Regulations.

 

(v) Ratings . As of the date of this Agreement, the Programs are rated “Aa3” by Moody’s Investors Service, Inc. (including its successors, “ Moody’s ”) and “AA-” by Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc. (including its successors, “ S&P ” and, together with Moody’s,

 

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the “ Rating Agencies ”). As of the date of each acceptance of an offer by the relevant Trust for the purchase of Notes (whether to any Agent(s) as principal or through such Agent(s) as agent(s)), the Programs and the Notes to be issued by such Trust will be rated “Aa3” by Moody’s and “AA-” by S&P or such other rating set forth in the applicable Pricing Supplement and as to which the Company shall have most recently notified the Agents pursuant to Section 5(a)(i) hereof.

 

(vi) Due Organization, Good Standing and Due Qualification . The Company has been duly organized and is validly existing as an insurance company in good standing under the laws of the Commonwealth of Virginia with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Time of Sale Prospectus and to enter into this Agreement and consummate the transactions contemplated by the Time of Sale Prospectus. The Company 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 to so qualify or be in good standing would not reasonably be expected to result in a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise or on the power or ability of the Company to perform its obligations under the Company Program Documents (as defined herein) to which the Company is a party or to consummate the transactions contemplated in the Time of Sale Prospectus (a “ Company Material Adverse Effect ”). All of the issued and outstanding shares of capital stock of the Company have been duly authorized and are validly issued, fully paid and non-assessable. None of the outstanding shares of capital stock of the Company was issued in violation of preemptive or other similar rights of any securityholder of the Company.

 

(vii) Financial Statements . The financial statements of the Company included in any report or filing under the 1934 Act incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Base Prospectus, in each case as amended or supplemented, together with the related schedules and notes, as well as those financial statements, schedules and notes of any other entity included in the Registration Statement, the Time of Sale Prospectus and the Base Prospectus, in each case as amended or supplemented, present fairly the financial position of the Company, or such other entity, as the case may be, at the dates indicated, to the extent required under the 1934 Act, and the consolidated statements of income, stockholder’s interest and cash flows of the Company, or such other entity, as the case may be, for the periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles in the United States (“ GAAP ”) applied on a consistent basis throughout the periods involved. The supporting schedules, if any, included in the Registration Statement, the Time of Sale Prospectus and the Base Prospectus, in each case as amended or supplemented, present fairly in accordance with GAAP the information required to be stated therein. The selected financial data, the

 

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summary financial information and the condensed financial information, if any, included in the Registration Statement, the Time of Sale Prospectus and the Base Prospectus, in each case as amended or supplemented, present fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in the Registration Statement, the Time of Sale Prospectus and the Base Prospectus, in each case as amended or supplemented. Any pro forma financial statements of the Company and the related notes thereto included in the Registration Statement, the Time of Sale Prospectus and the Base Prospectus, in each case as amended or supplemented, present fairly the information shown therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein.

 

(viii) No Material Changes . Since the respective dates as of which information is given in the Registration Statement and the Time of Sale Prospectus, except as otherwise stated therein, there has been no event or occurrence that would result in a Company Material Adverse Effect. The Time of Sale Prospectus will not include any information that conflicts with the information contained in the Prospectus.

 

(ix) Authorization, Etc . This Agreement has been duly authorized, executed and delivered by the Company. Each Funding Agreement, when issued, will be duly authorized, executed and delivered by the Company, and, assuming that each party to each Funding Agreement, other than the Company, has duly authorized, executed and delivered such Funding Agreement, each such Funding Agreement will be a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, 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).

 

(x) Absence of Defaults and Conflicts . The Company is not in violation of the provisions of its charter or by-laws 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 is a party or by which it may be bound or to which any of the property or assets of the Company is subject (collectively, the “ Company Agreements and Instruments ”), except for such violations or defaults that would not result in a Company Material Adverse Effect. The execution, delivery and performance of this Agreement, each Funding Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated by the Time of Sale Prospectus

 

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(collectively, the “ Company Program Documents ”), the consummation of the transactions contemplated by the Time of Sale Prospectus (including the issuance and sale of the Notes and the use of proceeds therefrom as described in the Time of Sale Prospectus) and the compliance by the Company with its obligations thereunder have been duly authorized by all necessary corporate action and do not conflict with, constitute a breach, violation, default, 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 under, or result in the creation or imposition of any lien, charge or encumbrance upon any assets, properties or operations of the Company pursuant to, any Company Agreements and Instruments, except, in each case, to the extent such conflict, breach, violation, default, event, condition, lien, charge or encumbrance would not result in a Company Material Adverse Effect, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or, except to the extent such violation would not result in a Company Material Adverse Effect, 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 of its assets, properties or operations; provided, however , that each such law, statute, rule, regulation, judgment, order, writ or decree is in writing; provided, further , that the Company does not make any representations, warranties or covenants with respect to any applicable insurance laws, regulations, rulings, policies and guidelines addressed in the memorandum of Company Counsel (as defined herein) received by the Agents pursuant to Section 6(b)(vii) hereof and/or the opinion of Company Counsel received by the Agents pursuant to Section 6(b)(viii) hereof.

 

(xi) Absence of Proceedings . There is no action, suit, proceeding, inquiry or investigation pending, of which the Company has received written notice or service of process, before or brought by any court or governmental agency or body, domestic or foreign, or, to the knowledge of the Company, threatened, against or affecting the Company which is required to be disclosed in the Registration Statement and the Base Prospectus, as amended or supplemented, (other than as stated therein), which would individually or in the aggregate result in a Company Material Adverse Effect.

 

(xii) Possession of Licenses and Permits . The Company possesses 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 it, except for any such jurisdiction in which the failure to be so licensed or authorized would not have a Company Material Adverse Effect. The Company is 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, result in a Company Material Adverse Effect. Except as otherwise set forth in the Time of Sale Prospectus, the Company has not received any notice of proceedings relating to the revocation or modification of any such

 

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Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Company Material Adverse Effect.

 

(xiii) No Filings, Regulatory Approvals, Etc. No filing with, or approval, authorization, consent, license, registration, qualification, if any as may be required, order or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the due authorization, execution and delivery by the Company of this Agreement and the other Company Program Documents or for the performance by the Company of its obligations under this Agreement and the other Company Program Documents, except (a) as otherwise set forth in the Time of Sale Prospectus, as have been obtained or rendered, as the case may be, (b) as may be necessary or required under state or foreign securities or blue sky laws or any rules or regulations of any securities exchange and (c) with respect to any applicable insurance laws, regulations, rulings, policies and guidelines addressed in the memorandum of Company Counsel received by the Agents pursuant to Section 6(b)(vii) hereof and/or the opinion of Company Counsel received by the Agents pursuant to Section 6(b)(viii) hereof.

 

(xiv) Investment Company Act . The Company is not, and upon the issuance and sale of the Notes as herein contemplated and the application of the net proceeds therefrom as described in the Time of Sale Prospectus will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

(xv) No Significant Subsidiaries . The Company has no significant subsidiaries as defined in Rule 1-02 of Regulation S-X of the Commission.

 

(xvi) Reinsurance .

 

(1) Each of the UFLIC Agreements (as defined below) is in full force and effect and constitutes a legal, valid and binding obligation on each party thereto. No party is in material breach or default of any of the UFLIC Agreements. As used herein, the term “ UFLIC Agreements ” means the SSA-GELAAC/UFLIC Coinsurance Agreement between the Company and Union Fidelity Life Insurance Company (“ UFLIC ”) dated as of April 15, 2004, the VA-GELAAC/UFLIC Reinsurance Agreement between the Company and UFLIC dated as of April 15, 2004, the Trust Agreement among the Company, UFLIC and The Bank of New York dated as of April 15, 2004, the Capital Maintenance Agreement between General Electric Capital Corporation (“ GECC ”) and UFLIC dated as of January 1, 2004, the RBC Reporting Letter from UFLIC addressed to the Company, among others, dated April 15, 2004, the Termination Letter Agreement from GECC and UFLIC addressed to UFLIC, among others, dated April 15, 2004, and all agreements relating thereto.

 

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(2) The Company has entered into a Reinsurance Agreement with First Colony Life Insurance Company (“ First Colony ”) whereby the Company has agreed to cede and First Colony has agreed to reinsure a 90% share of the liabilities of the Company under the Funding Agreements issued in connection with offerings of Notes under the Institutional Program. Unless otherwise specified in a Terms Agreement related to a series of Notes, such agreement is in full force and effect and constitutes a legal, valid and binding obligation on both parties thereto. Neither party thereto is in material breach or default of such agreement.

 

(b) Representations and Warranties of the Trusts . Each Trust represents and warrants, only as to itself, to each applicable Agent as of its Trust Effective Time, as of its Applicable Time, as of the date of each acceptance of an offer by such Trust for the purchase of its series of Notes (whether to such Agent as principal or through such Agent as agent) and as of the date of each delivery of Notes (whether to such Agent as principal or through such Agent as agent) and to the applicable Co-Agent(s) as of the date of each delivery of the Notes by the Lead Retail Agent to the applicable Co-Agent(s) (each of the times referenced above is referred to herein as a “ Trust Representation Date ”), as follows:

 

(i) Due Formation and Good Standing . Such Trust is a common law trust, duly formed in the United States of America under the laws of its jurisdiction pursuant to its relevant Trust Agreement, is validly existing and is in good standing as a common law trust under the laws of its jurisdiction.

 

(ii) No Material Changes . Since the respective dates as of which information is given in the Registration Statement and the Time of Sale Prospectus or the Trust Effective Time, whichever is later, except as otherwise stated therein, (A) there has been no event or occurrence that would reasonably be expected to result in a material adverse change in the condition, financial or otherwise, of such Trust or on the power or ability of such Trust to perform its obligations under the Trust Program Documents to which such Trust is a party or to consummate the transactions contemplated in the Time of Sale Prospectus (as to each Trust, a “ Trust Material Adverse Effect ”) and (B) there have been no transactions entered into by such Trust, other than those in the ordinary course of business, which are material with respect to such Trust.

 

(iii) Authorization, Etc . This Agreement and the relevant Indenture have been or, in the case of each Indenture, will be prior to the execution thereof, duly authorized, executed and delivered by such Trust and, assuming that each party to the relevant Indenture, other than such Trust, has duly authorized, executed and delivered such Indenture, then the relevant Indenture will be a valid and legally binding agreement of such Trust, enforceable against such Trust in accordance with its terms, as applicable, except (A) as enforcement thereof may be limited by bankruptcy, insolvency, 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

 

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proceeding in equity or at law) and (B) as enforcement thereof may be limited by requirements that a claim with respect to any Notes issued under the relevant Indenture that are payable in a foreign or composite currency (or a foreign or composite currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or by governmental authority to limit, delay or prohibit the making of payments outside the United States. The relevant Notes have been duly authorized by such Trust for offer, sale, issuance and delivery pursuant to this Agreement and, when issued, authenticated and delivered in the manner provided for in the relevant Indenture and delivered against payment of the consideration therefor, will constitute valid and legally binding obligations of such Trust in accordance with their terms, enforceable against such Trust in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, 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 relevant Notes, when executed by such Trust and issued, authenticated and delivered in the manner provided for in the relevant Indenture and delivered against payment of the consideration therefor as contemplated in the Time of Sale Prospectus, will be entitled to the benefits of the relevant Indenture.

 

(iv) Absence of Defaults and Conflicts . Such Trust is not (x) in violation of its Trust Agreement or (y) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan or credit agreement, note, lease or other agreement or instrument to which such Trust is a party or by which it may be bound or to which any of the property or assets of such Trust is subject (collectively, as to each Trust, the “ Trust Agreements and Instruments ”), except for such defaults that would not result in a Trust Material Adverse Effect. The (A) execution, delivery and performance of this Agreement, the relevant Indenture, the relevant Notes and any other agreement or instrument entered into or issued or to be entered into or issued by such Trust in connection with the transactions contemplated by the Time of Sale Prospectus, (B) performance of the relevant Trust Agreement (all agreements and instruments referenced in Section 3(b)(iv)(A) hereof and this Section 3(b)(iv)(B) are referred to herein, as to each Trust, as the “ Trust Program Documents ”), (C) consummation of the transactions contemplated in the Time of Sale Prospectus (including the issuance and sale of the relevant Notes and the use of proceeds therefrom as described in the Time of Sale Prospectus) and (D) compliance by such Trust with its obligations under the Trust Program Documents have been or will timely be duly authorized by all necessary action and do not constitute a breach, default or violation 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 such Trust under, or, except as contemplated by the Trust Program Documents, result in the creation or imposition of any lien, charge or encumbrance upon any assets, properties or operations of such Trust pursuant to, any Trust Agreements

 

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and Instruments, nor will such actions result in any violation of the relevant Trust Agreement or, except to the extent that any such violation would not result in a Trust Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over such Trust or any of its assets, properties or operations.

 

(v) Absence of Proceedings . There is no action, suit, proceeding, inquiry or investigation pending, of which such Trust has received written notice or service of process, before