Exhibit 1
UNDERWRITING AGREEMENT
As of ________, 199_
GE Financial Assurance Holdings, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
GE Financial Assurance Holdings, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell [Currency and Principal Amount]
aggregate principal amount of [Full title of Notes] (the "Notes"). The Notes
will be issued pursuant to the provisions of the Indenture listed below (as
such Indenture shall be supplemented to the date hereof) (the "Indenture")
between the Company and the Trustee named below (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Notes set forth below opposite their names at a purchase price of ____% of the
principal amount of Notes [plus accrued interest, if any, from [Date of Notes]
to the date of payment and delivery:
2
Principal Amount
Name of Notes
-------------------- ----------------
Total. . . $
============
The Underwriters will pay for the Notes upon delivery thereof at
the location identified below at _____ a.m. (New York time) on ___________,
199_, or at such other time, not later than 3:00 p.m. (New York time) on
_________, 199_, as shall be agreed upon by the Company and the Manager. The
time and date of such payment and delivery are hereinafter referred to as the
"Closing Date."
The Notes shall have the terms set forth in the Prospectus dated
_________, 199_ and the Prospectus Supplement dated _________, 199_, including
the following:
Registration Statement No.
Manager(s) and address(es):
Certain Terms of the Notes:
Title of Notes:
Aggregate Principal Amount of Notes:
Maturity Date:
Interest Rate:
Principal and Interest ___________ __ and
Payment Dates: ___________ __,
commencing
___________ __, 199_
Record Dates: ___________ __ and
___________ __
Redemption Provisions:
Repayment Provisions:
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Title of Indenture:
Trustee:
Note Transfer Agent and Registrar:
Closing Date and Location:
The Notes are to be offered to the public at the Initial Public
Offering Price specified below, and to dealers at prices which represent
concessions not in excess of the Dealer Concession set forth below, and the
Underwriters may allow and such dealers may reallow concessions not in excess
of the Reallowance Concession set forth below:
Initial Public Offering Price: ___% of the principal
amount of the Notes
[plus accrued
interest from _____,
199_](1)
Purchase Price: __% of the principal
amount of the Notes
[plus accrued
interest from ____,
199__](1)
Dealer Concession: ____% of the
principal amount of
the Notes
Reallowance Concession: ____% of the
principal amount of
the Notes
[In addition to the conditions to the several obligations of the
Underwriters incorporated by reference herein, the several obligations of the
Underwriters hereunder are subject to the condition that the Notes shall be
rated no lower than "__" by Standard & Poor's Corporation and "__" by Xxxxx'x
Investors Service, Inc.](2)
All provisions contained in the document entitled GE Financial
Assurance Holdings, Inc. Underwriting Agreement Standard Provisions (Debt
Securities) dated__ , 199__ (the "Standard Provisions"), are herein
incorporated by
----------
(1) To be added only if the transaction does not close flat.
(2) To be included only in the Underwriting Agreement relating to the first
issuance of Notes.
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reference in their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein, except that if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control.
This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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Please confirm your agreement by having an authorized officer
sign a copy of this Agreement as of the date first set forth above in the
space set forth below.
Very truly yours,
[Name(s) of Representative(s)
or Underwriter(s)]
[Acting on behalf of
itself and the several
Underwriters named herein]
By: [Name of Signing
Representative or
Underwriter]
By: __________________________
Name:
Title:
GE FINANCIAL ASSURANCE
HOLDINGS, INC.
By: _____________________________
Name:
Title:
1
GE FINANCIAL ASSURANCE HOLDINGS, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
___________, 199__
From time to time, GE Financial Assurance Holdings, Inc., a
Delaware corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated debt securities to the
several underwriters named therein. The standard provisions set forth herein
may be incorporated by reference in any such underwriting agreement (with
respect to such designated debt securities, the "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), and there has become effective, a registration statement (the
file number of which will be set forth in the Underwriting Agreement),
including a prospectus, relating to debt securities of the Company, including
the Notes, and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to
the Notes pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"). The term "Registration Statement" means such
registration statement, including the exhibits thereto, as amended to the
date of this Agreement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating
to the Notes, together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include
in each case the documents incorporated by reference therein. The terms
"supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering
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of their respective portions of the Notes as soon after this Agreement is
entered into as in the Manager's judgment is advisable. The terms of the public
offering of the Notes are as specified in the Underwriting Agreement.
2. Purchase and Delivery. Payment for the Notes shall be made by
wire transfer in immediately available funds (unless payment in other form of
funds is specified in the Underwriting Agreement) to the account specified by
the Company to the Manager the business day prior to the time of closing, on
the date and at the time specified in the Underwriting Agreement, upon
delivery to the nominee of The Depository Trust Company for the respective
accounts of the several Underwriters of one or more global notes representing
the Notes.
3. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) 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 (to the knowledge of the Company) threatened by
the Commission; there shall have been no material adverse change and no
development involving a prospective material adverse change in the condition
of the Company and its consolidated affiliates, taken as a whole, from that
set forth in the Registration Statement and the Prospectus, as amended or
supplemented as of the date of the Underwriting Agreement; and the
representations and warranties of the Company contained herein shall be true
and correct on and as of the Closing Date as if made on and as of the Closing
Date; and the Manager 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 that 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 knowledge of such executive officer) threatened by
the Commission, there has been no material adverse change and no development
involving a prospective material adverse change in the condition of the
Company and its consolidated affiliates, taken as a whole, from that set
forth in the Registration Statement and the Prospectus, as amended or
supplemented as of the date of the Underwriting Agreement and 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.
(b) The Manager shall have received on and as of the Closing Date
an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the State of
Delaware with all requisite
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corporate power and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) the Indenture has been duly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act") and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding instrument of the Company enforceable against the Company
in accordance with its terms;
(iii) the Notes have been duly authorized, executed and issued by
the Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Underwriting Agreement,
will constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms and entitled to the
benefits of the Indenture;
(iv) this Agreement has been duly authorized, executed and delivered
by the Company;
(v) no consent, approval, authorization, order, registration or
qualification of or with any Federal or New York court or governmental
agency or body or any Delaware court or governmental agency or body acting
pursuant to the Delaware General Corporation Law is required for the issue
and sale of the Notes by the Company or the consummation by the Company of
the other transactions contemplated by this Agreement and the Indenture
except for the registration under the Securities Act and such as may be
required under the securities or blue sky laws in connection with the
purchase and distribution of the Notes by the Underwriters, nor will the
issue and sale of the Notes by the Company or the compliance by the
Company with all of the provisions of this Agreement or the Indenture or
the consummation of the transactions herein and therein contemplated
violate the Company's Certificate of Incorporation or By-laws or any
Federal or New York statute or the Delaware General Corporation Law or any
rule or regulation or any judgment, order or decree known to such counsel
that has been issued pursuant to any Federal or New York statute or the
Delaware General Corporation Law by any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties or breach or result in any default under any
indenture, mortgage or other agreement or instrument known to such
counsel;
(vi) the statements made in the Prospectus under the captions
"Description of Debt Securities" and "Certain Terms of Notes," insofar as
they purport to constitute summaries of certain terms of documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects;
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(vii) there are no contracts or other documents known to such
counsel that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement or incorporated by reference therein that are not described
and filed or incorporated by reference as required; and
(viii) the Registration Statement has become effective under the
Securities Act, and to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or
threatened by the Commission; the Prospectus was filed with the
Commission pursuant to Rule 424(b) of the rules and regulations under
the Securities Act.
In addition, such counsel shall state that they have participated
in conferences with certain officers and employees of the Company,
representatives of the Company's independent public accountants, the
Underwriters and their counsel, and although such counsel is not passing
upon, and does not assume any responsibility for, the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus and has not made any independent check or verification thereof
except to the extent described in (vi) and (vii) above, on the basis of the
foregoing, based upon their examination of the Registration Statement and the
Prospectus (including the documents incorporated by reference therein), their
investigations made in connection with the preparation of the Registration
Statement and the Prospectus (including the documents incorporated by
reference therein) and their participation in the conferences referred to
above, (i) such counsel is of the opinion that the Registration Statement, as
of its effective date, or if the Registration Statement has been amended, as
of the effective date of such amendment, and the Prospectus, as of the date
of the Prospectus Supplement relating to the Notes, complied as to form in
all material respects with the requirements of the Securities Act, the Trust
Indenture Act and the applicable rules and regulations of the Commission
thereunder, except that in each case such counsel expresses no opinion with
respect to the financial statements or other financial or statistical data
contained in the Registration Statement or the Prospectus, or with respect to
the Statement of Eligibility on Form T-1 of the Trustee, (ii) such counsel is
of the opinion that each document incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, when such document was filed or became
effective, or if any incorporated documents was amended, when such amendment
was filed or became effective, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, except that in each case such
counsel expresses no opinion with respect to the financial statements or
other financial or statistical data contained in any such document, and (iii)
such counsel has no
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reason to believe that the Registration Statement, as of its effective date
and as of the date of the Prospectus Supplement relating to the Notes,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the date of
the Prospectus Supplement relating to the Notes, contained, and the
Prospectus (as amended or supplemented) contains any untrue statement of a
material fact or omitted or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case such counsel
expresses no opinion or belief with respect to the financial statements or
other financial or statistical data contained in the Registration Statement
or the Prospectus, or with respect to the Statement of Eligibility on Form
T-1 of the Trustee.
(c) The Manager shall have received on and as of the Closing Date
an opinion of _____________________ of the Company dated the Closing Date, to
the effect that:
(i) each of Colonial Penn P&C Group, First Colony Life Insurance
Company, General Electric Capital Assurance Company, Great Northern
Insured Annuity Corporation and The Life Insurance Company of Virginia
(collectively, the "Subsidiaries") has been duly incorporated and is
validly existing and in good standing as a corporation under the laws of
its jurisdiction of incorporation with all requisite corporate power and
authority to own its properties and conduct its business as described in
the Prospectus;
(ii) each of the Company and the Subsidiaries is duly qualified
to transact business and is in good standing in the jurisdictions in
which the conduct of its business or the ownership of its property
requires such qualification, except where the failure to be so
qualified or in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(iii) all of the issued shares of capital stock of or other
ownership interests in each Subsidiary have been duly and validly
authorized and issued and are fully paid and non-assessable and, except
as set forth in the Prospectus or for directors' qualifying shares, are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iv) the issuance and sale of the Notes by the Company as provided
herein, the compliance by the Company with all of the provisions of the
Notes, the Indenture and this Agreement and the consummation of the
transactions contemplated herein and therein will not contravene the
organizational documents of any of the Subsidiaries or result in any
violation of any of the terms or provisions of
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(x) any law, order, rule or regulation (other than with respect to
applicable state securities or Blue Sky laws or state insurance
securities laws, as to which such counsel need not express any opinion)
or (y) any indenture, mortgage or other agreement or instrument known
to such counsel by which the Company or any of its subsidiaries is
bound, except, in the case of this clause (y), for such violations that
would not, individually or in the aggregate, have a material adverse
affect on the Company and its subsidiaries, taken as a whole;
(v) each of the Company and the Subsidiaries has all licenses,
consents, approvals, authorizations, orders, registrations and
qualifications of or from, and has made all filings with, all courts and
governmental agencies and bodies necessary to own, lease, license and use
its properties and conduct its business as described or contemplated by
the Prospectus and is in compliance with all laws, orders, rules and
regulations of all courts and governmental agencies and bodies having
jurisdiction over it and any of its properties, except where the failure
to have any such license, consent, approval, authorization, order,
registration or qualification, or so to comply, would not, individually or
in the aggregate with all other such failures, have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and, to the
best of such counsel's knowledge, after due inquiry, there is no pending
or threatened action, suit, proceeding or investigation that reasonably
could lead to the revocation, termination or suspension of, or render
invalid or otherwise ineffective, any such license, consent, approval,
authorization, order, registration or qualification, other than any such
revocation, termination, suspension, invalidity or ineffectiveness that
would not, individually or in the aggregate with all other such
revocations, terminations, suspensions, invalidities and ineffectiveness,
have a material adverse effect on the Company and its subsidiaries, taken
as a whole;
(vi) the statements contained in the Prospectus under the caption
"The Company -- Regulatory Matters" and in Item 8 of the Company's
Registration Statement on Form 10 as filed with the Commission on
November 13, 1997, insofar as they purport to constitute summaries of
certain proceedings, legal matters or terms of documents referred to
therein, constitute accurate summaries of such proceedings, legal
matters or terms of such documents in all material respects; and
(vii) except as disclosed in the Prospectus, there are no pending
or threatened actions, suits or proceedings known to such counsel
against the Company or any of its
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subsidiaries that are required to be disclosed in the Registration
Statement that are not so disclosed.
In addition, such counsel shall state that he has participated in
conferences with certain officers and employees of the Company,
representatives of the Company's independent public accountants, the
Underwriters and their counsel, and although such counsel is not passing
upon, and does not assume any responsibility for, the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus and has not made any independent check or verification thereof
except to the extent described in (vi) and (vii) above, on the basis of the
foregoing, based upon his examination of the Registration Statement and the
Prospectus (including the documents incorporated by reference therein), his
investigations made in connection with the preparation of the Registration
Statement and the Prospectus (including the documents incorporated by
reference therein) and his participation in the conferences referred to
above, such counsel has no reason to believe that the Registration Statement,
as of its effective date and as of the date of the Prospectus Supplement
relating to the Notes, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus, as of
the date of the Prospectus Supplement relating to the Notes, contained, and
the Prospectus (as amended or supplemented) contains any untrue statement of
a material fact or omitted or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case such counsel
expresses no opinion or belief with respect to the financial statements or
other financial or statistical data contained in the Registration Statement
or the Prospectus, or with respect to the Statement of Eligibility on Form
T-1 of the Trustee.
(d) The Manager shall have received on and as of the Closing Date
an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the
Closing Date, covering the matters in (ii), (iii), (iv) and (vi) of paragraph
(b) above.
In addition, such counsel shall state that they have participated
in conferences with certain officers and employees of the Company,
representatives of the Company's independent public accountants, the
Underwriters and their counsel, and although such counsel is not passing
upon, and does not assume any responsibility for, the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus and has not made any independent check or verification thereof
except to the extent described in (vi) of paragraph (b) above, on the basis
of the foregoing, based upon their consideration of the Registration
Statement and the Prospectus and their participation in the conferences
referred to above, (i) such counsel is of the opinion that the Registration
Statement,
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as of its effective date, or if the Registration Statement has been amended,
as of the effective date of such amendment, and the Prospectus as of the date
of the Prospectus Supplement relating to the Notes, complied as to form in
all material respects with the requirements of the Securities Act, the Trust
Indenture Act and the applicable rules and regulations of the Commission
thereunder, except that in each case such counsel expresses no opinion with
respect to the financial statements or other financial or statistical data
contained in the Registration Statement or the Prospectus, or with respect to
the Statement of Eligibility on Form T-1 of the Trustee and (ii) such counsel
has no reason to believe that the Registration Statement, as of its effective
date and as of the date of the Prospectus Supplement relating to the Notes,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the date of
the Prospectus Supplement relating to the Notes, contained, and the
Prospectus (as amended or supplemented) contains any untrue statement of a
material fact or omitted or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case such counsel
expresses no opinion or belief with respect to the financial statements or
other financial or statistical data contained in the Registration Statement
or the Prospectus, or with respect to the Statement of Eligibility on Form
T-1 of the Trustee.
In rendering the opinions referred to in paragraphs (b) and (d)
above, such counsel may state that the opinions set forth in (ii) and (iii)
of paragraph (b) are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceedings in equity or at law) and an
implied covenant of good faith and fair dealing.
(e) The Manager shall have received on the date of this
Agreement, a letter dated such date, from KPMG Peat Marwick LLP, independent
public accountants, and on the Closing Date, a letter dated the Closing Date
from KPMG Peat Marwick LLP, in each case in form and substance satisfactory
to the Manager, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial and pro forma information
contained in or incorporated by reference into the Registration Statement and
the Prospectus.
4. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) To furnish to the Manager, without charge (i) upon the
request of the Manager, two conformed copies of the
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Registration Statement (including exhibits and documents incorporated by
reference), and for delivery to each other Underwriter a conformed copy of
the Registration Statement (without exhibits but including documents
incorporated by reference) and (ii) during the period mentioned in paragraph
(c) below, as many copies of the Prospectus and any amendments or supplements
thereto prepared pursuant to paragraph (c) below as the Manager may
reasonably request.
(b) To prepare and file (or mail for filing) with the Commission
pursuant to Rule 424 under the Securities Act as promptly as practicable
after the execution of this Agreement, a prospectus supplement in a form
approved by the Manager setting forth such information as is necessary so
that the Prospectus, when delivered to a purchaser of the Notes, will comply
with law and, before amending the Registration Statement or supplementing the
Prospectus with respect to the Notes, to furnish the Manager a copy of each
such proposed amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Notes as in the opinion of Xxxxx Xxxx & Xxxxxxxx a prospectus
is required by law to be delivered in connection with sales by an Underwriter
or dealer, any event shall occur 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, forthwith to prepare and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses
the Manager shall furnish to the Company) to which Notes may have been sold
by the Manager on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that 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.
(d) To endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws or insurance securities laws of such
jurisdictions as the Manager shall reasonably request and to pay all expenses
(including fees and disbursements of counsel) reasonably incurred in
connection with such qualification and in connection with the determination
of the eligibility of the Notes for investment under the laws of such
jurisdictions as the Manager may so designate; provided that the Company
shall not be required to qualify to do business in any jurisdiction where it
is not now qualified, to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now subject
or to qualify the Notes for offer and sale in any jurisdiction (notified to
the Manager prior to the execution of the Underwriting Agreement) in which
the Company is unable or
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unwilling to comply with disclosure or reporting requirements imposed by such
jurisdiction.
(e) To make generally available to its security holders as soon
as practicable an earnings statement (which need not be audited) covering a
twelve-month period beginning after the date of this Agreement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder.
5. Representations and Warranties; Indemnification and
Contribution. The Company represents and warrants to each Underwriter that
(i) each document filed by the Company pursuant to the Exchange Act which is
incorporated by reference in the Prospectus complied when so filed in all
material respects with the Exchange Act and the rules and regulations
thereunder, and each document, if any, hereafter filed and so incorporated by
reference in the Prospectus will comply when so filed in all material
respects with the Exchange Act and the rules and regulations thereunder; (ii)
the Registration Statement and the Prospectus comply, and the Registration
Statement and the Prospectus (and any amendments and supplements thereto,
other than supplements relating only to debt securities other than the Notes)
will on the Closing Date comply in all material respects with the Securities
Act and the rules and regulations of the Commission thereunder; (iii) each
preliminary prospectus, if any, filed pursuant to Rule 424 under the
Securities Act complied when so filed in all material respects with the
Securities Act and the rules and regulations thereunder; (iv) the
Registration Statement, at the time it became effective and as of the date of
the Prospectus Supplement relating to the Notes, did 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 the Prospectus as of the date of the Prospectus Supplement relating to
the Notes did not, and the Prospectus (as amended or supplemented, other than
as to supplements relating only to debt securities other than the Notes) on
the Closing Date will not, contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
except that these representations and warranties do not apply to statements
or omissions in the Registration Statement or the Prospectus based upon
information furnished to the Company in writing by any Underwriter expressly
for use therein; and (v) the Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter 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 caused
by any untrue statement or alleged untrue statement of a material fact
contained in the
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Registration Statement, any preliminary prospectus or the Prospectus (if used
within the period set forth in paragraph (c) of Section 4 hereof and as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in
writing to the Company by any Underwriter expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Notes, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendment or supplements thereto) was not sent or given by or
on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Notes to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished in writing by such Underwriter expressly for use in the
Registration Statement, the Prospectus or any preliminary prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party, and any others the indemnifying party may designate in
such proceeding and shall pay the reasonable fees and expenses of such
counsel related to such proceeding. In any such proceeding, any indemnified
party 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 party
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
12
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying
party shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm (in addition to local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by the Manager
in the case of parties indemnified pursuant to the second preceding paragraph
and by the Company in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party 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 party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under the second or third paragraphs
hereof in respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party 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 Notes 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 in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the Prospectus, bear to the aggregate public offering price of the
Notes. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue statement of a material fact or the omission to
state a material fact relates to
13
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.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 5 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 which does not take
account of the equitable considerations provided for in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 5, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes underwritten by such
Underwriter and distributed to the public were offered to the public exceeds
the amount of any damages which such Underwriter has otherwise been required
to pay by reason of such untrue 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 5 are several, in proportion to the respective amounts of the
Notes underwritten by each of such Underwriters, and not joint. The remedies
provided for in this Section 5 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any indemnified party
at law or in equity.
The indemnity and contribution agreements contained in this Section
5 and the representations and warranties of the Company 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 directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Notes.
6. Termination. Unless otherwise provided in the Underwriting
Agreement, this Agreement shall be subject to termination in the discretion
of the Manager at any time prior to the Closing Date, by notice given by the
Manager to the Company, if (i) trading in securities generally on the New
York Stock Exchange shall have been suspended or materially limited; (ii) a
general moratorium on commercial banking activities in the State of New York
or the United States shall have been declared by Federal or New York State
authorities; or (iii) there shall have occurred any material outbreak, or
material escalation, of
14
hostilities or other national or international calamity or crisis, of such
magnitude and severity in its effect on the financial markets of the United
States, in the reasonable judgment of the Manager, as to prevent or
materially impair the marketing, or enforcement of contracts for sale, of the
Notes.
If this Agreement shall be terminated by the Underwriters, or any
of them, because (a) of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or (b) for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with the Notes.
7. Defaulting Underwriters. If, on the Closing Date any one or
more of the Underwriters shall fail or refuse to purchase Notes which it or
they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Notes 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 Notes to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the
principal amount of Notes set forth opposite their respective names in the
Underwriting Agreement bears to the aggregate principal amount of Notes set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Manager may specify, to purchase the Notes which
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 Notes that any Underwriter has agreed to purchase be increased pursuant to
this Section by an amount in excess of one-ninth of such principal amount of
Notes without the written consent of such Underwriter. If, on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Notes
which it or they have agreed to purchase hereunder on such date, and the
aggregate principal amount of Notes with respect to which such default occurs
is more than one-tenth of the aggregate principal amount of Notes to be
purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Notes are not made within 36 hours after
such edfault, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either the
Manager 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 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.
15
8. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
9. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
