MGIC INVESTMENT CORPORATION
Debt Securities
Underwriting Agreement
, 2000
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
MGIC INVESTMENT CORPORATION, a Wisconsin corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under an Indenture, dated as
of , 2000 (the "Indenture"), between the Company and , as
trustee thereunder (the "Trustee"). If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives", as used herein, shall each be deemed
to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333- ) under the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), relating to certain
debt securities (the "Shelf Securities") and the offering thereof from time to
time in accordance with Rule 415 of Regulation C under the Securities Act by the
Company. Such registration statement and each post-effective amendment thereto,
if applicable, has been declared effective by the Commission. Such registration
statement, as so amended, if applicable, to the date of this Agreement
(including the exhibits and schedules thereto), is hereinafter referred to as
the "Registration Statement"; provided that in the event any post-effective
amendment to such registration statement or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, the term "Registration
Statement" shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. The prospectus covering
the Shelf Securities (the "Basic Prospectus"), as supplemented by the prospectus
supplement specifically relating to the Securities, in the forms first used to
confirm sales of the Securities, are collectively hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement, the
Basic
Prospectus, any preliminary form of prospectus (a "preliminary prospectus")
previously filed with the Commission pursuant to Rule 424 of Regulation C under
the Securities Act or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act"), on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations, warranties and agreements of the Company herein contained, but
subject to the conditions hereinafter stated, agrees to purchase, severally and
not jointly, from the Company the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule II hereto at the purchase
price set forth in Schedule I hereto plus accrued interest, if any, from the
date specified in Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i)
to make a public offering of their respective portions of the Securities in
conformity with the Securities Act, any applicable blue sky laws and all other
rules and regulations applicable to them in connection therewith and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order by wire transfer of same-day funds to an account designated by the Company
or, if specifically requested by the Company, by certified or official bank
check or checks payable to the Company in federal or other same-day funds on the
date and at the time and place set forth in Schedule I hereto (or at such other
time and place on the same or such other date, not later than the tenth Business
Day (as hereinafter defined) thereafter, as you and the Company may agree in
writing). Such payment will be made upon delivery to, or to you for the
respective accounts of, such Underwriters of the Securities through the
facilities of The Depository Trust Company or, if specifically requested by the
Representatives, in certificated form registered in such names and in such
denominations as you shall request not less than one full Business Day prior to
the date of delivery, or with any transfer taxes payable in connection with
transfer to the Underwriters duly paid by the Company. As used herein, the term
"Business Day" means any day other than a day on which banks are authorized or
required to be closed in the City of New York or Milwaukee, Wisconsin. The time
and date of such payment and delivery with respect to the Securities are
2
collectively hereinafter referred to as the "Closing Date." The certificates for
the Securities will be made available for inspection and packaging by you by
1:00 P.M. on the Business Day prior to the Closing Date at such place in the
City of New York as you and the Company shall agree.
4. The Company represents and warrants to each Underwriter as of the
date hereof and as of the Closing Date (each, a "Representation Date") that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act. The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission; the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, when they become effective
or are filed with the Commission, as the case may be, in all material respects
with the Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Trust
Indenture Act"); as of the applicable effective date and each Representation
Date, the Registration Statement and any amendment thereto 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; and as of the applicable filing date and each Representation Date,
the Prospectus and any amendment or supplement thereto did not and will 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; provided, however,
that the foregoing representations and warranties shall not apply to (i) that
part of the Registration Statement which constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee, and (ii)
statements or omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for inclusion therein.
(b) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, complied in all material respects with the
requirements of the Exchange Act, and none of such documents, when they were so
filed, 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; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will comply in all material respects
with the requirements of the Exchange Act, as applicable, and will 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.
3
(c) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the Company, except
as rights to indemnity and contribution hereunder may be limited by applicable
law.
(d) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company, enforceable in
accordance with its terms (except as the enforceability thereof may be limited
by bankruptcy, insolvency and other laws affecting the enforceability of
creditors' rights generally and general principles of equity and an implied
covenant of good faith and fair dealing), the Securities have been duly
authorized by the Company and, when executed and authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will have been duly
executed and delivered by the Company and will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms and the
terms of the Indenture (except as the enforceability thereof may be limited by
bankruptcy, insolvency and other laws affecting the enforceability of creditors'
rights generally and general principles of equity and an implied covenant of
good faith and fair dealing), and holders of the Securities will be entitled to
the benefits provided by the Indenture; and the Securities and the Indenture
conform in all material respects to the descriptions thereof in the Prospectus.
(e) The Company has been duly incorporated and is validly existing as
a corporation under the laws of the State of Wisconsin, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing (or the
local equivalent) under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
except where the failure to so qualify or to be in good standing would not
result in a material adverse effect on the business, financial position or
results of operations of the Company and its subsidiaries taken as a whole,
whether or not arising in the ordinary course of business (a "Material Adverse
Effect").
(f) Each of the Company's subsidiaries that constitutes a "significant
subsidiary" (as such term is defined in Rule 1-02 of Regulation S-X) as of the
last day of the Company's most recent fiscal quarter (each a "Subsidiary" and
collectively, the "Subsidiaries") has been duly organized and is validly
existing as a corporation or limited liability company in good standing under
the laws of the jurisdiction of its incorporation or organization, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation or limited liability company for the transaction of business
and is in good standing (or the local equivalent) under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, except where the failure to so qualify or to
be in good standing would not result in a Material Adverse Effect.
4
(g) The authorized, issued and outstanding shares of capital stock of
the Company is as set forth in the column entitled "Actual" under the
"Capitalization" section of the Prospectus, and such shares of capital stock
have been duly authorized and validly issued by the Company and are fully paid
and non-assessable (except for certain statutory liabilities that may be imposed
by Section 180.0622(2)(b) of the Wisconsin Business Corporation Law (the "WBCL")
for unpaid employee wages), and none of such shares of capital stock was issued
in violation of pre-emptive or other similar rights of any security holder of
the Company; all of the outstanding shares of capital stock or limited liability
company interests of each Subsidiary have been duly authorized and validly
issued and are fully paid and non-assessable (except, in the case of
Subsidiaries that are Wisconsin corporations, for certain statutory liabilities
that may be imposed by Section 180.0622(2)(b) of the WBCL for unpaid employee
wages), and, except as otherwise set forth in the Prospectus, all outstanding
shares of capital stock of the Subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances.
(h) The financial statements and schedules of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Prospectus and the Registration Statement present fairly in all material
respects the consolidated financial condition, results of operations and cash
flows of the Company and its consolidated subsidiaries as of the dates and for
the periods indicated, comply as to form with the applicable accounting
requirements of the Securities Act or the Exchange Act, as applicable, and have
been prepared in conformance with United States generally accepted accounting
principles applied on a consistent basis throughout the periods involved (except
as otherwise noted therein).
(i) PricewaterhouseCoopers LLP, who have certified the financial
statements included or incorporated by reference in the Prospectus, are
independent public accountants as required by the Securities Act.
(j) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
(A) there has been no material adverse change, or any development involving a
prospective material adverse change, in or affecting the business, financial
position or results of operations of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business (a "Material
Adverse Change") and (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those arising in the ordinary
course of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise.
(k) The execution, delivery and performance of this Agreement, the
Indenture 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 hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein and in
the Registration Statement and the Prospectus and compliance by the Company with
its obligations hereunder and thereunder do not and will not conflict with or
result
5
in a breach of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets, properties or
operations of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound or to which any of the
assets, properties or operations of the Company or any of its subsidiaries is
subject (collectively, the "Agreements and Instruments") the result of which
would have a Material Adverse Effect, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company or any of
its Subsidiaries or any applicable law or statute or any order, rule, regulation
or judgment of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their assets, properties or
operations, except for any such violations that would not, individually or in
the aggregate, result in a Material Adverse Effect.
(l) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body now pending, or to
the knowledge of the Company threatened, against or affecting the Company or any
of its subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein, including documents
incorporated by reference), or which might reasonably be expected to result in a
Material Adverse Effect (other than as stated therein, including the documents
incorporated by reference), or have a material adverse effect on the
consummation of the transactions contemplated under the Prospectus, this
Agreement or the Indenture or the performance by the Company of its obligations
hereunder and thereunder; and the aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or of
which any of their respective assets, properties or operations is the subject
which is not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business, is not
reasonably expected to result in a Material Adverse Effect.
(m) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the due authorization, execution and delivery by the Company of this
Agreement or for the performance by the Company of the transactions contemplated
under the Prospectus, this Agreement or the Indenture, except such as have
already been made, obtained or rendered, as applicable, and such as may be
required under state securities laws.
(n) Each insurance company subsidiary of the Company (collectively,
the "Insurance Subsidiaries") is duly licensed as an insurance company in its
jurisdiction of organization and is duly licensed or authorized as an insurer in
each jurisdiction outside its jurisdiction of organization where it is required
to be so licensed or authorized to conduct its business as described in the
Registration Statement and the Prospectuses, except where the failure to be so
licensed or authorized, individually or in the aggregate, would not result in a
Material Adverse Effect.
6
(o) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
5. The Company covenants and agrees with each Underwriter as follows:
(a) To file the Prospectus in a form approved by you (such approval
not to be unreasonably withheld or delayed) pursuant to Rule 424 of Regulation C
under the Securities Act not later than the Commission's close of business on
the second Business Day following the date of determination of the offering
price of the Securities.
(b) To deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto, in each
case including exhibits and documents incorporated by reference therein and,
during the period mentioned in subsection (e) below, to each of the Underwriters
as many copies of the Prospectus (including all amendments and supplements
thereto) and documents incorporated by reference therein as you may reasonably
request.
(c) For so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, to furnish to you a copy
of any proposed amendment or supplement to the Registration Statement or the
Prospectus, for your review, and not to file any such proposed amendment or
supplement to which you reasonably and timely object in writing; provided,
however, that the provisions of this subsection (c) shall not apply to any of
the Company's periodic filings under the Exchange Act described in subsection
(d), copies of which filings in substantially final form the Company has
delivered to you in advance of their transmission to the Commission for filing.
(d) To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the offering or sale
of the Securities, and during such same period, to advise you promptly, and to
confirm such advice in writing, (i) when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424 of Regulation C under the Securities Act or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (ii) when any
amendment to the Registration Statement shall have become effective, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for any additional information,
7
insofar as such amendment or supplement relates to or covers the Company
generally or the Securities specifically, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the initiation or threatening of any proceeding for that purpose, and (v) of the
receipt by the Company of any notification with respect to any suspension of the
qualification of the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to use its
best efforts to prevent the issuance of any such stop order or notification and,
if issued, to obtain as soon as possible the withdrawal thereof.
(e) If, at any time when a prospectus is required to be delivered
under the Securities Act, any event shall occur or condition shall exist as a
result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, promptly to prepare and
furnish, subject to subsection (c) above, at the expense of the Company (unless
such event shall occur more than nine months after the date of the Prospectus,
in which case the cost of preparing and furnishing such amendments or
supplements shall be borne by the Underwriter or Underwriters requesting the
same), to the Underwriters and to the dealers (whose names and addresses you
will furnish to the Company) to which Securities may have been sold by you on
behalf of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(f) To make generally available to its security holders as soon as
practicable an earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the
effective date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder.
(g) From and including the date hereof to and including the Business
Day following the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of, or guaranteed by, the Company which
are substantially similar to the Securities without your prior written consent.
(h) To arrange, if necessary, for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as required for
the distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction in which it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any jurisdiction
in which it is not now so subject.
8
(i) To pay, except as otherwise provided in paragraph (e) above, all
costs and expenses incident to the performance of its obligations hereunder,
including, without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution, authentication
and delivery of the Securities, including any expenses of the Trustee, (ii)
incident to the preparation and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii) incident
to the printing and delivery to you and the other Underwriters of reasonable
quantities of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and supplements
thereto), (iv) incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the laws of
such jurisdictions as the Underwriters may designate (including the fees and
disbursements of counsel for the Underwriters in an amount not to exceed
$5,000), (v) in connection with any listing of the Securities on any stock
exchange or quotation system, (vi) related to any required filing with the
National Association of Securities Dealers, Inc., (vii) in connection with the
duplication and delivery of this Agreement, the Indenture, the Preliminary and
Final Blue Sky Memoranda and any Legal Investment Survey and (viii) payable to
rating agencies in connection with the rating of the Securities; provided,
however, that, except as provided in this Section 5(i) and in Sections 7 and 10
hereof, the Underwriters shall pay their own costs and expenses, including the
fees and expenses of their counsel, any transfer taxes on the Securities which
they may sell and the expenses of advertising any offering of the Securities
made by the Underwriters.
(j) To not take, directly or indirectly, any action designed to or
which has constituted or which might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) The representations and warranties of the Company contained herein
are true and correct on and as of the Closing Date as if made on and as of the
Closing Date, and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date.
(b) The Prospectus shall have been filed with the Commission pursuant
to Rule 424 of Regulation C under the Securities Act within the applicable time
period prescribed for such filing by the rules and regulations under the
Securities Act; no stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall be
pending before or threatened by the Commission; and all reasonable requests for
additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction.
9
(c) From and including the date of this Agreement to and including the
Closing Date, there shall not have occurred any downgrading, nor shall any
notice have been given of (i) any intended or potential downgrading or (ii) any
probable change that does not indicate an improvement in the rating accorded any
securities of, or guaranteed by, the Company by Xxxxx'x Investors Service, Inc.
or Standard & Poor's Ratings Services.
(d) Since the respective dates as of which information is given in the
Prospectus there shall not have been any Material Adverse Change, otherwise than
as set forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the terms and in
the manner contemplated in the Prospectus.
(e) The Representatives shall have received on and as of the Closing
Date a certificate of the Chief Financial Officer or the Treasurer of the
Company, acting in their corporate capacities, to the effect set forth in
subsections (a) through (c) of this Section 6 and to the further effect that
there has not occurred any Material Adverse Change, other than as set forth or
contemplated in the Prospectus.
(f) Xxxxx & Xxxxxxx, counsel for the Company, shall have furnished to
you their written opinion (other than as to subparagraphs (vii) and (viii)
insofar as such subparagraphs relate to insurance law matters) and the General
Counsel or Associate General Counsel of the Company, shall have furnished to you
his written opinion (as to subparagraphs (vii) and (viii) insofar as such
subparagraphs relate to insurance law matters), each dated the Closing Date, in
form and substance reasonably satisfactory to you, to the effect that:
(i) The Company is validly existing as a corporation under the
laws of the State of Wisconsin, with corporate power and authority to own
its properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing (or the local equivalent) under the laws
of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where the
failure to so qualify or to be in good standing would not result in a
Material Adverse Effect.
(ii) Each Subsidiary of the Company is validly existing as a
corporation or limited liability company under the laws of the jurisdiction
of incorporation or organization, with corporate power and authority to own
its properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation or limited liability
company for the transaction of business and is in good standing (or the
local equivalent) under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such
qualification, except where the failure to so qualify or to be in good
standing would not result in a Material Adverse Effect.
10
(iii) All the outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued and are fully paid
and non-assessable (except, in the case of Subsidiaries that are Wisconsin
corporations, for certain statutory liabilities that may be imposed by
Section 180.0622(2)(b) of the WBCL for unpaid employee wages), and, except
as otherwise set forth in the Prospectus, all outstanding shares of capital
stock of the Subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any
other security interest, claim, lien or encumbrance.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Securities have been duly authorized by the Company
and, assuming that the Securities have been duly authenticated by the
Trustee in the manner described in its certificate delivered to you today
and payment of the consideration for the Securities as specified in the
Underwriting Agreement has been made, the Securities have been duly
executed, issued and delivered by the Company and will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms and the terms of the Indenture, except (A) as
the enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, (B) as enforcement
thereof is subject to general equity principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing; and holders of the Securities will be entitled to the
benefits provided by the Indenture.
(vi) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except (A) as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, (B) as
enforcement thereof is subject to general equity principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Indenture has been duly qualified
under the Trust Indenture Act.
(vii) The issue and sale of the Securities and the performance by
the Company of its obligations under the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any Agreements and
Instruments known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any such subsidiary is
bound or to which any of the assets, properties or operations of the
Company or any such subsidiary is subject, other than in each case such
breaches or defaults which, individually or in the aggregate, would not
result in a Material Adverse Effect, nor will such action resul in any
violation of the provisions of the charter or bylaws of the Company or any
of its Subsidiaries or any applicable law or statute or any order, rule,
regulation or judgment known to such counsel of any court or governmental
agency or body having
11
jurisdiction over the Company or any such subsidiary or any of their
assets, properties or operations.
(viii) No consent, approval, authorization, order, registration or
qualification of or filing with any court or governmental agency or body is
required for the issue and sale of the Securities or the consummation of
the other transactions contemplated by the Prospectus, this Agreement or
the Indenture, except such as have been already made, obtained or rendered,
as applicable, and such as may be required under state securities laws.
(ix) The statements in (A) the Prospectus under "Description of
Debt Securities" and "Description of Notes", (B) Item 5 of the Company's
Current Report on Form 8-K, dated May 19, 2000, incorporated by reference
into the Prospectus and (C) the Registration Statement in Item 15, insofar
as such statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present in all material respects
the matters, documents or proceedings summarized therein; and the
Securities and the Indenture conform as to legal matters in all material
respects to the descriptions thereof in the Prospectus.
(x) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus, and, to the knowledge of such
counsel, there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as
required.
(xi) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act.
(xii) The Registration Statement has become effective under the
Securities Act; any required filing of the Prospectus or any preliminary
prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for that purpose have been instituted
or threatened.
(xiii) Each document incorporated by reference in the Registration
Statement and the Prospectus (except for the financial statements and
schedules and other financial data included therein, as to which such
counsel need express no opinion) complied as to form when filed with the
Commission in all material respects with requirements of the
12
Exchange Act and the Registration Statement and the Prospectus and each
amendment or supplement thereto (except for the financial statements and
schedules and other financial data included therein, as to which such
counsel need express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the Trust Indenture Act.
Nothing has come to such counsel's attention that would lead such
counsel to believe that (except for the financial statements and schedules and
other financial data included therein, as to which such counsel need express no
belief) (A) the Registration Statement, when such Registration Statement became
effective or on the Closing Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (B) the Prospectus,
as of its date and on the Closing Date, included or includes an untrue statement
of a material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinions, such counsel may: (A) rely as to matters
of fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company given in their corporate capacity (it is understood that
such counsel shall be entitled to rely on certificates of such officers and
those of Subsidiaries with respect to the foreign qualification matters referred
to in subparagraph (ii) above) and certificates or other written statements of
officials of jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company and (B) limit such opinions to the
laws of the States of Delaware and Wisconsin and the Federal laws of the United
States of America and assume that the laws of the State of New York are
identical in all relevant aspects to the substantive laws of the State of
Wisconsin. With respect to the matters to be covered in the preceding paragraph,
counsel may state his belief is based upon his participation in the preparation
of the Registration Statement, Prospectus and any amendment or supplement
thereto but is without independent check or verification except as specified.
(g) On the date hereof and on the Closing Date, PricewaterhouseCoopers
LLP shall have furnished to you a letter, dated such date, in form and substance
reasonably satisfactory to you, containing statements and information of the
type customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(h) You shall have received on and as of the Closing Date an opinion
of Xxxxx, Xxxxx & Xxxxx, counsel to the Underwriters, with respect to the
validity of the Indenture and the Securities, the effectiveness of the
Registration Statement, the disclosure in the Registration Statement and the
Prospectus and such other matters as the Representatives may reasonably request,
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
13
(i) On or prior to the Closing Date, the Company shall have furnished
to the Representatives such further certificates and documents as the
Representatives shall reasonably request.
7. (a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim asserted
in respect thereof), as incurred, to which such Underwriter or controlling
person may be subject, insofar as such losses, claims, damages or liabilities
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained or included in the Registration Statement or any
amendment thereof, the Prospectus, the Prospectus as amended or
supplemented or any amendment or supplement thereto, or any preliminary
prospectus; or
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein or, in the case of the
Registration Statement or any amendment thereof, the Prospectus or the
Prospectus as amended or supplemented or any amendment or supplement
thereto, necessary to make the statements therein not misleading or, in the
case of any preliminary prospectus, necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
provided, however, that the Company shall not be liable insofar as
such losses, claims, damages or liabilities arise out of or are based upon an
untrue statement or omission or alleged untrue statement or omission made in any
preliminary prospectus or in the Registration Statement or any amendment
thereof, the Prospectus, the Prospectus as amended or supplemented or any such
amendment or supplement thereto in reliance upon and in conformity with
information furnished to the Company in writing by such Underwriter through the
Representatives expressly for inclusion therein; and provided, further, that the
Company shall not be liable to any Underwriter or any person controlling such
Underwriter under the indemnity agreement provided for in this paragraph (a)
with respect to a preliminary prospectus to the extent that any such loss,
claim, damage or liability of such Underwriter or controlling person results
solely from the fact that such Underwriter sold Securities to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus (excluding documents incorporated by reference)
or of the Prospectus as then amended or supplemented (excluding documents
incorporated by reference), whichever is most recent, if (A) the Company has
previously furnished copies thereof to such Underwriter and (B) the applicable
untrue or alleged untrue statement or omission was corrected therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each
14
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, the
reasonable legal fees and other expenses reasonably incurred in connection with
any suit, action or proceeding or any claim asserted in respect thereof), as
incurred, to which the Company may become subject, insofar as such losses,
claims, damages or liabilities arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained or included in the Registration Statement or any
amendment thereof, the Prospectus, the Prospectus as amended or
supplemented or any amendment or supplement thereto, or any preliminary
prospectus; or
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein or, in the case of the
Registration Statement or any amendment thereof, the Prospectus or the
Prospectus as amended or supplemented or any amendment or supplement
thereto, necessary to make the statements therein not misleading or, in the
case of any preliminary prospectus, necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
in each case to the extent, but only to the extent, that such untrue statement
or omission or alleged untrue statement or alleged omission was made in any
preliminary prospectus or in the Registration Statement or any amendment
thereof, the Prospectus or the Prospectus as amended or supplemented or any
amendment or supplement thereto in reliance upon and in conformance with
information furnished to the Company in writing by or on behalf of such
Underwriter expressly for use therein.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought (the "Indemnified
Person") pursuant to either of subsections (a) or (b) above, such Indemnified
Person shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Person") in writing (in such detail as may be
available to such Indemnified Person). In no case shall an Indemnifying Person
be liable under this Section 7 with respect to any claim made against an
Indemnified Person unless such Indemnifying Person shall be notified in writing
of the nature of the claim within a reasonable time after the Indemnified Party
is aware of such claim thereof, but failure so to notify such Indemnifying
Person shall not relieve it from any liability that it may have otherwise than
on account of this Section 7. Upon such notice, the Indemnifying Person shall be
entitled to participate in, and, to the extent that it shall wish, jointly with
any other Indemnifying Person similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such Indemnified Person, and after
notice from the Indemnifying Person to such Indemnified Person of its election
so to assume the defense thereof, the Indemnifying Person shall not be liable to
such Indemnified Person for any legal or other expenses subsequently incurred by
such Indemnified Person in connection with the defense thereof other than
reasonable costs of
15
investigation or as provided in subsection (d) below. Each Indemnified Person
shall assist the Indemnifying Person in any defense undertaken pursuant to this
Section 7 by providing such assistance and cooperation (including, without
limitation, witness and documentary or other information) as may be reasonably
requested by the Indemnifying Person in connection with such defense, provided
that all reasonable costs and expenses of such assistance and cooperation shall
be borne by the Indemnifying Person.
(d) Notwithstanding anything herein contained, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in the applicable suit, action, proceeding, claim or demand
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
defenses available to them. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses, to the extent they are reasonable, shall be reimbursed
as they are incurred. Any such separate firm for the Underwriters and such
control persons of the Underwriters shall be designated in writing by the first
of the named Representatives on Schedule I hereto and any such separate firm for
the Company, its directors, its officers who sign the Registration Statement and
such control persons of the Company or authorized representatives shall be
designated in writing by the Company. In either case, the separate firm so
selected shall be reasonably satisfactory to the Indemnifying Person. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened claim, action, suit or proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless the Indemnifying Person has
first given the Indemnified Person reasonable prior written notice of such
proposed settlement and consulted in good faith with the Indemnified Person as
to the inclusion therein of an unconditional release of the Indemnified Person
from all liability arising out of such claim, action, suit or proceeding; and in
the event that an Indemnified Person is an actual party to such claim, action,
suit or proceeding, the Indemnifying Party shall not, without the prior written
consent of the Indemnified Person, settle or compromise or consent to the entry
of any judgment therein unless the same includes an unconditional release of
such Indemnified Person from all liability arising out of or otherwise relating
to the subject matter of such claim, action, suit or proceeding.
16
(e) If the indemnification provided for in subsections (a) or (b)
above is legally unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such subsection, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations.
(f) The relative benefits received by the Company on the one hand and
the Underwriters on the other hand shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Securities (before
deducting expenses) received by the Company and the total underwriting discounts
and the commissions received by the Underwriters bear to the aggregate public
offering price of the Securities. The relative fault of the Company on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. With respect to any Underwriter, such
relative fault shall also be determined by reference to the extent (if any) to
which such losses, claims, damages or liabilities (or actions in respect
thereof) with respect to any preliminary prospectus result from the fact that
such Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the Prospectus
as then amended or supplemented (excluding documents incorporated by reference)
if the Company has previously furnished copies thereof to such Underwriter.
(g) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account the
equitable considerations referred to in subsection (f) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in subsection (f) above shall be deemed to include,
subject to the limitations set forth above, any reasonable legal or other
expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that
17
such Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of the Securities set forth opposite their names in
Schedule II hereto, and not joint.
(h) The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability that the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
(i) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any other person controlling
the Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if, from and including the date of this Agreement to and including
the Closing Date, (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, the New York Stock Exchange or the
National Association of Securities Dealers, Inc., (ii) trading of any securities
of, or guaranteed by, the Company shall have been suspended on any stock
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representatives, is material and
adverse and which, in the good faith judgment of the Representatives, makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities that it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Securities that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the principal amount of Securities that any Underwriter has agreed to
purchase pursuant to Section I be increased
18
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Securities and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased, and arrangements
satisfactory to you and the Company for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or Underwriters or the
Company. In any such case, either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
in all material respects with the terms or to fulfill in all material respects
any of the conditions of this Agreement, the Company agrees to reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all documented out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone on behalf of the Underwriters, and any such action taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in Schedule
I hereto. Notices to the Company shall be given to it at MGIC Plaza, 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 Attention: Treasurer, with a copy to
the same address, Attention: General Counsel.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be
19
governed by and construed in accordance with the laws of the State of New York,
without giving effect to the conflicts of laws provisions thereof.
Very truly yours,
MGIC INVESTMENT CORPORATION
By:
--------------------------------------
Name:
Title:
Accepted:
[NAME OF MANAGERS]
By: [NAME OF LEAD MANAGER]
By:
----------------------------------
Name:
Title:
Acting severally on behalf of themselves and the several Underwriters named
herein.
20
SCHEDULE I
The Securities
Representatives:
Title of Securities: % Notes due
Aggregate principal amount: $
Maturity: 0
Interest Rate: % per annum
Interest Payment Dates: and commencing , 2000
Optional Redemption/
Repayment Provisions:
Sinking Fund Provisions:
Price to Public:
Price to Underwriters:
Form: Book-entry only form through the facilities
of The Depository Trust Company
Other Provisions: Not applicable
21
Closing Date and Location: , 2000
9:00 a.m., Central Time
Xxxxx & Lardner
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Address for Notices to
Underwriters:
22
SCHEDULE II
Principal Amount
Underwriter of Securities
----------- ----------------
Total:
23
