EXHIBIT 1.1
STANDARD SELLING AGENT AGREEMENT TERMS
PROTECTIVE LIFE INSURANCE COMPANY
$3,000,000,000
SECURED INTERNOTES® PROGRAM
Dated as of June 20, 2005
This
document constitutes Standard Selling Agent Agreement Terms which
are incorporated by reference in the Selling Agent Agreement, dated
as of the date set forth therein (the " Selling Agent
Agreement "), by and among the Trust, the Company, and each
Agent specified in the Selling Agent Agreement. The Selling Agent
Agreement is set forth in Section F of the Omnibus
Instrument and these Standard Selling Agent Agreement Terms are
attached as Exhibit F to the Omnibus
Instrument.
These
Standard Selling Agent 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 Selling Agent
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 Selling Agent
Agreement.
Capitalized
terms not otherwise defined in these Standard Selling Agent
Agreement Terms shall have their respective meanings ascribed to
them in the Selling Agent Agreement.
In
connection with the Protective Life Secured InterNotes®
Program (the " Retail Program "), the Company has
authorized the issuance and sale from time to time of funding
agreements to Protective Life Secured Trusts in order to secure the
issuance of medium-term notes due nine months or more from the date
of issuance by the Trust and any other trust organized in
connection with the Registration Statement (defined below) of up to
U.S. $3,000,000,000 aggregate initial offering price of such notes
(or its equivalent as determined pursuant to
Section III(b)(vii) herein) to the Agents
pursuant to the terms of this Selling Agent Agreement, any other
selling agent agreement entered into by and among the Company, the
agent(s) named therein and any trust (other than the Trust)
organized in connection with the Registration Statement and any
distribution agreement (each, a " Distribution
Agreement ") entered into by and among the Company, the
dealer(s) named therein and any trust (other than the Trust)
organized in connection with the Protective Life Secured
Medium-Term Notes Program (the " Institutional
Program ," together with the Retail Program, the "
Program ").
The
Notes are to be issued pursuant to the Indenture. The Trust shall
issue only one Series of Notes. The Trust will use the net proceeds
from the sale of the Notes to purchase one or more funding
agreements (each a " Funding Agreement ") from the
Company. The Notes will be secured by one or more Funding
Agreement(s) 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 Selling Agent
Agreement, the Company and the Trust hereby (1) appoint
Incapital LLC as purchasing agent (the " Purchasing
Agent "); (2) appoint the Purchasing Agent and each of
the other parties listed on the signature page hereto as agents of
the Company and the Trust (the Purchasing Agent and each such
party, an " Agent ") for the purpose of soliciting
offers to purchase the Notes, and each of the Agents hereby agrees
to use its reasonable best efforts to solicit offers to purchase
Notes upon terms acceptable to the Company and the Trust at such
times and in such amounts as the Company and the Trust shall from
time to time specify in accordance with the terms hereof and after
consultation with the Purchasing Agent; and (3) agree that the
sale of the Notes shall be sold pursuant to this Selling Agent
Agreement, with the Purchasing Agent
purchasing such Notes as
principal for resale to the Agents or dealers (the " Selected
Dealers "), each of whom will purchase such Notes as
principal.
I.
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 "). The Company has filed with the Commission a
registration statement on Form S-3 (No. 333-100944) and
pre-effective amendment no. 1 thereto for the registration of
funding agreements and notes under the Securities Act of 1933, as
amended (the " 1933 Act "), and the offering thereof
from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the " 1933
Act Regulations "). Such registration statement has been
declared effective by the Commission and the Indenture has been
duly qualified under the Trust Indenture Act of 1939, as amended
(the " 1939 Act "), and the Company has filed such
post-effective amendments thereto as may be required prior to the
Trust's acceptance of any offer for the purchase of Notes and each
such post-effective amendment has been declared effective by the
Commission. Such registration statement (as so amended, if
applicable) is referred to herein as the " Registration
Statement "; and the final prospectus and all applicable
amendments or supplements thereto (including the final prospectus
supplements and Pricing Supplement(s) relating to the offering of
the Notes), in the form first furnished to the Agents for use in
confirming sales of the Notes, are collectively referred to herein
as the " Prospectus "; provided ,
however , that all references to the "Registration
Statement", and the "Prospectus" shall also be deemed to include
all documents incorporated therein by reference pursuant to the
1934 Act, prior to any acceptance by the Trust of an offer for the
purchase of Notes; provided, further, that if the Company files a
registration statement with the Commission pursuant to
Rule 462(b) of the 1933 Act Regulations (the "
Rule 462(b) Registration Statement "), then,
after such filing, all references to the "Registration Statement"
shall also be deemed to include the Rule 462(b) Registration
Statement. A " preliminary prospectus " shall be
deemed to refer to any prospectus and any prospectus supplement
used before the Registration Statement became effective and any
prospectus and any prospectus supplement furnished by the Company
after the Registration Statement became effective and before any
acceptance by the Trust of an offer for the purchase of Notes which
omitted information to be included upon pricing in a form of
prospectus and prospectus supplement filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations. For
purposes of this Selling Agent 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 Selling Agent 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 Selling
Agent Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to
include the filing of any document under the 1934 Act which is
incorporated by reference in the Registration Statement, Prospectus
or preliminary prospectus, as the case may be.
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II.
The
Agents' obligations hereunder are subject to the following
conditions:
(a)
Legal Opinions . On the day of delivery of the applicable
notes to the Purchasing Agent (the " Settlement Date
") for the first series of notes issued under the Program (the "
Initial Settlement Date "), the Agents shall have
received the legal opinions in (1) through (12) below in
form and substance satisfactory to the Purchasing Agent; for all
issues after the Initial Settlement Date, the Agents shall have
received the opinions in (1) through (12) below unless
previously provided on the later of (x) the Initial Settlement
Date or (y) the first settlement date following the most
recent annual anniversary date of the date such opinions were most
recently delivered, or unless otherwise agreed among the Company,
the Trust and the Purchasing Agent:
(1)
Opinion of Counsel for the Company
. The opinion of Debevoise &
Plimpton or other external counsel reasonably satisfactory to the
applicable Agents or internal legal counsel to the Company which
shall be at least a Senior Associate Legal Counsel to the Company
(in either case, the "Company Approved Counsel" ), to
the effect set forth in Exhibit A hereto;
(2)
Opinion of Counsel for the Trust
. The opinion of Richards Layton &
Finger, or, subsequent to the Initial Settlement Date, Company
Approved Counsel, to the effect set forth in Exhibit B
hereto;
(3)
Opinion of Counsel for the Trustee
. The opinion of Richards, Layton &
Finger, or other external counsel reasonably satisfactory to the
Purchasing Agent, as counsel for the trustee of the Trust (the "
Trustee ") to the effect set forth in
Exhibit C hereto;
(4)
Opinion of Counsel for the Administrator
. The opinion of Tannenbaum Helpern
Syracuse & Hirschtritt LLP, or other external counsel
reasonably satisfactory to the Purchasing Agent, as counsel for
AMACAR Pacific Corp., as administrator (the "
Administrator ") to the effect set forth in
Exhibit D hereto;
(5)
Opinion of Counsel for the Trust Concerning Delaware Security
Interest Matters . The opinion of
Richards, Layton & Finger, or other external counsel
reasonably satisfactory to the Purchasing Agent, as counsel for the
Trust to the effect set forth in Exhibit E
hereto;
(6)
Opinion of Counsel for the Company Concerning Certain Tax
Matters . The opinion of
Debevoise & Plimpton, counsel for the Company, or other
external counsel reasonably satisfactory to the Purchasing Agent,
to the effect set forth in Exhibit F hereto;
(7)
Opinion of Counsel for the Company Concerning Certain Insurance
Insolvency Matters . The opinion of
Bass, Berry & Sims PLC, Tennessee counsel for the Company,
or, subsequent to the Initial Settlement Date, Company Approved
Counsel, to the effect set forth in Exhibit G
hereto;
(8)
Opinion of Counsel for the Company Concerning Certain Insurance
Regulatory Matters . The opinion of
Clifford Chance US LLP, counsel for the Company, or other external
counsel reasonably satisfactory to the Purchasing Agent, to the
effect set forth in Exhibit H hereto;
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(9)
Opinion of Counsel for the Agents Concerning Certain Federal
Securities Law Matters . The opinion of
Sidley Austin Brown & Wood LLP, counsel for the Agents, or
other external counsel reasonably satisfactory to the Purchasing
Agent, to the effect set forth in Exhibit I
hereto;
(10)
Opinion of Counsel for the Agents Concerning Certain New York
Security Interest Matters . The opinion
of Sidley Austin Brown & Wood LLP, counsel for the Agents,
or other external counsel reasonably satisfactory to the Purchasing
Agent, to the effect set forth in Exhibit J
hereto;
(11)
Opinion of Counsel for the Company Concerning Certain New York
Law Matters . The opinion of
Debevoise & Plimpton or Company Approved Counsel, as
counsel for the Company, to the effect set forth in
Exhibit K ; and
(12)
Opinion of Delaware Counsel Concerning Enforceability of the
Funding Agreement . The opinion of
Richards Layton & Finger, or, subsequent to the Initial
Settlement Date, Company Approved Counsel, to the effect set forth
in Exhibit L hereto.
(b)
Negative Assurances . Unless
otherwise agreed, on the Initial Settlement Date and on the most
recent date specified in Section VII(a) , the Company
and the Trust shall have made available to the Agents or the Agents
shall have received the following negative assurances, dated as of
the Initial Settlement Date or the date set forth in
Section VII(a) , if applicable, and in form and
substance satisfactory to the Agents:
(1)
Negative Assurance of Counsel for the Agents
. The negative assurance of Sidley Austin
Brown & Wood LLP, counsel for the Agents, or other
external counsel reasonably satisfactory to the Purchasing Agent,
with respect to the matters set forth in Exhibit M
hereto; and
(2)
Negative Assurance of Counsel for the Company
. The negative assurance of
Debevoise & Plimpton or Company Approved Counsel, as
counsel for the Company, to the effect set forth in
Exhibit N hereto.
(c)
Company Officer's Certificate . On
the Settlement Date there shall not have been, since the respective
dates as of which information is given in the Prospectus, any
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, whether
or not arising in the ordinary course of business, and the Agents
shall have received a certificate of an officer of the Company who
is at least a Senior Vice President of the Company and of the chief
financial officer or chief accounting officer of the Company, dated
as of the Settlement Date or other agreed upon date to the effect
that (i) there has been no such material adverse change,
(ii) the representations and warranties of the Company herein
contained are true and correct with the same force and effect as
though expressly made at and as of the date of such certificate,
(iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
at or prior to the date of such certificate, and (iv) no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted, are pending or, to the best of such person's knowledge,
are threatened by the Commission.
(d)
Trust Officer's Certificate . On the
Settlement Date there shall not have been, since the respective
dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Trust,
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whether or not arising in the
ordinary course of business, and the Agents shall have received a
certificate of an officer of the Administrator of the Trust, dated
as of the Settlement Date or other agreed upon date to the effect
that (i) there has been no such material adverse change,
(ii) the representations and warranties of the Trust herein
contained are true and correct with the same force and effect as
though expressly made at and as of the date of such certificate,
and (iii) the Trust has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
at or prior to the date of such certificate.
(e)
Comfort Letter of Accountants to the Company
. On the Initial Settlement Date and on the
most recent date specified in Section VII(b) , the
Agents shall have received a letter from PricewaterhouseCoopers LLP
or its successor, as accountants to the Company (the "
Accountants "), dated as of the applicable date and
in form and substance satisfactory to the Agents, to the effect set
forth in Exhibit O hereto.
(f)
Miscellaneous Conditions . The
obligations of the Agents to purchase Notes as principal under this
Selling Agent Agreement are further subject to the conditions
(i) of the accuracy of the representations and warranties, as
of the date on which such representations and warranties were made,
or deemed to be made pursuant to Section VI , on the
part of the Company and Trust herein contained or contained in any
certificate of an officer or trustee of the Company or Trust,
respectively, delivered pursuant to the provisions hereof, to the
performance and observance by each of the Trust and the Company of
its covenants and other obligations hereunder and (ii) that
the Registration Statement has become effective under the 1933 Act
and 1934 Act, as applicable, and no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act, and no proceedings for such purpose shall have
been instituted or shall be pending or, to the knowledge of the
Company, threatened by the Commission and any request on the part
of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Agents.
Further,
if specifically called for by the Purchasing Agent in this Selling
Agent Agreement the Purchasing Agent's obligations hereunder shall
be subject to such additional conditions, including those set forth
in clauses (a) , (b) , (c) , (d) ,
(e) , (f) and (g) of this Section,
as agreed to by the parties, each of which such agreed conditions
shall be met on the Settlement Date.
(g)
Additional Documents . On the
Settlement Date, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated, or in order to
evidence the accuracy of any of the representations and warranties,
or the fulfillment of any of the conditions, contained herein; and
all proceedings taken by the Company and the Trust in connection
with the issuance and sale of Notes as herein contemplated shall be
reasonably satisfactory in form and substance to the Purchasing
Agent and to counsel to the Agents.
If
any condition specified in this Section II shall not
have been fulfilled when and as required to be fulfilled, this
Selling Agent Agreement may be terminated by any Agent (as to
itself only) by notice to the Company and Trust at any time and any
such termination shall be without liability of any party to any
other party except as provided in Section XIII hereof
and except that Sections VIII , IX , XI and
XII hereof shall survive any such termination and remain in
full force and effect.
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III.
(a)
Covenants of the Company and the Trust
. In further consideration of your
agreements herein contained, the Company and the Trust jointly and
severally covenant and agree with each Agent as follows:
(i)
Preparation of Pricing Supplements
. The Company and the Trust will prepare,
with respect to any Notes to be sold to the Agents pursuant to this
Selling Agent Agreement, a Pricing Supplement with respect to such
Notes in a form previously approved by the Agents and attached as
Exhibit P . The Company and Trust will deliver such
Pricing Supplement no later than 1:00 p.m., New York City
time, on the business day following the date of the Company's and
Trust's acceptance of the offer for the purchase of such Notes and
will file such Pricing Supplement pursuant to Rule 424(b)(3)
under the 1933 Act.
(ii)
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.
(iii)
Suspension of Certain Obligations.
After the completion of the distribution of
the Notes to investors other than the Agent(s), the Company and the
Trust, as applicable, shall not be required to comply with the
provisions of Sections III(a)(i), (ii), (vi), (vii) and
(viii) or Sections III(b)(i), (ii), (vii), (viii), (x), and
(xi).
(iv)
Listing. If listing of the Notes is
specified in the Pricing Supplement, the Company and the Trust
shall use reasonable efforts to obtain and maintain approval for
the listing of the Notes on the securities exchange designated in
the Pricing Supplement until such time as none of the Notes are
outstanding.
(v)
Blue Sky Qualifications. The Company
and the Trust shall endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
the Agents shall reasonably request and to maintain such
qualifications for as long as such Agents shall reasonably request;
provided , however , that the Company and the Trust
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.
(vi)
The Depository Trust Company. The
Company and Trust shall assist the Agents in arranging to cause the
Notes to be eligible for settlement through the facilities of The
Depository Trust Company.
(vii)
Notice of Amendment to Indenture or Trust Agreement
. The Trust will give the Agents at least
seven (7) days' prior notice in writing of any proposed
amendment to the Indenture or Trust Agreement and, except in
accordance with the applicable provisions of the Indenture or Trust
Agreement, not make or permit to become effective any amendment to
the Indenture or Trust Agreement which may adversely affect the
interests of the Agents or any holder of any outstanding Notes
without the consent of the affected party.
(viii)
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 Agents 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.
(ix)
Notice of Meeting . The Trust will
furnish to the Agents, at the same time as it is dispatched, a copy
of 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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(b)
Further Covenants of the Company
. The Company further covenants and agrees
with each Agent as follows:
(i)
Notice of Certain Events Regarding Registration Statement,
Prospectus and Ratings . Prior to the
Settlement Date, the Company with respect to the Registration
Statement and Prospectus will notify the Agents immediately, and
confirm such notice in writing of (A) the effectiveness of any
post-effective amendment to the Registration Statement or the
filing of any amendment or supplement to the Prospectus (other than
any amendment or supplement thereto providing solely for the
determination of the variable terms of the notes issued pursuant to
the Registration Statement), (B) the receipt of any comments
from the Commission with respect to the Registration Statement and
the Prospectus and a Rule 462(b) Registration Statement,
(C) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (D) the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement, or of any order preventing or
suspending the use of any preliminary prospectus or Prospectus, or
of the initiation of any proceedings for that purpose, or
(E) any change in the rating assigned by Moody's Investors
Service, Inc. or its successor (" Moody's ") and
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 ") to the Program,
the Notes or the notes issued pursuant to the Registration
Statement, as applicable, or the withdrawal by any Ratings Agency
of its rating of the Program, the Notes, or the notes issued
pursuant to the Registration Statement, as applicable. The Company
will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(ii)
Filing or Use of Amendments . Prior
to the Settlement Date, the Company will give the Agents 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 (including any filing under Rule 462(b) of the 1933
Act Regulations) 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 such Agents copies of any such
document a reasonable amount of time prior to such proposed filing
or use, as the case may be, and will not file any such document in
a form as to which an Agent or counsel for the Agents shall
reasonably object in writing, unless, in the judgment of the
Company and its counsel, such amendment or supplement is necessary
to comply with law.
(iii)
Delivery of the Registration Statement
. The Company will furnish to the Agents and
to counsel for the Agents, upon request, 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.
(iv)
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. The Prospectus and any amendments or
supplements thereto furnished to such 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.
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(v)
Revisions of Prospectus—Material Changes
. If at any time prior to the Settlement
Date any event shall occur or condition exist as a result of which
it is necessary, in the opinion of counsel for the Agents, counsel
for the Company or counsel for the Trust, to amend or supplement
the Registration Statement in order that the Registration Statement
will 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 or to amend or
supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, or if it shall be
necessary, in the opinion of any such counsel, to amend or
supplement the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act
or the 1933 Act Regulations, as applicable, the Company shall give
prompt notice, confirmed in writing, to the Agents to cease the
solicitation of offers for the purchase of Notes and to cease sales
of any Notes by the Purchasing Agent, and the Company will promptly
prepare and file with the Commission subject to
Section III(b)(ii) hereof, such amendment or
supplement as may be necessary to correct such statement or
omission or to make the Registration Statement and Prospectus
comply with such requirements, and the Company will furnish to the
Agents, without charge, such number of copies of such amendment or
supplement as the Agents may reasonably request. In addition, the
Company will comply with the 1933 Act, the 1933 Act Regulations,
the 1934 Act and the rules and regulations of the Commission under
the 1934 Act (the "1934 Act Regulations" ) so as to
permit the completion of the distribution of each offering of
Notes.
(vi)
Reporting Requirements . The Company,
during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Sections 13,
14 or 15 of the 1934 Act within the time periods prescribed by the
1934 Act and the 1934 Act Regulations.
(vii)
Outstanding Aggregate Principal Amount of Notes
. The Company will promptly, upon request by
an Agent, notify such Agent of the aggregate principal amount of
notes issued pursuant to the Registration Statement from time to
time outstanding under the Program in their currency of
denomination and (if so requested) expressed in United States
dollars. For the purpose of determining the aggregate principal
amount of such notes outstanding (A) the principal amount of
notes issued pursuant to the Registration Statement, denominated in
a currency other than United States dollars shall be converted into
United States dollars using the spot rate of exchange for the
purchase of the relevant currency against payment of United States
dollars being quoted by the Paying Agent (as defined in the
Indenture) on the date on which the relevant notes issued pursuant
to the Registration Statement were initially offered, (B) any
notes issued pursuant to the Registration Statement which provide
for an amount less than the principal amount thereof to be due and
payable upon redemption following an Event of Default (as defined
in the Indenture) in respect of such notes issued pursuant to the
Registration Statement, shall have a principal amount equal to
their redemption amount, (C) any zero coupon (and any other
notes issued pursuant to the Registration Statement issued at a
discount or premium) shall have a principal amount equal to their
price to the public and (D) the currency in which any notes
issued pursuant to the Registration Statement are payable, if
different from the currency of their denomination, shall be
disregarded.
(viii)
Notice of Certain Events Regarding 1934 Act Filings and
Ratings . Prior to the Settlement Date,
the Company with respect to its filings with the Commission under
the 1934 Act will notify the Agents immediately, and confirm such
notice in writing, as applicable, of (A) the receipt of any
comments from the Commission, (B) any request by the
Commission for any amendments to such filings, (C) the
issuance by the Commission of any stop order suspending the
effectiveness of such
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filings,
or of the initiation of any proceedings for that purpose or
(D) any change in the rating assigned by any Ratings Agency to
any debt securities or financial strength of the Company, or the
withdrawal by any Ratings Agency of its rating of any debt
securities or the financial strength of the Company. The Company
will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(ix)
Earnings Statements . The Company
will timely file such reports pursuant to the 1934 Act and the 1934
Act Regulations, as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(x)
Restrictions on the Offer and Sale of Funding Agreements
. Except pursuant to a Distribution
Agreement or any other selling agent agreement in connection with
the Retail Program, the Company shall not issue or agree to issue,
during the period commencing on the date of this Selling Agent
Agreement and continuing to and including the Settlement Date with
respect to such Notes, any Funding Agreement or similar agreement
for the purpose of supporting the issuance by a special purpose
entity of securities denominated in the same currency or
substantially similar to such Notes, in each case without prior
notice to the applicable Agents.
(xi)
Use of Proceeds . The Company will
use the net proceeds received by it from the issuance and sale of
the Funding Agreement in the manner specified in the
Prospectus.
IV.
(a)
Solicitations as Agent . The Agents
propose to solicit offers to purchase the Notes upon the terms and
conditions set forth herein and in the Prospectus and upon the
terms communicated to the Agents from time to time by the Company
and the Trust or the Purchasing Agent, as the case may be. For the
purpose of such solicitation, the Agents are not authorized,
without the prior written consent of the Company, to provide any
written information relating to the Company and the Trust to any
prospective purchaser other than the Prospectus as then amended or
supplemented which has been most recently distributed to the Agents
by the Company, and the Agents will solicit offers to purchase only
as permitted or contemplated thereby and herein and will solicit
offers to purchase the Notes only as permitted by the 1933 Act and
the applicable securities laws or regulations of any jurisdiction.
The Company and the Trust reserve the right, in their sole
discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or permanently. Upon
receipt of instructions (which may be given orally) from the
Company and the Trust, the Agents will suspend promptly
solicitation of offers to purchase until such time as the Company
and the Trust has advised the Agents that such solicitation may be
resumed.
Unless
otherwise instructed by the Company and the Trust, the Agents are
authorized to solicit offers to purchase the Notes only in
denominations of $1,000 or more (in multiples of $1,000). The
Agents are not authorized to appoint subagents or to engage the
services of any other broker or dealer in connection with the offer
or sale of the Notes without the consent of the Company and the
Trust. Each Agent shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Notes, as
a whole or in part, and any such rejection shall not be deemed a
breach of its agreements contained herein. The Company and the
Trust agree to pay the Purchasing Agent, as consideration for
soliciting offers to purchase Notes pursuant to the Selling Agent
Agreement, a concession in the form of a discount equal to the
percentages of the initial offering price of each Note actually
sold as set forth in Exhibit Q hereto (the "
Concession "); provided, however , that the
Company, the Trust and the Purchasing Agent may agree also to a
Concession greater than or less than the percentages set forth on
Exhibit Q hereto. The actual aggregate Concession with
respect to the Notes will be set forth in the related Pricing
Supplement. The Purchasing Agent and the other Agents or Selected
Dealers will share the above-mentioned Concession in such
proportions as they may agree.
9
Unless
otherwise authorized by the Company and the Trust, all Notes shall
be sold to the public at a purchase price not to exceed 100% of the
principal amount thereof, plus accrued interest, if any. Such
purchase price shall be set forth in the confirmation statement of
the Agent or Selected Dealer responsible for such sale and
delivered to the purchaser along with a copy of the Prospectus (if
not previously delivered) and Pricing Supplement.
(b)
Sale of Notes . The Company and the
Trust shall not sell Notes in excess of the aggregate initial
offering price of notes registered pursuant to the Registration
Statement and any additional aggregate offering price of notes
registered pursuant to a Rule 462(b) Registration Statement.
The Agents shall have no responsibility for maintaining records
with respect to the aggregate initial offering price of notes sold
(including the Notes), or of otherwise monitoring the availability
of notes for sale, under the Registration Statement.
(c)
Administrative Procedures
. Procedural details relating to the issue
and delivery of, and the solicitation of purchases and payment for,
the Notes are set forth in the Administrative Procedures attached
hereto as Exhibit R (the " Procedures "),
as amended from time to time. Unless otherwise provided in a
Selling Agent Agreement, the provisions of the Procedures shall
apply to all transactions contemplated hereunder. Unless otherwise
agreed, the Agents, the Company and the Trust shall perform, and
the Company agrees to cause the Administrator and Indenture Trustee
to perform, their respective duties and obligations specifically
provided to be performed by each in the Procedures as amended from
time to time. The Procedures may only be amended by written
agreement of the Company, the Trust and the Agents.
V.
Purchases as Principal . Each sale of
Notes shall be made in accordance with the terms of this Selling
Agent Agreement which provides for the sale of such Notes to, and
the purchase and reoffering thereof by, the Purchasing Agent as
principal. This Selling Agent Agreement may also specify certain
provisions relating to the reoffering of such Notes by the
Purchasing Agent. The offering of Notes by the Trust hereunder and
the Purchasing Agent's agreement to purchase Notes pursuant to the
Selling Agent Agreement shall be deemed to have been made on the
basis of the representations, warranties and agreements of the
Company and the Trust herein contained and shall be subject to the
terms and conditions herein set forth. This Selling Agent Agreement
describes the Notes to be purchased pursuant thereto by the
Purchasing Agent as principal, and specifies, among other things,
the principal amount of Notes to be purchased, the interest rate or
formula and maturity date or dates of such Notes, the interest
payment dates, if any, the net proceeds to the Trust, the initial
public offering price at which the Notes are proposed to be
reoffered, and the time and place of delivery of and payment for
such Notes, whether the Notes provide for a Survivor's Option,
whether the Notes are redeemable or repayable and on what terms and
conditions, and any other relevant terms.
VI.
(a)
