Exhibit 1.1
STANDARD DISTRIBUTION AGREEMENT TERMS
WITH RESPECT TO
HARTFORD LIFE GLOBAL FUNDING
SECURED MEDIUM-TERM NOTES AND INCOMENOTESSM
DATED AS OF MARCH 30, 2006
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
the
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
<PAGE>
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 the 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 the Distribution
Agreement,
all references to any Agent shall be deemed to include the
Purchasing Agent.
The
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) a registration statement on Form S-3
relating to
the registration of the Notes of the Trust and the Funding
Agreement under the
Securities Act of 1933, as amended (the "1933 ACT"), (b) the
related prospectus
dated [____], 2006 covering all the Notes to be offered under the
Program (the
"BASE PROSPECTUS"), (c) the prospectus supplement to the Base
Prospectus dated
[____], 2006 covering the notes offered under the Institutional
Program (the
"INSTITUTIONAL PROSPECTUS SUPPLEMENT" and, together with the Base
Prospectus,
the "INSTITUTIONAL PROSPECTUS") and (d) the prospectus supplement
to the Base
Prospectus dated [____], 2006 covering the Notes offered under the
IncomeNotessm
Program (the "INCOMENOTESSM PROSPECTUS SUPPLEMENT" and, together
with the Base
Prospectus, the "INCOMENOTESSM PROSPECTUS"). 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
applicable final
prospectus supplement 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
2
<PAGE>
documents incorporated therein by reference pursuant to the 1934
Act; PROVIDED,
FURTHER, that if the Company files a post-effective amendment to
the
Registration Statement with the Commission pursuant to Rule 462(b)
of the rules
and regulations of the Commission under the 1933 Act (the "1933
Act
Regulations") (the "RULE 462(B) REGISTRATION STATEMENT") or files a
registration
statement containing a combined prospectus pursuant to Rule 429 of
the 1933 Act
Regulations (the "RULE 429 REGISTRATION STATEMENT"), then, after
such filing,
all references to the "Registration Statement" shall also be deemed
to include
the Rule 462(b) Registration Statement or the Rule 429 Registration
Statement,
as applicable. 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 the Time of Sale (as defined below) with respect to the
Notes which,
pursuant to Rule 430B, 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.
The term
"FREE WRITING PROSPECTUS" has the meaning set forth in Rule 405
of the 1933 Act Regulations. The term "TIME OF SALE PROSPECTUS"
means (1) with
respect to the offer and sale of any series of notes under the
Institutional
Program, the Institutional Prospectus and (2) with respect to the
offer and sale
of any series of notes under the IncomeNotessm Program, the
IncomeNotessm
Prospectus, in each case, as amended or supplemented from time to
time prior to
the Time of Sale and together with the most recent Preliminary
Prospectus or
preliminary pricing supplement relating to the offer and sale of
such series of
Notes immediately prior to the Time of Sale, any Pricing Supplement
relating to
the offer and sale of such Series of Notes filed or used prior to
the Time of
Sale, any Final Term Sheet (as defined in Section 4.1 hereof)
relating to the
offer and sale of such Notes and each Free Writing Prospectus in
the form,
furnished to the Agent(s) by the Company or approved by the Company
for use
prior to the Time of Sale. "TIME OF SALE" means the time or date
set forth in
the applicable Distribution Agreement. For purposes of the
Distribution
Agreement, all references to the Registration Statement,
Prospectus, Time of
Sale Prospectus, Free Writing Prospectus, Pricing Supplement 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 the 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, Time of Sale Prospectus, Free Writing Prospectus,
Pricing Supplement
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, Time of Sale
Prospectus,
Free Writing Prospectus, Pricing Supplement or Preliminary
Prospectus, as the
case may be; and all references in the Distribution Agreement to
amendments or
3
<PAGE>
supplements to the Registration Statement, Prospectus, Time of Sale
Prospectus,
Free Writing Prospectus, Pricing Supplement 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, Time of
Sale Prospectus, Free Writing Prospectus, Pricing Supplement or
Preliminary
Prospectus, as the case may be.
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 represents and
warrants (i) to
each Agent (a) as of the date hereof, (b) as of the date that the
Registration
Statement became effective (the "INITIAL EFFECTIVE DATE") and (c)
as of any time
that the Registration Statement or the Prospectus shall be amended
or
supplemented (with respect to the Registration Statement, a
"SUBSEQUENT
EFFECTIVE DATE") and (ii) to each applicable Agent, (a) as of the
Time of Sale,
(b) as of the date the Notes are delivered in exchange for payment
(the
"SETTLEMENT DATE") and (c) as of the new effective date as
determined pursuant
to Rule 430B(f)(2) of the 1933 Act Regulations with respect to the
Notes (the
"NOTE EFFECTIVE DATE" and together with the Initial Effective Date
and any
Subsequent Effective Date, the "REGISTRATION STATEMENT EFFECTIVE
DATE") (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 Time of Sale 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 Time of Sale 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
4
<PAGE>
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.
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 Time of
Sale
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
the
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 Time of
Sale
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. The 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.
5
<PAGE>
Assuming
that each party to the 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 the 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), (B) that no representation or warranty is made with respect
to
the
enforceability of the indemnification and contribution provided for
in
Section 7
hereof and (C) 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 the Distribution Agreement and when
issued,
authenticated and delivered in the manner provided for in the
Indenture
and
delivered against payment of the consideration 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 the 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
6
<PAGE>
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 Time of
Sale
Prospectus
(including the issuance and sale of the Notes and the use of
proceeds
therefrom as described in the Time of Sale 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 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).
7
<PAGE>
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 Time
of Sale 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 Time
of
Sale
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 Time
of
Sale
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 Time of Sale Prospectus (a "COMPANY
MATERIAL
ADVERSE
EFFECT").
1.3.2 REGISTRATION STATEMENT; PROSPECTUS; TIME OF SALE
PROSPECTUS;
FREE
WRITING PROSPECTUS. The Company meets the requirements for use
of
Form S-3
under the 1933 Act. The Company is not an "ineligible issuer"
as
that term
is defined in Rule 405 of the 1933 Act Regulations (i) during
any period
beginning with the first BONA FIDE offer of the Notes and
ending on
the Settlement Date (the "OFFERING PERIOD"), and (ii) at the
time of
the use of a Free Writing Prospectus, if any. The Registration
Statement,
filed with the Commission pursuant to the 1933 Act, as of the
Initial
Effective Date, did not and, as of any Note Effective Date or
Subsequent
Effective Date, will not contain any untrue statement of a
material
fact or omit to state a material fact required to be stated
therein or
necessary to make the statements therein not misleading. Each
Prospectus
filed with the Commission pursuant to the 1933 Act and the 1933
Act
Regulations, complied
8
<PAGE>
when so
filed in all material respects with the 1933 Act and the 1933
Act
Regulations. The
Registration Statement, each Prospectus and each Time of
Sale
Prospectus comply and, as amended or supplemented, if
applicable,
will
comply in all material respects with the 1933 Act and the 1933
Act
Regulations. As of the Time of Sale, the Time of Sale Prospectus,
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 the
light of
the circumstances under which they were made, not misleading.
As
of the
Settlement Date, the Prospectus, 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 the light of the circumstances
under
which they were made, not misleading. The Company makes no
representations or warranties as to (A) that part of the
Registration
Statement
which shall constitute the Statement of Eligibility (Form T-1)
under the
1939 Act of the Indenture Trustee or (B) any statements in or
omissions
from the Registration Statement, any Prospectus or any Time of
Sale
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, any Prospectus, any Time
of Sale
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,
the Prospectus and the Time of Sale 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 THE DISTRIBUTION AGREEMENT AND THE
FUNDING
AGREEMENT.
The 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 the Distribution Agreement and
the
Funding Agreement, other than the Company, has duly authorized
executed
and delivered such agreement, then the 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
9
<PAGE>
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 and contribution provided for in Section 7
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.
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 or the
Time of
Sale 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 the
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 Time
of Sale Prospectus, the consummation of the transactions
contemplated in the Time of Sale 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
10
<PAGE>
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 Time of Sale
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 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 Time of
Sale
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 Time of Sale 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 Time of Sale Prospectus
will not
be,
11
<PAGE>
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 Time of Sale 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
Registration Statement and the Time of Sale 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 Time of Sale 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,
to the extent so filed or incorporated by reference.
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 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
12
<PAGE>
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 Time of Sale 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
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 the Notes of at least 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.
13
<PAGE>
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 the 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.
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 Time
of Sale 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:
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
14
<PAGE>
Statement
or any amendment or supplement to the prospectus included in
the
Registration Statement at the time it became effective or to
the
Prospectus
or the Time of Sale Prospectus (other than an amendment or
supplement
thereto providing solely for the determination of the variable
terms of
the notes to be issued pursuant to the Registration Statement),
whether
pursuant to the 1933 Act the 1934 Act, or otherwise, will
furnish
to the
Agent(s) copies of any such document a reasonable amount of
time
prior to
such proposed filing or use, as the case may be, and will
afford
the Agent
Approved Counsel a reasonable opportunity to comment on any
such
proposed
filing prior to such proposed filing.
2.3.2 DELIVERY OF THE REGISTRATION STATEMENT. The Company will
furnish to
the Agent(s) and Agent Approved Counsel, without charge, one
conformed
copy of the Registration Statement as originally filed and of
each
amendment thereto (including exhibits filed therewith or
incorporated
by
reference therein and documents incorporated or deemed to be
incorporated by reference therein) and copies of all consents
and
certificates of experts. The Registration Statement and each
amendment
thereto
furnished to an Agent will be identical in all material
respects
to any
electronically transmitted copies thereof filed with the
Commission
pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
2.3.3 DELIVERY OF THE PROSPECTUS AND THE TIME OF SALE
PROSPECTUS.
The
Company will deliver to each Agent, without charge, as many copies
of
any
Preliminary Prospectus as such Agent may reasonably request, and
the
Company
hereby consents to the use of such copies for purposes
permitted
by the
1933 Act. The Company will furnish to each Agent, without
charge,
such
number of copies of the Time of Sale Prospectus (as amended or
supplemented) as such Agent may reasonably request. It is
hereby
acknowledged that the Company intends to rely on the provisions of
Rule
172 of the
1933 Act Regulations with respect to delivery of the
Prospectus. The Company will furnish to each Agent, without charge,
such
number of
copies of the Prospectus (as amended or supplemented) as such
Agent may
reasonably request to meet its
