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Exhibit 1.1
STANDARD DISTRIBUTION AGREEMENT TERMS
WITH RESPECT TO
HARTFORD LIFE GLOBAL FUNDING
SECURED MEDIUM-TERM NOTES AND INCOMENOTES(SM)
DATED AS OF JULY 23, 2004
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STANDARD DISTRIBUTION AGREEMENT TERMS
This document
constitutes Standard Distribution Agreement Terms which are
incorporated by reference in the
Distribution Agreement (included in the omnibus
instrument through which certain of the
documents related to the issuance of the
Notes are executed (the "OMNIBUS
INSTRUMENT"), dated as of the date set forth
therein (the "DISTRIBUTION AGREEMENT"), by
and among the Trust, Hartford Life
Insurance Company (the "COMPANY"), and each
Agent specified in the Distribution
Agreement.
These Standard
Distribution Agreement Terms shall be of no force and effect
unless and until incorporated by reference
into, and then only to the extent not
modified by, the Distribution
Agreement.
The following
terms and provisions shall govern the terms of the
distribution of the Notes issued by the
Trust, subject to such other terms and
provisions expressly adopted in the
Distribution Agreement.
Capitalized
terms not otherwise defined in these Standard Distribution
Agreement Terms shall have their respective
meanings ascribed to them in the
Distribution Agreement.
In connection
with the Hartford Life Global Funding Program (the "PROGRAM")
arranged by Bear Stearns & Co. Inc., as
arranger, the Company has authorized the
issuance and sale of a funding agreement to
the Trust in order to secure the
Notes issued to the Agent(s) pursuant to
the terms of this Distribution
Agreement.
The Notes are to
be issued pursuant to the Indenture. The Trust shall issue
only the Notes. The Trust will use the net
proceeds from the sale of the Notes
to purchase a funding agreement (the
"FUNDING AGREEMENT") from the Company. The
Notes will be secured by the Funding
Agreement which will be assigned by the
Trust to the Indenture Trustee on behalf of
the holders of the Notes pursuant to
the Indenture. In connection with the sale
of the Notes, the Trust will prepare
a Pricing Supplement (the "PRICING
SUPPLEMENT") including or incorporating by
reference a description of the terms of the
Notes, the terms of the offering and
a description of the Trust.
Subject to the
terms and conditions contained in this Distribution
Agreement, the Company and the Trust hereby
(1) appoint only Bear, Stearns & Co.
Inc. as purchasing agent (the "PURCHASING
AGENT"); and (2) appoint the
Purchasing Agent and/or such other parties
specified in the Pricing Supplement
(the Purchasing Agent and each such party,
an "AGENT") for the purpose of
purchasing and selling the Notes. For
purposes of this Distribution Agreement,
all references to any Agent shall be deemed
to include the Purchasing Agent.
This
Distribution Agreement specifies terms and conditions on which
the
Notes may be sold by the Trust to the
Agent(s) as principal for resale to
investors.
The Company has
made the requisite filings with the Securities and Exchange
Commission (the "COMMISSION") pursuant to
the Securities Exchange Act of 1934,
as amended (the "1934 ACT"), and the rules
and regulations of the Commission
under the 1934 Act (the "1934 ACT
REGULATIONS"). The Company has filed with the
Commission a registration statement
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on Form S-3 File No. 333-112244 on January
27, 2004, as amended by pre-effective
amendment no. 1 filed with the Commission
on March 16, 2004, pre-effective
amendment no. 2 filed with the Commission
on May 4, 2004 and pre-effective
amendment no. 3 filed with the Commission
on July 27, 2004, for the registration
of funding agreements by the Company and
notes under the Securities Act of 1933,
as amended (the "1933 ACT"), and the
offering thereof from time to time in
accordance with Rule 415 of the rules and
regulations of the Commission under
the 1933 Act (the "1933 ACT REGULATIONS").
Such registration statement has been
declared effective by the Commission and
the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as
amended (the "1939 ACT") and the rules
and regulations of the Commission under the
1939 Act (the "1939 ACT
REGULATIONS"), and the Company has filed
such post-effective amendments thereto
as may be required prior to the Trust's
acceptance of any offer for the purchase
of Notes and each such post-effective
amendment has been declared effective by
the Commission. Such registration statement
(as so amended, if applicable) is
referred to herein as the "REGISTRATION
STATEMENT"; and the final prospectus and
all applicable amendments or supplements
thereto (including the final prospectus
supplements and Pricing Supplement relating
to the offering of the Notes), in
the form first furnished to the Agent(s)
for use in confirming sales of the
Notes, are collectively referred to herein
as the "PROSPECTUS"; PROVIDED,
HOWEVER, that all references to the
"Registration Statement", and the
"Prospectus" shall also be deemed to
include all documents incorporated therein
by reference pursuant to the 1934 Act,
prior to any acceptance by the Trust of
an offer for the purchase of Notes;
PROVIDED, FURTHER, that if the Company files
a registration statement with the
Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "RULE 462(b)
REGISTRATION STATEMENT"), then, after such
filing, all references to the "Registration
Statement" shall also be deemed to
include the Rule 462(b) Registration
Statement. A "PRELIMINARY PROSPECTUS" shall
be deemed to refer to any prospectus and
any prospectus supplement used before
the Registration Statement became effective
and any prospectus and any
prospectus supplement furnished by the
Company or the Trust after the
Registration Statement became effective and
before any acceptance by the Trust
of an offer for the purchase of Notes which
omitted information to be included
upon pricing in a form of prospectus and
prospectus supplement filed with the
Commission pursuant to Rule 424(b) of the
1933 Act Regulations. For purposes of
this Distribution Agreement, all references
to the Registration Statement,
Prospectus or preliminary prospectus or to
any amendment or supplement thereto
shall be deemed to include any copy filed
with the Commission pursuant to its
Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
All references in this Distribution Agreement to financial
statements
and schedules and other information which
is "disclosed", "contained",
"included" or "stated" (or other references
of like import) in the Registration
Statement, Prospectus or preliminary
prospectus shall be deemed to include all
such financial statements and schedules and
other information which is
incorporated by reference in the
Registration Statement, Prospectus or
preliminary prospectus, as the case may be;
and all references in this
Distribution Agreement to amendments or
supplements to the Registration
Statement, Prospectus or preliminary
prospectus shall be deemed to include the
filing of any document under the 1934 Act
which is incorporated by reference in
the Registration Statement, Prospectus or
preliminary prospectus, as the case
may be.
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SECTION 1.
REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE COMPANY
1.1
REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE COMPANY.
Each of the Trust and the Company jointly
and severally represent and warrant to
each Agent as of the date hereof, as of the
date of each acceptance by the Trust
of an offer for the purchase of Notes, as
of the date the Notes are delivered in
exchange for payment (the "SETTLEMENT
DATE") and as of any time that the
Registration Statement or the Prospectus
shall be amended or supplemented (other
than by an amendment or supplement
providing solely for the determination of the
variable terms of the notes offered
pursuant to the Registration Statement,
including the establishment of or a change
in the interest rates, maturity or
price of notes offered pursuant to the
Registration Statement or similar
changes) (each of the times referenced
above being referred to herein as a
"REPRESENTATION DATE") as follows:
1.1.1 NO FILINGS OR
REGULATORY APPROVALS. Other than as set
forth or
contemplated in the Prospectus, no filing with, or approval,
authorization,
consent, license, registration, qualification, order or
decree of, any
court or governmental authority or agency, is necessary or
required for the
issuance and sale of the Notes by the Trust, except such
as have been
previously made, obtained or rendered, as applicable, and
except such
consents, approvals, authorizations, registrations,
qualifications,
orders or decrees as may be required under the 1933 Act or
the 1939 Act or
under state or foreign securities or blue sky laws or any
rules or
regulations of any securities exchange.
1.1.2 INVESTMENT
COMPANY ACT. The Trust is not, and upon
the issuance and
sale of the Notes as herein contemplated and the
application of
the net proceeds therefrom as described in the Prospectus
will not be,
required to register as an "investment company" within the
meaning of the
Investment Company Act of 1940, as amended (the "1940 ACT").
1.1.3 RATINGS. The
Program under which the Notes are
issued, as well
as the Notes, as applicable, are rated Aa3 by Moody's
Investors
Service, Inc. or its successor ("MOODY'S") and AA- by Standard
&
Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. or
its successor
("S&P") (Moody's and S&P are referred to herein as the
"RATINGS
AGENCIES" and each a "RATINGS AGENCY"), or such other rating as
to
which the
Company or the Trust shall have most recently notified the
Agent(s)
pursuant to SECTION 2.3.5 hereof and set forth in the Omnibus
Instrument.
Except as otherwise disclosed to the Agent(s), no public
announcement has
been made by a Ratings Agency that it has under
surveillance or
review, with possible negative implications, its rating of
the Program, the
Notes or any notes issued pursuant to the Registration
Statement, as
applicable, or has withdrawn its rating of the Program, the
Notes or any
notes issued pursuant to the Registration Statement, as
applicable.
1.1.4 LISTING. If specified
in the Pricing Supplement, the
Notes described
in such Pricing Supplement shall be listed on the
securities
exchange designated in the Pricing Supplement.
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1.2 REPRESENTATIONS AND
WARRANTIES OF THE TRUST. The Trust
represents and warrants to each Agent as of
each Representation Date as follows:
1.2.1 DUE FORMATION
AND GOOD STANDING OF THE TRUST. The
Trust is a
statutory trust, duly formed under Delaware law pursuant to the
Trust Agreement
(the "TRUST AGREEMENT") between Wilmington Trust Company,
as Trustee (the
"DELAWARE TRUSTEE") and AMACAR Pacific Corporation, as
administrator
and trust beneficial holder, and the filing of a certificate
of trust with
the Delaware Secretary of State, which is validly existing
and in good
standing as a statutory trust under the laws of the State of
Delaware.
1.2.2 NO MATERIAL
CHANGES. 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 event
or occurrence
that would reasonably be expected to have a material adverse
effect on the
condition (financial or otherwise) of the Trust or on the
power or ability
of the Trust to perform its obligations under this
Distribution
Agreement, the Indenture, the Notes, the Trust Agreement, the
Funding
Agreement, the Administrative Services Agreement (the
"ADMINISTRATION
AGREEMENT"), between the Delaware Trustee, on behalf of the
Trust, and
AMACAR Pacific Corporation, as administrator (the
"ADMINISTRATOR")
or the License Agreement (the "LICENSE AGREEMENT") between
the Trust and
Hartford Fire Insurance Company, or to consummate the
transactions to
be performed by it as contemplated in the Prospectus (a
"TRUST MATERIAL
ADVERSE EFFECT") and (B) there have been no transactions
entered into by
the Trust, other than those related to the Program or in
the ordinary
course of business, which are material with respect to the
Trust.
1.2.3 AUTHORIZATION OF
AGREEMENTS. This Distribution
Agreement, the
Indenture, the Notes, the Administration Agreement and the
License
Agreement have been or will be duly authorized, executed and
delivered by the
Trust. Assuming that each party to this Distribution
Agreement, the
Indenture, the Administration Agreement, the License
Agreement and
the Trust Agreement, other than the Trust, has duly
authorized,
executed and delivered each such agreement, then this
Distribution
Agreement, the Indenture, the Administration Agreement, the
License
Agreement and the Trust Agreement will each be a valid and
legally
binding
agreement of the Trust enforceable against the Trust in
accordance
with its terms,
except (A) as enforcement thereof may be limited by
bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the
enforcement of creditors' rights generally or by general
equitable
principles (regardless of whether enforcement is considered in
a
proceeding in
equity or at law) and (B) except as enforcement thereof may
be limited by
requirements that a claim with respect to any Notes issued
under the
Indenture that are payable in a foreign or composite currency
(or
a foreign or
composite currency judgment in respect of such claim) be
converted into
U.S. dollars at a rate of exchange prevailing on a date
determined
pursuant to applicable law or by governmental authority to
limit, delay or
prohibit the making of payments outside the United States.
The Notes have
been duly authorized by the Trust for offer, sale, issuance
and delivery
pursuant to this Distribution Agreement and when issued,
authenticated
and delivered in the manner provided for in the Indenture and
delivered
against payment of the consideration
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therefor, will
constitute valid and legally binding obligations of the
Trust,
enforceable against the Trust in accordance with their terms,
except
(1) as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization,
moratorium or other similar laws affecting the enforcement
of creditors'
rights generally or by general equitable principles
(regardless of
whether enforcement is considered in a proceeding in equity
or at law) and
(2) except as enforcement thereof may be limited by
requirements
that a claim with respect to any Notes issued under the
Indenture that
are payable in a foreign or composite currency (or a foreign
or composite
currency judgment in respect of such claim) be converted into
U.S. dollars at
a rate of exchange prevailing on a date determined pursuant
to applicable
law or by governmental authority to limit, delay or prohibit
the making of
payments outside the United States. Subject to the exceptions
set forth in the
preceding sentence, the Notes when executed by the Trust
and issued
authenticated and delivered in the manner provided for in the
Indenture and
delivered against payment of the consideration therefor, will
be entitled to
the benefits of the Indenture.
1.2.4 ABSENCE OF
DEFAULTS AND CONFLICTS. (A) The execution,
delivery and
performance of this Distribution Agreement, the Indenture, the
Notes, the
Funding Agreement, the Administration Agreement, the License
Agreement and
any other agreement or instrument entered into or issued or
to be entered
into or issued by the Trust in connection with the issuance
of the Notes and
the transactions contemplated thereby, (B) the performance
of the Trust
Agreement (all agreements and instruments referenced in
clauses (A) and
(B) above are referred to herein as the "ISSUANCE
DOCUMENTS"), (C)
the consummation of the transactions contemplated in the
Prospectus (including the issuance
and sale of the Notes and the use of
proceeds
therefrom as described in the Prospectus) and (D) the
compliance
by the Trust
with its obligations under the Issuance Documents, do not and
will not
constitute a breach, violation or default which (1) gives the
holder of any
note, debenture or other evidence of indebtedness (or any
person acting on
such holder's behalf) the right to require the repurchase,
redemption or
repayment of all or a portion of such indebtedness by the
Trust, or (2)
results in the creation or imposition of any lien, charge or
encumbrance upon
any assets, properties or operations of the Trust pursuant
to, any
contract, indenture, mortgage, loan or credit agreement, note,
lease or other
agreement or instrument to which the Trust is a party or by
which it may be
bound or to which any of the property or assets of the
Trust is
subject, nor will such action result in any violation of the
Trust's
Certificate of Trust or the Trust Agreement and the Trust is not
in
default in the
performance or observance of any applicable law, statute,
rule,
regulation, judgment, order, writ or decree of any government,
government
instrumentality or court, domestic or foreign, having
jurisdiction
over the Trust or any of its assets, properties or operations;
PROVIDED, that
no representation or warranty is made with respect to
compliance with
law of the Funding Agreement to the extent that the source
of the funds
used by the Trust to purchase such Funding Agreement renders
such funds, or
any property or investment acquired with such funds, subject
to governmental
seizure or other penalty under the USA Patriot Act of 2001,
as amended (the "USA
PATRIOT ACT"); PROVIDED, FURTHER that in the case of
clause (1) of
this SECTION 1.2.4, this representation and warranty shall
not extend to
such repurchase, redemption or repayment that would not
result in a
Trust Material Adverse Effect and in the case of clause (2) of
this SECTION
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1.2.4, this
representation and warranty shall not extend to such lien,
charges or
encumbrances or any violations or defaults that would not
result
in a Trust
Material Adverse Effect.
1.2.5 BENEFICIAL
INTEREST. The beneficial interest of the
Trust when
issued will be duly authorized and, when registered in the
Securities
Register (as defined in the Trust Agreement) in accordance with
the provisions
of the Trust Agreement, will be a valid and legally binding
obligation of
the Trust, enforceable in accordance with its terms, except
as enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization,
conservatorship, receivership or similar laws affecting
creditors'
rights generally or by general equitable principles (regardless
of whether
enforcement is considered in a proceeding in equity or at law).
1.2.6 NO PROCEEDINGS.
There is no action, suit, proceeding
or investigation
pending of which the Trust has received notice or service
of process, or
before or brought by any court or governmental agency or
body, or to the
knowledge of the Trust threatened, against the Trust or its
assets which is
required to be disclosed in the Registration Statement and
the Prospectus
(other than as disclosed therein).
1.3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Agent as of
each Representation Date as follows:
1.3.1 DUE
INCORPORATION, GOOD STANDING AND DUE
QUALIFICATION OF
THE COMPANY AND SIGNIFICANT SUBSIDIARIES. The Company, and
each significant
subsidiary (as such term is defined in Rule 1-02 of
Regulation S-X
promulgated under the 1933 Act) that is an operating
company, if any
(each, a "SIGNIFICANT SUBSIDIARY"), is duly incorporated
and validly
existing as a corporation in good standing under the laws of
the jurisdiction
of its incorporation with corporate power and authority to
own its
properties and to conduct its business as described in the
Prospectus; each
of the Company and each Significant Subsidiary is duly
qualified as a
foreign corporation to transact business and is in good
standing in each
jurisdiction in which such qualification is required,
except where the
failure to so qualify would result in a Company Material
Adverse Effect
(defined below). Since the respective dates as of which
information is
given in the Registration Statement and the Prospectus,
except as
otherwise stated therein, there has been no event or occurrence
that would
reasonably be expected to have a material adverse effect on the
condition
(financial or otherwise) of the Company and its subsidiaries
considered as
one enterprise or on the power or ability of the Company to
perform its
obligations under any of the Issuance Documents or to
consummate the
transactions to be performed by it as contemplated in the
Prospectus (a
"COMPANY MATERIAL ADVERSE EFFECT").
1.3.2 REGISTRATION
STATEMENT AND PROSPECTUS. The Company
meets the
requirements for use of Form S-3 under the 1933 Act. The
Registration
Statement, filed with the Commission pursuant to the 1933 Act,
as of its
effective date, did not contain any untrue statement of a
material fact or
omit to state a material fact required to be stated
therein or
necessary to make the statements therein not misleading. Each
Prospectus, if
any, filed pursuant to Rule 424 of the 1933 Act Regulations,
complied
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when so filed in
all material respects with the 1933 Act and the 1933 Act
Regulations. The
Registration Statement and each Prospectus comply and, as
amended or
supplemented, if applicable, will comply in all material
respects with
the 1933 Act and the 1933 Act Regulations. The Registration
Statement and
each Prospectus do not and, as amended or supplemented, if
applicable, will
not contain any untrue statement of a material fact or
omit to state a
material fact necessary in order to make the statements
therein, in
light of the circumstances under which they were made, not
misleading. The
Trust and Company make no representations or warranties as
to (A) that part
of the Registration Statement which shall constitute the
Statement of
Eligibility and Qualification (Form T-1) under the 1939 Act of
the Indenture
Trustee or (B) any statements in or omissions from the
Registration
Statement or any Prospectus made in reliance on and in
conformity with
written information provided by the Agent(s) to the Trust
or to the
Company expressly for use in the Registration Statement or
Prospectus or
any amendment or supplement thereto.
1.3.3 COMPANY
FINANCIAL STATEMENTS. The consolidated
financial
statements (including the related notes but excluding the
supporting
schedules) included or incorporated by reference in the
Registration
Statement and the Prospectus present fairly in all material
respects the
consolidated financial position, results of operations and
cash flows of
the entities purported to be shown thereby, at the dates and
for the periods
indicated and have been prepared in accordance with United
States generally
accepted accounting principles applied on a consistent
basis throughout
the periods indicated and conform in all material respects
with the 1933
Act, except as otherwise noted therein; and the supporting
schedules,
selected financial data and the summary financial data included
or incorporated by
reference in the Registration Statement when considered
in relation to
such financial statements taken as a whole, present fairly
in all material
respects the information required to be stated therein.
1.3.4 AUTHORIZATION OF
THIS DISTRIBUTION AGREEMENT AND THE
FUNDING
AGREEMENT. This Distribution Agreement has been, and the
Funding
Agreement when
issued will be, duly authorized, executed and delivered by
the Company and,
assuming that each party to this Distribution Agreement
and the Funding
Agreement, other than the Company, has duly authorized
executed and
delivered such agreement, then this Distribution Agreement and
the Funding
Agreement will each be a valid and legally binding agreement of
the Company,
enforceable against the Company in accordance with its terms,
except (A) as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization,
moratorium or other similar laws affecting the enforcement
of creditors'
rights generally or by general equitable principles
(regardless of
whether enforcement is considered in a proceeding in equity
or at law), (B)
that no representation or warranty is made with respect to
the
enforceability of the indemnification provided for in SECTION 6
hereof
and (C) that no
representation or warranty is made with respect to the
enforceability
of the Funding Agreement to the extent that the source of
the funds used
by the Trust to purchase such Funding Agreement renders such
funds, or any
property or investment acquired with such funds, subject to
governmental
seizure or other penalty under the USA Patriot Act.
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1.3.5 NO PROCEEDINGS.
There is no action, suit, proceeding
or investigation
pending of which the Company has received notice or
service of
process, or before or brought by any court or governmental
agency or body,
or to the knowledge of the Company threatened, against the
Company which is
required to be disclosed in the Registration Statement and
the Prospectus
(other than as disclosed therein).
1.3.6 ABSENCE OF
DEFAULTS AND CONFLICTS. Neither the
Company nor any
of its Significant Subsidiaries is in violation of the
provisions of
its charter or by-laws or in default in the performance or
observance of
any obligation, agreement, covenant or condition contained in
any contract,
indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or
other agreement or instrument to which the Company or any of
its Significant
Subsidiaries is a party or by which it or any of them may
be bound or to
which any of the property or assets of the Company or any of
its Significant
Subsidiaries is subject (collectively, "COMPANY AGREEMENTS
AND
INSTRUMENTS"), except for such defaults that would not result in
a
Company Material
Adverse Effect; the execution, delivery and performance of
this
Distribution Agreement, the Funding Agreement and any other
agreement
or instrument
entered into or issued or to be entered into or issued by the
Company in
connection with the transactions contemplated in the
Prospectus,
the consummation
of the transactions contemplated in the Prospectus and the
compliance by
the Company with its obligations thereunder have been duly
authorized by
all necessary corporate action and do not and will not
constitute a
breach, violation or default (A) which gives the holder of any
note, debenture
or other evidence of indebtedness (or any person acting on
such holder's
behalf) the right to require the repurchase, redemption or
repayment of all
or a portion of such indebtedness by the Company or any of
its Significant
Subsidiaries, or (B) of any statute or any order, rule or
regulation of
any court or governmental agency or body having jurisdiction
over the Company
or any of its properties, except for such breaches,
violations or
defaults under subsections (A) or (B) immediately above that
would not result
in a Company Material Adverse Effect; PROVIDED, that no
representation
or warranty is made with respect to compliance with law of
the Funding
Agreement to the extent that the source of the funds used by
the Trust to
purchase such Funding Agreement renders such funds, or any
property or
investment acquired with such funds, subject to governmental
seizure or other
penalty under the USA Patriot Act.
1.3.7 LICENSES AND
PERMITS. Each of the Company and the
Significant
Subsidiaries has all necessary consents, licenses,
authorizations,
approvals, exemptions, orders, certificates and permits
(collectively,
the "COMPANY GOVERNMENTAL LICENSES") of and from, and has
made all filings
and declarations (collectively, the "COMPANY GOVERNMENTAL
FILINGS") with,
all Federal, state, local and other governmental
authorities, all
self-regulatory organizations and all courts and other
tribunals,
necessary to own, lease, license and use its properties and
assets and to
conduct its business in the manner described in the
Prospectus,
except where the failure to have such Company Governmental
Licenses or to
make such Company Governmental Filings would not,
individually or
in the aggregate, result in a Company Material Adverse
Effect. All such
Company Governmental Licenses and Company Governmental
Filings are in
full force and effect, except to the extent that any such
failure to be in
full force and effect would not result, singly or in the
aggregate, in a
Company Material Adverse Effect. The
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Company and the Significant
Subsidiaries are in compliance with such
Company
Governmental Licenses and neither the Company nor any of the
Significant
Subsidiaries has received any notice of any inquiry,
investigation or
proceeding that would reasonably be expected to result in
the suspension,
revocation or limitation of any such Company Governmental
Licenses or
otherwise impose any limitation on the conduct of the business
of the Company
or any of the Significant Subsidiaries, except as set forth
in the
Prospectus or to the extent that any such failure to be in
compliance,
suspension, revocation or limitation would not, singly or in
the aggregate,
result in a Company Material Adverse Effect.
1.3.8 FILINGS AND
REGULATORY APPROVALS. Other than as set
forth or
contemplated in the Prospectus, no filing with or approval,
authorization,
consent, license, registration, qualification, order or
decree of any
governmental authority or agency, is necessary or required
for the issuance
and sale of the Funding Agreement by the Company, except
such as have
been previously made, obtained or rendered, as applicable, and
except such
consents, approvals, authorizations, registrations,
qualifications,
orders or decrees as may be required under the 1933 Act or
the 1939 Act or
under state or foreign securities or blue sky laws or any
rules or
regulations of any securities exchange.
1.3.9 INVESTMENT
COMPANY ACT. The Company is not, and upon
the issuance and
sale of the Notes as herein contemplated and the
application of
the net proceeds therefrom as described in the Prospectus
will not be,
required to register as an "investment company" within the
meaning of the
1940 Act.
1.3.10
RATINGS. The Company's financial strength rating is
Aa3 by Moody's
and AA- by S&P, or such other rating as to which the
Company
shall have most
recently notified the Agent(s) pursuant to SECTION 2.3.5
hereof and set
forth in the Omnibus Instrument. Except as otherwise
disclosed to the
Agent(s) no public announcement has been made by a Ratings
Agency that it
has under surveillance or review, with possible negative
implications,
its rating of the financial strength of the Company or has
withdrawn its
rating of the financial strength of the Company.
1.3.11
ABSENCE OF DEFAULT UNDER THE FUNDING AGREEMENT. To
the Company's
knowledge there exists no event or circumstance which does or
may (with the
passing of time, the giving of notice, the making of any
determination or
any combination thereof) be reasonably expected to
constitute an
event of default under any outstanding funding agreement
issued in
connection with the Registration Statement.
1.3.12
INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be
incorporated by reference in the Prospectus, at the time they
were or
hereafter are filed with the Commission, complied and will
comply
in all material
respects with the requirements of the 1934 Act and the 1934
Act
Regulations.
1.3.13
INDEPENDENT ACCOUNTANTS. The accountants who
certified the
financial statements and any supporting schedules thereto
included in
the
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Registration
Statement and the Prospectus are independent public
accountants as
required by the 1933 Act and the 1933 Act Regulations.
1.3.14
CONFORMITY OF ISSUANCE DOCUMENTS. The statements
relating to the
Issuance Documents contained in the Prospectus conform and
will conform in
all material respects to the Issuance Documents and the
Issuance
Documents are substantially in the form filed or incorporated
by
reference, as
the case may be, as exhibits to the Registration Statement.
1.3 Any
certificate signed by the Administrator or any authorized
officer of the Delaware Trustee and
delivered to the Agent(s) or Sidley Austin
Brown & Wood LLP, as legal counsel to
the Agent(s), or any other legal counsel
selected by the Agent(s) (or the
bookrunning lead manager(s), in the case of a
syndicated issue) to replace such previous
legal counsel (the "AGENT APPROVED
COUNSEL") in connection with the sale of
Notes to the Agent(s) shall be deemed a
representation and warranty by the Trust to
such Agent(s) as to the matters
covered thereby on the date of such
certificate. Any certificate signed by any
authorized officer of the Company and
delivered to the Agent(s) or the Agent
Approved Counsel in connection with the
sale of Notes to the Agent(s) shall be
deemed a representation and warranty by the
Company to such Agent(s) as to the
matters covered thereby on the date of such
certificate.
SECTION 2.
COVENANTS OF THE TRUST AND THE COMPANY
2.1
COVENANTS OF THE TRUST AND THE COMPANY. In further
consideration of the Agent's agreements
herein contained, the Trust and the
Company jointly and severally covenant and
agree with each Agent as follows:
2.1.1 PREPARATION OF
PRICING SUPPLEMENTS. The Trust and the
Company will
prepare a Pricing Supplement with respect to the Notes sold to
the Agent(s) in
a form previously agreed to by the Agent(s). The Trust and
the Company will
use their reasonable best efforts to deliver such Pricing
Supplement no
later than 11:00 a.m., New York City time, on the business
day following
the date of the Trust's acceptance of the offer for the
purchase of such
Notes and will file such Pricing Supplement pursuant to
the applicable
subparagraph of Rule 424(b) of the 1933 Act Regulations.
2.1.2 BLUE SKY
QUALIFICATIONS. Subject to SECTION 3.9,
below, the Trust
and the Company shall take reasonable efforts to establish
and maintain the
qualification of the Notes for offer and sale under the
securities blue
sky laws of such jurisdictions as the Agent(s) (or the
bookrunning lead
manager(s), in the case of a syndicated issue) shall
reasonably
request; PROVIDED, HOWEVER, that if either the Trust or the
Company, in its
reasonable judgment, determines that such qualification in
a particular
jurisdiction would cause an undue burden, its sole obligation
is to so advise
the Agent(s) (or the bookrunning lead manager(s), in the
case of a
syndicated issue); and PROVIDED FURTHER, HOWEVER, that the
Trust
and the Company
shall not be obligated to file any general consent to
service of
process or to qualify as a foreign corporation or a dealer in
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securities in
any jurisdiction in which it is not so qualified or to
subject itself
to taxation in respect of doing business in any jurisdiction
in which it is
not otherwise so subject.
2.1.3 LISTING. The
Trust and the Company, with the
assistance of
the Agent(s) (or the bookrunning lead manager(s), in the case
of a syndicated
issue), shall use reasonable efforts to obtain and maintain
approval for the
listing of at least the notes of one trust issued pursuant
to the
Registration Statement on a national securities exchange as
defined
in Section
18(a)(3)(B) of the 1933 Act until such time as none of the
notes
issued pursuant
to the Registration Statement are outstanding.
2.1.4 DEPOSITORY TRUST
COMPANY. The Trust and the Company
shall assist the
Agent(s) in arranging to cause the Notes to be eligible
for settlement
through the facilities of The Depository Trust Company.
2.1.5 SECURITY
INTEREST. As required by the Indenture, the
Trust pursuant
to the Indenture, will create, in favor of the Indenture
Trustee, for the
benefit of the holders of Notes, a first priority
perfected
security interest in the Collateral (as defined in the
Indenture),
under New York law or the law of such other applicable
jurisdiction
whose law governs such perfection, non-perfection or priority.
2.2
COVENANTS OF THE TRUST. In further consideration of the Agent's
agreements herein contained, the Trust
covenants and agrees with each Agent as
follows:
2.2.1 NOTICE OF
AMENDMENT TO THE INDENTURE OR THE TRUST
AGREEMENT. The
Trust will give the Agent(s) at least seven (7) days' prior
notice in
writing of any proposed amendment to the Indenture or the Trust
Agreement and,
except in accordance with the applicable provisions of the
Indenture or the
Trust Agreement, not make or permit to become effective
any amendment to
the Indenture or the Trust Agreement which may adversely
affect the
interests of the Agent(s) or any holder of any outstanding
Notes
(as determined
by the Agent(s) (or the bookrunning lead manager(s), in the
case of a
syndicated issue)) without the consent of the affected party.
2.2.2 AUTHORIZATION TO
ACT ON BEHALF OF THE TRUST. The
Trust will, from
time to time, after receiving a written request from an
Agent, deliver
to the Agent(s) a certificate as to the names and signatures
of those persons
authorized to act on behalf of the Trust in relation to
the Program if
such information has changed.
2.2.3 USE OF PROCEEDS.
The Trust will use the net proceeds
received by it
from the issuance and sale of the Notes in the manner
specified in the
Prospectus.
2.2.4 NOTICE OF
MEETINGS. The Trust will furnish to the
Agent(s), at the
same time as it is dispatched, a copy of any notice of any
meeting of the
holders of Notes which is called to consider any matter
which is
material in the context of the Trust.
2.3
COVENANTS OF THE COMPANY. In further consideration of the
Agent's agreements herein contained, the
Company covenants and agrees with each
Agent as follows:
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2.3.1 FILING OR USE OF
AMENDMENTS. The Company will give
the Agent(s)
advance notice of their intention to file or prepare any
additional
registration statement with respect to the registration of
additional notes
to be issued pursuant to the Registration Statement, any
amendment or
supplement to the Registration Statement or any amendment or
supplement to
the prospectus included in the Registration Statement at the
time it became
effective or to the Prospectus (other than an amendment or
supplement
thereto providing solely fo
