Exhibit 1.1
EXECUTION COPY
$600,000,000
GENWORTH FINANCIAL,
INC.
6.15% Fixed-to-Floating Rate
Junior Subordinated Notes due 2066
UNDERWRITING
AGREEMENT
November 7, 2006
November 7, 2006
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, NY 10036
Deutsche Bank Securities
Inc.
60 Wall Street
New York, NY 10005
Goldman, Sachs &
Co.
85 Broad Street
New York, NY 10004
Dear Sirs and Mesdames:
Genworth Financial, Inc., a Delaware
corporation (the “ Company ”), proposes, subject
to the terms and conditions stated herein, to issue and to sell to
Morgan Stanley & Co. Incorporated, Deutsche Bank
Securities Inc. and Goldman, Sachs & Co., as underwriters
(the “ Underwriters ”), U.S. $600,000,000
principal amount of 6.15% Fixed-to-Floating Rate Junior
Subordinated Notes due 2066 (the “ Notes ”). The
Notes will be issued pursuant to an Indenture to be dated as of
November 14, 2006 (the “ Base Indenture ”),
between the Company and The Bank of New York Trust Company, N.A.,
as indenture trustee (the “ Trustee ”), as
supplemented by the First Supplemental Indenture to be dated as of
November 14, 2006 (the “ First Supplemental
Indenture ”) between the Company and the Trustee. The
Base Indenture, as supplemented by the First Supplemental
Indenture, is referred to herein as the “ Indenture
.”
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement, including a prospectus, on Form
S–3 (File No. 333-138437), relating to securities,
including the Notes, to be issued from time to time by the Company.
The registration statement as amended to the date of this Agreement
is hereinafter referred to as the “ Registration
Statement ,” and the related prospectus covering the
Notes dated November 3, 2006 is hereinafter referred to as the
“ Base Prospectus .” For purposes of this
Agreement, “ Prospectus ” means the final
prospectus relating to the Notes, including any prospectus
supplement thereto relating to the Notes, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations
under the Securities Act of 1933, as amended (the “
Securities Act ”), and the term “ preliminary
prospectus ” means the Base Prospectus, as supplemented
by the Preliminary Prospectus Supplement dated November 7,
2006.
2
For purposes of this Agreement,
“ free writing prospectus ” has the meaning set
forth in Rule 405 under the Securities Act and “ Time of
Sale Prospectus ” means the Base Prospectus and the
preliminary prospectus, together with the free writing
prospectuses, if any, each identified on Schedule II hereto (which
shall not include any Electronic Road Show as defined in
Section 1(b) hereof). As used herein, the terms
“Registration Statement,” “preliminary
prospectus,” “Time of Sale Prospectus” and
Prospectus shall include the documents, if any, incorporated by
reference therein. The terms “ supplement ,”
“ amendment ,” and “ amend ”
as used herein with respect to the Registration Statement, the Base
Prospectus, the Time of Sale Prospectus, the preliminary prospectus
or any free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), that are incorporated by reference
therein.
In addition, the Company will enter
into a Replacement Capital Covenant to be dated November 14,
2006 (the “ Replacement Capital Covenant ”) (as
described in the Time of Sale Prospectus and the Prospectus) for
the benefit of a specified class of Covered Debtholders (as defined
in the Replacement Capital Covenant) pursuant to which the Company
will covenant (on its own behalf and on behalf of its subsidiaries)
not to redeem, repurchase or purchase, as applicable, the Notes on
or before November 15, 2046, unless the Company complies with
certain specified conditions.
1. Representations and Warranties
of the Company . The Company represents and warrants to and
agrees with each of the Underwriters, as of the date hereof,
that:
(a) The Registration Statement has
become effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the Company’s knowledge,
threatened by the Commission. The Company is eligible to use the
Registration Statement as an “automatic shelf registration
statement” (as defined in Rule 405 under the Securities Act),
and the Company has not received notice from the Commission
objecting to the use of the Registration Statement as an automatic
shelf registration statement.
(b) (i) Each document, if any, filed
or to be filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus complied or will comply when so filed
in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii)
3
the Registration Statement, when it
became effective, did not contain, and, as amended or supplemented,
if applicable, will not contain any 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,
(iii) the Registration Statement, the preliminary prospectus
and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (iv) the Time of Sale Prospectus does
not, and at the time of each sale of the Notes in connection with
the offering at or prior to the Closing Date (as defined in
Section 4), 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,
(v) any “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission (each such
road show, an “ Electronic Road Show ”), when
considered together with the Time of Sale Prospectus, does not, and
at the time of each sale of the Notes in connection with the
offering at or prior to the Closing Date (as defined in
Section 4), any such Electronic Road Show, when considered
together with the Time of Sale Prospectus, 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 and
(vi) the Prospectus does not contain and, as amended or
supplemented, 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, except that the
representations and warranties set forth in this paragraph do not
apply to statements or omissions in the Registration Statement, the
Time of Sale Prospectus or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Underwriters expressly for use
therein.
(c) The Company is a
“well-known seasoned issuer” (as defined in Rule 405
under the Securities Act) and is not an “ineligible
issuer” (as defined in Rule 405 under the Securities Act) in
connection with the offering pursuant to Rules 164, 405 and 433
under the Securities Act. Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Any
free writing prospectus that the Company has filed, or is required
to file, pursuant to Rule 433(d) under the Securities Act or that
was prepared by or
4
on behalf of or used or referred to
by the Company complies or will comply in all material respects
with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. Except for the
free writing prospectuses, if any, identified in Schedule II
hereto, and Electronic Road Shows, if any, furnished to you before
first use, the Company has not prepared, used or referred to, and
will not, without your prior consent, prepare, use or refer to, any
free writing prospectus.
(d) The Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the State of Delaware, has the corporate power
and authority to own its property and to conduct its business as
described in the Time of Sale Prospectus and to enter into and
perform its obligations under this Agreement, and is duly qualified
to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not, singly
or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company
set forth on Schedule III hereto (each, a “ Designated
Subsidiary ” and, collectively, the “ Designated
Subsidiaries ”) has been duly incorporated or formed, is
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, has the full power
and authority to own its property and to conduct its business as
currently conducted and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital
stock of each Designated Subsidiary owned directly or indirectly by
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities
or claims, except as described in the Prospectus; for purposes of
this Agreement, Schedule III hereto includes each subsidiary of the
Company that is a “significant subsidiary” (as such
term is defined in Rule 1-02 of Regulation S-X promulgated by the
Commission).
(f) This Agreement has been duly
authorized, executed and delivered by the Company.
(g)(A) The execution and delivery by
the Company of, and the performance by the Company of its
obligations under, this Agreement, the
5
Base Indenture, the First
Supplemental Indenture, the Notes and the Replacement Capital
Covenant will not contravene (i) any provision of applicable
law or the certificate of incorporation or by-laws of the Company,
(ii) any agreement or other instrument binding upon the
Company or any of its subsidiaries (except to the extent such
contravention would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken
as a whole), or (iii) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and (B) no consent, approval,
authorization or order of, or qualification with, any U.S. federal,
state or local governmental body or agency is required for the
performance by the Company of its obligations under this Agreement,
the Base Indenture, the First Supplemental Indenture, the Notes and
the Replacement Capital Covenant, except such as has been obtained
and as may be required to be obtained by the Company under the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes.
(h) The Notes 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 in accordance with this Agreement,
will constitute valid and binding obligations of the Company,
entitled to the benefits provided by the Indenture, and enforceable
against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium
and other laws of general applicability relating to, or affecting,
creditors’ rights and to general principles of equity
(regardless of whether enforceability is considered in a proceeding
at law or in equity). The Notes will conform in all material
respects to the description thereof contained in each of the Time
of Sale Prospectus and the Prospectus.
(i) The Base Indenture and the First
Supplemental Indenture have been duly authorized by the Company and
duly qualified under the Trust Indenture Act, and when each of the
Base Indenture and the First Supplemental Indenture is executed and
delivered by the Company (assuming due authorization, execution and
delivery of each of the Base Indenture and First Supplemental
Indenture by the Trustee), the Indenture will constitute a valid
and binding instrument of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to, or affecting,
creditors’ rights and to general principles of equity
(regardless of whether enforceability is considered in a proceeding
at law or in equity). The Indenture will conform in all material
respects to the description thereof contained in each of the Time
of Sale Prospectus and the Prospectus.
6
(j) The Replacement Capital Covenant
has been duly authorized by the Company, and when executed and
delivered by the Company, will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws
of general applicability relating to, or affecting,
creditors’ rights and to general principles of equity
(regardless of whether enforceability is considered in a proceeding
at law or in equity). The Replacement Capital Covenant will conform
in all material respects to the description thereof contained in
each of the Time of Sale Prospectus and the Prospectus.
(k) Neither the Company nor any of
its Designated Subsidiaries is in violation of its certificate of
incorporation, by-laws or other constituent documents; neither the
Company nor any of its subsidiaries is in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any agreement or other
instrument binding upon the Company or any of its subsidiaries,
except to the extent such default would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(l) There has not occurred any
material adverse change in the financial condition or in the
earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Time of
Sale Prospectus.
(m) There are no legal or
governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described therein and there are no statutes, regulations, contracts
or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as
required. The Time of Sale Prospectus contains in all material
respects the same description of the foregoing matters contained in
the Prospectus.
(n) The preliminary 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 Securities Act, complied when so filed in all material respects
with the Securities Act and the applicable rules and regulations of
the Commission thereunder.
7
(o) The Company is not, and after
giving effect to the offering and sale of the Notes and the
application of the proceeds thereof as described in the 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.
(p) Except as described in the Time
of Sale Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company or to require the Company to include such securities
with the Notes registered pursuant to the Registration
Statement.
(q) Subsequent to the date as of
which information is given in the Time of Sale Prospectus,
(i) the Company and its subsidiaries have not incurred any
material liability or obligation, direct or contingent, or entered
into any material transaction not in the ordinary course of
business; (ii) the Company has not purchased any of its
outstanding capital stock (other than any such purchases pursuant
to the Company’s publicly-announced stock repurchase
program), or declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock other than ordinary
and customary dividends; and (iii) there has not been any
material change in the capital stock, short-term debt or long-term
debt of the Company and its subsidiaries, except in each case as
described or otherwise contemplated in the Time of Sale
Prospectus.
(r) The Company and its Designated
Subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Time
of Sale Prospectus or would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken
as a whole; and any real property and buildings held under lease by
the Company and its Designated Subsidiaries are held by them under
valid, subsisting and enforceable leases except such as are
described in the Time of Sale Prospectus or would not, singly or in
the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(s) The Company and its Designated
Subsidiaries own or possess, or can acquire on reasonable terms,
all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and
trade
8
names currently employed by them in
connection with the business now operated by them, except where the
failure to so own, possess or be able to acquire on reasonable
terms would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole, and neither the Company nor any of its Designated
Subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, would have a material adverse
effect on the Company and its subsidiaries, taken as a
whole.
(t) No labor dispute with the
employees of the Company or any of its subsidiaries exists, except
as described in the Time of Sale Prospectus, or, to the knowledge
of the Company, is imminent, except where such dispute would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(u) Each Designated Subsidiary of
the Company that is engaged in the business of insurance or
reinsurance (each an “ Insurance Subsidiary ”,
collectively the “ Insurance Subsidiaries ”) is
licensed or authorized to conduct an insurance or reinsurance
business, as the case may be, under the insurance statutes of each
jurisdiction in which the conduct of its business requires such
licensing or authorization, except for such jurisdictions in which
the failure of the Insurance Subsidiary to be so licensed or
authorized would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole. The Insurance Subsidiaries have made all required filings
under applicable insurance statutes in each jurisdiction where such
filings are required, except for such filings the failure of which
to make would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole. Each of the Insurance Subsidiaries has all other necessary
authorizations, approvals, orders, consents, certificates, permits,
registrations and qualifications (“ Authorizations
”), of and from all insurance regulatory authorities
necessary to conduct their respective existing businesses as
described in the Time of Sale Prospectus, except where the failure
to have such Authorizations would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole, and no Insurance Subsidiary has received any
notification from any insurance regulatory authority to the effect
that any additional Authorizations are needed to be obtained by any
Insurance Subsidiary in any case where it could reasonably be
expected that the failure to obtain such additional Authorizations
or the limiting of the writing of such business would have a
material adverse effect on the Company and its subsidiaries, taken
as a whole, and no insurance regulatory authority having
jurisdiction over any Insurance Subsidiary has
9
issued any order or decree
impairing, restricting or prohibiting (i) the payment of
dividends by any Insurance Subsidiary to its parent, other than
those restrictions applicable to insurance or reinsurance companies
under such jurisdiction generally, or (ii) the continuation of
the business of the Company or any of the Insurance Subsidiaries in
all material respects as presently conducted, in each case except
where such orders or decrees would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(v) Except as described in the Time
of Sale Prospectus, (i) all ceded reinsurance and
retrocessional treaties, contracts, agreements and arrangements
(“ Reinsurance Contracts ”) to which the Company
or any Insurance Subsidiary is a party and as to which any of them
reported recoverables, premiums due or other amounts in its most
recent statutory financial statements are in full force and effect,
except where the failure of such Reinsurance Contracts to be in
full force and effect would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken
as a whole, and (ii) neither the Company nor any Insurance
Subsidiary has received any notice from any other party to any
Reinsurance Contract that such other party intends not to perform
such Reinsurance Contract in any material respect, and the Company
has no knowledge that any of the other parties to such Reinsurance
Contracts will be unable to perform its obligations thereunder in
any material respect, except where (A) the Company or the
Insurance Subsidiary has established reserves in its financial
statements which it deems adequate for potential uncollectible
reinsurance or (B) such nonperformance would not have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(w) Except as described in the Time
of Sale Prospectus, the Company has no knowledge of any threatened
or pending downgrading of the Company’s or any of its
subsidiaries’ claims-paying ability rating or financial
strength rating by A.M. Best Company, Inc., Standard &
Poor’s Rating Group, Moody’s Investor Service, Inc.,
Fitch Ratings, Ltd. or any other “nationally recognized
statistical rating organizations,” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act, which
currently has publicly released a rating of the claims-paying
ability or financial strength of the Company or any
subsidiary.
(x) The Company and each of its
Designated Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in
10
conformity with generally accepted
accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(y) The statements set forth in
(i) the Time of Sale Prospectus under the captions
“Description of Notes” and “Description of
Replacement Capital Covenant”, insofar as they purport to
constitute a summary of the terms of the Indenture, the Notes and
the Replacement Capital Covenant, as the case may be, and
“United States Federal Income Tax Consequences,”
(ii) the Company’s Annual Report on Form 10-K for the
year ended December 31, 2005 under the captions “Item 1.
Business – Regulation” and “Item 3. Legal
Proceedings,” (iii) the Company’s Quarterly
Reports on Form 10-Q for the quarterly periods ended March 31,
2006, June 30, 2006 and September 30, 2006 under the
captions “Part II.—Other Information—Item 1.
Legal Proceedings,” (iv) the Company’s Proxy
Statement for the Company’s 2006 annual meeting of
stockholders under the caption “Certain Relationships and
Transactions” and (v) the Registration Statement in
Item 15, insofar as they purport to describe the provisions of
the laws and documents referred to therein, fairly summarize in all
material respects the matters described therein.
(z) KPMG LLP, whose report is
included in the Prospectus, is an independent registered public
accounting firm with respect to the Company and its consolidated
subsidiaries within the meaning of the Securities Act and the rules
and regulations adopted by the Commission thereunder. The financial
statements of the Company and its consolidated subsidiaries
(including the related notes and supporting schedules) included in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus present fairly in all material respects the financial
condition, results of operations and cash flows of the entities
purported to be shown thereby at the dates and for the periods
indicated and have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent
basis throughout the periods indicated and conform in all material
respects with the rules and regulations adopted by the Commission
under the Securities Act; and the supporting schedules included in
the Registration Statement present fairly in all materials respects
the information required to be stated therein.
2. Agreements to Sell and
Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and
not jointly, from the
11
Company, at a purchase price (the “
Purchase Price ”) of 98.712% of the principal amount
of the Notes, plus accrued interest, if any, from November 14,
2006 to the Closing Date (as defined in Section 4) in the
respective principal amount of Notes set forth opposite the names
of the Underwriters in Schedule I hereto.
3. Terms of Public Offering .
The Company is advised by the Underwriters that the Underwriters
propose to make a public offering of their respective portions of
the Notes as soon after this Agreement has become effective as in
the Underwriters’ judgment is advisable. The Company is
further advised by the Underwriters that the Notes are to be
offered to the public initially at a price (the “ Public
Offering Price ”) equal to 99.712% of the principal
amount of the Notes, plus accrued interest, if any, and may be
offered to certain dealers selected by the Underwriters at a price
that represents a concession not in excess of 0.60% of the
principal amount of the Notes. Any such dealers may resell any
Notes purchased from the Underwriters to certain other brokers or
dealers at a discount not to exceed 0.30% of the principal amount
of the Notes. After the initial public offering of the Notes to the
public, the Underwriters may change the Public Offering Price and
concessions.
4. Payment and Delivery. The
Company will deliver against payment of the Purchase Price the
Notes in the form of permanent global securities (the “
Global Securities ”) deposited with the Trustee as
custodian for The Depository Trust Company (“ DTC
”) and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent Global Securities will
be held only in book-entry form through DTC, except in the limited
circumstances described in the Time of Sale Prospectus. Payment for
the Notes shall be made by the Underwriters in immediately
available funds by wire transfer to an account specified by the
Company drawn to the order of the Company at the office of Davis
Polk & Wardwell, 450 Lexington Avenue, New York, NY 10017,
at 9:00 A.M. (New York time) on November 14, 2006, or at such
other time not later than seven full business days as the
Underwriters and the Company determine, such time being referred to
as the “ Closing Date ,” against delivery to the
Trustee as custodian for DTC of the Global Securities representing
all of the Notes. The Global Securities will be made available for
checking at the above office of Davis Polk & Wardwell at
least 24 hours prior to the Closing Date.
5. Conditions to the
Underwriters’ Obligations . The several obligations of
the Underwriters are subject to the following
conditions:
(a) Subsequent to the execution and
delivery of this Agreement and prior to the Closing
Date:
(i) there shall not have occurred
any downgrading, nor shall any notice have been given of any
intended or potential
12
downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company’s
securities or the Company’s financial strength or
claims-paying ability by any “nationally recognized
statistical rating organization,” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred
any material adverse change in the financial condition or in the
earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Time of
Sale Prospectus.
(b) The Underwriters shall have
received on the Closing Date a certificate, dated the Closing Date
and signed by an executive officer of the Company, to the effect
set forth in Section 5(a)(i) above and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering
such certificate may rely upon the best of his or her knowledge as
to proceedings threatened.
(c) The Underwriters shall have
received on the Closing Date an opinion and letter of Weil,
Gotshal & Manges LLP, outside U.S. counsel for the
Company, dated the Closing Date, as set forth in Exhibits A-1 and
A-2.
(d) The Underwriters shall have
received on the Closing Date an opinion of LeBoeuf, Lamb,
Greene & MacRae, L.L.P., special U.S. regulatory counsel
for the Company, dated the Closing Date, as set forth in Exhibit
B.
(e) The Underwriters shall have
received on the Closing Date an opinion of Leon E. Roday, Esq., the
Company’s General Counsel, dated the Closing Date, as set
forth i
