Exhibit 1
ING USA ANNUITY AND LIFE INSURANCE COMPANY
$1,300,000,000
SECURED MEDIUM-TERM NOTES PROGRAM
ING(SM) USA CORENOTES(R) PROGRAM
DISTRIBUTION AGREEMENT
[__]
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxxxxxx Xxxxx International
Four World Financial Center, North Tower 0 Xxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx XX0X 0XX Xxxxxxx
Each other institution named on Schedule A hereto
Ladies and Gentlemen:
1. Introductory. ING USA Annuity and Life Insurance Company, an Iowa
insurance company (the "Company"), in connection with the Company's Secured
Medium-Term Notes Program (the "Institutional Program") and the Company's
ING(SM) USA CoreNotes(R) Program (the "Retail Program" and, together with the
Institutional Program, the "Programs"), confirms its agreement with Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated and each other institution named on
Schedule A hereto and any institution appointed as an agent pursuant to Section
20 hereof (each, an "Agent" and, collectively, the "Agents") with respect to the
secured medium-term notes due between nine months and thirty years from the date
of issuance under the Programs (the "Notes") to be offered by separate and
distinct issuing entities in the form of special purpose common law trusts from
time to time (each, a "Trust" and, collectively, the "Trusts"), each of which
shall be formed in a jurisdiction located in the United States of America
pursuant to a trust agreement, as amended or modified from time to time, which
will adopt and incorporate the standard trust terms (each, a "Trust Agreement"),
in each case between U.S. Bank National Association, as trustee (the "Trustee"),
and GSS Holdings II, Inc., a Delaware corporation, as trust beneficial owner
(the "Trust Beneficial Owner").
From time to time, upon the formation of a new Trust, in connection with
the offer and sale of a particular series of Notes by such Trust, upon execution
and delivery of the terms agreement substantially in the form set forth in
Section C of the omnibus instrument (the "Terms Agreement") by such Trust and
the applicable Agent or Agents specified therein, among others (the "Omnibus
Instrument"), such Trust shall become a party hereto in relation to such series
of Notes (the time of such execution and delivery referred to herein as such
Trust's "Trust Effective Time"), with all the authority, rights, powers, duties
and obligations of a Trust as if originally
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"CoreNotes(R)" is a registered service mark of Xxxxxxx Xxxxx & Co., Inc.
"ING(SM)" is a registered service mark of ING Groep N.V. and is used under
license.
named as a Trust hereunder. Any agreement, covenant, acknowledgment,
representation or warranty made by a Trust hereunder shall be deemed to have
been made by each Trust at its Trust Effective Time and at the Applicable Time
(as defined with respect to the offering of such Trust's series of Notes in the
applicable Terms Agreement) for such Trust, unless another time or times are
specified herein, in which case such specified time or times shall instead
apply.
Each series of Notes is to be issued pursuant to an indenture, as amended
or modified from time to time, which will adopt and incorporate the standard
indenture terms (each, an "Indenture"), between the relevant Trust and Citibank,
N.A., as indenture trustee (the "Indenture Trustee"). Each Trust shall issue
only one series of Notes. As of the date of this Agreement, the Trusts are
authorized to issue collectively up to U.S. $1,300,000,000 aggregate initial
offering price of Notes (or its equivalent as determined pursuant to Section
5(a)(xviii) hereof) through the Agents, as principal or agent, pursuant to the
terms of this Agreement. It is understood, however, that the Company (as
depositor and sponsor of the Programs) may from time to time increase the
aggregate amount of Notes and that such additional Notes may be sold through the
Agents, as principal or agent, pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date of this
Agreement.
Each Trust will use the net proceeds from the sale of its related series of
Notes to purchase a funding agreement (each, a "Funding Agreement" and,
collectively, the "Funding Agreements") from the Company. The series of Notes
issued by a Trust will be secured by the relevant Funding Agreement that will be
assigned by such Trust to the Indenture Trustee pursuant to the relevant
Indenture with respect to such series of Notes for the benefit of the holders of
such series of Notes and any other person for whose benefit the Indenture
Trustee is or will be holding the relevant Collateral (as defined in the
relevant Indenture). In connection with the sale of a series of Notes, the
Company and the relevant Trust will prepare a pricing supplement (the "Pricing
Supplement") including or incorporating by reference, among other things, a
description of the terms of such series of Notes and the related Funding
Agreement and the terms of the offering of such series of Notes.
If any institution is appointed as an Agent only with respect to a
particular series of Notes, such institution shall only be an Agent with respect
to such series of Notes. This Agreement provides for the offer of Notes by one
or more Trusts (x) to one or more Agents as principal for resale to investors
and other purchasers and (y) directly to investors (as may from time to time be
agreed to by the Company, such Trust and the relevant Agent), in which case the
relevant Agent will act as an agent of such Trust in soliciting offers for the
purchase of Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") (A) a registration statement on Form S-3 (No. 333-156411), and
pre-effective amendment no. 1 thereto for the registration of Funding Agreements
and Notes to be issued through one or more Trusts under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"), (B) the related prospectus dated
[__], covering the Notes to be offered under the Programs (the "Base
Prospectus"), (C) the prospectus supplement to the Base Prospectus dated [__],
covering the Notes offered under the Institutional Program (the "Institutional
Prospectus Supplement" and, together with the Base Prospectus, the
"Institutional Prospectus") and
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(D) the prospectus supplement to the Base Prospectus dated [__] covering the
Notes offered under the Retail Program (the "Retail Prospectus Supplement" and,
together with the Base Prospectus, the "Retail Prospectus"). The registration
statement referred to in clause (A) above (as so amended) has been declared
effective by the Commission and the form of Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). The Company
has filed such post-effective amendments thereto as may be required prior to any
acceptance by a Trust of an offer for the purchase of a series of Notes, and
each such post-effective amendment has been declared effective by the
Commission. Such registration statement, at any relevant time, including the
amendments, the exhibits and any schedules thereto at such time, the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act at such time and the documents otherwise deemed to be a part thereof or
included therein by the 1933 Act Regulations at such time is referred to herein
as the "Registration Statement". If the Company files a registration statement
with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the
"Rule 462(b) Registration Statement"), or any further registration statement for
the purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit, then, after
such filing, all references to the "Registration Statement" shall also be deemed
to include the Rule 462(b) Registration Statement or any such further
registration statement or statements. With respect to the offering of a series
of Notes under the Institutional Program, the Institutional Prospectus, and with
respect to the offering of a series of Notes under the Retail Program, the
Retail Prospectus, in each case including all applicable amendments or
supplements thereto and the Pricing Supplement relating to the offering of such
series of Notes, in the form first filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations (or in the form first made available to the
applicable Agent(s) by the Company and the applicable Trust for use in
confirming sales of such series of Notes), are referred to herein as the
"Prospectus". The term "preliminary prospectus" means any preliminary form of
the Prospectus, including any such preliminary form included in the Registration
Statement. 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 by the applicable
Trust under the Institutional Program, the Institutional Prospectus, and (2)
with respect to the offer and sale of any series of Notes by the applicable
Trust under the Retail Program, the Retail Prospectus, in each case as amended
or supplemented from time to time prior to the Applicable Time and together with
any preliminary prospectus relating to the offer and sale of such series of
Notes prior to the Applicable Time, any Pricing Supplement relating to the offer
and sale of such series of Notes prior to the Applicable Time, any Final Term
Sheet (as defined in Section 6(a) hereof) relating to the offer and sale of such
series of Notes and each free writing prospectus attached as, or identified in,
Exhibit F to the applicable Omnibus Instrument and any other information
identified in Exhibit F to the applicable Omnibus Instrument in the form
furnished to or by the applicable Agent(s) prior to the Applicable Time for use
in confirming sales of such series of Notes. All references to the Registration
Statement, the Institutional Prospectus, the Retail Prospectus, any preliminary
prospectus, any Time of Sale Prospectus and the Prospectus shall also be deemed
to include all documents incorporated or deemed to be incorporated by reference
therein. For purposes of this Agreement, all references to the Registration
Statement, any Time of Sale Prospectus, the Prospectus, any preliminary
prospectus or any free writing 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 ("XXXXX").
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All references in this Agreement to financial statements and schedules and
other information that is "disclosed", "contained", "included" or "stated" (or
other references of like import) in the Registration Statement, any Time of Sale
Prospectus, the Prospectus, any preliminary prospectus or any free writing
prospectus shall be deemed to include all such financial statements and
schedules and other information that is incorporated by reference in or
otherwise deemed by the 1933 Act Regulations to be a part of or included in the
Registration Statement, such Time of Sale Prospectus, the Prospectus, such
preliminary prospectus or such free writing prospectus, as the case may be. The
terms "amend", "amendment" or "supplement" as used herein with respect to the
Registration Statement, a Time of Sale Prospectus, the Institutional Prospectus,
the Retail Prospectus, the Prospectus, any preliminary prospectus or any free
writing prospectus shall be deemed to include all documents subsequently filed
with the Commission pursuant to the 1933 Act or the Securities Exchange Act of
1934, as amended ("1934 Act"), that are incorporated by reference in or
otherwise deemed by the 1933 Act Regulations to be a part of or included in the
Registration Statement, such Time of Sale Prospectus, the Institutional
Prospectus, the Retail Prospectus, the Prospectus, such preliminary prospectus
or such free writing prospectus, as the case may be.
2. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions stated herein, the
Company and each Trust hereby agree that Notes will be sold to or through the
Agents. Each of the Company and each Trust agrees that it will not appoint any
other agents to act on the Trust's behalf, or to assist the Trust, in the
placement of the Notes; provided, however, that with respect to transactions in
which the sales of Notes will be targeted to institutional purchasers under the
Institutional Program, the Company and a Trust may enter into arrangements with
other agent(s) not a party to this Agreement provided that such agent(s) enter
into an agreement with terms substantially identical to those contained herein.
Each of the Company and each Trust agrees that it hereby appoints only Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the "Retail Agent") to act
exclusively on such Trust's behalf or to assist such Trust in connection with
transactions in which the sale of Notes will be targeted to retail purchasers
under the Retail Program and sold in connection with the CoreNotes(R) website
(xxx.xxxxxxxxx.xx.xxx). For purposes of this Agreement, all references to any
Agent shall be deemed to include the Retail Agent, unless the context otherwise
requires.
(b) Sale of Notes. The Trusts shall not sell or approve the solicitation of
offers for the purchase of Notes in excess of the amount that shall be
authorized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registration
Statement and any further registration statement filed for the purpose of
registering additional Notes. The Agents shall have no responsibility for
maintaining records with respect to the aggregate initial offering price of
Notes sold, or of otherwise monitoring the availability of Notes for sale, under
the Registration Statement or any such further registration statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from any Trust as principal. However, absent an agreement between
an Agent and the Company and the relevant Trust that such Agent shall be acting
solely as an agent for such Trust, such Agent shall be deemed to be acting as
principal in connection with any offering of Notes by such Trust through such
Agent. Accordingly, the Agents, individually or in a syndicate, may agree from
time to time, subject to the terms and conditions stated herein, to purchase
Notes from a Trust as principal
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for resale to investors and other purchasers determined by such Agents. Any
purchase of Notes from a Trust by an Agent as principal shall be made in
accordance with Section 4(a) hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and the
relevant Trust, such Agent, acting solely as an agent for such Trust and not as
principal, subject to the terms and conditions stated herein, will use its
reasonable efforts to solicit offers for the purchase of Notes. Such Agent,
acting solely as agent for the relevant Trust and not as principal, will
communicate to the Company, orally, each offer for the purchase of Notes
solicited by it on an agency basis other than those offers rejected by such
Agent. Such Agent shall have the right, in its discretion reasonably exercised,
to reject any offer for the purchase of Notes, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein. The
Company, on behalf of such Trust, may accept or reject any offer for the
purchase of Notes, in whole or in part. Such Agent shall make reasonable efforts
to assist the Company on behalf of such Trust in obtaining performance by each
purchaser whose offer for the purchase of Notes has been solicited by it on an
agency basis and accepted by the Company on behalf of such Trust. Unless agreed
to in writing by the Company, on behalf of such Trust, and such Agent, such
Agent shall not have any liability to the Company or such Trust in the event
that any such purchase is not consummated for any reason. If such Trust shall
default on its obligation to deliver Notes to a purchaser whose offer has been
solicited by such Agent on an agency basis and accepted by the Company on behalf
of such Trust, the Company and such Trust, jointly and severally, shall (i) hold
such Agent harmless against any loss, claim or damage arising from or as a
result of such default by such Trust and (ii) pay to such Agent any commission
to which it would otherwise be entitled absent such default.
(e) Reliance. The Company, each Trust and the Agents agree that (i) any
series of Notes purchased from a Trust by one or more Agents as principal shall
be purchased, and any series of Notes the placement of which an Agent arranges
as an agent of such Trust shall be placed by such Agent, in reliance on the
representations, warranties, covenants and agreements of such Trust and the
Company contained herein and in the applicable Terms Agreement and on the terms
and conditions and in the manner provided herein and therein, (ii) any Funding
Agreement sold by the Company to such Trust in connection with the issuance of
such Trust's series of Notes will be sold in reliance on the representations,
warranties, covenants and agreements of such Trust and the Agent(s) (to or
through whom such series of Notes is being sold), as applicable, contained
herein and in the applicable Terms Agreement and on the terms and conditions and
in the manner provided herein and therein, and (iii) the series of Notes issued
by such Trust to or through the applicable Agent(s) will be issued in reliance
on the covenants and agreements of each such Agent contained herein and in the
applicable Terms Agreement and on the terms and conditions and in the manner
provided herein and therein.
(f) No Fiduciary Duty. Each of the Company and each Trust acknowledges and
agrees that (i) the offer and sale of a series of Notes issued by each such
Trust, including the determination of the offering price of such series of Notes
and any related discounts and commissions, is an arm's-length commercial
transaction between each such Trust and the Company, on the one hand, and each
applicable Agent, on the other hand, (ii) each applicable Agent is acting solely
in the capacity of an arm's length contractual counterparty to the Company and
each such Trust in connection with the offering of such series of Notes and the
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process leading to such transaction (including in connection with determining
the terms of the offering) and not as a financial advisor or a fiduciary to the
Company or any such Trust and (iii) no Agent has assumed or will assume an
advisory or fiduciary responsibility in favor of any such Trust or the Company
with respect to the offering of such series of Notes or the process leading
thereto (irrespective of whether such Agent has advised or is currently advising
the Company on other matters) and no Agent has any obligation to any such Trust
or the Company with respect to the offering of such series of Notes issued by
any such Trust except the obligations expressly set forth in this Agreement.
Additionally, the Agents are not advising the Company, any Trust or any other
person or entity as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction in connection with the offering of the Notes or the
Funding Agreements contemplated hereby. Each of the Company and each Trust shall
consult with its own advisors concerning such matters and shall be responsible
for making its own appraisal of the transactions contemplated hereby, and the
Agents shall have no responsibility or liability to any of them with respect
thereto. Any review by the Agents of the Company, any Trust, the transactions
contemplated hereby or other matters relating to such transactions will be
performed solely for the benefit of the Agents and shall not be on behalf of the
Company or any Trust.
3. Representations and Warranties; Additional Certifications.
(a) Representations and Warranties of the Company. The Company represents
and warrants to each Agent as of the date of this Agreement, to the applicable
Agent(s) as of the Applicable Time (whether to such Agent as principal or
through such Agent as agent), to the applicable Agent(s) as of the date of each
delivery of Notes (whether to such Agent as principal or through such Agent as
agent) (the date of each such delivery to such Agent as principal is referred to
herein as a "Settlement Date"), to the applicable Agent(s) as of any time that
the applicable Time of Sale Prospectus or the Prospectus shall be amended or
supplemented and to each Agent as of any time that the Registration Statement
shall be amended or supplemented (each of the times referenced above is referred
to herein as a "Company Representation Date"), as follows:
(i) Registration Statement, Preliminary Prospectus, Time of Sale
Prospectus and Prospectus. The Company is eligible to use Form S-3 under
the 1933 Act. The Registration Statement has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose or proceedings pursuant to Section 8A of the 1933 Act against the
Company or related to the offering of the Notes have been instituted or are
pending or, to the knowledge of the Company, are threatened by the
Commission, and any request on the part of the Commission for additional
information has been complied with. The form of Indenture has been duly
qualified under the 1939 Act. No order preventing or suspending the use of
any preliminary prospectus has been issued by the Commission. At the latest
date that the Registration Statement has become, or is deemed to have
become, effective under the 1933 Act Regulations and at each Company
Representation Date, the Registration Statement complied and will comply in
all material respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the rules and regulations of the Commission
under the 1934 Act (the "1934 Act Regulations"), the 1939 Act and the rules
and regulations of the Commission under the 1939 Act and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or
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necessary to make the statements therein not misleading. Each preliminary
prospectus, Time of Sale Prospectus and Prospectus deemed to be a part of
or included in the Registration Statement, or filed pursuant to Rule 424 of
the 1933 Act Regulations, complied at such time in all material respects
with the 1933 Act and the 1933 Act Regulations. Any filing of the
Prospectus and any supplements thereto required pursuant to Rule 424 of the
1933 Act Regulations will be made in the manner and within the time period
required by Rule 424 of the 1933 Act Regulations. Each preliminary
prospectus, each Time of Sale Prospectus and the Prospectus delivered to
the applicable Agent(s) for use in connection with the offering of Notes
are identical to any electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T. At the date of this Agreement, at the date of the Base
Prospectus and each amendment or supplement thereto and at each other
Company Representation Date, neither the Base Prospectus nor any amendment
or supplement thereto included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Each Time of Sale Prospectus, at the Applicable Time and at the
applicable Settlement Date, will not include 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. Notwithstanding anything to the contrary
contained herein, the representations and warranties in this Section
3(a)(i) shall not apply to (A) statements in or omissions from the
Registration Statement, any preliminary prospectus, the applicable Time of
Sale Prospectus or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by the Agents
expressly for use in the Registration Statement, such preliminary
prospectus, the applicable Time of Sale Prospectus or the Prospectus or (B)
that part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the 1939 Act of the
Indenture Trustee. At the time of initial filing of the Registration
Statement, at the earliest time thereafter that the Company, any Trust or
any other offering participant has made a bona fide offer (within the
meaning of Rule 164(h)(2) of the 1933 Act Regulations) of any series of
Notes or any related Funding Agreement and at each Company Representation
Date, the Company was not and is not an ineligible issuer (as defined in
Rule 405 of the 1933 Act Regulations).
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Base Prospectus (as amended or
supplemented) and each Time of Sale Prospectus, at the time filed with the
Commission, complied in all material respects with the requirements of the
1934 Act and the 1934 Act Regulations and did not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(iii) Independent Registered Public Accounting Firm. The accountants
who opined on the financial statements and any supporting schedules thereto
included in or incorporated by reference in the Registration Statement,
each Time of Sale Prospectus and the Prospectus are an independent
registered public accounting firm with respect to the Company as required
by the 1933 Act and the 1933 Act Regulations.
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(iv) Ratings. As of the date of this Agreement, the Programs are rated
A1 by Xxxxx'x Investors Service, Inc. or its successor ("Moody's"), AA by
Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx Companies,
Inc., or its successor ("S&P"), and aa- by A.M. Best Company, Inc. or its
successor ("A.M. Best" and, together with S&P and Moody's, the "Rating
Agencies"). As of the date of each acceptance of an offer by the relevant
Trust for the purchase of Notes (whether to any Agent(s) as principal or
through such Agent(s) as agent(s)), the Programs and the Notes to be issued
by such Trust will be rated AA by S&P and aa- by A.M. Best or such other
rating set forth in the applicable Pricing Supplement and as to which the
Company shall have most recently notified the Agents pursuant to Section
5(a)(i) hereof.
(v) Due Organization, Good Standing and Due Qualification. The Company
has been duly organized and is validly existing as an insurance company in
good standing under the laws of the State of Iowa with corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the applicable Time of Sale Prospectus and to
enter into this Agreement and consummate the transactions contemplated by
the applicable Time of Sale Prospectus. The Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not reasonably
be expected to result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise
or on the power or ability of the Company to perform its obligations under
the Company Program Documents (as defined herein) to which the Company is a
party or to consummate the transactions contemplated in the applicable Time
of Sale Prospectus (a "Company Material Adverse Effect"). All of the issued
and outstanding shares of capital stock of the Company have been duly
authorized and are validly issued, fully paid and non-assessable. None of
the outstanding shares of capital stock of the Company was issued in
violation of preemptive or other similar rights of any securityholder of
the Company.
(vi) Financial Statements. The financial statements of the Company
included in any report or filing under the 1934 Act incorporated by
reference into the Registration Statement, each Time of Sale Prospectus and
the Prospectus, together with the related schedules and notes, as well as
those financial statements, schedules and notes of any other entity
included or incorporated by reference in the Registration Statement, each
Time of Sale Prospectus and the Prospectus, present fairly the financial
position of the Company, or such other entity, as the case may be, at the
dates indicated, to the extent required under the 1934 Act, and the
statement of income, shareholder's equity and cash flows of the Company, or
such other entity, as the case may be, for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles in the United States ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting schedules,
if any, included or incorporated by reference in the Registration
Statement, each Time of Sale Prospectus and the Prospectus present fairly
in accordance with GAAP the information required to be stated therein. The
selected financial data, the summary financial information and the
condensed financial information, if any, included or
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incorporated by reference in the Registration Statement, each Time of Sale
Prospectus and the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement, each Time of Sale Prospectus and the Prospectus.
Any pro forma financial statements of the Company and the related notes
thereto included or incorporated by reference in the Registration
Statement, each Time of Sale Prospectus and the Prospectus present fairly
the information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(vii) No Material Changes. Since the respective dates as of which
information is given in the Registration Statement, each Time of Sale
Prospectus and the Prospectus, except as otherwise stated therein, there
has been no event or occurrence that would result in a Company Material
Adverse Effect.
(viii) Authorization, etc. of this Agreement and the other Company
Program Documents. This Agreement has been, and each other Company Program
Document (as defined herein) when issued will be, duly authorized, executed
and delivered by the Company and, assuming that each party to this
Agreement and each other Company Program Document, other than the Company,
has duly authorized, executed and delivered such agreement, then each is or
will be a valid and legally binding agreement of the Company. Each Company
Program Document (other than this Agreement) will be enforceable against
the Company in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(ix) Absence of Defaults and Conflicts. The Company is not in
violation of the provisions of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound or to which any of
the property or assets of the Company is subject (collectively, the
"Company Agreements and Instruments"), except for such defaults that would
not result in a Company Material Adverse Effect. The execution, delivery
and performance of this Agreement, each Funding Agreement and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated by
the applicable Time of Sale Prospectus (collectively, the "Company Program
Documents"), the consummation of the transactions contemplated by the
applicable Time of Sale Prospectus (including the issuance and sale of a
series of Notes by the applicable Trust and the use of proceeds therefrom
as described in the applicable 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 conflict with, constitute a
breach, violation, default,
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event or condition that gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company under, or result in the
creation or imposition of any lien, charge or encumbrance upon any assets,
properties or operations of the Company pursuant to, any Company Agreements
and Instruments, except, in each case, to the extent such conflict, breach,
violation, default, event, condition, lien, charge or encumbrance would not
result in a Company Material Adverse Effect, nor will such actions result
in any violation of the provisions of the charter or by-laws of the Company
or, except to the extent such violation would not result in a Company
Material Adverse Effect, any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its assets, properties or operations; provided, however,
that each such law, statute, rule, regulation, judgment, order, writ or
decree is in writing; provided, further, that the Company does not make any
representations, warranties or covenants with respect to any applicable
insurance laws, regulations, rulings, policies and guidelines addressed in
the memorandum of Company Counsel (as defined herein) received by the
Agents pursuant to Section 7(b)(x) hereof and/or the opinion of Company
Counsel received by the Agents pursuant to Section 7(b)(xi) hereof.
(x) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation pending, of which the Company has received written
notice or service of process, before or brought by any court or
governmental agency or body, domestic or foreign, or, to the knowledge of
the Company, threatened, against or affecting the Company that is required
to be disclosed in the Registration Statement, any applicable preliminary
prospectus or the Prospectus (other than as stated therein) or that would
individually or in the aggregate result in a Company Material Adverse
Effect.
(xi) Possession of Licenses and Permits. The Company possesses such
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it, except for any such jurisdiction in which
the failure to be so licensed or authorized would not have a Company
Material Adverse Effect. The Company is in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, result in a Company
Material Adverse Effect. Except as otherwise set forth in the applicable
Time of Sale Prospectus, the Company has not received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses that, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Company
Material Adverse Effect.
(xii) No Filings, Regulatory Approvals, etc. No filing with, or
approval, authorization, consent, license, registration, qualification, if
any as may be required, order or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
due authorization, execution and delivery by the Company of this Agreement
and the other Company Program Documents or for the performance by the
10
Company of its obligations under this Agreement and the other Company
Program Documents, except (A) as otherwise set forth in the applicable Time
of Sale Prospectus, (B) as have been obtained or rendered, as the case may
be, (C) as may be necessary or required under state or foreign securities
or blue sky laws or any rules or regulations of any securities exchange and
(D) with respect to any applicable insurance laws, regulations, rulings,
policies and guidelines addressed in the memorandum of Company Counsel
received by the Agents pursuant to Section 7(b)(x) hereof and/or the
opinion of Company Counsel received by the Agents pursuant to Section
7(b)(xi) hereof.
(xiii) Investment Company Act. The Company is not, and upon the
issuance and sale of the Notes as herein contemplated and the application
of the net proceeds therefrom as described in the applicable 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.
(xiv) No Significant Subsidiaries. Except as set forth in the
applicable Terms Agreement, as of the date of the filing of the Company's
Form 10-K in respect of the Company's most recently completed fiscal year,
the Company has no significant subsidiaries as defined in Rule 1-02(w) of
Regulation S-X of the 1933 Act Regulations.
(b) Representations and Warranties of the Trusts. Each Trust represents and
warrants, only as to itself, to each applicable Agent as of its Trust Effective
Time, as of its Applicable Time (whether to such Agent as principal or through
such Agent as agent) and as of the date of each delivery of Notes (whether to
such Agent as principal or through such Agent as agent), as follows:
(i) Due Formation and Good Standing. Such Trust is a common law trust,
duly formed in the United States of America under the laws of its
jurisdiction pursuant to its relevant Trust Agreement, is validly existing
and is in good standing as a common law trust under the laws of its
jurisdiction.
(ii) No Material Changes. Since the respective dates as of which
information is given in the Registration Statement, each Time of Sale
Prospectus and the Prospectus or the Trust Effective Time, whichever is
later, except as otherwise stated therein, (A) there has been no event or
occurrence that would reasonably be expected to result in a material
adverse change in the condition, financial or otherwise, of such Trust or
on the power or ability of such Trust to perform its obligations under the
Trust Program Documents (as defined herein) to which such Trust is a party
or to consummate the transactions contemplated in the applicable Time of
Sale Prospectus (as to each Trust, a "Trust Material Adverse Effect") and
(B) there have been no transactions entered into by such Trust, other than
those in the ordinary course of business, that are material with respect to
such Trust.
(iii) Authorization, etc. of this Agreement and the relevant Trust
Program Documents. This Agreement and each relevant Trust Program Document
(other than the Notes) have been or will be duly authorized, executed and
delivered by such Trust and, assuming that each party to each relevant
Trust Program Document (other than the Notes), other than such Trust, has
duly authorized, executed and delivered such agreement, then each such
relevant Trust Program Document will be a valid and legally binding
agreement of such
11
Trust. Each relevant Trust Program Document (other than this Agreement and
the Notes) will be enforceable against such Trust in accordance with its
terms, as applicable, except (A) as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (B) as enforcement thereof may be
limited by requirements that a claim with respect to any Notes issued under
the relevant Indenture that are payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States.
The relevant Notes have been duly authorized by such Trust for offer, sale,
issuance and delivery pursuant to this Agreement and, when issued,
authenticated and delivered in the manner provided for in the relevant
Indenture and delivered against payment of the consideration therefor, will
constitute valid and legally binding obligations of such Trust in
accordance with their terms, enforceable against such Trust in accordance
with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law). Subject to the foregoing, the relevant
Notes, when executed by such Trust and issued, authenticated and delivered
in the manner provided for in the relevant Indenture and delivered against
payment of the consideration therefor, will be entitled to the benefits of
the relevant Indenture.
(iv) Absence of Defaults. Such Trust is not (x) in violation of its
Trust Agreement or (y) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan or credit agreement, note, lease or other
agreement or instrument to which such Trust is a party or by which it may
be bound or to which any of the property or assets of such Trust is subject
(collectively, as to each Trust, the "Trust Agreements and Instruments"),
except for such defaults that would not result in a Trust Material Adverse
Effect. The (A) execution, delivery and performance of this Agreement, the
relevant Indenture, the relevant Notes and any other agreement or
instrument entered into or issued or to be entered into or issued by such
Trust in connection with the transactions contemplated by the applicable
Time of Sale Prospectus, (B) performance of the relevant Trust Agreement
(all agreements and instruments referenced in Section 3(b)(iv)(A) hereof
and this Section 3(b)(iv)(B) referred to herein, as to each Trust, as the
"Trust Program Documents"), (C) consummation of the transactions
contemplated in the applicable Time of Sale Prospectus (including the
issuance and sale of the relevant Notes and the use of proceeds therefrom
as described in the applicable Time of Sale Prospectus) and (D) compliance
by such Trust with its obligations under the Trust Program Documents have
been or will be duly authorized by all necessary action and do not
constitute a breach, default or violation that gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by such Trust under, or,
except as contemplated by the Trust Program Documents, result in the
creation or imposition of any lien, charge or encumbrance upon any
12
assets, properties or operations of such Trust pursuant to, any Trust
Agreements and Instruments, nor will such actions result in any violation
of the relevant Trust Agreement or, except to the extent that any such
violation would not result in a Trust Material Adverse Effect, any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over such Trust or any of its assets,
properties or operations.
(v) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation pending, of which such Trust has received written
notice or service of process, before or brought by any court or
governmental agency or body, domestic or foreign, or, to the knowledge of
such Trust, threatened, against or affecting such Trust that is required to
be disclosed in the Registration Statement, any applicable preliminary
prospectus or the Prospectus (other than as stated therein), or that would
individually or in the aggregate result in a Trust Material Adverse Effect.
(vi) Notes Listed on any Stock Exchange. If specified in the relevant
Pricing Supplement, such Trust's series of Notes described in such Pricing
Supplement shall be listed on the securities exchange designated in such
Pricing Supplement.
(vii) Possession of Licenses and Permits. Such Trust possesses such
Governmental Licenses issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, except for any such jurisdiction in which the failure to be
so licensed or authorized would not have a Trust Material Adverse Effect.
Such Trust is in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Trust Material Adverse Effect.
Except as otherwise set forth in the applicable Time of Sale Prospectus,
such Trust has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses that, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Trust Material Adverse Effect.
(viii) No Filings, Regulatory Approvals, etc. No filing with, or
approval, authorization, consent, license, registration, qualification, if
any as may be required, order or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
due authorization, execution and delivery by the Trust of the Trust Program
Documents or for the performance by such Trust of its obligations under
this Agreement and the other Trust Program Documents, except (A) as
otherwise set forth in the applicable Time of Sale Prospectus, (B) as have
been obtained or rendered, as the case may be, (C) as may be necessary or
required under state or foreign securities or blue sky laws or any rules or
regulations of any securities exchange and (D) with respect to any
applicable insurance laws, regulations, rulings, policies and guidelines
addressed in the memorandum of Company Counsel received by the Agents
pursuant to Section 7(b)(x) hereof and/or the opinion of Company Counsel
received by the Agents pursuant to Section 7(b)(xi) hereof.
(ix) Investment Company Act. Such Trust is not, nor will it be upon
the issuance and sale of its series of Notes as herein contemplated and the
application of the net proceeds therefrom as described in the applicable
Time of Sale Prospectus required to
13
register as, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(c) Additional Certifications. Any certificate signed by any officer of the
Trustee, on behalf of a Trust, or the Company and delivered to one or more
Agents or to counsel for the Agents in connection with an offering of Notes to
one or more Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by such Trust or the Company, as the case may be, to
such Agent or Agents as to the matters covered thereby on the date of such
certificate.
4. Purchases as Principal; Solicitations as Agent; Other Sales.
(a) Purchases as Principal. Notes purchased from a Trust by the Agents,
individually or in a syndicate, as principal shall be made in accordance with
terms agreed upon between such Agent or Agents and the Company and such Trust
(which terms, unless otherwise agreed, shall, to the extent applicable, include
those terms specified in the applicable Pricing Supplement and shall be agreed
upon orally, with written confirmation to be in the form of the applicable Terms
Agreement). Unless the context otherwise requires, references herein to "this
Agreement" (or similar phrases) shall include the applicable Terms Agreement of
one or more Agents to purchase Notes from a Trust as principal. Each purchase of
Notes by the Agents (other xxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated, acting in its capacity as the Retail Agent), unless otherwise
agreed in the applicable Terms Agreement, shall be at a discount from the
principal amount of each such Note equivalent to the applicable commission set
forth in Schedule B hereto. Each purchase of Notes by Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxx & Xxxxx Incorporated, acting in its capacity as the Retail Agent, unless
otherwise agreed in the applicable Terms Agreement, shall be at a discount from
the principal amount of each such Note equivalent to the applicable commission
set forth in Schedule C hereto. The Agents may engage the services of any broker
or dealer in connection with the resale of the Notes purchased by them as
principal and may allow all or any portion of the discount received from a Trust
in connection with such purchases to such brokers or dealers.
If a Trust and two or more Agents enter into a Terms Agreement pursuant to
which such Agents agree to purchase Notes from such Trust as principal and one
or more of such Agents shall fail at the Settlement Date to purchase the Notes
that it or they are obligated to purchase (the "Defaulted Notes"), then the
non-defaulting Agents shall have the right, within 24 hours thereafter, to make
arrangements for one of them or one or more other Agents or underwriters to
purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth; provided, however, that
if such arrangements shall not have been completed within such 24-hour period,
then:
(i) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of Notes to be so purchased by
all of such Agents on the applicable Settlement Date, the non-defaulting
Agents shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective initial
underwriting obligations bear to the underwriting obligations of all
non-defaulting Agents; or
(ii) if the aggregate principal amount of Defaulted Notes exceeds 10%
of the aggregate principal amount of Notes to be so purchased by all of
such Agents on the
14
applicable Settlement Date, such Terms Agreement shall terminate without
liability on the part of any non-defaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default that
does not result in a termination of such agreement, either the non-defaulting
Agents or the Company and such Trust shall have the right to postpone the
Settlement Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement, the applicable Time of Sale
Prospectus or the Prospectus or in any other documents or arrangements.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and a Trust and an Agent, such Agent, as an
agent of the Company and such Trust, will use its reasonable efforts to solicit
offers for the purchase of Notes upon the terms set forth in the applicable Time
of Sale Prospectus. Such Agent is authorized to appoint any sub-agent with
respect to solicitations of offers to purchase Notes; provided, however, that
any such appointment of a sub-agent shall be subject to the prior consent of
such Trust and the Company. All Notes sold through an Agent as agent will be
sold at 100% of their principal amount unless otherwise agreed upon between the
Company and such Trust and such Agent.
The Trust reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company and such Trust, commencing at any time for any period of time or
permanently. As soon as practicable after receipt of written instructions to
such effect from such Trust, such Agent will suspend solicitation of offers for
the purchase of Notes from the Company through such Trust until such time as the
Company and such Trust have advised such Agent that such solicitation may be
resumed.
Each Trust agrees to pay each Agent, other xxxx Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated, acting in its capacity as the Retail Agent, as
consideration for soliciting offers to purchase Notes as an agent of the Company
and such Trust, a commission, in the form of a discount, unless otherwise agreed
in the applicable Terms Agreement, equal to the applicable percentage of the
principal amount of each Note sold by such Trust as a result of any such
solicitation made by such Agent, as set forth in Schedule B hereto.
Each Trust agrees to pay Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated, acting in its capacity as the Retail Agent, as consideration for
soliciting offers to purchase Notes as an agent of the Company and such Trust, a
commission, in the form of a discount, unless otherwise agreed in the applicable
Terms Agreement, equal to the applicable percentage of the principal amount of
each Note sold by such Trust as a result of any such solicitation made by the
Retail Agent, as set forth in Schedule C hereto.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the relevant Notes shall be agreed
upon between the relevant Trust and the applicable Agent(s) and specified in a
Pricing Supplement to be prepared by the Company in connection with each sale of
Notes. Except as otherwise specified in the applicable Pricing Supplement, the
Notes of each series will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the
15
issuance and sale of the relevant Notes (the "Procedures") shall be agreed upon
from time to time among the relevant Trust, the Company, the Agent(s) and the
Indenture Trustee. The Agents and each Trust agree to perform, and each Trust
agrees to cause the Indenture Trustee to perform, and the Company agrees to
perform, their respective duties and obligations specifically provided to be
performed by them in the Procedures.
(d) Obligations Several. The Company and each Trust acknowledge that the
obligations of the Agents under this Agreement are several and not joint.
5. Covenants.
(a) Covenants of the Company. The Company covenants and agrees with each
Agent as follows:
(i) Notice of Certain Events. The Company 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, supplement or revision to any preliminary prospectus, any
Time of Sale Prospectus or the Prospectus, (B) the receipt of any comments
from the Commission with respect to the Registration Statement, any
preliminary prospectus, any Time of Sale Prospectus and the Prospectus, (C)
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to any Time of Sale Prospectus or
the Prospectus, as amended or supplemented, 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, Time of Sale Prospectus
or Prospectus, or of the initiation of any proceedings for that purpose,
(E) any action whereby the Company becomes the subject of a proceeding
under Section 8A of the 1933 Act or any proceeding in connection with the
offering of the Notes or (F) any change in the rating assigned by any
nationally recognized statistical rating organization to the Programs or
the Notes, or the withdrawal by any nationally recognized statistical
rating organization of its rating of the Programs or the Notes. The Company
will effect all filings required under Rule 424(b) of the 1933 Act
Regulations, in the manner and within the time period required by Rule
424(b) of the 1933 Act Regulations. With respect to the Registration
Statement, each preliminary prospectus, each Time of Sale Prospectus and
the Prospectus, 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 and Certain 1933 Act Documents. The
Company will give the relevant Agents advance notice of its intention to
file or prepare any additional registration statement with respect to the
registration of additional Notes or Funding Agreement(s), as the case may
be, any amendment to the Registration Statement, any amendment or
supplement to the prospectus included in the Registration Statement at the
time it became effective or any amendment or supplement to any preliminary
prospectus, any Time of Sale Prospectus or the Prospectus, in each case,
pursuant to the 1933 Act, will provide immediate notice to each relevant
Agent of any intention to prepare an amendment
16
or supplement to any Time of Sale Prospectus and, if applicable, to file
such amendment or supplement pursuant to the 1933 Act and will furnish to
the applicable 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 or use any such document to which the applicable Agents or counsel for
the applicable 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) Revisions of Registration Statement. If at any time during the
term of this Agreement any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the Agents
or counsel for the Company, to amend 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 if it
shall be necessary, in the opinion of either such counsel, to amend the
Registration Statement in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company shall give immediate notice,
confirmed in writing, to the Agents to cease the solicitation of offers for
the purchase of Notes in their capacity as agents and to cease sales of any
Notes they may then own as principal, and the Company will promptly prepare
and file with the Commission, subject to Section 5(a)(ii) hereof, such
amendment as may be necessary to correct such statement or omission or to
make the Registration Statement comply with such requirements, the Company
will use commercially reasonable efforts to have such amendment declared
effective as soon as practicable and the Company will furnish to the
Agents, without charge, such number of copies of such amendment as the
Agents may reasonably request.
(iv) Revisions of Time of Sale Prospectus. If any Time of Sale
Prospectus is being used to solicit offers to buy any Notes of a series at
a time when the Prospectus is not yet available to prospective purchasers
and any event shall occur or condition shall exist as a result of which it
is necessary, in the opinion of counsel for the applicable Agents or
counsel for the Company, to amend or supplement such Time of Sale
Prospectus in writing in order that such Time of Sale 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
the light of the circumstances existing at the time such Time of Sale
Prospectus is conveyed to a prospective purchaser, or if it shall be
necessary, in the opinion of either such counsel, to amend or supplement
such Time of Sale Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company shall give immediate
notice, confirmed in writing, to each of the applicable Agents, and the
Company will promptly prepare and, if applicable, file with the Commission,
subject to Section 5(a)(ii) hereof, such amendment or supplement as may be
necessary to correct such statement or omission or to make such Time of
Sale Prospectus comply with such requirements and the Company will furnish
to the applicable Agents, without charge, such number of copies of such
amendment or supplement as the applicable Agents may reasonably request.
(v) Revisions of Prospectus. Except as otherwise provided in Section
5(a)(vii) hereof, if at any time when, in the opinion of counsel for the
Agents or counsel
17
for the Company, any preliminary prospectus or the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) of the 1933 Act Regulations)
is required to be delivered any event shall occur or condition shall exist
as a result of which it is necessary, in the opinion of counsel for the
Agents or counsel for the Company, to amend or supplement such preliminary
prospectus or the Prospectus in order that such preliminary prospectus or
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 the light of the circumstances existing at the
time such preliminary prospectus or the Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) of the 1933 Act Regulations) is conveyed
to a prospective purchaser, or if it shall be necessary, in the opinion of
either such counsel, to amend or supplement such preliminary prospectus or
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company shall give immediate notice,
confirmed in writing, to the Agents to cease the solicitation of offers for
the purchase of Notes in their capacity as agents and to cease sales of any
Notes that they may then own as principal, and the Company will promptly
prepare and file with the Commission, subject to Section 5(a)(ii) hereof,
such amendment or supplement as may be necessary to correct such statement
or omission or to make such preliminary prospectus or the 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 1934 Act Regulations,
including, without limitation, Rule 424, Rule 430B and Rule 433 of the 1933
Act Regulations, so as to permit the completion of the distribution of each
offering of Notes.
(vi) Reporting Requirements. The Company (as depositor and sponsor of
the Programs), on behalf of the Trusts, will file all documents required to
be filed with the Commission pursuant to the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(vii) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of Section 5(a)(v) hereof during any
period commencing from the time (A) the Agents shall have suspended
solicitation of offers for the purchase of Notes in their capacity as
agents pursuant to a request from the Company and the relevant Trust
pursuant to Section 4(b) hereof or (B) no Agent shall then hold any Notes
purchased from a Trust as principal with a view to distribution, as the
case may be, and ending at the time (x) the Company and the relevant Trust
shall determine that solicitation of offers for the purchase of Notes
should be resumed or (y) an Agent shall subsequently purchase Notes from a
Trust as principal.
(viii) Blue Sky Qualifications. The Company shall endeavor to qualify
the Notes for offer and sale under the securities or blue sky laws of such
jurisdictions as the relevant Agents shall reasonably request and to
maintain such qualifications for as long as such Agents shall reasonably
request; provided, however, that the Company shall not be obligated to file
any general consent to service 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
18
to taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject.
(ix) Authorization to Act on Behalf of the Company. The Company will,
from time to time, upon written request, deliver to the Agents a
certificate as to the names and signatures of those persons authorized to
act on behalf of the Company in relation to the Programs if such
information has changed.
(x) Delivery of the Registration Statement. The Company will furnish
to each Agent and to counsel for the Agents, without charge, conformed
copies of the Registration Statement and conformed copies of all consents
and certificates of experts. The Registration Statement furnished to the
Agents will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
(xi) Delivery of Preliminary Prospectus and Time of Sale Prospectus.
The Company will deliver to each applicable Agent, without charge, as many
copies of each 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 applicable
Agent, without charge, such number of copies of each Time of Sale
Prospectus (as amended or supplemented) as such Agent may reasonably
request. Each such document furnished to the Agents will be identical to
any electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(xii) Delivery of the Prospectus. The Company will furnish to each
applicable Agent, without charge, such number of copies of the Prospectus
(as amended or supplemented) as such Agent may reasonably request to meet
its obligations under the 1933 Act and the 1933 Act Regulations. 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 Prospectus and any amendments or supplements thereto
furnished to the Agents will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(xiii) Preparation of Pricing Supplements. The Company will prepare,
with respect to any Notes to be sold to or through one or more Agents
pursuant to this Agreement, a Pricing Supplement with respect to such Notes
in a form previously approved by the Agents. The Company will deliver such
Pricing Supplement to such Agent or Agents no later than 11:00 a.m., New
York City time, on the second business day following the Applicable Time
for the relevant Trust and will file such Pricing Supplement pursuant to
Rule 424(b) of the 1933 Act Regulations not later than may be required by
Rule 424(b) of the 1933 Act Regulations.
(xiv) Listing. In order for the Notes to be deemed "covered
securities" under Section 18 of the 1933 Act, the Company shall use
reasonable efforts to obtain and maintain approval for the listing of at
least one series of the Notes on the New York Stock Exchange,
19
the American Stock Exchange or another national securities organization as
provided in Section 18(a) of the 1933 Act.
(xv) Earning Statements. The Company will timely file or furnish 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 earning statement for the purposes of, and to
provide to the Agents the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(xvi) Restrictions on the Offer and Sale of Funding Agreement(s).
Except in connection with the Retail Program or as otherwise agreed, the
Company shall not issue or agree to issue, during the period commencing on
the date of the agreement of one or more Agents with a Trust to purchase a
series of Notes as principal or solicit offers for the purchase of a series
of Notes as agent and continuing to and including the Settlement Date with
respect to such series of Notes (if the applicable Agent is acting as
principal) or the date of delivery of such series of Notes (if the
applicable Agent is acting as agent), 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 and substantially
similar to such series of Notes to the same potential investors (other than
the Funding Agreement issued or to be issued to such Trust in connection
with such series of Notes), in each case without the prior written consent
of the applicable Agent(s).
(xvii) The Depository Trust Company. The Company shall endeavor to
assist the Agents in arranging to cause the Notes to be eligible for
settlement through the facilities of The Depository Trust Company.
(xviii) 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 outstanding and issued pursuant to the
Registration Statement in their currency of denomination and (if so
requested) expressed in U.S. dollars. For the purpose of determining the
aggregate principal amount of Notes outstanding and issued pursuant to the
Registration Statement, (A) the principal amount of Notes issued pursuant
to the Registration Statement, denominated in a currency other than U.S.
dollars, shall be converted into U.S. dollars using the spot rate of
exchange for the purchase of the relevant currency against payment of U.S.
dollars being quoted by the Paying Agent or the Calculation Agent, as
applicable, each as defined in the relevant Indenture, on the date on which
such Notes issued pursuant to the Registration Statement were initially
offered, (B) any Notes issued pursuant to the Registration Statement that
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
relevant Indenture) in respect of such Notes shall have a principal amount
equal to their issue amount, (C) any zero coupon Notes shall have a
principal amount equal to their issue price 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.
(b) Covenants of the Trust. Each Trust covenants and agrees, only as to
itself, with each Agent as follows:
20
(i) Use of Proceeds. Such Trust will use the net proceeds received by
it from the issuance and sale of the Notes in the manner specified in the
applicable Time of Sale Prospectus.
(ii) Settlement. Such Trust shall endeavor to assist the Agents in
arranging to cause its Notes to be eligible for settlement through the
facilities of The Depository Trust Company.
(iii) Notice of Amendment to relevant Indenture or relevant Trust
Agreement. Such Trust will give the Agents at least three business days'
prior notice in writing of any proposed amendment to the relevant Indenture
or the relevant Trust Agreement and, except in accordance with the
applicable provisions of such Indenture or such Trust Agreement, will not
make or permit to become effective any amendment to such Indenture or such
Trust Agreement that may adversely affect the interests of the Agents.
(iv) Notice of Meeting. Such Trust will furnish, or cause to be
furnished, to the Agents, at the same time as it is dispatched, a copy of
notice of any meeting of the holders of Notes that is called to consider
any matter that is material in the context of such Trust.
(v) Blue Sky Qualifications. Such Trust shall endeavor to qualify its
Notes for offer and sale under the securities or blue sky laws of such
jurisdictions as the relevant Agents shall reasonably request and to
maintain such qualifications for as long as such Agents shall reasonably
request; provided, however, that such Trust shall not be obligated to file
any general consent to service 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) Authorization to Act on Behalf of such Trust. Such Trust will,
from time to time, upon written request, deliver to the relevant Agents a
certificate as to the names and signatures of those persons authorized to
act on behalf of such Trust in relation to the Programs if such information
has changed.
6. Free Writing Prospectuses.
(a) Final Term Sheet. The Company covenants and agrees to review and
(subject to such changes deemed appropriate by the Company and the applicable
Agent(s)) approve, at the reasonable request of the applicable Agent(s) in
connection with any offer and sale of a series of Notes under the Institutional
Program, a final term sheet prepared by the applicable Agent(s) (as so approved,
the "Final Term Sheet") reflecting the final terms of the applicable series of
Notes, and the Company shall file such Final Term Sheet pursuant to Rule 433 of
the 1933 Act Regulations.
(b) Delivery and Use of Free Writing Prospectuses by Agents. In connection
with any offer and sale of a series of Notes, each applicable Agent covenants
and agrees that, except as otherwise provided in the applicable Terms Agreement,
it will furnish the Company with a form of each proposed free writing
prospectus, other than any Final Term Sheet (or similar free writing
21
prospectus including only information set forth in the Final Term Sheet), that
(i) is required to be filed pursuant to Rule 433(d) of the 1933 Act Regulations
or (ii) is or will be a part of the Time of Sale Prospectus relating to or to be
used in connection with such offer and sale by virtue of its identification in
Exhibit F to the applicable Omnibus Instrument to be prepared by or on behalf of
such Agent before its first use and will not use any such free writing
prospectus to which the Company objects. It is understood that an Agent's
obligation to furnish any such form shall be deemed satisfied if another Agent
has so furnished such form. Each Agent covenants and agrees that it will use a
free writing prospectus prepared by or on behalf of such Agent only if such free
writing prospectus complies in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations.
(c) Free Writing Prospectuses of Company and Trusts. In connection with any
offer and sale of a series of Notes, each of the Company and each Trust
represents, warrants, covenants and agrees that, without the prior consent of
the applicable Agent(s), it has not made and will not make any offer relating to
such Notes or the related Funding Agreement that would constitute a free writing
prospectus required to be filed pursuant to Rule 433 of the 1933 Act Regulations
except for any Final Term Sheet or as identified in Exhibit F to the applicable
Omnibus Instrument (it being understood that, in connection with any such offer
that does not specifically involve a particular series of Notes, the applicable
Agent(s) shall be deemed to be the Retail Agent).
(d) Distribution of Free Writing Prospectuses. Each Agent covenants and
agrees that it will not distribute any free writing prospectus used or referred
to by such Agent in a manner reasonably designed to lead to its broad
unrestricted dissemination; provided, that such covenant and agreement shall not
apply to any such free writing prospectus forming part of the Time of Sale
Prospectus or any such free writing prospectus prepared, authorized or approved
by the Company for broad unrestricted dissemination.
(e) No Conflicting Information. In connection with any offer and sale of a
series of Notes, any free writing prospectus (i) that is required to be filed
pursuant to Rule 433(d) of the 1933 Act Regulations (including any Final Term
Sheet), (ii) that is or will be a part of the Time of Sale Prospectus relating
to or to be used in connection with such offer and sale of the Notes by virtue
of its identification in Exhibit F to the applicable Omnibus Instrument or (iii)
the use of which has been consented to by the applicable Agent(s) pursuant to
Section 6(c) hereof is referred to herein as a "Permitted Free Writing
Prospectus". Each of the Company and each Trust represents, warrants, covenants
and agrees that each Permitted Free Writing Prospectus, as of its first date of
use and at all subsequent times through the completion of the public offer and
sale of the relevant series of Notes or until any earlier date that the issuer
of such Permitted Free Writing Prospectus notified or notifies the applicable
Agent(s) as described in Section 6(f) hereof, did not and does not include any
information that conflicted or conflicts with the information contained in the
Registration Statement, the applicable Time of Sale Prospectus or the
Prospectus.
(f) Further Assurances. Each of the Company and each Trust covenants and
agrees that if at any time following issuance of a Permitted Free Writing
Prospectus any event or development occurred or occurs as a result of which such
Permitted Free Writing Prospectus conflicted or conflicts with the information
in the Registration Statement, any applicable Time of
22
Sale Prospectus or the Prospectus or included or includes an untrue statement of
a material fact or omitted or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the
applicable Agent(s) and, if requested by the applicable Agent(s), will prepare
and furnish without charge to each applicable Agent a Permitted Free Writing
Prospectus or other document that will correct such conflict, statement or
omission.
(g) Copies. The Company will deliver to each applicable Agent, without
charge, such number of copies of each free writing prospectus prepared by or on
behalf of, used by or referred to by the Company as each such Agent may
reasonably request. To the extent applicable, each such document furnished to
the applicable Agent(s) will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
7. Conditions of Agents' Obligations. The obligations of one or more Agents
to purchase Notes from a Trust as principal and to solicit offers for the
purchase of Notes as an agent of such Trust, and the obligations of any
purchasers of Notes sold through an Agent as an agent of such Trust, will be
subject to 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 3 or Section 6 hereof, on the part of such Trust and the
Company herein contained or contained in any certificate of an officer of such
Trust or the Company, respectively, delivered pursuant to the provisions hereof,
to the performance and observance by such Trust and the Company of their
respective covenants and other obligations hereunder, and to the following
additional conditions precedent:
(a) Effectiveness of Registration Statement. The Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose or proceedings pursuant to Section
8A of the 1933 Act against the Company or related to the offering of the Notes
shall have been instituted or shall be pending or 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.
(b) Legal Opinions. On the date of execution of this Agreement, the Agents
shall have received the following legal opinions, dated the date of this
Agreement and in form and substance satisfactory to the Agents:
(i) Opinions of Internal Counsel for the Company. The opinions of
internal counsel for the Company to the effect set forth in Exhibit A-1 and
Exhibit A-2 hereto.
(ii) Opinion of Company Counsel Concerning Certain Iowa Insolvency
Matters. The opinion of Xxxxxx Xxxxxx LLP or other legal counsel selected
by the Company and reasonably satisfactory to the Agents ("Company
Counsel") to the effect set forth in Exhibit C hereto.
23
(iii) Opinion of Company Counsel Concerning Certain Federal Securities
Matters. The opinion of Company Counsel to the effect set forth in Exhibit
D hereto.
(iv) Opinion of Company Counsel Concerning Certain New York, Illinois
and Federal Law Matters. The opinion of Company Counsel to the effect set
forth in Exhibit E hereto.
(v) Opinion of Company Counsel Concerning Certain Tax Matters. The
opinion of Company Counsel to the effect set forth in Exhibit F hereto.
(vi) Opinion of Agents Counsel. The opinion of Pillsbury Xxxxxxxx Xxxx
Xxxxxxx LLP or other legal counsel selected by the Retail Agent and
reasonably satisfactory to the Company ("Agents Counsel") to the effect set
forth in Exhibit G hereto.
(vii) Opinion of Counsel for the Trustee. The opinion of Xxxxxxxx Xxxx
LLP, counsel for the Trustee, to the effect set forth in Exhibit H hereto.
(viii) Opinion of Counsel for the Indenture Trustee. The opinion of
Xxxxxxxxxxxx Xxxx Xxxxxxxxx LLP, counsel for the Indenture Trustee, to the
effect set forth in Exhibit I hereto.
(ix) Opinion of Counsel for the Trust Beneficial Owner. The opinion
of Xxxxxxxx, Xxxxx & Xxxxxxx, a Professional Corporation, counsel for the
Trust Beneficial Owner, to the effect set forth in Exhibit J hereto.
(x) Memorandum of Company Counsel Concerning Certain Insurance
Matters. The memorandum of Company Counsel to the effect set forth in
Exhibit M hereto.
(xi) Opinion of Company Counsel Concerning Certain Insurance
Matters. The opinion of Company Counsel to the effect set forth in Exhibit
N hereto.
(c) Negative Assurance Letters. Prior to the first issuance of Notes under
either Program, the Agents shall have received the following negative assurance
letters in form and substance satisfactory to the Agents:
(i) Negative Assurance Letter of Company Counsel. The negative
assurance letter of Company Counsel to the effect set forth in Exhibit B
hereto.
(ii) Negative Assurance Letter of Agents Counsel. The negative
assurance letter of Agents Counsel to the effect set forth in Exhibit K
hereto.
(d) Company Officer's Certificate. On the date of this Agreement, there
shall not have been, since the respective dates as of which information is given
in the Registration Statement, 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 either the principal financial officer or a
senior vice president of the Company, dated as of the date of this Agreement, to
the effect that (A) there has been no such material adverse change, (B) 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, (C) 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 (D) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose or proceedings pursuant to Section 8A of the 1933 Act against the
Company or related to the offering of the Notes have been instituted or are
pending or, to the best of each such officer's knowledge, are threatened by the
Commission.
24
(d) Comfort Letter of the Accountants. Prior to the first issuance of Notes
under either Program, the Agents shall have received a letter from Xxxxx & Young
LLP or its successor (the "Accountants"), dated such date and in form and
substance satisfactory to the Agents.
(e) Additional Documents. On the date of this Agreement, counsel to the
Agents shall have been furnished with such documents and opinions as such
counsel may require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations and warranties, or
the fulfillment of any of the conditions, herein contained, and all proceedings
taken by the relevant Trust and the Company in connection with the issuance and
sale of Notes as herein contemplated shall be satisfactory in form and substance
to the Agents and to counsel to the Agents.
If any condition specified in this Section 7 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
applicable Agent or Agents by notice to the relevant Trust and the Company at
any time and any such termination shall be without liability of any party to any
other party except as provided in Section 12 hereof and except that Section 10,
Section 11, Section 13, Section 16 and Section 17 hereof shall survive any such
termination and remain in full force and effect.
8. Delivery of and Payment for Notes Sold through an Agent as Agent.
Delivery of Notes sold through an Agent as an agent of the relevant Trust shall
be made by such Trust to such Agent for the account of any purchaser only
against payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement, such Agent shall promptly notify the Company
and such Trust and deliver such Note to such Trust and, if such Agent has
theretofore paid such Trust for such Note, such Trust will promptly return such
funds to such Agent. If such failure has occurred for any reason other than
default by such Agent in the performance of its obligations hereunder, the
Company and such Trust will reimburse such Agent on an equitable basis for its
loss of the use of the funds for the period such funds were credited to such
Trust's account.
9. Additional Covenants of the Company and the Trusts. Each of the Company
and each Trust further covenants and agrees with each Agent as follows:
(a) Subsequent Delivery of Company Officer's Certificate. In the event
that:
(i) the Registration Statement, the Institutional Prospectus or the
Retail Prospectus has been amended or supplemented (other than (A) by an
amendment or supplement providing solely for the determination of the
variable terms of the Notes or (B) in connection with the filing of any
report under Section 13 or Section 15(d) of the 1934 Act) (each, a
"Registration Statement Amendment");
(ii) the Company has filed with the Commission, pursuant to the 1934
Act, a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K, as
the case may be (each, a "Company Periodic Report");
25
(iii) the Company has filed with the Commission a Current Report on
Form 8-K under Item 1.03, 2.01, 4.01 and/or 5.01 thereof and the applicable
Agent(s) makes a reasonable request of the Company (each, an "Agent 8-K
Request"); or
(iv) the Company, the relevant Trust and the applicable Agent(s) so
agree in connection with the proposed issuance of a series of Notes (each,
an "Agent Request"),
then the Company shall furnish or cause to be furnished to the applicable Agents
promptly upon such Registration Statement Amendment, Company Periodic Report,
Agent 8-K Request or Agent Request, as applicable, a certificate dated the date
of filing or effectiveness of the Registration Statement Amendment, as
applicable, the date of the Company Periodic Report, the date of the Current
Report on Form 8-K relating to the Agent 8-K Request or the date agreed to in
connection with such Agent Request, as the case may be, in a form reasonably
satisfactory to the applicable Agents, to the effect that the statements
contained in the certificate referred to in Section 7(d) hereof which was last
furnished to the applicable Agents is true and correct at the date of filing or
effectiveness of the Registration Statement Amendment, as applicable, the date
of the Company Periodic Report, the date of the Current Report on Form 8-K
relating to the Agent 8-K Request or the date agreed to in connection with such
Agent Request, as the case may be, as though made at and as of such date or, in
lieu of such certificate, a certificate of substantially the same tenor as the
certificate referred to in Section 7(d) hereof, modified as necessary to relate
to the Registration Statement Amendment, the Company Periodic Report or the
Current Report on Form 8-K relating to the Agent 8-K Request (or other report
filed by the Company under Section 13 or Section 15(d) of the 1934 Act in
connection with an Agent Request) to the date of delivery of such certificate
(it being understood that, in the case of an Agent Request in connection with an
agreement by an Agent or Agents to purchase Notes from a Trust as principal, any
such certificate shall also include a certification that there has been no
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, since the date of such agreement by such Agent or
Agents to purchase Notes from such Trust as principal); provided, however, that
any delivery of certificates as required by this Section 9(a) due to the filing
of a Registration Statement Amendment, the filing of a Company Periodic Report
or an Agent 8-K Request shall only be required to be delivered on or prior to
the pricing date for the series of Notes to be issued immediately after such
filing or request.
(b) Subsequent Delivery of Legal Opinions. In the event of an Agent
Request, the Company shall furnish or cause to be furnished to the applicable
Agents promptly upon such Agent Request legal opinions of internal counsel for
the Company, Company Counsel, counsel for the Trustee, counsel for the Indenture
Trustee and counsel for the Trust Beneficial Owner, as applicable, dated the
date agreed to in connection with such Agent Request, in form and substance
reasonably satisfactory to the applicable Agents, of substantially the same
tenor as the legal opinions referred to in Section 7(b)(i), Section 7(b)(ii)
Section 7(b)(iii), Section 7(b)(iv), Section 7(b)(v), Section 7(b)(vii), Section
7(b)(viii) and Section 7(b)(ix) hereof, as applicable, modified as necessary,
to the extent applicable, to relate to the issuance of any series of Notes (and
the related Funding Agreement) and to any report filed by the Company under
Section 13 or Section 15(d) of the 1934 Act, to the time of delivery of such
legal opinions or, in lieu of such
26
legal opinions, counsel last furnishing such legal opinions to the applicable
Agents shall furnish such applicable Agents with a letter substantially to the
effect that the applicable Agents may rely on such last legal opinions to the
same extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last legal opinions shall be deemed to relate to
the Registration Statement, the applicable Time of Sale Prospectus, the
Institutional Prospectus and the Retail Prospectus, as applicable, as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(c) Subsequent Delivery of Negative Assurance Letter of Company Counsel. In
the event of:
(i) a Registration Statement Amendment;
(ii) a Company Periodic Report;
(iii) an Agent 8-K Request; or
(iv) an Agent Request,
then the Company shall furnish or cause to be furnished to the Agents promptly
upon such Registration Statement Amendment, Company Periodic Report, Agent 8-K
Request or Agent Request, as applicable, a negative assurance letter of Company
Counsel dated the date of filing or effectiveness of the Registration Statement
Amendment, as applicable, the date of the Company Periodic Report, the date of
the Current Report on Form 8-K relating to the Agent 8-K Request or the date
agreed to in connection with such Agent Request, as the case may be, in form and
substance reasonably satisfactory to the Agents, of substantially the same tenor
as the negative assurance letter referred to in Section 7(c)(i) hereof,
modified as necessary to relate to the issuance of any series of Notes (and the
related Funding Agreement) and to the Registration Statement Amendment, the
Company Periodic Report or the Current Report on Form 8-K relating to the Agent
8-K Request (or other report filed by the Company under Section 13 or Section
15(d) of the 1934 Act or the applicable Time of Sale Prospectus in connection
with an Agent Request) to the time of delivery of such negative assurance letter
or, in lieu of such negative assurance letter, counsel last furnishing such
negative assurance letter to the Agents shall furnish such Agents with a letter
substantially to the effect that the Agents may rely on such last negative
assurance letter to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last negative
assurance letter shall be deemed to relate to the Registration Statement, the
applicable Time of Sale Prospectus, the Institutional Prospectus and the Retail
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance); provided, however, that any delivery of a negative
assurance letter as required by this Section 9(c) due to the filing of a
Registration Statement Amendment, the filing of a Company Periodic Report or an
Agent 8-K Request shall only be required to be delivered on or prior to the
pricing date for the series of Notes to be issued immediately after such filing
or request.
(d) Subsequent Delivery of Comfort Letter. In the event of:
(i) a Registration Statement Amendment;
27
(ii) a Company Periodic Report;
(iii) an Agent 8-K Request (provided that the Current Report on Form
8-K relating to such Agent 8-K Request contains financial statements or
other financial information); or
(iv) an Agent Request,
then the Company shall cause the Accountants to furnish to the Agents promptly
upon such Registration Statement Amendment, Company Periodic Report, Agent 8-K
Request or Agent Request, as applicable, a letter, dated the date of filing or
effectiveness of the Registration Statement Amendment, as applicable, the date
of the Company Periodic Report, the date of the Current Report on Form 8-K
relating to the Agent 8-K Request or the date agreed to in connection with such
Agent Request, as the case may be, in form reasonably satisfactory to the
Agents, of substantially the same tenor as the letter referred to in Section
7(e) hereof, modified as necessary to relate to the Registration Statement
Amendment, the applicable Time of Sale Prospectus, the Institutional Prospectus
and the Retail Prospectus as amended and supplemented to the date of such
letter; provided, however, that if the Registration Statement, the applicable
Time of Sale Prospectus, the Institutional Prospectus or the Retail Prospectus
is amended or supplemented solely to include or incorporate by reference
unaudited financial statements or other information as of and for a fiscal
quarter, the Accountants may limit the scope of such letter to such unaudited
financial statements or other information included or incorporated by reference
in such amendment or supplement; provided, further, however, that any delivery
of any letter as required by this Section 9(d) due to the filing of a
Registration Statement Amendment, the filing of a Company Periodic Report or an
Agent 8-K Request shall only be required to be delivered on or prior to the
pricing date for the series of Notes to be issued immediately after such filing
or request.
(e) Subsequent Delivery of Negative Assurance Letter of Agents Counsel. As
soon as practicable after the Company has filed its Annual Report on Form 10-K
for its most recent fiscal year with the Commission, commencing with the
Company's Annual Report on Form 10-K for the year ended December 31, 2008, but
in no event later than the first pricing date for a series of Notes after such
filing, or upon the reasonable request of any Agent, the Company shall furnish
or cause to be furnished to the Agents a negative assurance letter of Agents
Counsel, dated as soon as practicable after the date of filing of such Annual
Report on Form 10-K with the Commission or such other date as is appropriate in
connection with a request of an Agent, relating to the Registration Statement,
the applicable Time of Sale Prospectus, the Institutional Prospectus and the
Retail Prospectus as amended and supplemented to the time of delivery of such
negative assurance letter.
(f) Subsequent Annual Delivery of Legal Opinions. Unless otherwise agreed
to among the Company and the Agents, the Company shall furnish or cause to be
furnished to the Agents on or about each anniversary of the date hereof, each of
the opinions set forth in Section 7(b)(i), Section (b)(ii) Section 7(b)(iii),
Section 7(b)(iv), Section 7(b)(v), Section 7(b)(vii), Section 7(b)(viii), and
Section 7(b)(ix) hereof, dated such date, in form and substance reasonably
satisfactory to the Agents, of substantially the same tenor as such opinions
referred to in Section 7(b)(i), Section 7(b)(ii) Section 7(b)(iii), Section
7(b)(iv), Section 7(b)(v), Section 7(b)(vii), Section 7(b)(viii) and Section
7(b)(ix)
28
hereof, modified as necessary to relate to the Registration Statement, the
applicable Time of Sale Prospectus, the Institutional Prospectus and the Retail
Prospectus, as applicable, as amended and supplemented to the time of delivery
of such opinions.
(g) Delivery of Legal Opinions or Reliance Letters Upon Issuance of Notes.
Unless otherwise agreed to among the Company and the applicable Agent(s), the
Company shall furnish or cause to be furnished to the applicable Agent(s) in
connection with each issuance of a series of Notes by the applicable Trust (i)
an opinion of internal counsel for the Company (or a reliance letter authorizing
reliance by such Agent(s) on an opinion of like tenor) as to the validity and
enforceability of the Funding Agreement being issued in connection therewith and
(ii) an opinion of Company Counsel (or a reliance letter authorizing reliance by
such Agent(s) on an opinion of like tenor) as to the validity and enforceability
of such Notes, in each case, dated the date of such issuance, and in form and
substance reasonably satisfactory to the Agents; provided, however, that, in
connection with any such issuance of a series of Notes by the applicable Trust
under the Retail Program, the opinion contemplated by Section 9(g)(ii) hereof
shall be required to be furnished only at the Retail Agent's reasonable expense
upon its request to the Company.
10. Indemnification.
(a) Indemnification of the Agents. Each of the Company and each Trust
(only as to itself in connection with the issuance of its series of Notes and
not with respect to any other Trust), jointly and severally, agrees to indemnify
and hold harmless each Agent, its respective directors and officers and each
person, if any, who controls such Agent within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto) or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of an untrue statement or
alleged untrue statement of a material fact included in any Permitted Free
Writing Prospectus, any issuer free writing prospectus (as defined in Rule
433 of the 1933 Act Regulations), any issuer information (within the
meaning of Rule 433 of the 1933 Act Regulations) filed or required to be
filed pursuant to Rule 433(d) of the 1933 Act Regulations or any Time of
Sale Prospectus (in each case solely with respect to the applicable
Agent(s) for the related series of Notes) or any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
10(d) hereof) any such settlement is effected with the written consent of
the relevant Trust and the Company; and
29
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by such Agent), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under Section 10(a)(i) or
Section 10(a)(ii) hereof;
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of (A) an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Agents
expressly for use in any Permitted Free Writing Prospectus or any Time of Sale
Prospectus (in each case solely with respect to the applicable Agent(s) for the
related series of Notes) or the Registration Statement (or any amendment
thereto), any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or (B) any delivery of the Prospectus by the applicable
Agent to sell Notes or to solicit offers for the purchase of Notes (x) after
such time as the relevant Trust shall have provided written notice pursuant to
Section 4(b) hereof to the Agents to suspend the solicitation of offers for the
purchase of Notes and (y) before such time as the relevant Trust shall have
advised such Agents that such solicitation may be resumed.
(b) Indemnification of the Trusts and the Company. Each Agent
severally but not jointly agrees to indemnify and hold harmless (i) each Trust
and each person, if any, who controls such Trust within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act and (ii) the Company, its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, in each case, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
Section 10(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in any Permitted Free
Writing Prospectus or any Time of Sale Prospectus (in each case solely with
respect to the applicable Agent(s) for the related series of Notes) or the
Registration Statement (or any amendment thereto), any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Agents
expressly for use in such Permitted Free Writing Prospectus or Time of Sale
Prospectus (in each case solely with respect to the applicable Agent(s) for the
related series of Notes) or the Registration Statement (or any amendment
thereto), such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability that it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
10(a) hereof, counsel to the indemnified parties shall be selected by the
applicable Agent(s) and, in the case of parties indemnified pursuant to Section
10(b) hereof, counsel to the indemnified parties shall be selected by the
relevant Trust or the Company, as
30
applicable. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 10 or Section 11 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 10(a)(ii) hereof effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such
settlement; provided, however, that an indemnifying party shall not be liable
for any such settlement effected without its consent if such indemnifying party,
prior to the date of execution of any such settlement agreement, (1) reimburses
such indemnified party in accordance with such request for the amount of such
fees and expenses of counsel as the indemnifying party believes in good faith to
be reasonable and (2) provides written notice to such indemnified party that the
indemnifying party disputes in good faith the reasonableness of the unpaid
balance of such fees and expenses.
11. Contribution. If the indemnification provided for in Section 10 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (a) in such proportion as is
appropriate to reflect the relative benefits received by the relevant Trust or
the Company, on the one hand, and the applicable Agent(s), on the other hand,
from the offering of the relevant series of Notes that were the subject of the
claim for indemnification or (b) if the allocation provided by Section 11(a)
hereof is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in Section 11(a) hereof
but also the relative fault of the relevant Trust or the Company, on the one
hand, and the applicable Agent(s), on the other hand, in connection with the
statements or omissions that resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
31
The relative benefits received by the relevant Trust or the Company, on the
one hand, and the applicable Agent(s), on the other hand, in connection with the
offering of the relevant series of Notes that were the subject of the claim for
indemnification shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Notes (before deducting expenses)
received by the relevant Trust and the total discount or commission received by
each applicable Agent, as the case may be, bears to the aggregate initial
offering price of such Notes.
The relative fault of the relevant Trust or the Company, on the one hand,
and the applicable Agent(s), on the other hand, shall be determined by reference
to, among other things, whether any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the relevant Trust or the Company, on the one hand,
or by the applicable Agent(s), on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
Each Trust and the Company and the Agents agree that it would not be just
and equitable if contribution pursuant to this Section 11 were determined by pro
rata allocation (even if the applicable Agent(s) were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to above in this Section 11. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 11 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any applicable untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 11, (i) no Agent, acting as
an agent under this Agreement, shall be required to contribute any amount in
excess of the amount by which the total price at which any Notes underwritten by
such Agent and distributed to the public were offered to the public exceeds the
amount of any damages that such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission, (ii) no Agent, acting as a principal under this Agreement,
shall be required to contribute any amount in excess of the amount by which the
total price at which any Notes underwritten by such Agent and distributed to the
public were offered to the public exceeds the amount of any damages that such
Agent has otherwise been required to pay by reason of any applicable untrue or
alleged untrue statement or omission or alleged omission and (iii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. In addition, in connection with an
offering of Notes purchased from a Trust by two or more Agents as principal, the
respective obligations of such Agents to contribute pursuant to this Section 11
are several, and not joint, in proportion to the aggregate principal amount of
Notes that each such Agent has agreed to purchase from such Trust.
For purposes of this Section 11, each director and officer of an Agent and
each person, if any, who controls an Agent within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Agent, and each person, if any, who controls the relevant
Trust within the meaning of Section 15 of the 1933 Act or Section 20 of the
32
1934 Act and each director and officer of the Company and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
relevant Trust or the Company, as the case may be.
12. Payment of Expenses. Each Trust and the Company will pay all expenses
incident to the performance of the obligations of such Trust and the Company
under this Agreement, including:
(a) the preparation, filing, printing and delivery of the Registration
Statement as originally filed and all amendments thereto, any free writing
prospectus, any preliminary prospectus, any Time of Sale Prospectus, the
Prospectus and any amendments or supplements thereto (including, without
limitation, any costs associated with electronic delivery of the foregoing by
the Agents to investors);
(b) the preparation, printing and delivery of the Trust Program Documents
and the Company Program Documents;
(c) the preparation, issuance and delivery of such Trust's Notes, including
any fees and expenses relating to the eligibility and issuance of such Trust's
Notes in book-entry form and the cost of obtaining CUSIP or other identification
numbers for such Trust's Notes;
(d) the fees and disbursements of the Company's and such Trust's
accountants, counsel and other advisors or agents (including any calculation
agent or exchange rate agent) and of the Trustee, the Indenture Trustee and
their respective counsel;
(e) the reasonable fees and disbursements of counsel to the Agents incurred
in connection with the establishment and maintenance of the Programs and, unless
otherwise agreed, incurred from time to time in connection with the transactions
contemplated hereby;
(f) the fees charged by nationally recognized statistical rating
organizations for the rating of the Programs and such Trust's Notes;
(g) the fees and expenses incurred in connection with any listing of such
Trust's Notes on a securities exchange;
(h) the filing fees incident to, and the reasonable fees and disbursements
of counsel to the Agents in connection with, the review, if any, by the
Financial Industry Regulatory Authority (the "FINRA");
(i) any advertising and other out-of-pocket expenses of the Agents incurred
with the approval of such Trust and the Company; and
(j) any costs and expenses (including, without limitation, any damages or
other amounts payable in connection with legal or contractual liability)
associated with the reforming of any contracts for any sale of Notes made by an
Agent caused by a breach of the representation contained in the tenth sentence
of Section 3(a)(i) hereof.
13. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement,
including the indemnity
33
and contribution provisions of Section 10 and Section 11 hereof, or in
certificates submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the Agents
or any controlling person of an Agent, or by or on behalf of the relevant Trust
or the Company, and shall survive each delivery of and payment for the Notes.
14. Termination.
(a) Termination of this Agreement. This Agreement (excluding any agreement
by one or more Agents to purchase Notes from a Trust as principal) may be
terminated for any reason, at any time by (i) the relevant Trust or the Company
as to all the Agents or one or more but less than all the Agents or (ii) an
Agent, as to itself, in each case, upon the giving of 10 days' prior written
notice of such termination to the applicable parties hereto; provided, however,
that notice of any termination by a Trust or the Company as to the Retail Agent,
or the Retail Agent, as to itself, in each case, will be 30 days' prior written
notice.
(b) Termination of Agreement to Purchase Notes as Principal. The applicable
Agent(s) may terminate any agreement by such Agent(s) to purchase Notes from a
Trust as principal, immediately upon notice to the Company and such Trust, at
any time at or prior to the Settlement Date relating thereto, if (i) there has
been, since the Applicable Time, since the date of such agreement or since the
respective dates as of which information is given in the applicable Time of Sale
Prospectus (exclusive of any supplement thereto), any material adverse change in
(x) the condition, financial or otherwise, of such Trust or (y) 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, or (ii) there has
occurred any material adverse change in the financial markets in the United
States or, if such Notes are denominated and/or payable in, or indexed to, one
or more foreign or composite currencies, in the financial markets in the
jurisdiction or jurisdictions of the currency or currencies in which such Notes
are so denominated and/or payable or to which such Notes are so indexed, or any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
similar change or similar development or event involving a prospective change in
national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of such
Agent(s), impracticable or inadvisable to market such Notes or enforce contracts
for the sale of such Notes, or (iii) trading in any securities of the Company or
any Trust has been suspended or materially limited by the Commission or a
national securities exchange, or if trading generally on the New York Stock
Exchange or the American Stock Exchange or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by either of
said exchanges or by such system or by order of the Commission, the FINRA or any
other governmental authority, or a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States or, to the extent offers or sales of Notes are made to non-U.S.
investors, with respect to Clearstream or Euroclear systems in Europe, or (iv) a
banking moratorium has been declared by either federal or New York authorities
or by the relevant authorities in the country or countries of origin of any
foreign or composite currency in which such Notes are denominated and/or payable
or (v) the rating assigned by any nationally recognized statistical rating
organization to the Programs or the Notes or the financial strength rating of
the Company as of the date of such agreement shall have been lowered or
withdrawn since that date or if any such rating organization shall have publicly
34
announced since the date of such agreement that it has under surveillance or
review, with negative implications, its rating of the Programs or the Notes or
the financial strength rating of the Company.
(c) General. In the event of any such termination, no party will have any
liability to any other party hereto or further obligations or responsibilities
hereunder, except that (i) the applicable Agents shall be entitled to any
commissions earned in accordance with the third and fourth paragraphs of Section
4(b) hereof, (ii) if at the time of termination (A) any Agent shall own any
Notes purchased by it from a Trust as principal or (B) an offer to purchase any
of the Notes has been accepted by a Trust but such termination is effective
prior to the time of delivery of the Notes to the purchaser of such Notes or his
or her agent, the covenants set forth in Section 5, Section 6 and Section 9
hereof shall remain in effect until such Notes are so resold or delivered, as
the case may be, and (iii) the covenant set forth in Section 5(a)(xv) hereof,
the indemnity and contribution agreements set forth in Section 10 and Section 11
hereof, and the provisions of Section 12, Section 13, Section 16 and Section 17
hereof shall remain in effect.
15. Notices. Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either delivered by hand,
by mail or by telecopier or telegram, and any such notice shall be effective
when received at the address specified below.
If to a Trust:
As set forth in the coordination agreement set forth in Section D of the
Omnibus Instrument
If to the Company:
ING USA Annuity and Life Insurance Company
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx XxxXxxx
Telecopy No.: 000-000-0000 or 000-000-0000
If to the Agents:
To each Agent at the address specified in Schedule A
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 15.
16. Parties. This Agreement shall inure to the benefit of and be binding
upon the Agents and the Trusts and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
and their respective successors and the controlling persons, officers and
directors referred to in Section 10 and Section 11 hereof and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and
said controlling persons, officers and directors and their heirs and legal
representatives, and for the benefit of no
35
other person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
17. Governing Law. THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE
PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION
OR PROCEEDING BROUGHT BY A TRUST OR THE COMPANY AGAINST ANY AGENT IN CONNECTION
WITH OR ARISING UNDER THIS AGREEMENT MAY BE BROUGHT IN THE NON-EXCLUSIVE
JURISDICTION OF THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK.
18. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts hereof shall constitute a single instrument.
20. Amendments.
(a) Amendments Generally. This Agreement may be amended or supplemented if,
but only if, such amendment or supplement is in writing and is signed by all
then existing Trusts, the Company and the Agents. The Company may from time to
time nominate any institution as a new Agent hereunder either in respect of the
Institutional Program generally or in relation to a particular series of Notes
only; in which event, upon confirmation by such institution of an agent
accession letter on the terms or substantially in the form of Exhibit L hereto,
such institution shall become a party hereto, subject as provided below, with
all the authority, rights, powers, duties and obligations of an Agent as if
originally named as an Agent hereunder; provided, further, that, in the case of
an institution that has become an Agent in relation to a particular series of
Notes, following the issue of such series of Notes, the relevant new Agent shall
have no further authority, rights, powers, duties or obligations except such as
may have accrued or been incurred prior to, or in connection with, the issue of
such series of Notes.
(b) Notice to Rating Agencies. The parties hereto acknowledge and agree
that a copy of each amendment to this Agreement effected pursuant to this
Section 20 shall be provided promptly by the Company to the following Rating
Agencies at the following addresses:
Standard & Poor's Ratings Group,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets
Telecopy No.: 000-000-0000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
36
Attention: Xxxxx'x Investors Service Life Insurance Group
Telecopy No.: 000-000-0000
A.M. Best Company, Inc.
Ambest Road
Oldwick, New Jersey 08858
Attention: Life/Health Division
Telecopy No.: 000-000-0000
or such other addresses previously furnished in writing to the Company by any
Rating Agency in the future; provided, however, that any failure by the Company
to deliver copies of any amendment required to be delivered pursuant to this
Section 20 shall not constitute a breach of, or an event of default under, this
Agreement.
21. Stabilization. The Agent(s) may, to the extent permitted by applicable
laws, over-allot and effect transactions with a view to supporting the market
price of Notes at a level higher than that which might otherwise prevail. Such
transactions, if commenced, may be discontinued at any time. In such
circumstances, as between the Company and a Trust, on one hand, and one or more
Agents, on the other hand, such Agent(s) shall act as principal, and any loss
resulting from stabilization shall be borne, and any profit arising therefrom
and any sum received by such Agent(s) shall be beneficially retained by such
Agent(s), as the case may be, for such Agents' own account.
22. Separate Nature of Each Trust. The Agents agree and acknowledge that,
as a separate and distinct special purpose common law trust, the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular Trust, including such Trust's obligations
under this Agreement and the applicable Terms Agreement, will be enforceable
only against such Trust and not against any other Trust.
37
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement
among the Agents and the Company in accordance with its terms.
Very truly yours,
ING USA ANNUITY AND LIFE
INSURANCE COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ACCEPTED AND AGREED,
as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------
Authorized Signatory
XXXXXXX XXXXX INTERNATIONAL
By:
---------------------------------
Authorized Signatory
BANC OF AMERICA SECURITIES LLC
BARCLAYS CAPITAL INC.
By:
---------------------------------
Authorized Signatory
BARCLAYS BANK PLC
By:
---------------------------------
Authorized Signatory
BANC OF AMERICA SECURITIES LIMITED
By:
---------------------------------
Authorized Signatory
By:
---------------------------------
Authorized Signatory
CREDIT SUISSE SECURITIES (USA) LLC
By:
---------------------------------
Authorized Signatory
CREDIT SUISSE SECURITIES (EUROPE)
LIMITED
By:
---------------------------------
Authorized Signatory
DEUTSCHE BANK SECURITIES INC.
By:
---------------------------------
Authorized Signatory
By:
---------------------------------
Authorized Signatory
DEUTSCHE BANK AG, LONDON BRANCH
By:
---------------------------------
Authorized Signatory
XXXXXXX, XXXXX & CO.
By:
---------------------------------
Authorized Signatory
-------------------------------------
(Xxxxxxx, Xxxxx & Co.)
XXXXXXX XXXXX INTERNATIONAL
By:
---------------------------------
Authorized Signatory
HSBC SECURITIES (USA) INC.
By:
---------------------------------
Authorized Signatory
HSBC BANK PLL
By:
---------------------------------
Authorized Signatory
ING FINANCIAL MARKETS LLC
By:
---------------------------------
Authorized Signatory
X.X. XXXXXX SECURITIES INC.
By:
---------------------------------
Authorized Signatory
X.X. XXXXXX SECURITIES LTD.
By:
---------------------------------
Authorized Signatory
XXXXXX XXXXXXX & CO. INCORPORATED
By:
---------------------------------
Authorized Signatory
XXXXXX XXXXXXX & CO. INTERNATIONAL
PLC
By:
---------------------------------
Authorized Signatory
UBS SECURITIES LLC
By:
---------------------------------
Authorized Signatory
By:
---------------------------------
Authorized Signatory
UBS LIMITED
By:
---------------------------------
Authorized Signatory
By:
---------------------------------
Authorized Signatory
LIST OF SCHEDULES AND EXHIBITS
Schedule A Names and Addresses of other Agents
Schedule B Institutional Purchasers
Schedule C Retail Purchasers
Exhibit A-1 Opinion of Internal Iowa Counsel for the Company
Exhibit A-2 Opinion of Internal Colorado Counsel for the Company
Exhibit B Negative Assurance Letter of Company Counsel
Exhibit C Opinion of Company Counsel Concerning Certain Iowa Insolvency
Matters
Exhibit D Opinion of Company Counsel Concerning Certain Federal Securities
Matters
Exhibit E Opinion of Company Counsel Concerning Certain New York, Illinois
and Federal Law Matters
Exhibit F Opinion of Company Counsel Concerning Certain Tax Matters
Exhibit G Opinion of Agents Counsel
Exhibit H Opinion of Counsel for the Trustee
Exhibit I Opinion of Counsel for the Indenture Trustee
Exhibit J Opinion of Counsel for the Trust Beneficial Owner
Exhibit K Negative Assurance Letter of Agents Counsel
Exhibit L Agent Accession Letter
Exhibit M Memorandum of Company Counsel Concerning Certain Insurance Matters
Exhibit N Opinion of Company Counsel Concerning Certain Insurance Matters
SCHEDULE A
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Xxxxxxx Xxxxx International
Incorporated 0 Xxxx Xxxxxx Xxxxxx
Four World Financial Center, North Tower London EC1A 1HQ England
New York, New York 10080 Attention: MTN Desk
Attention: Xxxxx Xxxxx Xxxxxxxx No.: 00-00-0000-0000
Telecopy No.: 000-000-0000
Bank of America Securities LLC Banc of America Securities Limited
[Address] [Address]
Barclays Capital Inc. Barclays Bank PLC
[Address] [Address]
Credit Suisse Securities (USA) LLC Credit Suisse Securities (Europe) Limited
00 Xxxxxxx Xxxxxx Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx X00 0XX England
Attention: Short and Medium Term Finance Attention: MTN Trading Desk
Telecopy No.: 000-000-0000 Telecopy No.: 00-00-0000-0000
Deutsche Bank Securities Inc. Deutsche Bank AG, London Branch
00 Xxxx Xxxxxx Xxxxxxxxxx Xxxxx, 0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx XX0X 0XX England
Attention: Debt Capital Markets Attention: MTN Desk
Telecopy No.: 000-000-0000 Fax No.: 00-00-0000-0000
Xxxxxxx, Xxxxx & Co. Xxxxxxx Xxxxx International
00 Xxxxx Xxxxxx Xxxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxx Xxxxxx
Attention: Registration Department London EC4A 2BB England
Telecopy No.: 000-000-0000 Attention: Euro Medium Term Note Programme
Telecopy No.: 00-00-0000-0000
X.X. Xxxxxx Securities Inc. X.X. Xxxxxx Securities Ltd.
000 Xxxx Xxxxxx, 0xx Xxxxx 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx XX0X 0XX England
Attention: Transaction Execution Group Attention: Euro Medium Term Note Desk
Telecopy No.: 000-000-0000 Telecopy No.: 00-00-0000-0000
HSBC Securities (USA) Inc. HSBC Bank Plc
000 Xxxxx Xxxxxx 0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx X000XX Xxxxxxx
Attention: _____________ Attention: Transaction Management Group
Telecopy: ______________ Telecopy No: 00-00-0000-0000
ING Financial Markets LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: _____________
Telecopy: ______________
A-1
Xxxxxx Xxxxxxx & Co. Incorporated Xxxxxx Xxxxxxx & Co. International Plc
0000 Xxxxxxxx 00 Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx X00 0XX England
Attention: Manager, Continuously Offered Attention: Debt Capital Markets, Head of
Products Transaction Management Group
Telecopy No.: 000-000-0000 Telecopy No.: 00-00-0000-0000
UBS Securities LLC UBS Limited
000 Xxxxxxxxxx Xxxxxxxxx 0 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000 Xxxxxx XX0X 0XX England
Attention: Legal and External Affairs Attention: MTNs and Private Placements
Telecopy No.: 000-000-0000 Telecopy No.: 00-00-0000-0000
A-2
SCHEDULE B
INSTITUTIONAL PURCHASERS
As compensation for the services of the Agents hereunder, the relevant
Trust shall pay the applicable Agent, on a discount basis, a commission for the
sale of each Note to institutional purchasers equal to the principal amount of
such Note multiplied by the appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 2 years .150%
From 2 years to less than 3 years .200
From 3 years to less than 4 years .250
From 4 years to less than 5 years .300
From 5 years to less than 7 years .350
From 7 years to less than 10 years .400
From 10 years to less than 12 years .450
From 12 years to less than 15 years .475
From 15 years to less than 20 years .500
From 20 years to 30 years .875
* Company to provide updated chart.
B-1
SCHEDULE C
RETAIL PURCHASERS
As compensation for the services of the Retail Agent hereunder, the
relevant Trust shall pay the Retail Agent, on a discount basis, a commission for
the sale of each Note to retail purchasers equal to the principal amount of such
Note multiplied by the appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1.5 years .125%
From 1.5 years to less than 2 years .200
From 2 years to less than 3 years .400
From 3 years to less than 4 years .625
From 4 years to less than 5 years .750
From 5 years to less than 6 years 1.000
From 6 years to less than 7 years 1.100
From 7 years to less than 8 years 1.200
From 8 years to less than 9 years 1.300
From 9 years to less than 10 years 1.400
From 10 years to less than 11 years 1.500
From 11 years to less than 12 years 1.600
From 12 years to less than 15 years 1.750
From 15 years to less than 20 years 2.000
From 20 years to 30 years To be negotiated
at time of sale
* Company to provide updated chart.
C-1
EXHIBIT A-1
OPINION OF INTERNAL IOWA COUNSEL FOR THE COMPANY
See attached.
A-1-1
EXHIBIT A-2
OPINION OF INTERNAL COLORADO COUNSEL FOR THE COMPANY
See attached.
A-2-1
EXHIBIT B
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NEGATIVE ASSURANCE LETTER OF COMPANY COUNSEL
See attached.
B-1
EXHIBIT C
OPINION OF COMPANY COUNSEL CONCERNING CERTAIN IOWA INSOLVENCY
MATTERS
See attached.
C-1
EXHIBIT D
OPINION OF COMPANY COUNSEL CONCERNING CERTAIN FEDERAL SECURITIES
MATTERS
See attached.
D-1
EXHIBIT E
OPINION OF COMPANY COUNSEL CONCERNING CERTAIN NEW YORK, ILLINOIS
AND FEDERAL LAW MATTERS
See attached.
E-1
EXHIBIT F
OPINION OF COMPANY COUNSEL CONCERNING CERTAIN TAX MATTERS
See attached.
F-1
EXHIBIT G
OPINION OF AGENTS COUNSEL
See attached.
G-1
EXHIBIT H
OPINION OF COUNSEL FOR THE TRUSTEE
See attached.
H-1
EXHIBIT I
OPINION OF COUNSEL FOR THE INDENTURE TRUSTEE
See attached.
I-1
Exhibit J
OPINION OF COUNSEL FOR THE TRUST BENEFICIAL OWNER
See attached.
J-1
Exhibit K
NEGATIVE ASSURANCE LETTER OF
AGENTS COUNSEL
See attached
K-1
EXHIBIT L
FORM OF AGENT ACCESSION LETTER (ON LETTERHEAD OF THE COMPANY)
[Name of new Agent]
[Address]
Ladies and Gentlemen:
We refer to the Distribution Agreement, dated [_], entered into in respect
of the Secured Medium-Term Notes Program (such agreement, as modified or amended
from time to time, the "Distribution Agreement") among ourselves, ING USA
Annuity and Life Insurance Company, [specify Trust(s)] and the Agents from time
to time party thereto, and have the pleasure of inviting you to become an Agent
[but only in respect of [specify series of Notes (the "Notes")]](1) subject to
and in accordance with the terms of the Distribution Agreement, a copy of which
has been supplied to you by us. In addition, we enclose letters from counsel to
[__________] entitling you to rely on the original letters referred to in
Section 7(b) and Section 7(c) to the Distribution Agreement, as such letters may
have been amended or supplemented, together with copies of such original,
amended or supplemented letters. Please return to us a copy of this letter
signed by an authorized signatory whereupon you will become an Agent for the
purposes of the Distribution Agreement, with all the authority, rights, powers,
duties and obligations of an Agent under the Distribution Agreement [except
that, following the issue of the Notes, you shall have no further authority,
rights, powers, duties or obligations except such as may have accrued or been
incurred prior to, or in connection with, the issue of the Notes].(2)
This letter is governed by, and shall be construed in accordance with, the
laws of the State of New York. The provisions of Section 19 of the Distribution
Agreement shall apply to this letter as if set out herein in full.
Yours faithfully,
ING USA ANNUITY AND LIFE INSURANCE
COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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(1) Insert where the new Agent is being appointed only in relation to a
particular series.
(2) Insert where the new Agent is being appointed only in relation to a
particular series.
L-1
CONFIRMATION
We hereby accept the appointment as an Agent and accept all of the duties and
obligations under, and the terms and conditions of, the Distribution Agreement
upon the terms of this letter and affirm all representations, warranties and
covenants contained therein as of the applicable date [but only in respect of
[specify series of Notes]].(3)
We confirm that we are in receipt of all the documents that we have requested
and have found them to be satisfactory.
For the purposes of the Distribution Agreement, our communications details are
as set out below.
[NEW AGENT]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date: [ ]
--------------------------------
Address: [ ]
-----------------------------
Facsimile: [ ]
---------------------------
Attention: [ ]
---------------------------
Copies to:
The Indenture Trustee and the existing Paying Agent
[All existing Agents who have been appointed in respect of the Programs
generally](4)
----------
(3) Insert where the new Agent is being appointed only in relation to a
particular series.
(4) Insert where the incoming Agent is being appointed in respect of the
Program generally.
L-2
EXHIBIT M
MEMORANDUM OF COMPANY COUNSEL
Concerning Certain Insurance Matters
See attached.
M-1
EXHIBIT N
OPINION OF COMPANY COUNSEL CONCERNING CERTAIN INSURANCE MATTERS
See attached.
N-1
