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EXHIBIT 1
ING USA ANNUITY AND LIFE INSURANCE COMPANY
$3,000,000,000
SECURED MEDIUM-TERM NOTES PROGRAM
ING(SM) USA CORENOTES(R) PROGRAM
DISTRIBUTION AGREEMENT
[__________], 2005
Merrill Lynch, Pierce, Fenner & Smith
Merrill Lynch International
Incorporated
2 King Edward Street
Four World Financial Center, North Tower
London EC1A 1HQ England
New York, New York 10080
Each other institution named on Schedule A
hereto
Ladies and Gentlemen:
1.
Introductory. ING USA Annuity and Life Insurance Company, an
Iowa
insurance company (the "Company"), in
connection with the Company's Secured
Medium-Term Notes Program (the
"Institutional Program") and the ING(SM) USA
CoreNotes(R) Program (the "Retail Program"
and, together with the Institutional
Program, the "Programs"), confirms its
agreement with Merrill Lynch, Pierce,
Fenner & Smith Incorporated and each
other institution named on Schedule A
hereto and any institution appointed as an
agent pursuant to Section 19 hereof
(each, an "Agent", and, collectively, the
"Agents") with respect to the secured
medium-term notes due between nine months
and thirty years from the date of
issuance under the Programs (the "Notes")
to be offered by separate and distinct
special purpose common law trusts from time
to time (each, a "Trust" and,
collectively, the "Trusts"), each of which
shall be formed in a jurisdiction
located in the United States of America
pursuant to a trust agreement, as
amended or modified from time to time,
which will adopt and incorporate the
standard trust terms (each, a "Trust
Agreement" and, collectively, the "Trust
Agreements"), in each case between U.S.
Bank National Association, as trustee
(the "Trustee"), and GSS Holdings II, Inc.,
a Delaware corporation, as trust
beneficial owner (the "Trust Beneficial
Owner").
From time
to time, upon the formation of a new Trust, in connection with
the offer and sale of a particular series
of Notes by such Trust, upon execution
and delivery by such Trust and the
applicable Agent or Agents of the terms
agreement set forth in Section D of the
omnibus instrument (the "Terms
Agreement") to be executed by such Trust
and the applicable Agent or Agents,
among others (the "Omnibus Instrument"),
such Trust shall become a party hereto
in relation to such series of Notes (the
time of such execution and delivery
referred to herein as such Trust's "Trust
Effective Time"), with all the
authority, rights, powers, duties and
obligations of a
------------------
"CoreNotes(R)" is a registered service mark
of Merrill Lynch & Co., Inc.
"ING(SM)" is a service mark of ING Groep
N.V. and is used under license.
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Trust as if originally named as a Trust
hereunder. Any agreement, covenant,
acknowledgment, representation or warranty
made by a Trust hereunder shall be
deemed to have been made by each Trust at
its Trust Effective Time, unless
another time or times are specified herein,
in which case such specified time or
times shall instead apply.
Each series of
Notes is to be issued pursuant to an indenture, as amended
or modified from time to time, which will
adopt and incorporate the standard
indenture terms (each, an "Indenture" and,
collectively, the "Indentures"),
between the relevant Trust and Citibank,
N.A., as indenture trustee (the
"Indenture Trustee"). Each Trust shall
issue one series of Notes in one or more
tranches. Each reference in this Agreement
to a series of notes shall, where
applicable, be deemed to refer to one or
more tranches of such series of notes.
As of the date of this Agreement, the
Trusts are authorized to issue
collectively up to U.S. $3,000,000,000
aggregate initial offering price of Notes
(or its equivalent as determined in Section
5(a)(xv) hereof) through the Agents,
as principal or agent, pursuant to the
terms of this Agreement. It is
understood, however, that the Company, as
depositor of the Funding Agreements
(as defined herein), may from time to time
increase the aggregate amount of
Notes and that such additional Notes may be
sold through the Agents, as
principal or agent, pursuant to the terms
of this Agreement, all as though the
issuance of such Notes were authorized as
of the date of this Agreement.
Each Trust
will use the proceeds from the sale of its related series of
Notes to purchase or increase the size of a
funding agreement (each, a "Funding
Agreement" and, collectively, the "Funding
Agreements") issued by the Company.
The series of Notes issued by a Trust will
be secured by the relevant Funding
Agreement that will be assigned by such
Trust to the Indenture Trustee pursuant
to the relevant Indenture with respect to
such series of Notes for the benefit
of the holders of such series of Notes and
any other person for whose benefit
the Indenture Trustee is or will be holding
the relevant Collateral (as defined
in the relevant Indenture). In connection
with the sale of a series of Notes,
the Company and the relevant Trust will
prepare a pricing supplement (the
"Pricing Supplement") including or
incorporating by reference a description of
the terms of such series of Notes, the
terms of the offering and a description
of such Trust.
If any
institution is appointed as an Agent only with respect to a
particular series of Notes, such
institution shall only be an Agent with respect
to such series of Notes. This Agreement
provides for the offer of Notes by one
or more Trusts (x) to one or more Agents as
principal for resale to investors
and other purchasers and (y) directly to
investors (as may from time to time be
agreed to by the Company, such Trust and
the relevant Agent), in which case the
relevant Agent will act as an agent of such
Trust in soliciting offers for the
purchase of Notes.
The
Company has filed with the Securities and Exchange Commission
(the
"Commission") a registration statement on
Form S-3 (No. 333-[_____]) and
pre-effective amendments nos. [____]
thereto for the registration of Funding
Agreements and Notes to be issued through
one or more Trusts 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 (as so amended, if
applicable) has been declared
effective by the Commission and the form of
Indenture has been duly qualified
under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). The Company
has filed such post-effective amendments
thereto as may be required prior to any
acceptance by a Trust of an offer
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for the purchase of a series 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
applicable final prospectus supplement and
the Pricing Supplement relating to the
offering of a particular series of
Notes), in the form first furnished to the
applicable Agent(s) for use in
confirming sales of such series of 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 Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to
any acceptance by a Trust of an
offer for the purchase of a series 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"),
or any further registration statement for
the purpose of registering additional
Notes and in connection with which this
Agreement is included or incorporated by
reference as an exhibit, then, after such
filing, all references to the
"Registration Statement" shall also be
deemed to include the Rule 462(b)
Registration Statement or any such further
registration statement or statements.
A "preliminary prospectus" shall be deemed
to refer to any prospectus used
before the Registration Statement became
effective and any prospectus furnished
by the Company after the Registration
Statement became effective and before any
acceptance by a Trust of an offer for the
purchase of a series of Notes which
omitted information to be included upon
pricing in a form of prospectus filed
with the Commission pursuant to Rule 424(b)
of the 1933 Act Regulations. For
purposes of this 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 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 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.
2.
Appointment as Agent.
(a)
Appointment. Subject to the terms and conditions stated herein,
the
Company and each Trust hereby agree that
Notes will be sold to or through the
Agents. Each of the Company and each Trust
agrees that it will not appoint any
other agents to act on the Trust's behalf,
or to assist the Trust, in the
placement of the Notes; provided, however,
that with respect to transactions in
which the sales of Notes will be targeted
to institutional purchasers under the
Institutional Program, the Company and a
Trust may enter into arrangements with
other agent(s) not a party to this
Agreement provided that such agent(s) enter
into an agreement with terms substantially
identical to those contained herein.
Each of the Company and each Trust agrees
that it hereby appoints only Merrill
Lynch, Pierce, Fenner & Smith
Incorporated (the "Retail Agent") to act
exclusively on such
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Trust's behalf or to assist such Trust in
connection with transactions in which
the sale of Notes will be targeted to
retail purchasers under the Retail
Program. For purposes of this Agreement,
all references to any Agent shall be
deemed to include the Retail Agent, unless
the context otherwise requires.
(b) Sale
of Notes. The Trusts shall not sell or approve the solicitation
of offers for the purchase of Notes in
excess of the amount which shall be
authorized by the Company from time to time
or in excess of the aggregate
initial offering price of Notes registered
pursuant to the Registration
Statement. The Agents shall have no
responsibility for maintaining records with
respect to the aggregate initial offering
price of Notes sold, or of otherwise
monitoring the availability of Notes for
sale, under the Registration Statement.
(c)
Purchases as Principal. The Agents shall not have any obligation
to
purchase Notes from any Trust as principal.
However, absent an agreement between
an Agent and the Company and the relevant
Trust that such Agent shall be acting
solely as an agent for such Trust, such
Agent shall be deemed to be acting as
principal in connection with any offering
of Notes by such Trust through such
Agent. Accordingly, the Agents,
individually or in a syndicate, may agree from
time to time to purchase Notes from a Trust
as principal for resale to investors
and other purchasers determined by such
Agents. Any purchase of Notes from a
Trust by an Agent as principal shall be
made in accordance with Section 4(a)
hereof.
(d)
Solicitations as Agent. If agreed upon between an Agent and a
Trust,
such Agent, acting solely as an agent for
such Trust and not as principal, will
use its reasonable efforts to solicit
offers for the purchase of Notes. Such
Agent will communicate to such Trust,
orally, each offer for the purchase of
Notes solicited by it on an agency basis
other than those offers rejected by
such Agent. Such Agent shall have the
right, in its discretion reasonably
exercised, to reject any offer for the
purchase of Notes, in whole or in part,
and any such rejection shall not be deemed
a breach of its agreement contained
herein. Such Trust may accept or reject any
offer for the purchase of Notes, in
whole or in part. Such Agent shall make
reasonable efforts to assist such Trust
in obtaining performance by each purchaser
whose offer for the purchase of Notes
has been solicited by it on an agency basis
and accepted by such Trust. Unless
agreed to in writing by the Company, such
Trust and such Agent, such Agent shall
not have any liability to such Trust in the
event that any such purchase is not
consummated for any reason. If such Trust
shall default on its obligation to
deliver Notes to a purchaser whose offer
has been solicited by such Agent on an
agency basis and accepted by such Trust,
the Company and such Trust, jointly and
severally, shall (i) hold such Agent
harmless against any loss, claim or damage
arising from or as a result of such default
by such Trust and (ii) pay to such
Agent any commission to which it would
otherwise be entitled absent such
default.
(e)
Reliance. The Company, each Trust and the Agents agree that (i)
any
series of Notes purchased from a Trust by
one or more Agents as principal shall
be purchased, and any series of Notes the
placement of which an Agent arranges
as an agent of such Trust shall be placed
by such Agent, in reliance on the
representations, warranties, covenants and
agreements of such Trust and the
Company contained herein and in the Terms
Agreement and on the terms and
conditions and in the manner provided
herein and therein, (ii) any Funding
Agreement sold by the Company to such Trust
in connection with the issuance of
any series of Notes will be sold in
reliance on the
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representations, warranties, covenants and
agreements of such Trust and the
Agent(s) (to or through whom such series of
Notes is being sold), as applicable,
contained herein and in the Terms Agreement
and on the terms and conditions and
in the manner provided herein and therein,
and (iii) any series of Notes issued
by such Trust to or through the applicable
Agent(s) will be issued in reliance
on the covenants and agreements of each
such Agent contained herein and in the
Terms Agreement and on the terms and
conditions and in the manner provided
herein and therein.
3.
Representations and Warranties; Additional Certifications.
(a)
Representations and Warranties of the Company. The Company
represents
and warrants to each Agent as of the date
of this Agreement, to the applicable
Agent(s) as of the date of each acceptance
of an offer by the relevant Trust for
the purchase of Notes (whether to such
Agent as principal or through such Agent
as agent), to the applicable Agent(s) as of
the date of each delivery of Notes
(whether to such Agent as principal or
through such Agent as agent) (the date of
each such delivery to such Agent as
principal is referred to herein as a
"Settlement Date"), and to each Agent as of
any time that the Registration
Statement or the Prospectus shall be
amended or supplemented (each of the times
referenced above is referred to herein as a
"Company Representation Date"), as
follows:
(i) Registration
Statement and Prospectus. The Company is eligible
to use
Form S-3 under the 1933 Act. The Registration Statement
(including
any Rule
462(b) Registration Statement) has become effective under the
1933 Act
and no stop order suspending the effectiveness of the
Registration Statement (including any Rule 462(b) Registration
Statement)
has been
issued under the 1933 Act and no proceedings for that purpose
have been
instituted or are pending or, to the knowledge of the Company,
are
threatened by the Commission, and any request on the part of
the
Commission
for additional information has been complied with. The form of
Indenture
has been duly qualified under the 1939 Act. At the respective
times that the Registration
Statement, any Rule 462(b) Registration
Statement
and any post-effective amendment thereto (including the filing
of the
Company's most recent Annual Report on Form 10-K with the
Commission) became effective and at each Company Representation
Date, the
Registration Statement (including any Rule 462(b) Registration
Statement)
and any
amendments thereto complied and will comply in all material
respects
with the requirements of the 1933 Act, the 1933 Act
Regulations,
the 1934
Act, the rules and regulations of the Commission under the 1934
Act (the
"1934 Act Regulations"), the 1939 Act and the rules and
regulations of the Commission under the 1939 Act and 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. Each preliminary prospectus and Prospectus filed as
part
of the
Registration Statement as originally filed or as part of any
amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied
when so filed in all material respects with the 1933 Act and
the
1933 Act
Regulations. Each preliminary prospectus and the Prospectus
delivered
to the applicable Agent(s) for use in connection with the
offering
of Notes are identical to any electronically transmitted copies
thereof
filed with the Commission pursuant to EDGAR, except to the
extent
permitted by Regulation S-T.
At the date of this Agreement, at the date of
the
Prospectus and each amendment or supplement thereto and at each
Company
Representation Date, neither the Prospectus nor any
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amendment
or supplement thereto 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. Notwithstanding anything to the contrary
contained
herein, the representations and warranties in this Section
3(a)(i)
shall not apply to (A) statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and
in
conformity
with information furnished to the Company in writing by the
Agents
expressly for use in the Registration Statement or the
Prospectus
or (B)
that part of the Registration Statement which constitutes the
Statement
of Eligibility and Qualification (Form T-1) under the 1939 Act
of the
Indenture Trustee.
(ii) Incorporated Documents. The documents incorporated or deemed
to
be
incorporated by reference in the Prospectus, at the time they
were
filed with
the Commission, complied in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and, at
the time
they were
filed with the Commission, did 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.
(iii) Independent Registered Public Accounting Firm. The
accountants
who opined
on the financial statements and any supporting schedules
thereto
included in the Registration Statement and the Prospectus are
an
independent registered public accounting firm with respect to the
Company
as
required by the 1933 Act and the 1933 Act Regulations.
(iv) Ratings. The Programs under which the Notes are issued are
rated
[Aa3] by Moody's Investors Service, Inc. or its successor
("Moody's") or such other rating set forth in the applicable
Pricing
Supplement
and as to which the Company shall have most recently notified
the Agents
pursuant to Section 5(a)(i) hereof. The Programs under which
the Notes
are issued, as well as the Notes, as applicable, are rated [AA]
by
Standard & Poor's Ratings Group, a division of The
McGraw-Hill
Companies,
Inc., or its successor ("S&P" and, together with Moody's,
the
"Rating
Agencies") or such other rating set forth in the applicable
Pricing
Supplement and as to which the Company shall have most recently
notified
the Agents pursuant to Section 5(a)(i) hereof.
(v) Due Organization, Good Standing and Due Qualification. The
Company
has been duly organized and is validly existing as an insurance
company in
good standing under the laws of the State of Iowa with
corporate
power and authority to own, lease and operate its properties
and
to conduct
its business as described in the Prospectus and to enter into
this Agreement
and consummate the transactions contemplated by the
Prospectus. The Company is duly qualified as a foreign corporation
to
transact
business and is in good standing in each jurisdiction in which
such
qualification is required, whether by reason of the ownership
or
leasing of
property or the conduct of business, except where the failure
to so
qualify or be in good standing would not reasonably be expected
to
result in
a material adverse change in the condition, financial or
otherwise,
or in the earnings, business affairs or business prospects of
the
Company and its subsidiaries considered as one enterprise or on
the
power or
ability of the Company to perform its obligations under the
Company Program
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Documents
(as defined herein) to which the Company is a party or to
consummate
the transactions contemplated in the Prospectus (a "Company
Material
Adverse Effect"). All of the issued and outstanding shares of
capital
stock of the Company have been duly authorized and are validly
issued,
fully paid and non-assessable. None of the outstanding shares
of
capital
stock of the Company was issued in violation of preemptive or
other
similar rights of any securityholder of the Company.
(vi) Financial Statements. The financial statements of the
Company
included
in any report or filing under the 1934 Act incorporated by
reference
into the Registration Statement and the Prospectus, together
with the
related schedules and notes, as well as those financial
statements, schedules and notes of any other entity included in
the
Registration Statement and the Prospectus, present fairly the
financial
position
of the Company, or such other entity, as the case may be, at
the
dates
indicated, to the extent required under the 1934 Act, and the
statement
of income, shareholder's equity and cash flows of the Company,
or such
other entity, as the case may be, for the periods specified.
Such
financial
statements have been prepared in conformity with generally
accepted
accounting principles in the United States ("GAAP") ----
applied
on a
consistent basis throughout the periods involved. The
supporting
schedules,
if any, included in the Registration Statement and the
Prospectus
present fairly in accordance with GAAP the information required
to be
stated therein. The selected financial data, the summary
financial
information and the condensed financial information, if any,
included in
the
Registration Statement and the Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent
with that
of the audited financial statements included in the
Registration
Statement
and the Prospectus. Any pro forma financial statements of the
Company
and the related notes thereto included in the Registration
Statement
and the Prospectus present fairly the information shown
therein,
have been
prepared in accordance with the Commission's rules and
guidelines
with respect to pro forma financial statements and have been
properly
compiled on the bases described therein, and the assumptions
used
in the
preparation thereof are reasonable and the adjustments used
therein
are
appropriate to give effect to the transactions and
circumstances
referred
to therein.
(vii) 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, there has been no event or occurrence
that would
result in a Company Material Adverse Effect.
(viii) Authorization, etc. of this Agreement and each Funding
Agreement.
This Agreement has been duly authorized, executed and delivered
by the
Company. Each Funding Agreement, when issued, will be duly
authorized, executed and delivered by the Company, and, assuming
that each
party to
each Funding Agreement, other than the Company, has duly
authorized, executed and delivered such Funding Agreement, then
such
Funding
Agreement will be a valid and legally binding agreement of the
Company,
enforceable against the Company in accordance with its terms,
except 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
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principles
(regardless of whether enforcement is considered in a
proceeding
in equity or at law).
(ix) Absence of Defaults and Conflicts. The Company is not 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 is a party or by which it may be bound or to which any
of the
property or assets of the Company is subject (collectively, the
"Company
Agreements and Instruments"), except for such violations or
defaults
that would not result in a Company Material Adverse Effect. The
execution,
delivery and performance of this Agreement, each 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 by the Prospectus (collectively, the
"Company
Program
Documents"), the consummation of the transactions contemplated
by
the
Prospectus (including the issuance and sale of the Notes and the
use
of
proceeds therefrom as described 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 conflict with, constitute
a
breach,
violation, default, event or condition 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
under, or result in the creation or imposition of any lien,
charge
or
encumbrance upon any assets, properties or operations of the
Company
pursuant
to, any Company Agreements and Instruments, except, in each
case,
to the
extent such conflict, breach, violation, default, event,
condition,
lien,
charge or encumbrance would not result in a Company Material
Adverse
Effect,
nor will such actions result in any violation of the provisions
of
the
charter or by-laws of the Company or, except to the extent such
violation
would not result in a Company Material Adverse Effect, 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 Company or any of its assets,
properties
or operations; provided, however, that each such law, statute,
rule,
regulation, judgment, order, writ or decree is in writing;
provided,
further,
that the Company does not make any representations, warranties
or
covenants
with respect to any applicable insurance laws, regulations,
rulings,
policies and guidelines addressed in the memorandum of Company
Counsel
(as defined herein) received by the Agents pursuant to Section
6(b)(vii)
hereof and/or the opinion of Company Counsel received by the
Agents
pursuant to Section 6(b)(viii) hereof.
(x) Absence of Proceedings. There is no action, suit,
proceeding,
inquiry or
investigation pending, of which the Company has received
written
notice or service of process, before or brought by any court or
governmental agency or body, domestic or foreign, or, to the
knowledge of
the
Company, threatened, against or affecting the Company which is
required
to be disclosed in the Registration Statement and the
Prospectus
(other
than as stated therein), which would individually or in the
aggregate
result in a Company Material Adverse Effect.
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(xi) Possession of Licenses and Permits. The Company possesses
such
permits,
licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate
federal,
state,
local or foreign regulatory agencies or bodies necessary to
conduct
the
business now operated by it, except for any such jurisdiction in
which
the
failure to be so licensed or authorized would not have a
Company
Material
Adverse Effect. The Company is in compliance with the terms and
conditions
of all such Governmental Licenses, except where the failure so
to comply
would not, singly or in the aggregate, result in a Company
Material
Adverse Effect. Except as otherwise set forth in the
Prospectus,
the
Company has not received any notice of proceedings relating to
the
revocation
or modification of any such Governmental Licenses which, singly
or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding,
would result in a Company Material Adverse Effect.
(xii) No Filings, Regulatory Approvals, etc. No filing with, or
approval,
authorization, consent, license, registration, qualification,
if
any as may
be required, order or decree of, any court or governmental
authority
or agency, domestic or foreign, is necessary or required for
the
due
authorization, execution and delivery by the Company of this
Agreement
and the
other Company Program Documents or for the performance by the
Company of
its obligations under this Agreement and the other Company
Program
Documents, except (a) as otherwise set forth in the Prospectus,
(b) as
have been obtained or rendered, as the case may be, (c) as may
be
necessary
or required under state or foreign securities or blue sky laws
or any
rules or regulations of any securities exchange and (d) with
respect to
any applicable insurance laws, regulations, rulings, policies
and
guidelines addressed in the memorandum of Company Counsel received
by
the Agents
pursuant to Section 6(b)(vii) hereof and/or the opinion of
Company
Counsel received by the Agents pursuant to Section 6(b)(viii)
hereof.
(xiii) 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,
an
"investment company" within the meaning of the Investment Company
Act
of 1940,
as amended.
(xiv) No Significant Subsidiaries. The Company has no
significant
subsidiaries as defined in Rule 1-02 of Regulation S-X of the
Commission.
(b)
Representations and Warranties of the Trusts. Each Trust
represents
and warrants, only as to itself, to each
applicable Agent as of its Trust
Effective Time, as of the date of each
acceptance of an offer by such Trust for
the purchase of its series of Notes
(whether to such Agent as principal or
through such Agent as agent) and as of the
date of each delivery of Notes
(whether to such Agent as principal or
through such Agent as agent) (each of the
times referenced above is referred to
herein as a "Trust Representation Date"),
as follows:
(i) Due Formation and Good Standing. Such Trust is a common law
trust,
duly formed in the United States of America under the laws of
its
jurisdiction pursuant to its relevant Trust Agreement, is validly
existing
and is in
good standing as a common law trust under the laws of its
jurisdiction.
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(ii) No Material Changes. Since the respective dates as of
which
information is given in the Registration Statement and the
Prospectus or
the Trust
Effective Time, whichever is later, except as otherwise stated
therein,
(A) there has been no event or occurrence that would reasonably
be
expected to result in a material adverse change in the
condition,
financial
or otherwise, of such Trust or on the power or ability of such
Trust to
perform its obligations under the Trust Program Documents to
which such
Trust is a party or to consummate the transactions contemplated
in the
Prospectus (as to each Trust, a "Trust Material Adverse
Effect")
and (B)
there have been no transactions entered into by such Trust,
other
than those
in the ordinary course of business, which are material with
respect to
such Trust.
(iii) Authorization, etc. of this Agreement, the relevant
Indenture
and the
relevant Notes. This Agreement and the relevant Indenture have
been or
will be duly authorized, executed and delivered by such Trust
and,
assuming
that each party to the relevant Indenture, other than such
Trust,
has duly
authorized, executed and delivered such agreement, then the
relevant
Indenture will be a valid and legally binding agreement of such
Trust,
enforceable against such Trust in accordance with its terms, as
applicable, 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) as enforcement thereof may be
limited by
requirements that a claim with respect to any Notes issued
under the
relevant 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 relevant Notes have been duly authorized by such Trust for
offer,
sale, issuance and delivery pursuant to this Agreement and,
when
issued,
authenticated and delivered in the manner provided for in the
relevant
Indenture and delivered against payment of the consideration
therefor,
will constitute valid and legally binding obligations of such
Trust in
accordance with their terms, enforceable against such Trust in
accordance
with their terms, except 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). Subject to the foregoing,
the
relevant Notes, when executed by such Trust and issued,
authenticated
and
delivered in the manner provided for in the relevant Indenture
and
delivered
against payment of the consideration therefor, will be entitled
to the
benefits of the relevant Indenture.
(iv) Absence of Defaults and Conflicts. Such Trust is not (x)
in
violation
of its Trust Agreement or (y) in default in the performance or
observance
of any obligation, agreement, covenant or condition contained
in any
contract, indenture, mortgage, loan or credit agreement, note,
lease or
other agreement or instrument to which such Trust is a party or
by which
it may be bound or to which any of the property or assets of
such
Trust is
subject (collectively, as to each Trust, the "Trust Agreements
and
Instruments"), except for such defaults that would not result in
a
Trust
Material Adverse Effect. The (A) execution,
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delivery
and performance of this Agreement, the relevant Indenture, the
relevant
Notes and any other agreement or instrument entered into or
issued or
to be entered into or issued by such Trust in connection with
the
transactions contemplated by the Prospectus, (B) performance of
the
relevant
Trust Agreement (all agreements and instruments referenced in
Section
3(b)(iv)(A) hereof and this Section 3(b)(iv)(B) referred to
herein, as
to each Trust, as the "Trust Program Documents"), (C)
consummation of the transactions contemplated in the Prospectus
(including
the
issuance and sale of the relevant Notes and the use of proceeds
therefrom
as described in the Prospectus) and (D) compliance by such
Trust
with its
obligations under the Trust Program Documents have been or will
be duly
authorized by all necessary action and do not constitute a
breach,
default or
violation 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 such Trust under, or, except as
contemplated by the Trust Program Documents, result in the creation
or
imposition
of any lien, charge or encumbrance upon any assets, properties
or operations of such Trust
pursuant to, any Trust Agreements and
Instruments, nor will such actions result in any violation of the
relevant
Trust
Agreement or, except to the extent that any such violation would
not
result in
a Trust Material Adverse Effect, any applicable law, statute,
rule,
regulation, judgment, order, writ or decree of any government,
government
instrumentality or court, domestic or foreign, having
jurisdiction over such Trust or any of its assets, properties
or
operations.
(v) Absence of Proceedings. There is no action, suit,
proceeding,
inquiry or
investigation pending, of which such Trust has received written
notice or
service of process, before or brought by any court or
governmental agency or body, domestic or foreign, or, to the
knowledge of
such
Trust, threatened, against or affecting such Trust which is
required
to be
disclosed in the Registration Statement and the Prospectus
(other
than as
stated therein), which would individually or in the aggregate
result in
a Trust Material Adverse Effect.
(vi) No Filings, Regulatory Approvals, etc. Except as otherwise
set
forth in
the Prospectus, no filing with, or approval, authorization,
consent,
license, registration, qualification, if any as may be
required,
order or
decree of, any court or governmental authority or agency,
domestic
or foreign, is necessary or required for the due authorization,
execution
and delivery by the Trust of the Trust Program Documents or for
the
performance by such Trust of its obligations under this Agreement
and
the other
Trust Program Documents, except such as have been obtained or
rendered,
as the case may be, except as may be necessary or required
under
state or
foreign securities or blue sky laws and except with respect to
any
applicable insurance laws, regulations, rulings, policies and
guidelines
addressed in the memorandum of Company Counsel received by the
Agents
pursuant to Section 6(b)(vii) hereof and/or the opinion of
Company
Counsel
received by the Agents pursuant to Section 6(b)(viii) hereof.
(vii) Investment Company Act. Such Trust is not, nor will it be
upon
the
issuance and sale of its series of Notes as herein contemplated
and
the
application of the net proceeds therefrom as described in the
Prospectus, an "investment company" within the meaning of the
Investment
Company
Act of 1940, as amended.
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<PAGE>
(viii) Notes Listed on any Stock Exchange. If specified in a
Pricing
Supplement, such Trust's series of Notes described in such
Pricing
Supplement
shall be listed on the securities exchange designated in the
Pricing
Supplement.
(ix) Possession of Licenses and Permits. Such Trust possesses
such
Governmental Licenses issued by the appropriate federal, state,
local or
foreign
regulatory agencies or bodies necessary to conduct the business
now
operated by it, except for any such jurisdiction in which the
failure
to be so
licensed or authorized would not have a Trust Material Adverse
Effect.
Such Trust is in compliance with the terms and conditions of
all
such
Governmental Licenses, except where the failure so to comply
would
not,
singly or in the aggregate, result in a Trust Material Adverse
Effect.
Except as otherwise set forth in the Prospectus, such Trust has
not
received any notice of proceedings relating to the revocation
or
modification of any such Governmental Licenses which, singly or in
the
aggregate,
if the subject of an unfavorable decision, ruling or finding,
would
result in a Trust Material Adverse Effect.
(c)
Additional Certifications. Any certificate signed by any officer
of
the Trustee, on behalf of a Trust, or the
Company and delivered to one or more
Agents or to counsel for the Agents in
connection with an offering of Notes to
one or more Agents as principal or through
an Agent as agent shall be deemed a
representation and warranty by such Trust
or the Company, as the case may be, to
such Agent or Agents as to the matters
covered thereby on the date of such
certificate.
4.
Purchases as Principal; Solicitations as Agent; Other Sales.
(a)
Purchases as Principal. Notes purchased from a Trust by the
Agents,
individually or in a syndicate, as
principal shall be made in accordance with
terms agreed upon between such Agent or
Agents and the Company and such Trust
(which terms, unless otherwise agreed,
shall, to the extent applicable, include
those terms specified in the Pricing
Supplement and shall be agreed upon orally,
with written confirmation to be in the form
of the Terms Agreement). Unless the
context otherwise requires, references
herein to "this Agreement" shall include
the applicable Terms Agreement of one or
more Agents to purchase Notes from a
Trust as principal. Each purchase of Notes
by the Agents (other than Merrill
Lynch, Pierce, Fenner & Smith
Incorporated, acting in its capacity as the Retail
Agent), unless otherwise agreed, shall be
at a discount from the principal
amount of each such Note equivalent to the
applicable commission set forth in
Schedule B hereto. Each purchase of Notes
by Merrill Lynch, Pierce, Fenner &
Smith Incorporated, acting in its capacity
as the Retail Agent, unless otherwise
agreed, shall be at a discount from the
principal amount of each such Note
equivalent to the applicable commission set
forth in Schedule C hereto. The
Agents may engage the services of any
broker or dealer in connection with the
resale of the Notes purchased by them as
principal and may allow all or any
portion of the discount received from a
Trust in connection with such purchases
to such brokers or dealers.
If a Trust
and two or more Agents enter into a Terms Agreement pursuant to
which such Agents agree to purchase Notes
from such Trust as principal and one
or more of such Agents shall fail at the
Settlement Date to purchase the Notes
which it or they are obligated to purchase
(the "Defaulted Notes"), then the
nondefaulting Agents shall have the right,
within 24 hours
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<PAGE>
thereafter, to make arrangements for one of
them or one or more other Agents or
underwriters to purchase all, but not less
than all, of the Defaulted Notes in
such amounts as may be agreed upon and upon
the terms herein set forth;
provided, however, that if such
arrangements shall not have been completed
within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Notes does
not
exceed 10%
of the aggregate principal amount of Notes to be so purchased
by all of
such Agents on the Settlement Date, the nondefaulting Agents
shall be
obligated, severally and not jointly, to purchase the full
amount
thereof in
the proportions that their respective initial underwriting
obligations bear to the underwriting obligations of all
nondefaulting
Agents;
or
(ii) if the aggregate principal amount of Defaulted Notes
exceeds
10% of the
aggregate principal amount of Notes to be so purchased by all
of such
Agents on the Settlement Date, such Terms Agreement shall
terminate
without liability on the part of any nondefaulting Agent.
No acti
