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Exhibit 1.1
EXECUTION
COPY
$350,000,000
GENWORTH FINANCIAL,
INC.
5.650% Senior Notes due
2012
UNDERWRITING
AGREEMENT
June 5, 2007
June 5, 2007
Banc of America Securities
LLC
9 West 57 th
Street
New York, NY 10019
J.P. Morgan Securities Inc.
270 Park Avenue
New York, NY 10017
Wachovia Capital Markets, LLC
375 Park Avenue
New York, NY 10152
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 Banc of America Securities LLC, J.P. Morgan
Securities Inc. and Wachovia Capital Markets, LLC, as underwriters
(the “ Underwriters ”), U.S. $350,000,000
principal amount of 5.650% Senior Notes due 2012 (the “
Notes ”). The Notes will be issued pursuant to the
Indenture (the “ Base Indenture ”), dated as of
June 15, 2004, 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 dated as of June 15, 2004 (the “ First
Supplemental Indenture ”), the Second Supplemental
Indenture dated as of September 19, 2005 (the “
Second Supplemental Indenture ”) and the Third
Supplemental Indenture (the “ Third Supplemental
Indenture ”) to be dated as of June 12, 2007 between
the Company and the Trustee (collectively, the “
Supplemental Indentures ”). The Base Indenture, as so
supplemented, 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
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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
June 5, 2007.
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.
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) 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
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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 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.
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(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) and that is in existence on the date hereof.
(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 Third Supplemental
Indenture and the Notes 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
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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
Indenture and the Notes, 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 Indenture has been
duly authorized by the Company and duly qualified under the Trust
Indenture Act, and, when the Third Supplemental Indenture is
executed and delivered by the Company (and assuming due
authorization, execution and delivery of the Third 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.
(j) 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.
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(k) 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.
(l) 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.
(m) 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.
(n) 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.
(o) Except as described in
the Time of Sale Prospectus and other than the Master Confirmation
and Supplemental Confirmation entered into by the Company with
Merrill Lynch International dated as of May 17, 2007, 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.
(p) 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
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any such purchases
(A) pursuant to the Company’s publicly-announced stock
repurchase program and/or (B) to cover withholding tax
obligations of the Company’s employees in connection with
their exercise of outstanding equity awards under the
Company’s existing employee incentive plans), 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.
(q) 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.
(r) 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 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.
(s) 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.
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(t) 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 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.
(u) 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
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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.
(v) 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.
(w) 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 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.
(x) The statements set forth
in (i) the Time of Sale Prospectus under the caption
“Description of the Notes”, insofar as they purport to
constitute a summary of the terms of the Indenture and the Notes,
and “United States Federal Income Tax Consequences,”
(ii) Exhibit 99.1 to the Company’s Current Report on
Form 8-K, filed April 16, 2007 under the caption “Item
1. Business – Regulation”; (iii) the
Company’s Annual Report on Form 10-K for the year ended
December 31, 2006 under the caption “Item 3. Legal
Proceedings,” (iv) the Company’s Quarterly Report
on Form 10-Q for the quarterly period ended March 31, 2007
under the caption “Part II.—Other
Information—Legal Proceedings”, (v) the
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Company’s Proxy
Statement for the Company’s 2007 annual meeting of
stockholders under the caption “Certain Relationships and
Transactions” and (vi) 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.
(y) KPMG LLP, whose report is
incorporated by reference 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 Company, at a purchase price (the “
Purchase Price ”) of 99.623% of the principal amount
of the Notes, plus accrued interest, if any, from June 12,
2007 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 99.973% 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 0.20% 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 0.15% 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.
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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 June 12, 2007,
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 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
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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, LLP, 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 in Exhibit C.
(f) The Underwriters shall
have received on the Closing Date an opinion of Davis
Polk & Wardwell, counsel for the Underwriters, dated the
Closing Date, with respect to such matters as the Underwriters
shall request.
The opinions of Weil,
Gotshal & Manges LLP, LeBoeuf, Lamb, Greene &
MacRae, LLP and Leon E. Roday, Esq., described in Sections 5(c)-
5(e) above shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
(g) The Underwriters shall
have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may
be, in form and substance satisfactory to the Underwriters, from
KPMG LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus; provided that the letter delivered on the
Closing Date shall use a “cut-off date” not earlier
than the date hereof.
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6. Covenants of the
Company . The Company covenants with each Underwriter as
follows:
(a) To furnish to the
Underwriters, without charge, three signed copies of the
Registration Statement (including exhibits thereto) and to furnish
to the Underwriters in N
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