EXHIBIT 1.1
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
$3,000,000,000
SignatureNotes
WITH MATURITIES OF TWELVE MONTHS OR MORE FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
August 6, 2002
ABN AMRO Financial Services, Inc. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Prudential Securities, Incorporated
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Quick & ▇▇▇▇▇▇, Inc.
(a Fleet Boston Financial Company)
Fidelity Capital Markets ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
a division of National Financial 23rd Floor
Services LLC ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. - Mail Zone Z2H
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Wachovia Securities, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Signator Investors, Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Incorporated ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ UBS PaineWebber Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company, a Massachusetts corporation (the
"Company"), proposes to issue and sell up to $3,000,000,000 aggregate principal
amount of its SignatureNotes (the "Notes") with maturities of twelve months or
more from the date of issue, pursuant to the
provisions of the Indenture, dated as of June 15, 2002, as supplemented from
time to time (the "Indenture"), between the Company and JPMorgan Chase Bank, as
Trustee (the "Trustee"). The Notes shall have the maturity ranges, interest
rates and other terms set forth in the Prospectus referred to below as it may be
amended or supplemented from time to time. The Notes will be issued, and the
terms thereof established, from time to time by the Company in accordance with
the Indenture.
Subject to the terms and conditions contained in this Selling Agent
Agreement (the "Agreement") and to the reservation by the Company of the right
to sell up to $50,000,000 aggregate principal amount of Notes directly on its
own behalf, the Company hereby (1) appoints each of you as agent of the Company
(individually, an "Agent" and collectively, the "Agents") for the purpose of
soliciting and receiving offers to purchase Notes from the Company and you
hereby agree to use your reasonable best efforts to solicit and receive offers
to purchase Notes upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify and in accordance with
the terms hereof, and, after consultation with ABN AMRO Financial Services, Inc.
(the "Purchasing Agent"), (2) reserves the right to enter into agreements
substantially identical hereto with other agents, and (3) agrees that whenever
the Company determines to sell Notes with the Purchasing Agent purchasing such
Notes as principal for resale to others, such Notes shall be sold pursuant to a
Terms Agreement (as defined in Section IV(b)), between the Company and the
Purchasing Agent, relating to such sale in accordance with the provisions of
Section IV(b) hereof. This Agreement shall not be construed to create either an
obligation on the part of the Company to sell any Notes or an obligation of any
of the Agents to purchase Notes.
I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-85488), including a
base prospectus, relating to the Notes and the offering thereof, from time to
time, in accordance with Rule 415 under the Securities Act of 1933, as amended
(the "Securities Act"). Such registration statement is referred to herein as the
"Initial Registration Statement". The Initial Registration Statement has been
declared effective by the Commission, and the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). In
connection with each issuance of Notes, the Company will promptly prepare for
filing with, or transmission for filing to, the Commission, pursuant to Rule 424
under the Securities Act, a supplement to the prospectus that sets forth only
the terms of a particular issue of the Notes (each such supplement, a "Pricing
Supplement"). The Initial Registration Statement, including all documents
incorporated therein by reference, as from time to time amended or supplemented,
is referred to herein as the "Registration Statement." The base prospectus
contained in the Registration Statement, including all documents incorporated
therein by reference, as from time to time amended or supplemented, and
including any Pricing Supplement, is referred to herein as the "Prospectus".
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II.
Your obligations hereunder are subject to the following conditions,
each of which shall be met on such date as you and the Company shall
subsequently fix for the commencement of your obligations hereunder (the
"Commencement Date"):
(a) (i) No litigation or proceeding shall be threatened or pending to
restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes and (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission, and there shall have been no material adverse change in the
business, financial condition or results of operations of the Company and its
subsidiaries, considered as a whole, from that set forth in the Registration
Statement and the Prospectus (a "Material Adverse Change"); and you shall have
received on the Commencement Date a certificate of the Company dated such
Commencement Date and signed by an executive officer of the Company to the
foregoing effect. The officer making such certificate may rely upon the best of
his knowledge as to proceedings threatened.
(b) You shall have received a favorable opinion of Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C. ("Mintz ▇▇▇▇▇"), outside counsel for the
Company, dated the Commencement Date, to the effect that:
(i) the Company is a corporation validly existing and in
good standing under the laws of the Commonwealth of Massachusetts and
has the corporate power and corporate authority to own its properties
and conduct its business as described in the Prospectus;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, general equitable principles and the
discretion of courts in granting equitable remedies; and the Indenture
has been duly qualified under the Trust Indenture Act;
(iii) the Notes have been duly authorized and, when the terms
thereof have been established in accordance with the Indenture and when
executed, authenticated, issued and delivered in the manner provided
for in the Indenture against payment therefor, will constitute legal,
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject as to enforcement of
remedies, to bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable remedies;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
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(v) no authorization, consent or approval of, or
registration or filing with, any United States, Massachusetts or New
York governmental or public body or regulatory authority is required on
the part of the Company for the issuance of the Notes in accordance
with the Indenture or the sale of the Notes in accordance with this
Agreement other than (1) the registration of the Notes under the
Securities Act, (2) qualification of the Indenture under the Trust
Indenture Act, (3) the listing of the initial series of Notes on the
New York Stock Exchange and (4) compliance with the insurance,
securities or Blue Sky laws of the various states (as to which ▇▇▇▇▇
▇▇▇▇▇ expresses no opinion);
(vi) the statements in the (1) Prospectus under the
captions "Description of Notes" and "United States Federal Taxation"
and (2) Registration Statement under Item 15, insofar as such
statements constitute summaries of the documents (or provisions
thereof) or statutes (or provisions thereof) referred to therein,
fairly present the information required to be described with respect to
such documents (or provisions thereof) or statutes (or provisions
thereof) and fairly summarize in all material respects such documents
(or provisions thereof) or statutes (or provisions thereof);
(vii) the Indenture and the form of the Notes filed by the
Company with the Commission as an exhibit to the Initial Registration
Statement conform in all material respects to the descriptions thereof
in the Prospectus;
(viii) the Registration Statement has become effective under
the Securities Act, and, to ▇▇▇▇▇ ▇▇▇▇▇'▇ knowledge, no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted or are pending under the Securities Act; and
(ix)(1) each document, if any, filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus, when such document was
filed with the Commission, complied as to form in all material respects
with the Exchange Act and the rules and regulations thereunder; and (2)
the Registration Statement, as of its effective date, and the
Prospectus, as of its issue date and the Commencement Date, complied as
to form in all material respects with the requirements of the Trust
Indenture Act and the Securities Act and the rules and regulations
thereunder (except that, in each case as to the financial statements
and notes thereto, the financial statement schedules and the other
financial data and Form T-1 included or incorporated by reference
therein, as to which ▇▇▇▇▇ ▇▇▇▇▇ need not express any opinion).
During the course of the preparation of the Registration
Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇ discussed the affairs of the
Company with certain of its officers and other representatives and with
representatives of the Purchasing Agent. Although ▇▇▇▇▇ ▇▇▇▇▇ has not
independently verified, and is not passing upon and does not assume
responsibility for, the accuracy, completeness or fairness of
statements contained in the Registration Statement or the Prospectus as
amended or supplemented (except as set forth in paragraph (vi) above),
it does hereby advise you that, based upon such discussions and upon
the review of documents and records as referred to above, no facts have
come to its
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attention which cause it to believe that (A) the Registration
Statement at the time it became effective or on the date the
Registration Statement was last deemed amended contained an untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or (B) that the Prospectus, as amended or
supplemented, as of its date and as of the Commencement Date, contained
or contains any 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 under which they were made,
not misleading; provided that no advice is given as to the financial
statements and notes thereto, the financial statement schedules and the
other financial data and the Form T-1 included or incorporated by
reference in the Registration Statement and the Prospectus.
(c) You shall have received a favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Executive Vice President and General Counsel of the Company, dated the
Commencement Date, to the effect that:
(i) to such counsel's knowledge, the Company is duly
qualified to do business as a foreign corporation in good standing in
each jurisdiction in which it owns or leases substantial properties or
in which the conduct of its business requires such qualification and in
which the failure to so qualify would result in a Material Adverse
Change;
(ii) the execution and delivery of the Indenture, the
issuance of the Notes in accordance with the Indenture and the sale of
the Notes pursuant to this Agreement (a) do not and will not result in
any violation of the articles of organization or by-laws of the
Company, each as amended, (b) to such counsel's knowledge, do not and
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any agreement or other
instrument binding upon the Company or any subsidiary of the Company
that is a "significant subsidiary" as defined in Rule 1-02(w) of
Regulation S-X under the Securities Act (each, a "Significant
Subsidiary") filed or incorporated by reference as an exhibit to the
Company's Form 10-K for the year ended December 31, 2001, and (c) do
not and will not result in a violation of any existing provision of any
material law, rule or regulation of the United States or the
Commonwealth of Massachusetts applicable to the Company or any of its
Significant Subsidiaries or any material judgment, order, writ,
injunction or decree known to such counsel of any governmental
authority or court having jurisdiction over the Company or any of its
Significant Subsidiaries;
(iii) the Company has full power and authority to authorize,
issue and sell the Notes as contemplated by this Agreement;
(iv) the statements in the documents incorporated by
reference into the Prospectus under the captions "Business of ▇▇▇▇
▇▇▇▇▇▇▇ Life Insurance Company -- Regulations" and "Legal Proceedings"
in the Company's Annual Report on Form 10-K for the year ended December
31, 2001 and Part II -- Item 1, "Legal Proceedings" in the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31, 2002,
insofar as such statements constitute summaries of the documents (or
provisions thereof), statutes (or provisions thereof) or legal
proceedings referred to therein, fairly present the information
required to be described with respect to such documents (or provisions
thereof), statutes (or provisions thereof) or
5
legal proceedings and fairly summarize in all material respects such
documents (or provisions thereof), statutes (or provisions thereof), or
legal proceedings; and
(v) to such counsel's knowledge, there are no (a) legal or
governmental proceedings pending or threatened to which the Company or
any Significant Subsidiary is a party, or to which any of the
properties of the Company or any Significant Subsidiary is subject,
that are required to be described in the Registration Statement or the
Prospectus and are not so described or (b) statutes, regulations or
contracts that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(d) You shall have received on the Commencement Date a letter dated the
Commencement Date from Ernst & Young LLP, independent auditors, containing
statements and information of the type ordinarily included in auditors' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus relating to the Notes.
(e) You shall have received a favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Agents, dated such Commencement Date, to the
effect set forth in Section II(b) in clauses (ii), (iii), (iv) and (ix)(2) and
subsection (B) of the paragraph following clause (ix).
(f) You shall have received a certificate of the secretary or assistant
secretary of the Company as to (i) the articles of organization of the Company,
as amended, (ii) the by-laws of the Company, as amended, and (iii) the
resolutions authorizing the issuance and sale of the Notes and certain related
matters.
The obligations of the Purchasing Agent to purchase Notes as principal,
both under this Agreement and under any Terms Agreement, are subject to the
conditions that (i) no litigation or proceeding shall be threatened or pending
to restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes, (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission and (iii) there shall have been no Material Adverse Change, each of
which conditions shall be met on the corresponding Settlement Date (as defined
in Section IV(b)). Further, if specifically called for by any written agreement
by the Purchasing Agent to purchase Notes as principal, the Purchasing Agent's
obligations hereunder and under such agreement shall be subject to such of the
additional conditions set forth in clause (a), as it relates to the executive
officer's certificate, and clauses (b), (c), (d) and (e) above, as agreed to by
the parties, each of which such agreed conditions shall be met on the
corresponding Settlement Date.
III.
In further consideration of your agreements herein contained, the
Company covenants as follows:
(a) To furnish to you, without charge, a copy of (i) the Indenture,
(ii) the resolutions of the Board of Directors (or Executive Committee) of the
Company authorizing the issuance and
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sale of the Notes, certified by the Secretary or Assistant Secretary of the
Company as having been duly adopted, (iii) the Registration Statement including
exhibits and documents incorporated by reference therein; provided, however,
that the Company shall only be required to provide the Company's periodic
filings to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act to the Purchasing Agent, on behalf of the Agents, on
the date on which such filings are to be transmitted for filing with the
Commission; and (iv) as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus (other than amendments or supplements to change interest rates and
other than amendments or supplements in the form of the Company's periodic
filings to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act that are incorporated by reference in the Prospectus),
to furnish you a copy of each such proposed amendment or supplement, and to
afford you a reasonable opportunity to comment on any such proposed amendment or
supplement.
(c) To furnish you copies of each amendment to the Registration
Statement and of each amendment and supplement to the Prospectus in such
quantities as you may from time to time reasonably request; and if at any time
when the delivery of a Prospectus shall be required by law in connection with
sales of any of the Notes, either (i) any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact, or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading or (ii) for any other reason it shall be
necessary to amend or supplement the latest Prospectus, as then amended or
supplemented, or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or the
Exchange Act, the Company will (A) notify you to suspend the solicitation of
offers to purchase Notes and if notified by the Company, you shall forthwith
suspend such solicitation and cease using the Prospectus as then amended or
supplemented and (B), if the Company notifies you that it would like you to
resume the solicitation of offers to purchase, promptly prepare and file with
the Commission such document incorporated by reference in the Prospectus or an
amendment or supplement to the Registration Statement or the Prospectus which
will correct such statement or omission or effect such compliance and will
provide to you without charge a reasonable number of copies thereof, which you
shall use thereafter.
(d) To endeavor to qualify such Notes for offer and sale under the
securities or Blue Sky laws of such states of the United States as you shall
reasonably request and such other jurisdictions as we mutually agree and to pay
all reasonable expenses (including fees and disbursements of your counsel) in
connection with such qualification; provided, that, in connection therewith the
Company shall not be required to qualify as a foreign corporation to do
business, or to file a general consent to service of process, in any
jurisdiction.
(e) The Company will make generally available to its security holders
and to you as soon as practicable earning statements that satisfy the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each case, not
later than the first day of the Company's fiscal quarter next
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following the "effective date" (as defined in Rule 158 under the Securities Act)
of the Registration Statement with respect to each sale of Notes.
(f) (i) If the Company and the Purchasing Agent mutually agree to list
Notes on any stock exchange (a "Stock Exchange"), to use its reasonable efforts,
in cooperation with the Purchasing Agent, to cause such Notes to be accepted for
listing on any such Stock Exchange, in each case as the Company and the
Purchasing Agent shall deem to be appropriate. In connection with any such
agreement to list Notes on a Stock Exchange, the Company shall use its
reasonable efforts to obtain such listing promptly and shall furnish any and all
documents, instruments, information and undertakings that may be reasonably
necessary or advisable in order to obtain and maintain the listing.
(ii) So long as any Note remains outstanding and listed on a
Stock Exchange, if the Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
relating to any matter described in the Prospectus the inclusion of which was
required by the listing rules and regulations of such Stock Exchange on which
any Notes are listed (the "Listing Rules") or by such Stock Exchange, to provide
to the Purchasing Agent information about the change or matter and to amend or
supplement the Prospectus in order to comply with the Listing Rules or as
otherwise requested by the Stock Exchange.
(iii) To use reasonable efforts to comply with any undertakings
given by it from time to time to any Stock Exchange on which any Notes are
listed.
(g) To notify the Purchasing Agent promptly in writing in the event
that the Company does not have a security listed on the New York Stock Exchange.
(h) The Company will notify the Purchasing Agent as soon as
practicable, and in any event within one business day, and confirm such notice
in writing, of any change in the rating assigned by any nationally recognized
statistical rating organization, as such term is defined in Rule 436(g)(2) under
the Securities Act, to the Medium-Term Note Program under which the Notes are
issued (the "Program") or any debt securities (including the Notes) of the
Company, or the public announcement by any nationally recognized statistical
rating organization that it has under surveillance or review, with possible
negative implications, its rating of the Program or any such debt securities, or
the withdrawal by any nationally recognized statistical rating organization of
its rating of the Program or any such debt securities.
IV.
(a) Solicitations as Agent. You hereby agree, as Agents hereunder, to
use your reasonable best efforts to solicit and receive offers to purchase Notes
upon the terms and conditions set forth herein and in the Prospectus and upon
the terms communicated to you from time to time by the Company. For the purpose
of such solicitation you will use the Prospectus as then amended or supplemented
which has been most recently distributed to you by the Company, and you will
solicit offers to purchase only as permitted or contemplated thereby and herein.
The Company reserves the right, in its sole discretion, to suspend solicitation
of offers to purchase Notes commencing at any time for any period of time or
permanently. Upon receipt of
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instructions (which may be given orally) from the Company, you will as soon as
practicable, but in any event no later than one business day after receipt of
such instructions, suspend solicitation of offers to purchase until such time as
the Company has advised the Purchasing Agent that such solicitation may be
resumed. In addition, the Company reserves the right to sell, and may solicit
and accept offers to purchase, up to $50,000,000 aggregate principal amount of
Notes directly on its own behalf; and, in the case of any such sale not
resulting from a solicitation made by any Agent, no Concession (as defined
below) will be payable with respect to such sale.
You are authorized to solicit orders for the Notes only in
denominations of $1,000 or more (in multiples of $1,000). You are not authorized
to appoint subagents or to engage the service of any other broker or dealer in
connection with the offer or sale of the Notes without the consent of the
Company; provided, however, the Purchasing Agent may engage the service of any
other broker or dealer without the consent of the Company, provided that any
such brokers or dealers engaged shall enter into a Master Selected Dealer
Agreement in the form attached hereto as Exhibit E. The Purchasing Agent will
provide the Company with a listing, updated each calendar quarter, of those
brokers or dealers so engaged. In addition, unless otherwise instructed by the
Company, the Purchasing Agent shall communicate to the Company, orally or in
writing, the aggregate amount of offers to purchase each proposed issuance of
Notes. The Company shall have the sole right to accept offers to purchase Notes
offered through you and may reject any proposed purchase of Notes as a whole or
in part. You shall have the right, in your discretion reasonably exercised, to
reject any proposed purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of your agreements contained herein.
The Company agrees to pay the Purchasing Agent, as consideration for
soliciting the sale of the Notes, a concession in the form of a discount equal
to the percentages of the principal amount of each Note sold not in excess of
the concession set forth in Exhibit A hereto (the "Concession"). Notwithstanding
the foregoing, for Notes that bear a zero interest rate and are issued at a
substantial discount from the principal amount payable at the Maturity Date
("Zero-Coupon Notes"), the Company agrees to pay the Purchasing Agent, as
consideration for soliciting the sale of the Zero-Coupon Notes, a Concession in
the form of a discount equal to the percentages of the initial offering price of
each Zero-Coupon Note sold not in excess of the Concession set forth in Exhibit
A hereto. The Purchasing Agent and the other Agents will share the Concession in
such proportions as they may agree.
Except as provided in Section IV(b) hereof, in soliciting offers to
purchase Notes from the Company, you are acting solely as agent for the Company
and not as principal. If acting on behalf of the Company on an agency basis, you
will make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has been accepted by the Company,
but you shall not have any liability to the Company in the event such purchase
is not consummated for any reason, other than to repay to the Company any
Concession with respect thereto.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms of this Agreement and a separate
agreement, substantially in the form of Exhibit C attached hereto, to be entered
into on behalf of such Agent(s) by the Purchasing Agent, which will provide for
the sale of such Notes to, and the purchase and reoffering thereof by, the
Purchasing Agent as principal. Each such separate agreement (which may be an
oral
9
agreement and confirmed in writing as described below between the Purchasing
Agent and the Company) is herein referred to as a "Terms Agreement". A Terms
Agreement may also specify certain provisions relating to the reoffering of such
Notes by the Purchasing Agent. The Purchasing Agent's agreement to purchase
Notes pursuant to any Terms Agreement shall be deemed to have been made on the
basis of the representations, warranties and agreements of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Except pursuant to a Terms Agreement, under no circumstances shall you be
obligated to purchase any Notes for your own account. Each Terms Agreement,
whether oral (and confirmed in writing which may be by facsimile transmission)
or in writing, shall describe the Notes to be purchased pursuant thereto by the
Purchasing Agent as principal, and may specify, among other things, the
principal amount of Notes to be purchased, the interest rate or formula and
maturity date or dates of such Notes, the interest payment dates, if any, the
price to be paid to the Company for such Notes, the initial public offering
price at which the Notes are proposed to be reoffered, and the time and place of
delivery of and payment for such Notes (the "Settlement Date"), whether the
Notes provide for a survivor's option or for optional redemption by the Company
and on what terms and conditions, and any other relevant terms. Terms Agreements
may take the form of an exchange of any standard form of written
telecommunication between the Purchasing Agent and the Company.
In connection with the resale of the Notes purchased, without the
consent of the Company, you are not authorized to appoint subagents or to engage
the service of any other broker or dealer, nor may you reallow any portion of
the discount paid to you by the Company in excess of the designated reallowance
portion; provided, however, that the Purchasing Agent may engage the service of
any other broker or dealer without the consent of the Company, provided that any
such brokers or dealers engaged shall enter into a Master Selected Dealer
Agreement in the form attached hereto as Exhibit E. The Purchasing Agent will
provide the Company with a listing, updated each calendar quarter, of those
brokers or dealers so engaged. Unless authorized by the Purchasing Agent in each
instance, each Agent agrees not to purchase and sell Notes for which an order
from a client has not been received.
Each purchase of Notes by the Purchasing Agent from the Company shall
be at a discount from the principal amount of each such Note on the date of
issue not in excess of the applicable Concession set forth in Exhibit A hereto.
Notwithstanding the foregoing, for Zero-Coupon Notes, each purchase of
Zero-Coupon Notes by the Purchasing Agent from the Company shall be at a
discount from the initial offering price of each such Note on the date of issue
not in excess of the applicable Concession set forth in Exhibit A hereto.
(c) Public Offering Price. Unless otherwise authorized by the Company,
all Notes shall be sold to the public at a purchase price not to exceed 100% of
the principal amount thereof, plus accrued interest, if any, with the exception
of Zero-Coupon Notes. Zero-Coupon Notes shall be sold to the public at a
purchase price no greater than an amount, expressed as a percentage of the
principal face amount of such Notes, equal to (i) the net proceeds to the
Company on the sale of such Notes, plus (ii) the Concession, plus (iii) accrued
interest, if any. Such purchase price shall be set forth in the confirmation
statement of the Selling Group (as defined in Exhibit B attached hereto) member
responsible for such sale, and delivered to the purchaser along with a copy of
the Prospectus (if not previously delivered) and Pricing Supplement.
10
(d) Procedures. Procedural details relating to the issue and delivery
of, and the solicitation of offers to purchase and payment for, the Notes,
whether under Section IV(a) or IV(b) of this Agreement, are set forth in the
Administrative Procedures attached hereto as Exhibit B, as amended from time to
time (the "Procedures"). The provisions of the Procedures shall apply to all
transactions contemplated hereunder. You and the Company each agree to perform
the respective duties and obligations specifically provided to be performed by
each in the Procedures. The Procedures may only be amended by written agreement
of the Company and each of you.
(e) Prospectus Delivery; Marketing Materials. You shall, as required by
applicable law, furnish to each person to whom you sell or deliver Notes a copy
of the Prospectus (as then amended or supplemented) or, if delivery of the
Prospectus is not required by applicable law, inform each such person that a
copy thereof (as then amended or supplemented) will be made available upon
request. You are not authorized to give any information or to make any
representation not contained in the Prospectus or the documents incorporated by
reference or specifically referred to therein in connection with the offer and
sale of the Notes. You will not use any marketing materials other than the
Prospectus and the brochure approved by the Company on or prior to the date
hereof in connection with any offer or sale of the Notes except for marketing
materials prepared by the Company, if any, and furnished to you together with
written authorization from the Company to the Purchasing Agent to use the same
hereunder. If you elect to distribute these additional marketing materials under
the so called "free writing" exemption embodied in Section 2(10)(a) of the
Securities Act (any such marketing materials, "Free Writing Materials"), you
will use your best efforts to ensure that any intended recipients of such Free
Writing Materials receive a Prospectus either prior to or concurrently with
their receipt of the Free Writing Materials. The Company agrees that the
Purchasing Agent may utilize the Company's name, logo and service ▇▇▇▇ to
identify the Company as a member of the Direct Access Notes Program in the
Purchasing Agent's general materials and marketing objectives relating to the
Direct Access Notes Program (the "Marketing Materials") that are provided to and
approved in writing by the Company prior to their use. The Company hereby grants
the Purchasing Agent a non-exclusive, nonsublicenseable, revocable, royalty-free
license to use the Company's name, logo and service marks solely in connection
with their use in Marketing Materials that are provided to and approved in
writing by the Company prior to their use. Any approvals from or authorizations
by the Company under this Section IV(e) may be transmitted electronically by the
Company to the Purchasing Agent.
(f) Compliance With Laws. You are aware that other than registering the
Notes under the Securities Act and the filing of required reports under the
Exchange Act, no action has been or will be taken by the Company that would
permit the offer or sale of the Notes or possession or distribution of the
Prospectus or any other offering material relating to the Notes in any
jurisdiction where action for that purpose is required. In addition, the
Purchasing Agent, severally and not jointly, agrees that it will observe all
applicable state securities or "blue sky" laws and regulations in each
jurisdiction in or from which it may directly or indirectly acquire, offer, sell
or deliver Notes or have in its possession or distribute the Prospectus or any
other offering material relating to the Notes, and it will obtain any consent,
approval or permission required for the purchase, offer or sale by it of Notes
under the state securities or "blue sky" laws and regulations in force in
11
any such jurisdiction to which the Purchasing Agent is subject or in which it
makes such purchase, offer or sale.
V.
The Company represents and warrants to the Agents that as of the date
hereof, as of each date on which the Company accepts an offer to purchase Notes
(including any purchase by the Purchasing Agent as principal, pursuant to a
Terms Agreement or otherwise), as of each date the Company issues and sells
Notes and as of each date the Registration Statement or the Prospectus is
amended or supplemented:
(a) (i) each document filed, or to be filed, pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied when so filed, or
will comply on the date it is so filed, in all material respects with such Act
and the rules and regulations thereunder; (ii) the Registration Statement
(including the documents incorporated by reference therein), filed with the
Commission pursuant to the Securities Act relating to the Notes, as of its
effective date, did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; (iii) each Prospectus, if any, filed pursuant
to Rule 424 under the Securities Act, complied when so filed in all material
respects with such Act and the applicable rules and regulations thereunder; (iv)
the Registration Statement and each Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations thereunder; and (v) the
Registration Statement and each Prospectus relating to the Notes do not and, as
amended or supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (1) that part of the Registration Statement
which shall constitute the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee or (2) any statements or omissions made in reliance
on and in conformity with written information provided by the Agents through the
Purchasing Agent to the Company expressly for use in the Registration Statement
or Prospectus or any amendment or supplement thereto;
(b) the Company is a corporation validly existing and in good standing
under the laws of the Commonwealth of Massachusetts and has the corporate power
and corporate authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified to do business as a
foreign corporation and is in good standing in each other jurisdiction in which
it owns or leases substantial properties, or in which the conduct of its
business requires such qualification, except to the extent that the failure to
be duly qualified as a foreign corporation or to be in good standing as a
foreign corporation in any such jurisdiction would not result in a Material
Adverse Change;
(c) the Company's authorized capitalization, as of the most recent
balance sheet included in the Prospectus, is as set forth in the Prospectus, and
all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable;
12
(d) the Notes have been duly authorized and, when the terms thereof
have been established in accordance with the Indenture and when executed,
authenticated, issued and delivered in the manner provided for in the Indenture
against payment therefor, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of courts in granting
equitable remedies; the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of courts in granting
equitable remedies; the Indenture has been duly qualified under the Trust
Indenture Act; and the Indenture conforms and the Notes of any particular
issuance of Notes will conform in all material respects to the descriptions
thereof contained in the Prospectus as amended or supplemented that relate to
such issuance of Notes;
(e) other than as set forth in the Prospectus, the Company and each of
its subsidiaries have conducted their businesses and are in compliance in all
material respects with all applicable federal and state laws and regulations,
except for any noncompliance which would not result in a Material Adverse
Change;
(f) the execution and delivery by the Company of the Indenture, the
issuance of the Notes in accordance with the Indenture, the sale of the Notes
pursuant to this Agreement and the consummation of the transactions contemplated
by the Notes, the Indenture, this Agreement and any Terms Agreement will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, (i) any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company
or any of its Significant Subsidiaries is a party or by which the Company or any
of its Significant Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Significant Subsidiaries is subject, or (ii)
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its properties, except
for such conflicts, breaches, violations or defaults under subsections (i) or
(ii) immediately above that would not result in a Material Adverse Change, nor
will such action result in any violation of the provisions of the articles of
organization or by-laws of the Company; and no consent, approval, authorization
of, or registration or filing with any court or governmental agency or body is
required on the part of the Company for the solicitation of offers to purchase
Notes in accordance with this Agreement, the issue and sale of the Notes in
accordance with this Agreement or the consummation by the Company of the other
transactions contemplated by this Agreement, any Terms Agreement or the
Indenture, except (i) such as have been, or will have been prior to the
Commencement Date, obtained (A) under the Securities Act and the Trust Indenture
Act and (B) in connection with listing the initial series of Notes on the New
York Stock Exchange and the registration of the Notes under the Exchange Act and
(ii) such consents, approvals, authorizations, registrations or filings as may
be required under state insurance laws and state securities or Blue Sky laws in
connection with the solicitation by you of offers to purchase Notes from the
Company and with purchases of Notes by you as principal, as the case may be, in
each case in the manner contemplated hereby;
13
(g) other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending or, to the Company's knowledge, threatened to
which the Company or any of its subsidiaries is a party or to which any property
of the Company or any of its subsidiaries is subject, which are of a character
that are required to be disclosed in the Prospectus which have not been properly
disclosed therein;
(h) immediately after any sale of Notes by the Company hereunder or
under any Terms Agreement, the aggregate amount of Notes which shall have been
issued and sold by the Company hereunder or under any Terms Agreement and of any
debt securities of the Company (other than such Notes) that shall have been
issued and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration Statement;
(i) the Company is not, and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described in
the Prospectus, the Company will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended;
(j) Ernst & Young LLP, whose report is included or incorporated by
reference in the Registration Statement and the Prospectus, are independent
certified public accountants with respect to the Company and its subsidiaries,
as required by the Securities Act. The financial statements (including the
related notes but excluding the supporting schedules) included or incorporated
by reference in the Registration Statement and the Prospectus present fairly in
all material respects the consolidated financial position, results of operations
and cash flows of the entities purported to be shown thereby, at the dates and
for the periods indicated and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods indicated and conform in all material respects with the Securities Act,
except as otherwise noted therein; and the supporting schedules included or
incorporated by reference in the Registration Statement when considered in
relation to such financial statements taken as a whole, present fairly in all
material respects the information required to be stated therein;
(k) Each of the Company and the Significant Subsidiaries has all
necessary consents, licenses, authorizations, approvals, exemptions, orders,
certificates and permits (collectively, the "Consents") of and from, and has
made all filings and declarations (collectively, the "Filings") with, all
insurance regulatory authorities, all Federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, necessary to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Prospectus,
except where the failure to have such Consents or to make such Filings would
not, individually or in the aggregate, result in a Material Adverse Change; all
such Consents and Filings are in full force and effect, the Company and the
Significant Subsidiaries are in compliance with such Consents and neither the
Company nor any of the Significant Subsidiaries has received any notice of any
inquiry, investigation or proceeding that would reasonably be expected to result
in the suspension, revocation or limitation of any such Consent or otherwise
impose any limitation on the conduct of the business of the Company or any of
the Significant Subsidiaries, except as set forth in the Prospectus or any such
failure to be in full force and effect, failure to be in compliance with,
suspension, revocation or limitation which
14
would not, singly or in the aggregate, result in a Material Adverse Change; the
Company is in compliance with, and conducts its businesses in conformity with,
all applicable insurance laws and regulations, except where the failure to so
comply or conform would not result in a Material Adverse Change;
(l) the Program, as well as the Notes, are rated Aa3 by ▇▇▇▇▇'▇
Investors Service, Inc. and AA+ by Standard & Poor's Ratings Services, or, after
the Commencement Date, such other rating as to which the Company shall have most
recently notified the Agents pursuant to Section III(h) hereof; and
(m) the initial series of Notes to be issued by the Company hereunder
has been approved for listing on the New York Stock Exchange, subject to
official notice of issuance.
The above representations and warranties shall not apply to any
statements or omissions made in the Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by you expressly
for use therein. Each acceptance by the Company of an offer for the purchase of
Notes and each issuance of Notes shall be deemed an affirmation by the Company
that the foregoing representations and warranties are true and correct at the
time, as the case may be, of such acceptance or of such issuance, in each case
as though expressly made at such time. The representations, warranties and
covenants of the Company shall survive the execution and delivery of this
Agreement and the issuance and sale of the Notes.
Unless the Company has suspended the solicitation of offers to purchase
Notes pursuant to paragraph (a) of Article IV, each time the Registration
Statement or the Prospectus shall be amended or supplemented (other than by a
Pricing Supplement) by the filing of a post-effective amendment with the
Commission, or the filing by the Company of a Form 10-K or Form 10-Q pursuant to
Section 13 of the Exchange Act, or, if so agreed in a Terms Agreement in
connection with a particular transaction, the Company shall furnish the Agents
with (1) a written opinion, dated the date of such amendment, filing or as
otherwise agreed, of counsel to the Company, in substantially the form
previously delivered under Sections II(b) and II(c), but modified, as necessary,
to relate to the Registration Statement and the Prospectus as amended or
supplemented at such date; provided, however, unless otherwise agreed in
connection with a transaction as set forth in a Terms Agreement, the opinion of
▇▇▇▇▇ ▇▇▇▇▇ as required by Section 2(b) shall be delivered only in connection
with a post-effective amendment or the filing of a Form 10-K; provided, further,
however, that the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇, Esq., or such other in-house counsel
of the Company reasonably acceptable to the Purchasing Agent, delivered in
connection with each Form 10-Q filed by the Company shall cover, in addition to
the matters set forth in Section 2(c) of this Agreement, those set forth in
Section 2(b) of this Agreement; (2) a letter, dated the date of such amendment,
filing or as otherwise agreed, of Ernst & Young LLP, independent auditors, in
substantially the form previously delivered under Section II(d), but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended or supplemented at such date; and (3) a certificate, dated the date of
such amendment, filing or as otherwise agreed and signed by an executive officer
of the Company, in substantially the form previously delivered under Section
II(a), but modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended or supplemented at such date.
15
VI.
(a) The Company agrees to indemnify and hold harmless you, each person,
if any, who controls (within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act) you and each of your and such person's
officers and directors against any and all losses, liabilities, costs or claims
(or actions in respect thereof) to which any of them may become subject
(including all reasonable legal and other costs of investigating, disputing or
defending any such claim or action), insofar as such losses, liabilities, costs
or claims (or actions in respect thereof) arise out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any Prospectus, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading provided, however: (i) that the Company shall not be liable for any
such loss, liability, cost, action or claim arising from any statements or
omissions made in reliance on and in conformity with written information
provided by the Agents through the Purchasing Agent to the Company expressly for
use in the Registration Statement or Prospectus or any amendment or supplement
thereto; and (ii) that the Company shall not be liable to you or any person
controlling you with respect to the Prospectus to the extent any such loss,
liability, cost, action or claim to you or such controlling person results from
the fact that you sold Notes to a person to whom there was not sent or given, at
or prior to the earlier of either the mailing or delivery of the written
confirmation of such sale or the delivery of such Notes to such person, a copy
of the Prospectus as then amended or supplemented, if the Company has previously
furnished copies thereof to you.
(b) Each Agent severally agrees to indemnify and hold harmless the
Company, each person, if any, who controls (within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act), the Company, and
the Company's and such person's officers and directors from and against any and
all losses, liabilities, costs or claims (or actions in respect thereof) to
which any of them may become subject (including all reasonable legal and other
costs of investigating, disputing or defending any such claim or action),
insofar as such losses, liabilities, costs or claims (or actions in respect
thereof) (i) arise out of or in connection with any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
Prospectus, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, in each case only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance on and in conformity with written information furnished to the
Company by such Agent through the Purchasing Agent expressly for use therein or
(ii) arise solely from the use by such Agent of Free Writing Materials that are
not preceded by or accompanied with a copy of the Prospectus.
(c) If any claim, demand, action or proceeding (including any
governmental investigation) shall be brought or alleged against an indemnified
party in respect of which indemnity is to be sought against an indemnifying
party pursuant to the preceding paragraphs, the indemnified party shall,
promptly after receipt of notice of the commencement of any such claim, demand,
action or proceeding, notify the indemnifying party in writing of the
commencement of such claim, demand, action or proceeding, enclosing a copy of
all papers served, if any; provided, that, the omission to so notify such
indemnifying party will not relieve
16
the indemnifying party from any liability that it may have to any indemnified
party under the foregoing provisions of this Section VI unless, and only to the
extent that, such omission prejudices the ability of the indemnifying party to
exercise substantive rights or defenses. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with the other indemnifying
parties, if any, similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Article VI for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the reasonable fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the indemnifying party has assumed the defense of such proceeding and has
failed within a reasonable time to retain counsel reasonably satisfactory to
such indemnified party or (iii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential conflicts of interests between them.
It is agreed that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate law firm (in addition to
local counsel where reasonably necessary) for all such indemnified parties. Such
firm shall be designated in writing by the indemnified party. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in this Section VI is
unavailable to or insufficient to hold harmless an indemnified party under the
preceding paragraphs of this Section VI in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Notes to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations.
17
The relative benefits received by the Company on the one hand and each Agent on
the other shall be deemed to be in the same proportion as the total net proceeds
from the sale of Notes (before deducting expenses) received by the Company bear
to the total commissions or discounts received by such Agent in respect thereof.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Company on the one hand or by any Agent
on the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and each Agent agree that it would not be just and equitable if contribution
pursuant to this subsection (d) of Section VI were determined by per capita
allocation (even if all Agents were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d) of Section VI. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) of Section VI shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d) of Section VI, no Agent shall be required to
contribute any amount in excess of the amount by which the total public offering
price at which the Notes purchased by it in the offering giving rise to the
damages were sold exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of each of the Agents under this
subsection (d) of Section VI to contribute are several in proportion to the
respective purchases made by or through it to which such loss, claim, damage or
liability (or action in respect thereof) relates and are not joint.
(e) The indemnity and contribution agreements contained in this Section
VI and the representations and warranties of the Company and you in this
Agreement shall remain operative and in full force and effect regardless of: (i)
any termination of this Agreement; (ii) any investigation made by or on behalf
of the Agents; (iii) any investigation by an indemnified party or on such
party's behalf or any person controlling an indemnified party or by or on behalf
of the indemnifying party, its directors or officers or any person controlling
the indemnifying party; and (iv) acceptance of and payment for any of the Notes.
VII.
This Agreement may be terminated at any time by the Purchasing Agent,
on the one hand, or the Company, on the other hand, upon the giving of five
business days written notice of such termination to the other. In the event of
any such termination, neither party shall have any liability to the other party
hereto, except for obligations hereunder which expressly survive the termination
of this Agreement and except that, if at the time of termination an offer for
the purchase of Notes shall have been accepted by the Company but the time of
delivery to the purchaser or his agent of the Note or Notes relating thereto
shall not yet have occurred, the Company shall have the obligations provided
herein with respect to such Note or Notes.
18
Subsequent to the execution of a Terms Agreement, (i) the Purchasing
Agent may terminate such Terms Agreement, and (ii), if the Purchasing Agent does
not elect to terminate such Terms Agreement pursuant to clause (i) of this
sentence, upon the request of an Agent with respect to Notes to be purchased
through the Purchasing Agent by such Agent, the Purchasing Agent shall terminate
such Terms Agreement to the extent of the Notes that were to be purchased
through the Purchasing Agent by such requesting Agent, in each case immediately
upon notice to the Company, at any time at or prior to the Settlement Date
relating thereto, if there shall have occurred any:
(A) change, or any development involving a prospective change,
in the financial condition or in the earnings, business or operations
of the Company and its subsidiaries, considered as a whole, otherwise
than as set forth or contemplated in the Prospectus (exclusive of any
supplement to the Prospectus filed after the execution of a Terms
Agreement and at or prior to the related Settlement Date), the effect
of which is, in the judgment of the Purchasing Agent or such requesting
Agent, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering of such Notes or
enforce contracts for the sale of such Notes; or
(B) downgrading in the rating of the Company's debt securities
(including the Notes) by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Securities Act), and no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of such debt securities; or
(C) banking moratorium declared by Federal or New York
authorities, or the authorities of any country in whose currency any
Notes are denominated under the applicable Terms Agreement; or
(D) any attack on, or outbreak or escalation of hostilities or
act of terrorism involving the United States or any country in whose
currency any Notes are denominated under the applicable Terms Agreement
is involved, any declaration of war by Congress, any material adverse
change in financial markets or any other substantial national or
international calamity or emergency if, in the judgment of the
Purchasing Agent or such requesting Agent, the effect of any such
attack, outbreak, escalation, act, material adverse change,
declaration, calamity or emergency makes it impracticable or
inadvisable to proceed with the public offering of such Notes or
enforce contracts for the sale of such Notes; or
(E) trading in any securities of the Company has been
suspended or 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 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
National Association of Securities Dealers, Inc. or any other
governmental authority, or a material disruption has occurred in
commercial banking or securities settlement or clearance services in
the United States.
19
The termination of this Agreement shall not require termination of any
agreement by the Purchasing Agent to purchase Notes as principal, and the
termination of any Terms Agreement shall not, in and of itself, require
termination of this Agreement.
If this Agreement is terminated, the last sentence of the second
paragraph of Section IV(a), Section III(c), (d) and (e), Section VI, and the
first paragraph of Section XII shall survive; provided, that, if at the time of
termination of this Agreement an offer to purchase Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such Notes
has not occurred, the provisions of Section III(a) and (b), and Section IV(b)
and (d) shall also survive until time of delivery.
VIII.
Except as otherwise specifically provided herein, all statements,
requests and notices hereunder shall be in writing, or by telephone if promptly
confirmed in writing, and if to you shall be sufficient in all respects if
delivered in person or sent by telecopier transmission (confirmed in writing), a
nationally recognized overnight courier or registered mail to you at your
address, telex or telecopier number set forth below by your signature and if to
the Company shall be sufficient in all respects if delivered or sent by any of
such methods to the Company at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Guaranteed and Structured Financial Products Group, telecopier
number (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may be supplied by one party to
the other in writing from time to time. All such notices shall be effective on
receipt.
IX.
This Agreement shall be binding upon you and the Company, and inure
solely to the benefit of you and the Company and any other person expressly
entitled to indemnification hereunder and the respective personal
representatives, successors and assigns of each, and no other person shall
acquire or have any rights under or by virtue of this Agreement. The term
"successors" shall not include any purchaser of the Notes from any of the Agents
merely by reason of such purchase.
X.
This Agreement shall be governed by and construed in accordance with
the substantive laws of the State of New York. Each party to this Agreement
irrevocably agrees that any legal action or proceeding against it arising out of
or in connection with this Agreement or for recognition or enforcement of any
judgment rendered against it in connection with this Agreement may be brought in
any Federal or New York State court sitting in the Borough of Manhattan, and, by
execution and delivery of this Agreement, such party hereby irrevocably accepts
and submits to the jurisdiction of each of the aforesaid courts in personam,
generally and unconditionally with respect to any such action or proceeding for
itself and in respect of its property, assets and revenues. Each party hereby
also irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any such action or
proceeding brought in any such court and any claim that any such action or
proceeding has been brought in an inconvenient forum.
20
XI.
If this Agreement is executed by or on behalf of any party, such person
hereby states that at the time of the execution of this Agreement he has no
notice of revocation of the power of attorney by which he has executed this
Agreement as such attorney.
XII.
The Company will pay the expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing of
the Registration Statement; (ii) the preparation, issuance and delivery of the
Notes; (iii) the fees and disbursements of the Company's counsel and auditors,
of the Trustee and its counsel and of any paying or other agents appointed by
the Company; (iv) the printing and delivery to you in quantities as hereinabove
stated of copies of the Registration Statement and the Prospectus; (v) the
reasonable fees and disbursements of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for
the Agents (including "Blue Sky" fees and disbursements, if any); (vi) if the
Company lists Notes on a securities exchange, the costs and fees of such
listing; and (vii) any fees charged by rating agencies for the rating of the
Notes.
This Agreement may be executed by each of the parties hereto in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
As used herein, "business day" means any day other than a Saturday,
Sunday or any day on which banking institutions are authorized or required by
law, regulation or executive order to be closed in the City of New York.
21
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Company and you.
Very truly yours,
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Confirmed and accepted as of the
date first above written:
ABN AMRO FINANCIAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_______________________________
Name: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Vice President
ABN AMRO Financial Services, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Compliance Officer
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
22
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: General Principal
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
FIDELITY CAPITAL MARKETS
a division of National Financial Services LLC
By: /s/ ▇. ▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Senior Vice President
Fidelity Capital Markets
a division of National Financial Services LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. - Mail Zone Z2H
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
WACHOVIA SECURITIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
_______________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director; Senior Vice President
Wachovia Securities, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Retail Taxable Fixed Income
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
23
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - MTN Product Management
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: Manager,
Attention: Credit Department
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO., INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: S.V.P. Fixed Income
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ______________
Telefax: _______________
24
PRUDENTIAL SECURITIES, INCORPORATED
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, Jr.
_______________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, Jr.
Title: Managing Director
Prudential Securities, Incorporated
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇.▇. ▇▇▇▇, ▇▇.
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
QUICK & ▇▇▇▇▇▇, INC.
(A FLEET BOSTON FINANCIAL COMPANY)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Quick & ▇▇▇▇▇▇, Inc.
(a Fleet Boston Financial Company)
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium Term Note Department
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
25
SIGNATOR INVESTORS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and COO
Signator Investors, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
UBS PAINEWEBBER INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
UBS PaineWebber Inc.
Attention: Taxable Fixed Income Department -- Corporate Desk
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
26
EXHIBIT A
SignatureNotes
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
DEALER AGENT PROGRAM
The following Concessions are payable as a percentage of the Price to Public of
each Note sold to or through the Purchasing Agent and will not exceed the
amounts listed below.
12 months to less than 23 months ...................... 0.600%
23 months to less than 35 months ...................... 0.850%
35 months to less than 47 months ...................... 1.375%
47 months to less than 59 months ...................... 1.625%
59 months to less than 71 months ...................... 2.000%
71 months to less than 83 months ...................... 2.250%
83 months to less than 95 months ...................... 2.250%
95 months to less than 107 months ..................... 2.375%
107 months to less than 119 months .................... 2.375%
119 months to less than 131 months .................... 2.500%
131 months to less than 143 months .................... 2.750%
143 months to less than 179 months. ................... 3.250%
179 months to less than 239 months .................... 3.500%
239 months to 360 months .............................. 5.000%
A-1
EXHIBIT B
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
$3,000,000,000
SignatureNotes
WITH MATURITIES OF TWELVE MONTHS OR MORE FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
SignatureNotes with maturities of twelve months or more from date of issue (the
"Notes"), are offered on a continuing basis by ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance
Company. The Notes will be offered by ABN AMRO Financial Services, Inc. (the
"Purchasing Agent"), ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.,
Fidelity Capital Markets, a division of National Financial Services LLC,
Wachovia Securities, Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc., Prudential
Securities, Incorporated, Quick & ▇▇▇▇▇▇, Inc. (a Fleet Boston Financial
Company), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., Signator Investors, Inc. and UBS
PaineWebber Inc. (collectively, the "Agents") pursuant to a Selling Agent
Agreement among the Company and the Agents dated as of the date hereof (the
"Selling Agent Agreement") and one or more terms agreements substantially in the
form attached to the Selling Agent Agreement as Exhibit C (each a "Terms
Agreement"). The Notes are being resold by the Purchasing Agent (and by any
Agent that purchases them from the Purchasing Agent) to (i) customers of the
Agents or (ii) selected broker-dealers (the "Selling Group") for distribution to
their customers pursuant to a Master Selected Dealers Agreement (a "Dealers
Agreement") substantially in the form attached to the Selling Agent Agreement as
Exhibit E. The Agents have agreed to use their reasonable best efforts to
solicit offers to purchase Notes. The Notes will constitute unsecured and
unsubordinated debt and have been registered with the Securities and Exchange
Commission (the "Commission"). JPMorgan Chase Bank is trustee (the "Trustee")
under an Indenture, dated as of June 15, 2002, as supplemented from time to
time, between the Company and the Trustee (the "Indenture") covering the Notes.
Pursuant to the terms of the Indenture, JPMorgan Chase Bank also will serve as
issuing agent and paying agent.
Each tranche of Notes will be issued in book-entry form and represented by one
or more fully registered global notes without coupons (each, a "Global Note")
held by the Trustee, as agent for The Depository Trust Corporation ("DTC") and
recorded in the book-entry system maintained by DTC, or other depositary as is
specified in the relevant Pricing Supplement (as defined in the Selling Agent
Agreement). Each Global Note will have the annual interest rate, maturity and
other terms set forth in the relevant Pricing Supplement (as defined in the
Selling Agent Agreement). Owners of beneficial interests in a Global Note will
be entitled to physical delivery of Notes issued in certificated form equal in
principal amount to their respective beneficial interests only upon certain
limited circumstances described in the Indenture.
Administrative procedures and specific terms of the offering are explained
below. Administrative responsibilities, accountable document control and
record-keeping responsibilities will be performed by the Company's Guaranteed
and Structured Financial
B-1
Products Group. The Company will advise the Agents and the Trustee in writing of
those persons handling administrative responsibilities with whom the Agents and
the Trustee are to communicate regarding offers to purchase Notes and the
details of their delivery. Notwithstanding anything herein to the contrary, the
term "Trustee" as used in these administrative procedures shall mean JPMorgan
Chase Bank, acting in its capacity as either Trustee under the Indenture,
issuing agent or paying agent, as the context may require.
Notes will be issued in accordance with the administrative procedures set forth
herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the Indenture, the Selling Agent
Agreement or the Prospectus and the Pricing Supplement (together, the
"Prospectus"), the relevant provisions of the Notes, the Indenture, the Selling
Agent Agreement and the Prospectus shall control. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Selling Agent Agreement, the Prospectus in the form most recently filed with the
Commission pursuant to Rule 424 of the Securities Act, or in the Indenture.
Administrative Procedures for Notes
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated July 18, 2002, and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement"), dated December 21,
1988, and its obligations as a participant in DTC, including DTC's Same-Day
Funds Settlement System ("SDFS"). The procedures set forth below may be modified
in compliance with DTC's then applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the "Stated Maturity
Date") not less than twelve months after the date of
delivery by the Company of such Note. Notes will
mature on any date selected by the initial purchaser
and agreed to by the Company. "Maturity" when used
with respect to any Note means the date (such date,
the "Maturity Date") on which the outstanding
principal amount of such Note becomes due and payable
in full in accordance with its terms, whether at its
Stated Maturity Date or by declaration of
acceleration, call for redemption, repayment, as a
result of a valid exercise of the Survivor's Option,
if any, or otherwise.
Issuance: Unless otherwise specified in an applicable Pricing
Supplement, all Notes having the same terms will be
represented initially by a single Global Note. Each
Global Note will be dated and issued as of the date of
its authentication by the Trustee.
All Discount Notes which have the same terms
(collectively, the "Zero-Coupon Terms") will be
represented initially by a single Global Note in fully
registered form without coupons.
Each Global Note will bear an original issue date (the
"Original Issue Date"). The Original Issue Date shall
remain the same for all Notes subsequently issued upon
registration of transfer, exchange or
B-2
substitution of an original Note regardless of their
dates of authentication.
Identification
Numbers: The Company has received from the CUSIP Service Bureau
(the "CUSIP Service Bureau") of Standard & Poor's
Corporation ("Standard & Poor's") one series of CUSIP
numbers consisting of approximately 900 CUSIP numbers
for future assignment to Global Notes. The Company will
provide DTC and the Trustee with a list of such CUSIP
numbers. The Company will assign CUSIP numbers as
described below under Settlement Procedure "B". DTC
will notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Company has assigned to
Global Notes. The Company will reserve additional CUSIP
numbers when necessary for assignment to Global Notes
and will provide the Trustee and DTC with the list of
additional CUSIP numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes will be
issued only in fully registered form without coupons.
Each Global Note will be registered in the name of Cede
& Co., as nominee for DTC, on the Note Register
maintained under the Indenture by the Trustee. The
beneficial owner of a Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect
to such Note, the "Participants") to act as agent or
agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions
provided by such Participants, a credit balance with
respect to such beneficial owner of such Note in the
account of such Participants. The ownership interest of
such beneficial owner in such Note will be recorded
through the records of such Participants or through the
separate records of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of interests in a Global Note will be
accomplished by book entries made by DTC and, in turn,
by Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such
interests.
Exchanges: The Trustee, at the Company's request, may deliver to
DTC and the CUSIP Service Bureau at any time a written
notice of consolidation specifying (a) the CUSIP
numbers of two or more Global Notes outstanding on such
date that represent Notes having the same terms (except
that Issue Dates need not be the same) and for which
interest, if any, has been paid to the same date and
which otherwise constitute Notes of the same series and
tenor under the Indenture, (b) a date, occurring at
least 30 days after such written notice is delivered
and at least 30 days before the next Interest Payment
Date, if any, for the related Notes, on which such
Global Notes shall be exchanged for a single
replacement Global Note; and (c) a new CUSIP number,
obtained from the Company,
B-3
to be assigned to such replacement Global Note. Upon
receipt of such a notice, DTC will send to its
Participants (including the issuing agent) and the
Trustee a written reorganization notice to the effect
that such exchange will occur on such date. Prior to
the specified exchange date, the Trustee will deliver
to the CUSIP Service Bureau written notice setting
forth such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP
numbers of the Global Notes to be exchanged will no
longer be valid. On the specified exchange date, the
Trustee will exchange such Global Notes for a single
Global Note bearing, the new CUSIP number and the CUSIP
numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Notes to
be exchanged exceed $500,000,000 in aggregate principal
or face amount, one replacement Global Note will be
authenticated and issued to represent each $500,000,000
of principal or face amount of the exchanged Global
Notes and an additional Global Note will be
authenticated and issued to represent any remaining
principal amount of such Global Notes (See
"Denominations" below).
Denominations: Notes will be issued in denominations of $1,000 or more
(in multiples of $1,000). Global Notes will be
denominated in principal or face amounts not in excess
of $500,000,000. If one or more Notes having an
aggregate principal or face amount in excess of
$500,000,000 would, but for the preceding sentence, be
represented by a single Global Note, then one Global
Note will be issued to represent each $500,000,000
principal or face amount of such Note or Notes and an
additional Global Note will be issued to represent any
remaining principal amount of such Note or Notes. In
such case, each of the Global Notes representing such
Note or Notes shall be assigned the same CUSIP number.
Issue Price: Unless otherwise specified in an applicable Pricing
Supplement, each Note will be issued at the percentage
of principal amount specified in the Prospectus
relating to such Note.
Interest: Unless otherwise specified in the Pricing Supplement,
each Note will bear interest at a fixed rate, which may
be zero during all or any part of the term in the case
of certain Notes issued at a price representing a
substantial discount from the principal amount payable
at Maturity. Interest on each Note will accrue from and
including the Issue Date of such Note for the first
interest period and from the most recent Interest
Payment Date to which interest has been paid, or duly
provided for, for all subsequent interest periods.
Except as set forth hereafter, each payment of interest
on a Note will include interest accrued to but
excluding, as the case may be, the Interest Payment
Date or the date of Maturity (other than a Maturity
Date of a Note occurring on the 31st day of a month in
which case such payment of interest will include
interest accrued to but excluding the 30th
B-4
day of such month).
Each pending deposit message described under Settlement
Procedure "C" below will be routed to Standard &
Poor's, which will use the message to include certain
information regarding the related Notes in the
appropriate daily bond report published by Standard &
Poor's.
Each Note will bear interest from and including its
Issue Date at the rate per annum set forth thereon and
in the applicable Pricing Supplement until the
principal amount thereof is paid, or made available for
payment, in full. Unless otherwise specified in the
applicable Pricing Supplement, interest on each Note
(other than a Zero-Coupon Note) will be payable either
monthly, quarterly, semi-annually or annually on each
Interest Payment Date and at Maturity (or on the date
of redemption or repayment if a Note is repurchased by
the Company prior to maturity pursuant to mandatory or
optional redemption provisions or the Survivor's
Option). Interest will be payable to the person in
whose name a Note is registered at the close of
business on the Regular Record Date next preceding each
Interest Payment Date; provided, however, that interest
payable at Maturity, on a date of redemption or in
connection with the exercise of the Survivor's Option
will be payable to the person to whom principal shall
be payable.
Any payment of principal or interest required to be
made on a Note on a day which is not a Business Day
need not be made on such day, but may be made on the
next succeeding Business Day with the same force and
effect as if made on such day, and no additional
interest shall accrue as a result of such delayed
payment. Unless otherwise specified in the applicable
Pricing Supplement, any interest on the Notes will be
computed on the basis of a 360-day year of twelve
30-day months. The interest rates the Company will
agree to pay on newly-issued Notes are subject to
change without notice by the Company from time to time,
but no such change will affect any Notes already issued
or as to which an offer to purchase has been accepted
by the Company.
The Interest Payment Dates for a Note that provides for
monthly interest payments shall be the fifteenth day of
each calendar month, commencing in the calendar month
that next succeeds the month in which the Note is
issued. In the case of a Note that provides for
quarterly interest payments, the Interest Payment Dates
shall be the fifteenth day of each third month,
commencing in the third succeeding calendar month
following the month in which the Note is issued. In the
case of a Note that provides for semi-annual interest
payments, the Interest Payment dates shall be the
fifteenth day of each sixth month, commencing in the
sixth succeeding calendar month following the month in
which the Note is
B-5
issued. In the case of a Note that provides for annual
interest payments, the Interest Payment Date shall be
the fifteenth day of every twelfth month, commencing in
the twelfth succeeding calendar month following the
month in which the Note is issued. The Regular Record
Date with respect to any Interest Payment Date shall be
the date fifteen calendar days prior to such Interest
Payment Date, whether or not such date shall be a
Business Day; provided, however, that interest payable
at Maturity will be payable to the person to whom
principal shall be payable.
Each payment of interest on a Note shall include
accrued interest from and including the Issue Date or
from and including the last day in respect of which
interest has been paid (or duly provided for), as the
case may be, to, but excluding, the Interest Payment
Date or Maturity Date, as the case may be.
Calculation
of Interest: Unless otherwise specified in the applicable Pricing
Supplement, any interest on the Notes (including
interest for partial periods) will be calculated on the
basis of a 360-day year of twelve 30-day months.
(Examples of interest calculations are as follows:
October 1, 2002 to April 1, 2003 equals 6 months and 0
days, or 180 days; the interest paid equals 180/360
times the annual rate of interest times the principal
amount of the Note. The period from December 3, 2002 to
April 1, 2003 equals 3 months and 28 days, or 118 days;
the interest payable equals 118/360 times the annual
rate of interest times the principal amount of the
Note.)
Business Day: "Business Day" means, unless otherwise specified in the
applicable Pricing Supplement, any day, other than a
Saturday or Sunday, that meets the following applicable
requirement: such day is not a day on which banking
institutions are authorized or required by law,
regulation or executive order to be closed in the City
of New York.
Payments of
Principal and
Interest: Payments of Principal and Interest. Promptly after each
Regular Record Date, the Trustee will deliver to the
Company and DTC a written notice specifying by CUSIP
number the amount of interest, if any, to be paid on
each Global Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding with a
Maturity Date) and the total of such amounts. DTC will
confirm the amount payable on each Global Note on such
Interest Payment Date by reference to the daily bond
reports published by Standard & Poor's. On such
Interest Payment Date, the Company will pay to the
Trustee, and the Trustee in turn will pay to DTC, such
total amount of interest due (other than on the
Maturity Date), at the times and in the manner set
forth below under "Manner of
B-6
Payment". If any Interest Payment Date for any Note is
not a Business Day, the payment due on such day shall
be made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Interest Payment Date.
Payments on the Maturity Date. On or about the first
Business Day of each month, the Trustee will deliver to
the Company and DTC a written list of principal and
interest to be paid on each Global Note representing
Notes maturing or subject to redemption (pursuant to a
sinking fund or otherwise) or repayment in the
following month. The Trustee, the Company and DTC will
confirm the amounts of such principal and interest
payments with respect to each Global Note on or about
the fifth Business Day preceding the Maturity Date of
such Global Note. On the Maturity Date, the Company
will pay to the Trustee, and the Trustee in turn will
pay to DTC, the principal amount of such Global Note,
together with interest, if any, due on such Maturity
Date, at the times and in the manner set forth below
under "Manner of Payment". If the Maturity Date of any
Global Note is not a Business Day, the payment due on
such day shall be made on the next succeeding Business
Day and no interest shall accrue on such payment for
the period from and after such Maturity Date. Promptly
after payment to DTC of the principal and interest due
on the Maturity Date of such Global Note and all other
Notes represented by such Global Note, the Trustee will
cancel and dispose of such Global Note in accordance
with the Indenture and so advise the Company.
Manner of Payment. The total amount of any principal
and interest due on Global Notes on any Interest
Payment Date or at Maturity shall be paid by the
Company to the Trustee in immediately available funds
on such date. Prior to 10:00 a.m., New York City time,
on the Maturity Date, or such later time as shall be
permitted by DTC's procedures, the Trustee will make
payment to DTC in accordance with existing arrangements
between DTC and the Trustee, in funds available for
immediate use by DTC, each payment of interest,
principal and premium, if any, due on a Global Note on
such date. On each Interest Payment Date (other than on
the Maturity Date) the Trustee will pay DTC such
interest payments in same-day funds in accordance with
existing arrangements between the Trustee and DTC.
Thereafter, on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate
use to the respective Participants with payments in
amounts proportionate to their respective holdings in
principal amount of beneficial interest in such Global
Note as are recorded in the book-entry system
maintained by DTC. Neither the Company nor the Trustee
shall have any direct responsibility or liability for
the payment by DTC of the principal of, or premium, if
any, or interest on, the Notes to such Participants.
B-7
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any
interest payment on a Note will be determined and
withheld by the Participant, indirect participant
in DTC or other person responsible for forwarding
payments and materials directly to the beneficial
owner of such Note.
Procedure for Rate
Setting and
Posting: The Company and the Purchasing Agent will discuss,
from time to time, the aggregate principal amounts
of, the Maturities, the Issue Price and the
interest rates to be borne by Notes that may be
sold as a result of the solicitation of orders by
the Agents. If the Company decides to set interest
rates borne by any Notes in respect of which the
Agents are to solicit orders (the setting of such
interest rates to be referred to herein as
"Posting"), or if the Company decides to change
interest rates previously posted by it, it will
promptly advise the Purchasing Agent of the prices
and interest rates to be posted. The Purchasing
Agent in turn will promptly advise the other
Agents.
The Company, in consultation with the Trustee, will
assign a separate CUSIP number for each tranche of
Notes to be posted, and will so advise and notify
the Trustee and Purchasing Agent of said assignment
by telephone and/or by telecopier or other form of
electronic transmission prior to Posting. The
Purchasing Agent will, in turn, include the
assigned CUSIP number on all Posting notices
communicated to the Agents and Selling Group
members.
Offering of Notes: In the event that there is a Posting, the
Purchasing Agent will communicate to each of the
Agents and Selling Group members the Maturities of,
along with the interest rates to be borne by, each
tranche of Notes that is the subject of the
Posting. Thereafter, the Purchasing Agent, along
with the other Agents and the Selling Group, will
solicit offers to purchase the Notes accordingly.
Purchase of Notes
by the Purchasing
Agent: The Purchasing Agent will, no later than 4:00 p.m.
(New York City time) on the sixth day subsequent to
the day on which such Posting occurs, or if such
sixth day is not a Business Day, on the preceding
Business Day, or on such other Business Day and
time as shall be mutually agreed upon by the
Company and the Agents (any such day, a "Trade
Day"), (i) complete, execute and deliver to the
Company a Terms Agreement that sets forth, among
other things, the amount of each tranche that the
Purchasing Agent is offering to purchase or (ii)
inform the Company that none of the Notes of a
particular tranche will be purchased by the
Purchasing Agent.
B-8
Upon receipt of a completed and executed Terms
Agreement from the Purchasing Agent, the Company
will (i) promptly execute and return such Terms
Agreement to the Purchasing Agent or (ii) inform
the Purchasing Agent that its offer to purchase the
Notes of a particular tranche has been rejected, in
whole or in part. The Purchasing Agent will
thereafter promptly inform the other Agents and
participating Selling Group members of the action
taken by the Company.
Acceptance and
Rejection of
Orders: Unless otherwise agreed by the Company and the
Agents, the Company has the sole right to accept
orders to purchase Notes and may reject any such
order in whole or in part. Unless otherwise
instructed by the Company, the Purchasing Agent
will promptly advise the Company by telephone of
all offers to purchase Notes received by it, other
than those rejected by it in whole or in part in
the reasonable exercise of its discretion. No order
for less than $1,000 principal amount of Notes will
be accepted, and no order will be accepted that is
not for $1,000 or an integral multiple of $1,000.
Preparation of
Pricing
Supplement: If any offer to purchase a Note is accepted by the
Company, the Company will provide a Pricing
Supplement (substantially in the form attached to
the Selling Agent Agreement as Exhibit D)
reflecting the terms of such Note and will have
filed such Pricing Supplement with the Commission
in accordance with the applicable paragraph of Rule
424(b) under the Act and will supply a copy thereof
(or additional copies if requested) to the
Purchasing Agent, by no later than 11:00 a.m. New
York City time on the Business Day immediately
following the Trade Day, and one copy to the
Trustee. The Purchasing Agent will cause a
Prospectus and Pricing Supplement to be delivered
to each of the other Agents and Selling Group
members that purchased such Notes, and each of
these, in turn, will, pursuant to the terms of the
Selling Agent Agreement and the Master Selected
Dealer Agreement, cause to be delivered a copy of
the applicable Pricing Supplement to each purchaser
of Notes from such Agent or Selling Group member.
In each instance that a Pricing Supplement is
prepared, the Agents will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements and the Prospectuses
to which they are attached (other than those
retained for files) will be destroyed.
B-9
Delivery of
Confirmation and
Prospectus to
Purchaser by
Purchasing Agent: Subject to "Suspension of Solicitation; Amendment
or Supplement" below, the Agents will deliver a
Prospectus (including the applicable Pricing
Supplement) as herein described with respect to
each Note sold by it.
For each offer to purchase a Note solicited by an
Agent and accepted by or on behalf of the Company,
the Purchasing Agent will issue a confirmation to
the purchaser, setting forth the terms of such Note
and other applicable details described above and
delivery and payment instructions. In addition, the
Purchasing Agent will deliver to such purchaser the
Prospectus (including the applicable Pricing
Supplement) in relation to such Note prior to or
together with the earlier of any written offer of
such Note, delivery of the confirmation of sale or
delivery of the Note.
Settlement: The receipt of immediately available funds by the
Company in payment for Notes and the authentication
and issuance of the Global Note representing such
Notes shall constitute "Settlement" with respect to
such Note. All orders accepted by the Company will
be settled within one to three Business Days
pursuant to the timetable for Settlement set forth
below, unless the Company and the purchaser agree
to Settlement on a later date, which date shall be
specified upon acceptance of such offer; provided,
however, that in all cases the Company will notify
the Trustee on the date issuance instructions are
given.
Settlement
Procedures: In the event of a purchase of Notes by the
Purchasing Agent, as principal, appropriate
Settlement details, if different from those set
forth below, will be set forth in the applicable
Terms Agreement to be entered into between the
Purchasing Agent and the Company pursuant to the
Selling Agent Agreement. Settlement Procedures with
regard to each Note sold by an Agent, as agent for
the Company, shall be as follows:
A. After the acceptance of an offer by the
Company with respect to a Note, the Purchasing
Agent will communicate the following details
of the terms of such offer (the "Note Sale
Information") to the Company by telephone
confirmed in writing or by facsimile
transmission or other acceptable written
means:
1. Principal amount of the purchase;
B-10
2. Interest Rate;
3. Interest Payment Dates;
4. Settlement Date;
5. Maturity Date;
6. Purchase Price;
7. Purchasing Agent's commission determined
pursuant to Section IV(a) of the Selling
Agent Agreement;
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the Company,
such of the following as are applicable:
(i) The date on and after which such
Note may be redeemed (the
"Redemption Commencement Date"),
(ii) Initial redemption price (% of
par), and
(iii) Amount (% of par) that the initial
redemption price shall decline
(but not below par) on each
anniversary of the Redemption
Commencement Date;
11. Whether the Note has the Survivor's
Option;
12. If a Discount Note, the total amount of
original issue discount, the yield to
maturity and the initial accrual period
of original issue discount;
13. DTC Participant Number of the institution
through which the customer will hold the
beneficial interest in the Global Note;
and
14. Such other terms as are necessary to
complete the applicable form of Note.
B. 1. The Company will confirm the previously
assigned CUSIP number to the Global Note
representing the Notes and then advise the
Trustee by Issuance Order (which may include
instructions delivered by facsimile
transmission confirmed promptly in writing by
an Issuance Order) signed by an authorized
person of the
B-11
information set forth in Settlement Procedure
"A" above and the name of the Purchasing
Agent.
2. The Company will provide the Pricing
Supplement reflecting the terms of such Note
and will have filed such Pricing Supplement
with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the
Act and will supply a copy thereof to the
Purchasing Agent, by no later than 11:00 a.m.
New York City time on the Business Day
immediately following the Trade Day, and one
copy to the Trustee.
C. The Trustee will communicate to DTC and the
Purchasing Agent through DTC's Participant
Terminal System, a pending deposit message
specifying the following Settlement
information:
1. The information received in accordance
with Settlement Procedure "A".
2. The numbers of the participant accounts
maintained by DTC on behalf of the
Trustee and the Purchasing Agent.
3. The initial Interest Payment Date for
such Note, number of days by which such
date succeeds the related DTC record date
(which term means the Regular Record
Date), and if then calculated, the amount
of interest payable on such Initial
Interest Payment Date (which amount shall
have been confirmed by the Trustee).
4. The CUSIP number of the Global Note
representing such Notes.
5. The frequency of payments of interest, if
any, under the Notes.
6. Whether such Global Note represents any
other Notes issued or to be issued (to
the extent then known).
D. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
E. The Trustee will complete and deliver a Global
Note representing such Note in a form that has
been approved by the Company, the Agents and
the Trustee.
F. The Trustee will authenticate the Global Note
representing such Note and maintain possession
of such Global Note.
G. The Trustee will enter an SDFS deliver order
through DTC's
B-12
Participant Terminal System instructing DTC to
(i) debit such Note to the Trustee's
participant account and credit such Note to
the participant account of the Purchasing
Agent maintained by DTC and (ii) debit the
settlement account of the Purchasing Agent and
credit the settlement account of the Trustee
maintained by DTC, in an amount equal to the
price of such Note less the Purchasing Agent's
commission. The entry of such a deliver order
shall be deemed to constitute a representation
and warranty by the Trustee to DTC that (a)
the Global Note representing such Note has
been issued and authenticated and (b) the
Trustee is holding such Global Note pursuant
to the Certificate Agreement.
H. The Purchasing Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit
such Note to the Purchasing Agent's
participant account and credit such Note to
the participant accounts of the Participants
to whom such Note is to be credited maintained
by DTC and (ii) debit the settlement accounts
of such Participants and credit the settlement
account of the Purchasing Agent maintained by
DTC, in an amount equal to the price of the
Note so credited to their accounts.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
J. The Trustee will credit to an account of the
Company maintained at JPMorgan Chase Bank
funds available for immediate use in an amount
equal to the amount credited to the Trustee's
DTC participant account in accordance with
Settlement Procedure "G".
K. The Trustee will send a copy of the Global
Note representing such Note by first-class
mail to the Company.
L. The Purchasing Agent will confirm the purchase
of each Note to the purchaser thereof either
by transmitting to the Participant to whose
account such Note has been credited a
confirmation order through DTC's Participant
Terminal System or by mailing a written
confirmation to such purchaser. In all cases
the Prospectus, as most recently amended or
supplemented, must accompany or precede such
confirmation.
M. Upon request by the Company, the Trustee will
send to the Company a statement setting forth
the principal amount of Notes outstanding as
of that date under the Indenture and setting
forth the CUSIP number(s) assigned to, and a
brief description of, any
B-13
orders which the Company has advised the Trustee
but which have not yet been settled.
Settlement Procedures
Timetable: In the event of a purchase of Notes by the
Purchasing Agent, as principal, appropriate
Settlement details, if different from those set
forth below, will be set forth in the applicable
Terms Agreement to be entered into between the
Purchasing Agent and the Company pursuant to the
Selling Agent Agreement.
For orders of Notes solicited by an Agent, as
agent, and accepted by the Company, Settlement
Procedures "A" through "M" shall be completed as
soon as possible but not later than the respective
times (New York City time) set forth below:
Settlement: Procedure Time
A 4:00 p.m. on the Trade Day.
B.1 5:00 p.m. on the Trade Day.
B.2 11:00 a.m. on the Business Day
following the Trade Day
C 2:00 p.m. on the Business Day before
the Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 p.m. on the Settlement Date.
G-H 2:00 p.m. on the Settlement Date.
I 4:45 p.m. on the Settlement Date.
▇-▇ 5:00 p.m. on the Settlement Date
M At the request of the Company.
NOTE: The Prospectus as most recently amended or
supplemented must accompany or precede any written
confirmation given to the customer (Settlement
Procedure "L"). Settlement Procedure "I" is subject
to extension in accordance with any extension
Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the Settlement Date.
If Settlement of a Note is rescheduled or
cancelled, the Trustee will deliver to DTC, through
DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m.,
New York City time, on the Business Day immediately
preceding the scheduled Settlement Date.
B-14
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note pursuant to Settlement
Procedure "G", the Trustee may deliver to DTC,
through DTC's Participant Terminal System, as soon
as practicable a withdrawal message instructing DTC
to debit such Note to the participant account of
the Trustee maintained at DTC. DTC will process the
withdrawal message; provided, that, such
participant account contains Notes having the same
terms and having a principal amount that is at
least equal to the principal amount of such Note to
be debited. If withdrawal messages are processed
with respect to all the Notes issued or to be
issued represented by a Global Note, the Trustee
will cancel such Global Note in accordance with the
Indenture, make appropriate entries in its records
and so advise the Company. The CUSIP number
assigned to such Global Note shall, in accordance
with CUSIP Service Bureau procedures, be cancelled
and not immediately reassigned. If withdrawal
messages are processed with respect to one or more,
but not all, of the Notes represented by a Global
Note, the Trustee will exchange such Global Note
for two Global Notes, one of which shall represent
the Notes for which withdrawal messages have been
processed and shall be cancelled immediately after
issuance, and the other of which shall represent
the remaining Notes previously represented by the
surrendered Global Note and shall bear the CUSIP
number of the surrendered Global Note. If the
purchase price for any Note is not timely paid to
the Participants with respect to such Note by the
beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and,
in turn, the related Agent may enter SDFS deliver
orders through DTC's participant Terminal System
reversing the orders entered pursuant to Settlement
Procedures "G" and "H", respectively. Thereafter,
the Trustee will deliver the withdrawal message and
take the related actions described above. If such
failure shall have occurred for any reason other
than default by the Agent in the performance of its
obligations hereunder or under the Selling Agent
Agreement, the Company will reimburse the Agent on
an equitable basis for its loss of the use of funds
during the period when they were credited to the
account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note, DTC may take any
actions in accordance with its SDFS operating
procedures then in effect. In the event of a
failure to settle with respect to one or more, but
not all, of the Notes that were to have been
represented by a Global Note, the Trustee will
provide, in accordance with Settlement Procedures
"E" and "F", for the authentication and issuance of
a Global Note representing the other Notes to have
been represented by such Global Note and will make
appropriate entries in its records.
B-15
Procedure for
Rate Changes: Each time a decision is reached to change the
interest rates on the Notes, the Company will
promptly advise the Purchasing Agent of the new
rates, who will forthwith advise the Agents and
Selling Group Members and will suspend solicitation
of purchases of Notes at the prior rates. The
Agents may telephone the Company with
recommendations as to the changed interest rates.
Suspension of
Solicitation;
Amendment
or Supplement: Subject to the Company's representations,
warranties and covenants contained in the Selling
Agent Agreement, the Company may instruct the
Agents to suspend at any time for any period of
time or permanently, the solicitation of orders to
purchase Notes. Upon receipt of such instructions
(which may be given orally), each Agent will
forthwith suspend solicitation until such time as
the Company has advised it that solicitation of
offers to purchase may be resumed.
In the event that at the time the Company suspends
solicitation of offers to purchase there shall be
any orders outstanding for settlement, the Company
will promptly advise the Agents and the Trustee
whether such orders may be settled and whether
copies of the Prospectus as in effect at the time
of the suspension may be delivered in connection
with the settlement of such orders. The Company
will have the sole responsibility for such decision
and for any arrangements which may be made in the
event that the Company determines that such orders
may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will
promptly advise the Agents and furnish the Agents
and the Trustee with the proposed amendment or
supplement and with such certificates and opinions
as are required, all to the extent required by and
in accordance with the terms of the Selling Agent
Agreement. Subject to the provisions of the Selling
Agent Agreement, the Company may file with the
Commission any supplement to the Prospectus
relating to the Notes. The Company will provide the
Agents and the Trustee with copies of any such
supplement, and confirm to the Agents that such
supplement has been filed with the Commission.
Trustee Not to Risk
Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payment to the Company, or the
Agents or the purchasers, it being understood by
all parties that payments made by the Trustee to
either the Company or the Agents shall be made only
to the extent that funds are provided to the
Trustee for such purpose.
B-16
Advertising Costs: The Company shall have the sole right to approve
the form and substance of any advertising an Agent
may initiate in connection with such Agent's
solicitation to purchase the Notes. The expense of
such advertising will be solely the responsibility
of such Agent, unless otherwise agreed to by the
Company.
B-17
EXHIBIT C
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
SignatureNotes
TERMS AGREEMENT
__________ __, 200_
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned agrees to purchase the following aggregate principal amount of
Notes:
$ ______________
The terms of such Notes shall be as follows:
CUSIP Number: ____________________
Interest Rate: ____________ %
Maturity Date: _____________________
Price to Public: ___________________
Agent's Concession: ________________%
Reallowance: ______________%
Settlement Date, Time
and Place: ______________________________
Survivor's Option: __________________________________
Interest Payment Dates: _____________________________
Optional Redemption, if any: ________________________
Initial Redemption Date: ___________________
Redemption Price: Initially % of Principal Amount and declining ____%
of the Principal Amount on each anniversary of the Initial Redemption
Date until the Redemption Price is 100% of the Principal Amount.
[Any other terms and conditions agreed to by such Agent and the Company]
ABN AMRO FINANCIAL SERVICES, INC.
By:___________________________
Name:
Title:
C-1
ACCEPTED:
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
By: ___________________________
Name:
Title:
C-2
Exhibit D
Form of Pricing Supplement
Registration No. 333-85488
Filed Pursuant to Rule 424(b)(2)
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
Signature Notes
With Maturities of Twelve Months or More from Date of Issue
--------------------------------------------------------------------------------
Pricing Supplement No. __ Trade Date: __/__/__
(To Prospectus dated July 22, 2002) Issue Date: __/__/__
The date of this Pricing Supplement is _______ __, ____
CUSIP
or Stated Annual
Common Code Interest Rate Maturity Date Price to Public Additional Amounts
----------- ------------- ------------- --------------- ------------------
Interest Payment If Callable by Issuer,
Frequency dates and terms of redemption
(First Payment Date) Survivor's Option Callable by Issuer (including the redemption price)
-------------------- ----------------- ------------------ --------------------------------
Discounts and Other Material
Proceeds to Issuer Commissions Reallowance Dealer Terms (if any)
------------------ ----------- ----------- ------ --------------
Original Issue
Discount/1/
--------------
_______________________
/1/ For information regarding certain tax provisions applicable to Original
Issue Discount notes, including zero-coupon notes, see "Tax Consequences to U.S.
Holders -- Original Issue Discount Notes" in the Prospectus.
D-1
EXHIBIT E
Form of Master Selected Dealer Agreement
[Name of Broker-Dealer]
[Broker-Dealer's Address]
Dear Selected Dealer:
In connection with public offerings of securities after the date hereof for
which we are acting as manager of an underwriting syndicate or are otherwise
responsible for the distribution of securities to the public by means of an
offering of securities for sale to selected dealers, you may be offered the
right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. Applicability of this Agreement. The terms and conditions of this
Agreement shall be applicable to any public offering of securities
("Securities") pursuant to a registration statement filed under the Securities
Act of 1933 (the "Securities Act"), or exempt from registration thereunder
(other than a public offering of Securities effected wholly outside the United
States of America), wherein ABN AMRO Financial Services, Inc. ("AAFS") (acting
for its own account or for the account of any underwriting or similar group or
syndicate) is responsible for managing or otherwise implementing the sale of the
Securities to selected broker-dealers ("Selected Dealers") and has expressly
informed you that such terms and conditions shall be applicable. Any such
offering of Securities to you as a Selected Dealer is hereinafter called an
"Offering". In the case of any Offering where we are acting for the account of
any underwriting or similar group or syndicate ("Underwriters"), the terms and
conditions of this Agreement shall be for the benefit of, and binding upon, such
Underwriters, including, in the case of any Offering where we are acting with
others as representatives of Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any Offering will
be subject to delivery of the Securities and their acceptance by us and any
other Underwriters, may be subject to the approval of all legal matters by
counsel and the satisfaction of other conditions, and may be made on the basis
of reservation of Securities or an allotment against subscription. We will
advise you by telegram, telex or other form of written communication ("Written
Communication", which term, in the case of any Offering described in Section
3(a) or 3(b) hereof, may include a prospectus or offering circular) of the
particular method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date referred to in
Section 3(c) hereof) of any Offering in which you are invited to participate. To
the extent such supplementary terms and conditions are inconsistent with any
provision herein, such terms and conditions shall supersede any such provision.
Unless otherwise indicated in any such Written Communication, acceptances and
other communications by you with respect to an Offering should be sent to ABN
AMRO Financial Services, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ (Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇). We reserve the right to reject any acceptance
in whole or in part. Unless notified otherwise by us, Securities
E-1
purchased by you shall be paid for on such date as we shall determine, on one
business day's prior notice to you, by certified or official bank check, in an
amount equal to the Public Offering Prices (as hereinafter defined) or, if we
shall so advise you, at such Public Offering Price less the Concession (as
hereinafter defined), payable in immediately available funds to the order of ABN
AMRO Financial Services, Inc., against delivery of the Securities. If Securities
are purchased and paid for at such Public Offering Price, such Concession will
be paid after the termination of the provisions of Section 3(c) hereof with
respect to such Securities. Notwithstanding the foregoing, unless notified
otherwise by us, payment for and delivery of Securities purchased by you shall
be made through the facilities of The Depository Trust Company, if you are a
member, unless you have otherwise notified us prior to the date specified in a
Written Communication to you from us or, if you are not a member, settlement may
be made through a correspondent who is a member pursuant to instructions which
you will send to us prior to such specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of Securities
that are registered under the Securities Act ("Registered Offering"), we shall
provide you with such number of copies of each preliminary prospectus and of the
final prospectus relating thereto as you may reasonably request for the purposes
contemplated by the Securities Act and the Securities Exchange Act of 1934 (the
"Exchange Act") and the applicable rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder. You represent and warrant
that you are familiar with Rule 15c2-8 under the Exchange Act relating to the
distribution of preliminary and final prospectuses and agree that you will
comply therewith. You agree to make a record of your distribution of each
preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, you will, upon our request, promptly forward copies
thereof to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to a
prospectus or by any Underwriter to give any information or to make any
representation not contained in the prospectus in connection with the sale of
such Securities.
(b) Offerings Pursuant to Offering Circular. In the case of any
Offering of Securities, other than a Registered Offering, which is made pursuant
to an offering circular or other document comparable to a prospectus in a
Registered Offering, including, without limitation, an Offering of "exempted
securities" as defined in Section 3(a)(12) of the Exchange Act (an "Exempted
Securities Offering"), we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular relating
thereto as you may reasonably request. You agree that you will comply with the
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no statements
whatsoever, written or oral, other than the statements in the final offering
circular delivered to you by us. You will not be authorized by the issuer or
other seller of Securities offered pursuant to an offering circular or by any
Underwriter to give any information or to make any representation not contained
in the offering circular in connection with the sale of such Securities.
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(c) Offer and Sale to the Public. With respect to any Offering of
Securities, we will inform you by a Written Communication of the public offering
price, the selling concession, the reallowance (if any) to broker-dealers and
the time when you may commence selling Securities to the public. After such
public offering has commenced, we may change the public offering price, the
selling concession and the reallowance (if any) to broker-dealers. The offering
price, selling concession and reallowance (if any) to broker-dealers at any time
in effect with respect to an Offering are hereinafter referred to, respectively,
as the "Public Offering Price", the "Concession" and the "Reallowance". With
respect to each Offering of Securities, until the provisions of this Section
3(c) shall be terminated pursuant to Section 5 hereof, you agree to offer
Securities to the public at no more than the Public Offering Price. If notified
by us, you may sell securities to the public at a lesser negotiated price than
the Public Offering Price, but in an amount not to exceed the Concession. If a
Reallowance is in effect, a reallowance from the Public Offering Price not in
excess of such Reallowance may be allowed as consideration for services rendered
in distribution to broker-dealers (i) who are actually engaged in the investment
banking or securities business, (ii) who execute the written agreement
prescribed by Rule 2740(c) of the Conduct Rules of the National Association of
Securities Dealers, Inc. (the "NASD") and (iii) who, if they are foreign banks,
broker-dealers or institutions not eligible for membership in the NASD,
represent to you that they will promptly reoffer such Securities at the Public
Offering Price and will abide by the conditions with respect to foreign banks,
broker-dealers and institutions set forth in Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may, with
respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree not to
purchase and sell Securities for which an order from a client has not been
received without our consent in each instance. You further agree that, upon our
request at any time and from time to time prior to the termination of the
provisions of Section 3(c) hereof with respect to any Offering, you will report
to us the amount of Securities purchased by you pursuant to such Offering which
then remain unsold by you and will, upon our request at any such time, sell to
us for our account or the account of one or more Underwriters such amount of
such unsold Securities as we may designate at the Public Offering Price less an
amount to be determined by us not in excess of the Concession. If, prior to the
later of (i) the termination of the provisions of Section 3(c) hereof with
respect to any Offering or (ii) the covering by us of any short position created
by us in connection with such Offering for our account or the account of one or
more Underwriters, we purchase or contract to purchase for our account or the
account of one or more Underwriters in the open market or otherwise any
Securities purchased by you under this Agreement as part of such Offering, you
agree to pay us on demand an amount equal to the Concession with respect to such
Securities (unless you shall have purchased such Securities pursuant to Section
2 hereof at the Public Offering Price in which case we shall not be obligated to
pay such Concession to you pursuant to Section 2) plus transfer taxes and
broker's commissions or dealer's ▇▇▇▇-up, if any, paid in connection with such
purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually engaged in
the investment banking or securities business. In addition, you further
represent and warrant that you are either (i) a member in good standing of the
NASD(ii) a foreign bank, broker-dealer or institution not eligible for
membership in the NASD which agrees not to make any sales within
E-3
the United States, its territories or its possessions or to persons who are
citizens thereof or residents therein, and in making any other sales to comply
with the NASD's interpretation with respect to free riding and withholding, or
(iii), solely in connection with an Exempted Securities Offering, a bank, as
defined in Section 3(a)(6) of the Exchange Act, that does not otherwise fall
within provision (i) or (ii) of this sentence (a "Bank"). You further represent,
by your participation in an Offering, that you have provided to us all documents
and other information required to be filed with respect to you, any related
person or any person associated with you or any such related person pursuant to
the supplementary requirements of the NASD's interpretation with respect to
review of corporate financing as such requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a selling Concession, discount or other allowance is received
or granted, (1) you will comply with the provisions of Rule 2740 of the Conduct
Rules of the NASD, (2) if you are a non-NASD member broker or dealer in a
foreign country, you will also comply (a), as though you were an NASD member,
with the provision of Rules 2730, 2740 and 2750 of the Conduct Rules and (b)
with Rule 2420 of the Conduct Rules as that Rule applies to a non-NASD member
broker or dealer in a foreign country and (3), in connection with an Exempted
Securities Offering, if you are a Bank, you will also comply, as though you were
an NASD member, with the provision of Rules 2730, 2740 and 2750 of the Conduct
Rules.
You further agree that, in connection with any purchase of securities
from us that is not otherwise covered by the terms of this Agreement (whether we
are acting as manager, as a member of an underwriting syndicate or a selling
group or otherwise), if a selling Concession, discount or other allowance is
granted to you, clauses (1), (2) and (3) of the preceding paragraph will be
applicable.
(f) Relationship among Underwriters and Selected Dealers. We may buy
Securities from or sell Securities to any Underwriter or Selected Dealer and the
Underwriters (if any) and the Selected Dealers may purchase Securities from and
sell Securities to each other at the Public Offering Price less all or any part
of the Reallowance. You are not authorized to act as agent for us, any
Underwriter or the issuer or other seller of any Securities in offering
Securities to the public or otherwise. Neither we nor any Underwriter shall be
under any obligation to you except for obligations assumed hereby or in any
Written Communication from us in connection with any Offering. Nothing contained
herein or in any Written Communication from us shall constitute the Selected
Dealers an association or partners with us or any Underwriter or with one
another. If the Selected Dealers, among themselves or with the Underwriters,
should be deemed to constitute a partnership for Federal income tax purposes,
then you elect to be excluded from the application of Subchapter K, Chapter 1,
Subtitle A of the Internal Revenue Code of 1986 and agree not to take any
position inconsistent with that election. You authorize us, in our discretion,
to execute and file on your behalf such evidence of that election as may be
required by the Internal Revenue Service. In connection with any Offering, you
shall be liable for your proportionate amount of any tax, claim, demand or
liability that may be asserted against you alone or against one or more Selected
Dealers participating in such Offering, or against us or the Underwriters, based
upon the claim that the Selected Dealers (including you), or any of them,
constitute an association, an unincorporated business or other
E-4
entity, including, in each case, your proportionate amount of any expense
incurred in defending against any such tax, claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform you as to
any advice we have received from counsel concerning the jurisdictions in which
Securities have been qualified for sale or are exempt under the securities or
blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
(h) Compliance with Law. You agree that in selling Securities pursuant
to any Offering (which agreement shall also be for the benefit of the issuer or
other seller of such Securities) you will comply with all applicable laws, rules
and regulations, including the applicable provisions of the Securities Act and
the Exchange Act, the applicable rules and regulations of the Securities and
Exchange Commission thereunder, the applicable rules and regulations of the
NASD, the applicable rules and regulations of any securities exchange having
jurisdiction over the Offering and the applicable laws, rules and regulations
specified in Section 3(b) hereof.
(i) Registration of the Securities. You are aware that no action has
been or will be taken by the issuer of the Securities that would permit the
offer or sale of the Securities or possession or distribution of the Prospectus
or any other offering material relating to the Securities in any jurisdiction
where action for that purpose is required, other than registering the Securities
under the Securities Act in the case of a Registered Offering. Accordingly, you
agree that you will observe all applicable laws and regulations in each
jurisdiction in or from which you may directly or indirectly acquire, offer,
sell, or deliver Securities or have in your possession or distribute the
Prospectus or any other offering material relating to the Securities, and you
will obtain any consent, approval or permission required by you for the
purchase, offer, or sale by you of the Securities under the laws and regulations
in force in any such jurisdiction to which you are subject or in which you make
such purchase, offer, or sale. Neither the issuer of the Securities nor AAFS or
any Selected Dealers or Underwriters shall have any responsibility for
determining what compliance is necessary by you or for your obtaining such
consents, approvals, or permissions. You further agree that you will take no
action that will impose any obligations on the issuer of the Securities, AAFS,
or any Selected Dealers or Underwriters. Subject as provided above, you shall,
unless prohibited by applicable law, furnish to each person to whom you offer,
sell or deliver Securities a copy of the Prospectus (as then amended or
supplemented) or (unless delivery of the Prospectus is required by applicable
law) inform each such person that a copy thereof (as then amended or
supplemented) will be made available upon request. You are not authorized to
give any information or to make any representation not contained in the
Prospectus or the documents incorporated by reference or specifically referred
to therein in connection with the offer and sale of the Securities. In the case
of an Exempted Securities Offering, all references to "Prospectus" in this
section shall be interpreted to mean "offering circular."
4. Indemnification. You agree to indemnify and hold harmless ABN AMRO
Financial Services, Inc., the issuer of the Securities, each person, if any, who
controls (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) ABN AMRO Financial Services, Inc. or the issuer
of the Securities, and their respective directors,
E-5
officers and employees from and against any and all losses, liabilities, costs
or claims (or actions in respect thereof) (collectively, "Losses") to which any
of them may become subject (including all reasonable costs of investigating,
disputing or defending any such claim or action), insofar as such Losses arise
out of or are in connection with the breach of any representation, warranty or
agreement made by you herein.
If any claim, demand, action or proceeding (including any governmental
investigation) shall be brought or alleged against an indemnified party in
respect of which indemnity is to be sought against an indemnifying party, the
indemnified party shall promptly notify the indemnifying party in writing, and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnified party may designate in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the reasonable fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the indemnifying party has failed within a
reasonable time to retain counsel reasonably satisfactory to such indemnified
party or (iii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is agreed that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate law firm (in addition to local counsel where
necessary) for all such indemnified parties. Such firm shall be designated in
writing by the indemnified party. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
The indemnity agreements contained in this Section and the
representations and warranties by you in this Agreement shall remain operative
and in full force and effect regardless of: (i) any termination of this
Agreement; (ii) any investigation made by an indemnified party or on such
party's behalf or any person controlling an indemnified party or by or on behalf
of the indemnifying party, its directors or officers or any person controlling
the indemnifying party; and (iii) acceptance of and payment for any Securities.
5. Termination, Supplements and Amendments. This Agreement constitutes
the entire agreement of the parties with regard to the subject matter hereof and
supercedes all prior oral or written agreements between the parties hereto or
their predecessors with regard to the subject matter hereof. This Agreement may
be terminated by Written Communication from you to AAFS or from AAFS to you.
Until so terminated, this Agreement shall continue in full force and effect.
This Agreement may be supplemented or amended by us by written notice
E-6
thereof to you, and any such supplement or amendment to this Agreement shall be
effective with respect to any Offering to which this Agreement applies after the
date you received such supplement or amendment. Each reference to "this
Agreement" herein shall, as appropriate, be to this Agreement as so amended and
supplemented. The terms and conditions set forth in Section 3(c) hereof with
regard to any Offering will terminate at the close of business on the 30th day
after the commencement of the public offering of the Securities to which such
Offering relates, but in our discretion may be extended by us for a further
period not exceeding 30 days and in our discretion, whether or not extended, may
be terminated at any earlier time.
6. Successors and Assigns. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
7. Governing Law. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary terms
and conditions with respect to such Offering as may be contained in any Written
Communication from us to you in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of New York.
E-7
Please confirm by signing and returning to us the enclosed copy of
this Agreement that your subscription to, or your acceptance of any reservation
of, any Securities pursuant to an Offering shall constitute (i) acceptance of
and agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 5 hereof) together with and subject to any
supplementary terms and conditions contained in any Written Communication from
us in connection with such Offering, all of which shall constitute a binding
agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you have requested and received from us sufficient copies of
the final prospectus or offering circular, as the case may be, with respect to
such Offering in order to comply with your undertakings in Section 3(a) or 3(b)
hereof.
Very truly yours,
ABN AMRO FINANCIAL SERVICES, INC.
By:__________________________________
Name:
Title:
CONFIRMED: ________ __, 200_
(NAME OF BROKER-DEALER)
By:_______________________________
Name:
Title:
E-8