Exhibit 1.1
STANDARD DISTRIBUTION AGREEMENT TERMS
WITH RESPECT TO
HARTFORD LIFE GLOBAL FUNDING
SECURED MEDIUM-TERM NOTES AND INCOME NOTES(SM)
DATED AS OF DECEMBER 2, 2005
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
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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 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"). 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 documents incorporated therein
by reference pursuant to the 1934 Act,
prior to the Time of Pricing (defined
below); 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
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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
Pricing 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. For purposes of the
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 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 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 the
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.
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 Pricing, (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:
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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.
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.
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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 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 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. 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 idemnification and
contribution
provided for in Section 6 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
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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 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
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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).
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
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consummate the transactions to be performed by it as contemplated
in
the Prospectus (a "COMPANY MATERIAL ADVERSE EFFECT").
1.3.2
REGISTRATION STATEMENT; 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 any
time
other than during the Offering Period, at the time of the use of
a
Permitted Free Writing Prospectus (as defined below), 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, if any, filed pursuant to
Rule
424 of the 1933 Act
Regulations, complied 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. As of the Time of
Pricing
(defined below), the Prospectus as supplemented by any Permitted
Free
Writing Prospectus (defined below), 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 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 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. "TIME OF PRICING" means 9:00 a.m. (New York time) on the
date
of acceptance by the Company of an offer for the purchase of the
Notes.
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
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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 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
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.
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 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 Prospectus,
the
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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 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.
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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 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
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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
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 Time of Pricing 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
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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.
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 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.
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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 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 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 Registr
