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EXHIBIT 10.8
U.S. $1,300,000,000
CREDIT AGREEMENT
Dated as of February 10, 1997
Among
HARTFORD LIFE, INC.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Administrative Agent
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms .................................... 1
SECTION 1.02. Computation of Time Periods .............................. 11
SECTION 1.03. Accounting Terms ......................................... 11
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances ............................................. 12
SECTION 2.02. Making the Advances ...................................... 12
SECTION 2.03. Fees ..................................................... 13
SECTION 2.04. Repayment ................................................ 13
SECTION 2.05. Interest ................................................. 13
SECTION 2.06. Interest Rate Determination .............................. 14
SECTION 2.07. Optional Conversion of Advances .......................... 15
SECTION 2.08. Optional Prepayments ..................................... 15
SECTION 2.09. Increased Costs .......................................... 15
SECTION 2.10. Illegality ............................................... 16
SECTION 2.11. Payments and Computations ................................ 16
SECTION 2.12. Taxes .................................................... 17
SECTION 2.13. Sharing of Payments, Etc. ................................ 18
SECTION 2.14. Use of Proceeds .......................................... 19
SECTION 2.15. Removal of Lender ........................................ 19
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 .... 19
SECTION 3.02. Conditions Precedent to Each Borrowing ................... 20
SECTION 3.03. Determinations Under Section 3.01 ........................ 20
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower ........... 21
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants .................................... 23
SECTION 5.02. Negative Covenants ....................................... 25
SECTION 5.03. Financial Covenants ...................................... 28
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PAGE
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default ........................................ 28
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action ................................. 30
SECTION 7.02. Administrative Agent's Reliance, Etc. .................... 30
SECTION 7.03. Citibank and Affiliates .................................. 31
SECTION 7.04. Lender Credit Decision ................................... 31
SECTION 7.05. Indemnification .......................................... 31
SECTION 7.06. Successor Administrative Agent ........................... 31
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. ......................................... 32
SECTION 8.02. Notices, Etc. ............................................ 32
SECTION 8.03. No Waiver; Remedies ...................................... 32
SECTION 8.04. Costs and Expenses ....................................... 33
SECTION 8.05. Right of Set-off ......................................... 33
SECTION 8.06. Binding Effect ........................................... 34
SECTION 8.07. Assignments and Participations ........................... 34
SECTION 8.08. Confidentiality .......................................... 36
SECTION 8.09. Governing Law ............................................ 36
SECTION 8.10. Execution in Counterparts ................................ 36
SECTION 8.11. Jurisdiction, Etc. ....................................... 36
SECTION 8.12. Waiver of Jury Trial ..................................... 36
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Schedules
---------
Schedule I - List of Applicable Lending Offices
Schedule 4.01(c) - Required Authorizations and Approvals
Schedule 5.02(a) - Existing Liens
Exhibits
--------
Exhibit A - Form of Promissory Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
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CREDIT AGREEMENT
Dated as of February 10, 1997
Hartford Life, Inc., a Delaware corporation (the "Borrower"), the
banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, and Citibank, N A. ("Citibank"),
as administrative agent (the "Administrative Agent") for the Lenders (as
hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning given such term in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at Citibank
with its office at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Zone ▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇.
"Advance" means an advance by a Lender to the Borrower pursuant to
Article II, and refers to a Base Rate Advance or a Eurodollar Rate
Advance (each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to vote 5%
or more of the Voting Stock of such Person or to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Applicable Insurance Regulatory Authority" shall mean, with
respect to any Insurance Subsidiary, the insurance commissioner or
department or similar Governmental Authority located in the state in
which such Insurance Subsidiary is domiciled and any Federal insurance
Governmental Authority.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance
and such Lender's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
as set forth below:
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=========================================================================
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/▇▇▇▇▇'▇ Base Rate Advances Eurodollar Rate Advances
=========================================================================
Level 1
AA-/Aa3 or above 0% .135%
-------------------------------------------------------------------------
Level 2
A+/A1 or A/A2 0% .150%
-------------------------------------------------------------------------
▇▇▇▇▇ ▇
▇-/▇▇ 0% .190%
-------------------------------------------------------------------------
▇▇▇▇▇ ▇
BBB+/Baa1 0% .225%
-------------------------------------------------------------------------
▇▇▇▇▇ ▇
BBB/Baa2 0% .255%
-------------------------------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇-/▇▇▇▇ or below 0% .300%
-------------------------------------------------------------------------
"Applicable Percentage" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
===========================================
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Percentage
===========================================
Level 1
AA-/Aa3 or above .040%
-------------------------------------------
▇▇▇▇▇ ▇
▇▇/▇▇ ▇▇ ▇/▇▇ .050%
-------------------------------------------
▇▇▇▇▇ ▇
▇-/▇▇ .060%
-------------------------------------------
Level 4
BBB+/Baa1 .075%
-------------------------------------------
▇▇▇▇▇ ▇
▇▇▇/▇▇▇▇ .▇▇▇%
-------------------------------------------
▇▇▇▇▇ ▇
▇▇▇-/▇▇▇▇ or below .100%
-------------------------------------------
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"AVR" shall mean, with respect to the Insurance Subsidiaries of
the Borrower at any time, the amount set forth on line 24.1 on page 3 of
the Liabilities, Surplus and Other Funds Statement in the annual
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Statement or the Quarterly Statement of Hartford Life and Accident Insurance
Company most recently delivered to the Administrative Agent and the Lenders
pursuant to Section 5.01(i) or, if such statement shall be modified, the
equivalent item on any applicable successor form.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the highest
of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there
is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of
1% per annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates in
the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency, supplemental
or other marginal reserve requirement) for Citibank with respect to
liabilities consisting of or including (among other liabilities)
three-month U.S. dollar non-personal time deposits in the United
States, plus (iii) the average during such three-week period of the
annual assessment rates estimated by Citibank for determining the then
current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided in
Section 2.05(a)(i).
"Borrower" has the meaning given such term in the recital of parties to
this Agreement.
"Borrowing" means a borrowing consisting of Advances of the same Type
made on the same day by the Lenders.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable Business
Day relates to any Eurodollar Rate Advances, on which dealings are carried on in
the London interbank market.
"Capitalized Lease-Back Obligation" shall mean with respect to any
property or asset, at any date as of which the same is to be determined, the
total net rental obligations of the Borrower or any of its Subsidiaries under a
lease of such property or asset, entered into as part of an arrangement to which
the provisions of Section 5.02(f) are applicable (or would have been applicable
had such Subsidiary been a Subsidiary at the time it entered into such lease),
discounted to the date of computation at the rate of interest per annum implicit
in the lease (determined in accordance with GAAP). The amount of the net rental
obligation for any calendar year under any lease shall be the sum of the rental
and other payments
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required to be paid in such calendar year by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not therein designated as rental or additional rental) on account of maintenance
and repairs, insurance, taxes, assessments, water rates and similar charges.
"Citibank" has the meaning given such term in the recital of parties to
this Agreement.
"Commitment" has the meaning specified in Section 2.01.
"Confidential Information" means information that the Borrower
furnishes to the Administrative Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to the
Administrative Agent or such Lender from a source other than the Borrower and
such source, to the best knowledge of the Administrative Agent or such Lender,
is not subject to or bound by any confidentiality agreement with the Borrower.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP or SAP, as applicable.
"Consolidated Net Tangible Assets" shall mean the total of all assets
appearing on a Consolidated balance sheet of the Borrower and its Subsidiaries,
prepared in accordance with GAAP (and as of a date not more than 90 days prior
to the date as of which Consolidated Net Tangible Assets are to be determined),
less the sum of the following items as shown on such Consolidated balance sheet:
(i) the book amount of all segregated intangible assets,
including such items as goodwill, trademarks, trademark rights, trade
names, trade name rights, copyrights, patents, patent rights and
licenses and unamortized debt discount and expenses less unamortized
debt premium;
(ii) all depreciation, valuation and other reserves;
(iii) current liabilities;
(iv) any minority interest in the shares of stock (other than
Preferred Stock) and surplus of the Subsidiaries of the Borrower;
(v) the total indebtedness of the Borrower and its
Subsidiaries incurred in any manner to finance or recover the cost to
the Borrower or any Subsidiary of the Borrower of any physical
property, real or personal, which prior to or simultaneously with the
creation of such indebtedness shall have been leased by the Borrower or
such Subsidiary to the United States of America or a department or
agency thereof at an aggregate rental, payable during that portion of
the initial term of such Lease (without giving effect to any options of
renewal or extension) which shall be unexpired at the date of the
creation of such indebtedness, sufficient (taken together with any
amounts required to be paid by the lessee to the lessor upon any
termination of such lease) to pay in full at the stated maturity date
or dates thereof the principal of and the interest on such
indebtedness;
(vi) deferred income and deferred liabilities, and
(vii) other items deductible under GAAP.
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"Consolidated Statutory Surplus" shall mean, with respect to the
Insurance Subsidiaries of the Borrower at any time, the amount set forth on line
37 on page 3 of the Liabilities, Surplus and Other Funds Statement in the annual
Statement or the Quarterly Statement of Hartford Life and Accident Insurance
Company most recently delivered to the Administrative Agent and the Lenders
pursuant to Section 5.01(i) or, if such statement shall be modified, the
equivalent item on any applicable successor form.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.07 or
2.08.
"D&P" means Duff & ▇▇▇▇▇▇ Credit Rating Co.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all obligations of such Person
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under leases that have been or should be, in accordance
with GAAP, recorded as capital leases, (f) all obligations, contingent or
otherwise, of such Person in respect of acceptances, letters of credit or
similar extensions of credit, (g) all net payment obligations of such Person in
respect of Hedge Agreements, (h) all Debt of others referred to in clauses (a)
through (g) above or clause (i) below guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement (1) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt, (2) to purchase, sell or
lease (as lessee or lessor) property, or to purchase or sell services, primarily
for the purpose of enabling the debtor to make payment of such Debt or to assure
the holder of such Debt against loss, (3) to supply funds to or in any other
manner invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such services are
rendered) or (4) otherwise to assure a creditor against loss, and (i) all Debt
referred to in clauses (a) through (h) above secured by (or for which the holder
of such Debt has an existing right, contingent or otherwise, to be secured by)
any Lien on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Debt.
"Default" means any Event of Default or any event that would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both.
"Domestic Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Administrative Agent.
"EBITDA" means, for any period, net income (or net loss) plus the sum
of (a) interest expense, (b) income tax expense, (c) depreciation expense and
(d) amortization expense, in each case determined in accordance with GAAP for
such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States, or any
State thereof, and having total assets in excess or $500,000,000; (iv) a
commercial bank organized under the laws of any other country that is a member
of the Organization for Economic Cooperation and Development or has concluded
special lending
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arrangements with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country, and
having total assets in excess of $500,000,000, so long as such bank is acting
through a branch or agency located in the United States; and (v) any other
Person approved by the Administrative Agent and, unless an Event of Default has
occurred and is continuing at the time any assignment is effected in accordance
with Section 8.07, the Borrower, such approval not to be unreasonably withheld
or delayed; provided, however, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory authority or
any third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or judicial or
agency interpretation, policy or guidance relating to pollution or protection of
the environment, health, safety or natural resources, including, without
limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by the
PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of such Section) are met with a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
is reasonably expected to occur with respect to such Plan within the following
30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of the Borrower or any
ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by the Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition
of a lien under Section 302(f) of ERISA shall have been met with respect to
any Plan; (g) the adoption of an amendment to a Plan requiring the provision
of security to such Plan pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition described
in Section 4042 of ERISA that constitutes grounds for the termination of, or
the appointment of a trustee to administer, a Plan.
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"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic Lending
Office) or such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (a) the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurodollar Rate Advance
comprising part of such Borrowing to be outstanding during such Interest Period
and for a period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period. The
Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by the Administrative
Agent on the basis of applicable rates furnished to and received by
Administrative Agent from the Reference Banks two Business Days before the first
day of such Interest Period, subject, however, to the provisions of Section
2.06.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.05(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Fair Value" means, with respect to any asset or property, the fair
value of such asset or property as determined in good faith by the Board of
Directors of the Borrower.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Funded Debt" of any Person means Debt of such Person that by its terms
matures more than one year after the date of determination or matures within one
year from such date but is renewable or
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extendible, at the option of such Person, to a date more than one year after
such date or arises under a revolving credit or similar agreement that obligates
the lender or lenders to extend credit during a period of more than one year
after such date, including, without limitation, all amounts of Funded Debt of
such Person required to be paid or prepaid within one year after the date of
determination.
"GAAP" means generally accepted accounting principles, applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Information Memorandum" means the information memorandum dated January
24, 1997 used by the Agent in connection with the syndication of the
Commitments.
"Initial Lenders" has the meaning given such term in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities as defined in Section 4001(a)(18) of ERISA.
"Insurance Subsidiaries" means the Hartford Life and Accident Insurance
Company and all of its insurance Subsidiaries.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such Eurodollar
Rate Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the Borrower pursuant to
the provisions below. The duration of each such Interest Period shall be one,
two, three or six months, as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M (New York City time) on the third
Business Day prior to the first day of such Interest Period, select; provided,
however, that:
(i) the Borrower may not select any Interest Period that
ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall be
of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day; and
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(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock, warrants, rights,
options, obligations or other securities or all or substantially all of the
assets of such Person, any capital contribution to such Person or any other
investment in such Person, including, without limitation, any arrangement
pursuant to which the investor incurs Debt of the types referred to in clauses
(h) and (i) of the definition of "Debt" in respect of such Person.
"Lenders" means the Initial Lenders and each Person that shall become a
party hereto pursuant to Section 8.07.
"Lien" means any lien, security interest or other charge or encumbrance
of any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower or the Borrower and its Subsidiaries taken as a
whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower or the Borrower and its Subsidiaries taken as a
whole, (b) the rights and remedies of the Administrative Agent or any Lender
under this Agreement or any Note or (c) the ability of the Borrower to perform
its obligations under this Agreement or any Note.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the Borrower
and the ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event such plan has been or were to be terminated.
"Note" means a promissory note of the Borrower payable to the order of
any Lender, in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the
Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in Section 2.02.
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"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced: (a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01 (b) hereof; (b)
Liens imposed by law, such as materialmen's, mechanics', carriers', workmen's
and repairmen's Liens and other similar Liens arising in the ordinary course of
business securing obligations that are not overdue for a period of more than 30
days; (c) pledges or deposits to secure obligations under workers' compensation
laws or similar legislation or to secure public or statutory obligations; and
(d) easements, rights of way and other encumbrances on title to real property
that do not render title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its present purposes.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Preferred Stock" shall mean any capital stock entitled by its terms to
a preference (a) as to dividends or (b) upon a distribution of assets.
"Public Debt Rating" means, as of any date, the rating that has been
most recently announced by D&P, S&P or Moody's, as the case may be, for any
class of non-credit enhanced long-term senior unsecured debt issued by the
Borrower. For purposes of the foregoing, (a) if no Public Debt Rating exists,
the Applicable Margin and the Applicable Percentage will be set in accordance
with Level 2 under the definition of "Applicable Margin" or "Applicable
Percentage", as the case may be; (b) if the Public Debt Ratings fall within
different levels, the Applicable Margin and the Applicable Percentage shall be
based upon the level in which the largest number of Public Debt Ratings falls,
provided that if there shall be no such level, one Public Debt Rating shall be
excluded from each of the highest and lowest levels in which Public Debt Ratings
shall fall and the Applicable Margin and the Applicable Percentage shall be
based upon the remaining Public Debt Rating; (c) if only two Public Debt Ratings
exist, the Applicable Margin and the Applicable Rating shall be based upon the
lower of the available Public Debt Ratings; (d) if only a single Public Debt
Rating exists, the Applicable Percentage shall be based on the category
corresponding to such single Public Debt Rating; (e) if any rating established
by D&P, S&P or Moody's shall be changed, such change shall be effective as of
the date on which such change is first announced or established by the rating
agency making such change; and (f) if D&P, S&P or Moody's shall change the basis
on which ratings are established, each reference to the Public Debt Rating
announced by D&P, S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by D&P, S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, Bank of America Illinois, ▇▇▇▇▇▇
Guaranty Trust Company of New York, and Mellon Bank, N.A.
"Register" has the meaning specified in Section 8.07(c).
"Required Lenders" means at any time Lenders owed at least 66-2/3% of
the then aggregate unpaid principal amount of the Advances owing to Lenders, or,
if no such principal amount is then outstanding, Lenders having at least 66-2/3%
of the Commitments.
"Risk-Based Capital" shall mean, with respect to the Insurance
Subsidiaries at any time, the Company Action Level Risk-Based Capital (as
defined by the NAIC at such time and as computed in
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accordance with SAP) of the Insurance Subsidiaries (determined and
Consolidated in accordance with SAP) at such time.
"SAP" shall mean, with respect to any Insurance Subsidiary, the
statutory accounting principles and procedures prescribed or permitted
by the Applicable Insurance Regulatory Authority applied on a basis
consistent with those that are indicated in Section 1.03.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Single Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any ERISA Affiliate and no Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such
trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Termination Date" means the earlier of February 9, 1998 and the
date of termination in whole of the Commitments pursuant to Section 2.04
or 6.01.
"Total Adjusted Capital" shall mean, with respect to the
Insurance Subsidiaries at any time, the Total Adjusted Capital (as
defined by NAIC at such time and as determined and Consolidated in
accordance with SAP) of the Insurance Subsidiaries (taken together) at
such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP or, to the extent such terms apply to an
Insurance Subsidiary, SAP, in each case as in effect from time to time;
provided, however, that for purposes of determining compliance with any covenant
set forth in this Article V, such terms shall be construed in accordance with
GAAP or SAP, as applicable, as in effect on the date hereof applied on a basis
consistent with the application used in preparing the financial statements
referred to in Section 4.01(e).
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances to the Borrower
from time to time on any Business Day during the period from the Effective Date
until the Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on the signature
pages hereof or, if such Lender has entered into any Assignment and Acceptance,
set forth for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(c), as such amount may be reduced pursuant to Section
2.04 (such Lender's "Commitment"). Each Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and shall consist of Advances of the same Type made on the same day by the
Lenders ratably according to their respective Commitments. Within the limits of
each Lender's Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.08 and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be
made on notice, given not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or the first Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Borrower to the Administrative Agent,
which shall give to each Lender prompt notice thereof by telecopier or telex.
Each such notice of a Borrowing (a "Notice of Borrowing") shall be by telephone,
confirmed immediately in writing, or telecopier or telex, in substantially the
form of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate
amount of such Borrowing, and (iv) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Advance. Each
Lender shall, before 11:00 A.M. (New York City time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to
the Administrative Agent at the Administrative Agent's Account, in same day
funds, such Lender's ratable portion of such Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower at the Administrative Agent's address referred to in
Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for any Borrowing if
the aggregate amount of such Borrowing is less than $4,000,000 or if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.07 or 2.11 and (ii) the Eurodollar Rate Advances
may not be outstanding as part of more than 10 separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a
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corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Advance as part of such
Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to pay
to the Administrative Agent for the account of each Lender a facility fee on the
aggregate amount of such Lender's Commitment from the date hereof in the case of
each Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Termination Date at a rate per annum equal to the Applicable
Percentage in effect from time to time, payable in arrears quarterly on the last
day of each March, June, September and December, commencing March 31, 1997, and
on the Termination Date.
(b) Administration Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
SECTION 2.04. Repayment. The Borrower shall repay to the
Administrative Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Advances then outstanding.
SECTION 2.05. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of
(x) the Base Rate in effect from time to time plus (y) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December, during such
periods and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times
during each Interest Period for such Advance to the sum of (x) the
Eurodollar Rate for such Interest Period for such Advance plus (y) the
Applicable Margin in effect from time to time, payable in arrears on
the last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurodollar Rate Advance shall be Converted
or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default, the Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid on
such Advance pursuant to clause (a)(i) or (a)(ii) above and
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(ii) to the fullest extent permitted by law, the amount of any interest, fee or
other amount payable hereunder that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.06. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Administrative Agent timely information for the purpose
of determining each Eurodollar Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Administrative Agent for the
purpose of determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Administrative Agent shall give prompt notice to
the Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.05(a)(i) or (ii), and the rate,
if any, furnished by each Reference Bank for the purpose of determining the
interest rate under Section 2.05(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Administrative Agent shall forthwith
so notify the Borrower and the Lenders, whereupon (i) each Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance, and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $4,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended,
(f) If fewer than two Reference Banks furnish timely information to
the Administrative Agent for determining the Eurodollar Rate for any Eurodollar
Rate Advances,
(i) the Administrative Agent shall forthwith notify the Borrower
and the Lenders that the interest rate cannot be determined for such
Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
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SECTION 2.07. Optional Conversion of Advances. The Borrower may on
any Business Day, upon notice given to the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.07 and 2.11,
Convert all Advances of one Type comprising the same Borrowing into Advances of
the other Type; provided, however, that any Conversion of Eurodollar Rate
Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(b) and no Conversion of any Advances
shall result in more separate Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted, and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for each such Advance. Each notice of Conversion shall
be irrevocable and binding on the Borrower.
SECTION 2.08. Optional Prepayments. The Borrower may, upon at
least one Business Day's notice, in the case of Base Rate Advances, and at least
three Business Days' notice, in the case of Eurodollar Rate Advances, in each
case to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the Advances comprising part
of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and (y) in the event of any such prepayment of a Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(c).
SECTION 2.09. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances (excluding for purposes
of this Section 2.09 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.12 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost; provided, however,
that before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such increased
cost and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender; provided further that the Borrower shall have no
obligation under this Section 2.09(a) to any Lender if such Lender shall not
have made such demand to the Borrower within 90 days following the later of (i)
the date of the occurrence of the event which forms the basis for such demand
and (ii) the date on which such Lender shall have become aware of the occurrence
of such event. A certificate as to the amount of such increased cost, submitted
to the Borrower and the Administrative Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to the Administrative Agent for the account of such Lender, from time
to time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines
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such increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder; provided, however, that the Borrower shall have no
obligation under this Section 2.09(b) to any Lender if such Lender shall not
have made such demand to the Borrower within 90 days following the later of (i)
the date of the occurrence of the event which forms the basis for such demand
and (ii) the date on which such Lender shall have become aware of the occurrence
of such event. A certificate as to such amounts submitted to the Borrower and
the Administrative Agent by such Lender shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.10. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, (i) each Eurodollar Rate
Advance will automatically, upon such demand, Convert into a Base Rate Advance
and (ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist; provided, however, that before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 2.11. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under the Notes not later than 11:00 A.M. (New
York City time) on the day when due in U.S. dollars to the Administrative Agent
at the Administrative Agent's Account in same day funds. The Administrative
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest or facility fees ratably (other than
amounts payable pursuant to Section 2.09, 2.12 or 8.04(c)) to the Lenders for
the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such Lender
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(d), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall make
all payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under the Note
held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be made
by the Administrative Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Eurodollar Rate or
the Federal Funds Rate and of facility fees shall be made by the Administrative
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest or facility fees are payable. Each determination
by the Administrative Agent of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided,
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however, that, if such extension would cause payment of interest on or principal
of Eurodollar Rate Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which such
Lender or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.12) such Lender or the Administrative Agent
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender and the Administrative
Agent for and hold it harmless against the full amount of Taxes or Other Taxes
(including, without limitation, taxes of any kind imposed by any jurisdiction on
amounts payable under this Section 2.12) imposed on or paid by such Lender or
the Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United States or by or
on behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
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(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
each of the Administrative Agent and the Borrower with two original Internal
Revenue Service forms 1001 or 4224, as appropriate, or any successor or other
form prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If the form provided by a
Lender at the time such Lender first becomes a party to this Agreement indicates
a United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until such
Lender provides the appropriate forms certifying that a lesser rate applies,
whereupon withholding tax at such lesser rate only shall be considered excluded
from Taxes for periods governed by such form; provided, however, that, if at the
date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, that the Lender reasonably considers to be confidential, the Lender shall
give notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.12(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under subsection (e) above), such Lender shall not be
entitled to indemnification under Section 2.12(a) or (c) with respect to Taxes
imposed by the United States by reason of such failure; provided, however, that
should a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Taxes.
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 2.09, 2.12 or 8.04(c)) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.13
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances shall
be available (and the Borrower agrees that it shall use such proceeds) solely
for general corporate purposes of the Borrower and its Subsidiaries.
SECTION 2.15. Removal of Lender. In the event that any Lender
demands payment of costs or additional amounts pursuant to Section 2.09 or
Section 2.12 or asserts pursuant to Section 2.10 that it is unlawful
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for such Lender to make Eurodollar Rate Advances, then (subject to such Lender's
right to rescind such demand or assertion within 10 days after the notice from
the Borrower referred to below) the Borrower may, upon 5 days' prior written
notice to such Lender and the Administrative Agent, elect to cause such Lender
to assign its Advances and Commitments in full to an assignee institution
selected by the Borrower that meets the criteria of an Eligible Assignee and is
reasonably satisfactory to the Administrative Agent, so long as such Lender
receives payment in full of the outstanding principal amount of all Advances
made by it and all accrued and unpaid interest thereon and all other amounts due
and payable to such Lender as of the date of such assignment (including without
limitation amounts owing pursuant to Section 2.09 or 2.12), and in such case
such Lender agrees to make such assignment, and such assignee shall agree to
accept such assignment and assume all obligations of such Lender hereunder, in
accordance with Section 8.07.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied:
(a) There shall have occurred no Material Adverse Change (other
than as publicly disclosed prior to January 22, 1997) since (i) in the
case of the Borrower, the date of its creation and (ii) in the case of
the Borrower and its Subsidiaries taken as a whole, December 31, 1995.
(b) There shall exist no action, suit, investigation, litigation
or proceeding affecting the Borrower or any of its Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that
(i) could be reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of
this Agreement or any Note or the consummation of the transactions
contemplated hereby.
(c) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders) and shall remain in effect, and no law
or regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(d) The Borrower shall have notified each Lender and the
Administrative Agent in writing as to the proposed Effective Date.
(e) The Borrower shall have paid all accrued fees and expenses of
the Administrative Agent and the Lenders (including the accrued fees
and expenses of counsel to the Administrative Agent).
(f) On the Effective Date, the following statements shall be true
and the Administrative Agent shall have received for the account of
each Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
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(g) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such day in form and substance
satisfactory to the Administrative Agent and (except for the Notes) in
sufficient copies for each Lender:
(i) The Notes to the order of the Lenders, respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the
Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the names and true signatures of the officers
of the Borrower authorized to sign this Agreement and the Notes and the
other documents to be delivered hereunder.
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, counsel for the
Borrower, substantially in the form of Exhibit D hereto and as to such
other matters as any Lender through the Administrative Agent may
reasonably request.
(v) A favorable opinion of Shearman & Sterling, counsel for the
Administrative Agent, addressed to the Lenders and in form and
substance satisfactory to the Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Borrowing. The
obligation of each Lender to make an Advance on the occasion of each Borrowing
shall be subject to the conditions precedent that the Effective Date shall have
occurred and on the date of such Borrowing (a) the following statements shall be
true (and each of the giving of the applicable Notice of Borrowing and the
acceptance by the Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing
such statements are true):
(i) the representations and warranties contained in Section 4.01
are correct on and as of the date of such Borrowing, before and after
giving effect to such Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from
such Borrowing or from the application of the proceeds therefrom, that
constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the date
that the Borrower, by notice to the Lenders, designates as the proposed
Effective Date, specifying its objection thereto. The Administrative Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower and each of its Subsidiaries (i) is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, (ii) is duly
qualified and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except
where the failure to so qualify or be licensed would not have a
Material Adverse Effect and (iii) has all requisite corporate power and
authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) any law or any
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Borrower of this Agreement or the Notes[, except
for those authorizations, approvals, actions, notices and filings
listed on Schedule 4.01(c) hereto, all of which have been duly
obtained, taken, given or made and are in full force and effect].
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Borrower.
This Agreement is, and each of the Notes when delivered hereunder will
be, the legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with their respective terms.
(e) (i) The Consolidated balance sheet of Hartford Life and
Accident Insurance Company and its Subsidiaries as at December 31,
1995, and the related Consolidated statements of income and cash flows
of Hartford Life and Accident Insurance Company and its Subsidiaries
for the fiscal year then ended, as filed with the Applicable Insurance
Regulatory Authority for Hartford Life and Accident Insurance Company,
and the Consolidated balance sheet of Hartford Life and Accident
Insurance Company and its Subsidiaries as at September 30, 1996, and
the related Consolidated statements of income and cash flows of
Hartford Life and Accident Insurance Company and its Subsidiaries for
the nine months then ended, as filed with the Applicable Insurance
Regulatory Authority for Hartford Life and Accident Insurance Company,
copies of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheet as at September 30, 1996,
and said statements of income and cash flows for the nine months then
ended, to year-end audit adjustments, the Consolidated financial
condition of Hartford Life and Accident Insurance Company and its
Subsidiaries as at such dates and the Consolidated results of the
operations of Hartford Life and Accident Insurance Company and its
Subsidiaries for the periods ended on such dates, all in accordance
with SAP, consistently applied.
(ii) The Consolidated balance sheet of Hartford Life Insurance
Company and its Subsidiaries as at December 31, 1995, and the related
Consolidated statements of income and cash flows of Hartford Life
Insurance Company and its Subsidiaries for the fiscal year then ended,
as filed with the Applicable
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Insurance Regulatory Authority for Hartford Life Insurance Company and the
Consolidated balance sheet of Hartford Life Insurance Company and its
Subsidiaries as at September 30, 1996, and the related Consolidated statements
of income and cash flows of Hartford Life Insurance Company and its Subsidiaries
for the nine months then ended, as filed with the Applicable Insurance
Regulatory Authority for Hartford Life Insurance Company, copies of which have
been furnished each Lender, fairly present, subject in the case of said balance
sheet as at September 30, 1996, and said statements of income and cash flows for
the nine months then ended, to year-end audit adjustments, the Consolidated
financial position of Hartford Life Insurance Company and its Subsidiaries as at
such dates and the Consolidated results of operations of Hartford Life Insurance
Company and its Subsidiaries for the periods ended on such dates, all in
accordance with SAP, consistently applied.
(iii) There has been no Material Adverse Change (other than as publicly
disclosed prior to January 22, 1997) since (i) in the case of the Borrower, the
date of its creation and (ii) in the case of the Borrower and its Subsidiaries
taken as a whole, December 31, 1995.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect (other than as publicly disclosed prior to January 22,
1997) or (ii) purports to affect the legality, validity or enforceability of
this Agreement or any Note or the consummation of the transactions contemplated
hereby.
(g) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Advance will be used to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock.
(h) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan.
(i) The present aggregate value of accumulated benefit obligations of
all unfunded and underfunded Plans of the Borrower and its ERISA Affiliates
(based on those assumptions used for disclosure in corporate financial
statements in accordance with GAAP or SAP, as applicable) did not, as of
December 31, 1995, exceed by more than $70,000,000 the value of the assets of
all such Plans. In such cases, the Borrower has recorded book reserves to meet
such obligations.
(j) The Borrower is not an "investment company", or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940, as
amended. Neither the making of any Advances nor the application of the proceeds
or repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated hereby, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission thereunder.
(k) Neither the Information Memorandum nor any other information,
exhibit or report furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or pursuant to the terms of this Agreement contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements made therein not misleading.
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and Environmental Laws as
provided in Section 5.01(j).
(b) Payment of Taxes. Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates (it being understood that the
Borrower and its Subsidiaries may self-insure to the extent customary
with companies similarly situated and in the same or similar
businesses).
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(b)
and provided further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right or franchise if
the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Borrower or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time, permit the Administrative Agent or any of the Lenders or any
agents or representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
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(h) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates (i) on terms substantially similar to
past practice or (ii) on terms that are fair and reasonable and no less
favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 90 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to year-end audit
adjustments) by the principal financial officer of the Borrower as
having been prepared in accordance with GAAP and certificates of the
chief financial officer of the Borrower as to compliance with the terms
of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 5.03;
(ii) as soon as available and in any event within 120 days after
the end of each fiscal year of the Borrower, a copy of the audited
annual report for such year for the Borrower and its Subsidiaries,
containing the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal year, in each case accompanied by an
opinion acceptable to the Required Lenders by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or
other independent public accountants acceptable to the Required
Lenders;
(iii) as soon as possible and in any event within five days after
the occurrence of each Default continuing on the date of such
statement, a statement of the principal financial officer of the
Borrower setting forth details of such Default and the action that the
Borrower has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all
reports and financial statements that any Insurance Subsidiary files
with its Applicable Insurance Regulatory Authority or other
Governmental Authority;
(v) promptly after the sending or filing thereof, copies of all
reports that the Borrower sends to any of its securityholders, and
copies of all reports and registration statements that the Borrower or
any Subsidiary files with the Securities and Exchange Commission or any
national securities exchange;
(vi) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of the
type described in Section 4.01(f);
(vii) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, (x) the Statement of
Actuarial Opinion of each of the Insurance Subsidiaries of the Borrower
for such fiscal year and as filed with the Applicable Insurance
Regulatory Authority and (y) the Annual Statement of each of the
Insurance Subsidiaries of the Borrower for such fiscal year and as
filed with the Applicable Insurance Regulatory Authority, together
with, in the case of the statements delivered pursuant to clause (y)
above, a certificate of a financial officer of such Insurance
Subsidiary to the effect that such statements present fairly the
statutory
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assets, liabilities, capital and surplus, results of operations
and cash flows of such Insurance Subsidiary in accordance with
SAP;
(viii) (x) promptly and in any event within 10 days after the
Borrower or any ERISA Affiliate knows or has reason to know that
any ERISA Event has occurred, a statement of the chief financial
officer of the Borrower describing such ERISA Event and the
action, if any, that the Borrower or such ERISA Affiliate has
taken or proposes to take with respect thereto and (y) on the date
any records, documents or other information must be furnished to
the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA, a copy of such records, documents and information; and
(ix) such other information respecting the Borrower or any of
its Subsidiaries as any Lender through the Administrative Agent
may from time to time reasonably request.
(j) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause each of
its Subsidiaries to obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct, and cause each of its Subsidiaries to
conduct, any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of Environmental Laws; provided, however, that neither the Borrower
nor any of its Subsidiaries shall be required to undertake any such cleanup,
removal, remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate reserves
are being maintained with respect to such circumstances.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right to receive
income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Borrower or any Subsidiary in
the ordinary course of business to secure the purchase price of
such property or equipment or to secure Debt incurred solely for
the purpose of financing the acquisition of such property or
equipment, or Liens existing on such property or equipment at the
time of its acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to
finance the acquisition of such property) or extensions, renewals
or replacements of any of the foregoing for the same or a lesser
amount; provided, however, that no such Lien shall extend to or
cover any properties of any character other than the real property
or equipment being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not
theretofore subject to the Lien being extended, renewed or
replaced, provided further that the sum of the aggregate principal
amount of the indebtedness secured by the Liens referred to in
this clause (ii) plus the aggregate principal amount of the Debt
secured by the Liens referred to in clause (v) below plus the
aggregate principal amount of the indebtedness secured by the
Liens referred to in clause (vi) below shall not exceed an amount
equal to 10% of Consolidated Net Tangible Assets of the Borrower
and its Consolidated Subsidiaries,
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(iii) the Liens existing on the Effective Date and described on
Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Borrower or any
Subsidiary of the Borrower or becomes a Subsidiary of the Borrower;
provided that such Liens were not created in contemplation of such
merger, consolidation or acquisition and do not extend to any assets
other than those of the Person so merged into or consolidated with the
Borrower or such Subsidiary or acquired by the Borrower or such
Subsidiary,
(v) other Liens securing Debt in an aggregate principal amount
such that the sum of such aggregate principal amount of Debt plus the
aggregate principal amount of indebtedness secured by the Liens
referred to in clause (ii) above plus the aggregate principal amount of
the indebtedness secured by the Liens referred to in clause (vi) below
shall not exceed an amount equal to 10% of Consolidated Net Tangible
Assets of the Borrower and its Consolidated Subsidiaries,
(vi) Liens arising in connection with Capitalized Lease-Back
Obligations; provided that (A) the sum of the aggregate principal
amount of the indebtedness secured by the Liens referred to in this
clause (vi) plus the aggregate principal amount of indebtedness secured
by the Liens referred to in clause (ii) above plus the aggregate
principal amount of the Debt Secured by the Liens referred to in clause
(v) above shall not exceed an amount equal to 10% of Consolidated Net
Tangible Assets of the Borrower and its Consolidated Subsidiaries and
(B) no such Lien shall extend to or cover any assets other than the
assets subject to such Capitalized Lease-Back Obligations;
(vii) any Lien on property in favor of the United States of
America, or of any agency, department or other instrumentality
thereof, to secure partial, progress or advance payments pursuant to
the provisions of any contract,
(viii) any Lien securing Debt of a Subsidiary to the Borrower or a
wholly-owned Subsidiary of the Borrower, provided that in the case of
any sale or other disposition of such Debt by the Borrower or such
Subsidiary, such sale or other disposition shall be deemed to
constitute the creation of another Lien not permitted by this clause
(viii),
(ix) any Lien affecting property of the Borrower or any
Subsidiary of the Borrower securing Debt of the United States of
America or a state thereof (or any instrumentality or agency of either
thereof) issued in connection with a pollution control or abatement
program required in the opinion of the Borrower to meet environmental
criteria with respect to operations of the Borrower or any Subsidiary
of the Borrower and the proceeds of which Debt have financed the cost
of the acquisition of such program,
(x) any Lien necessary to secure a stay of any legal or
equitable process in a proceeding to enforce a liability or obligation
contested in good faith by the Borrower or any of its Subsidiaries or
required in connection with the institution by the Borrower or any of
its Subsidiaries of any legal or equitable proceeding to enforce a
right or to obtain a remedy claimed in good faith by the Borrower or
any of its Subsidiaries, or required in connection with any order or
decree in any such proceeding; or the making of any deposit with or the
giving of any form of security to any governmental agency or any body
created or approved by law or governmental regulation in order to
entitle the Borrower or any of its Subsidiaries to maintain
self-insurance or
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to participate in any fund in connection with workers' compensation,
unemployment insurance, old age pensions or other social security or to
share in any provisions or other benefits provided for companies
participating in any such arrangement or for liability on insurance of
credits or other risks, and
(xi) the replacement, extension or renewal of any Lien permitted
by clause (iii), (iv), (vii), (viii), (ix) or (x) above upon or in the
same property theretofore subject thereto or the replacement, extension
or renewal (without increase in the amount or change in any direct or
contingent obligor) of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) (x) all or substantially all of its assets (whether now
owned or hereafter acquired) or (y) all or any portion of the capital stock of
any of its Subsidiaries to, any Person, or permit any of its Subsidiaries to do
so, except that any Subsidiary of the Borrower may merge or consolidate with or
into, or dispose of assets to, any other Subsidiary of the Borrower, and except
that any Subsidiary of the Borrower may merge into or dispose of assets to the
Borrower, provided, in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would result therefrom.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or reporting
practices, except as required or permitted by generally accepted accounting
principles.
(d) Lease Obligations. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
obligations as lessee for the rental or hire of real or personal property of any
kind under leases or agreements to lease having an original term of one year or
more that would cause the direct and contingent liabilities of the Borrower and
its Subsidiaries, on a Consolidated basis, in respect of all such obligations to
exceed $50,000,000 payable in any period of 12 consecutive months.
(e) Limitations on Sale and Leaseback Transactions. Enter into, or
permit any of its Subsidiaries to enter into, any arrangement with any Person
providing for the leasing by the Borrower or any such Subsidiary of any property
or asset (except for temporary leases for a term of not more than three years
and except for leases between the Borrower and one of its Subsidiaries or
between Subsidiaries of the Borrower), which property has been or its to be sold
or transferred by the Borrower or such Subsidiary to such Person more than 120
days after the acquisition thereof or the completion of construction and
commencement of full operation thereof, unless either (a) the Borrower shall
apply an amount equal to the greater of the Fair Value of such property or the
net proceeds of such sale, within 120 days of the effective date of any such
arrangement, to the retirement (other than any mandatory retirement or by way of
payment at maturity) of Debt or to the acquisition, construction, development or
improvement of properties, facilities or equipment used for operating purposes
or (b) at the time of entering into such arrangement, such property or asset
could have been subjected to a Lien permitted pursuant to Section 5.02(a)(vi).
(f) Dividends, Etc. Declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of capital stock of the Borrower, or
purchase, redeem or otherwise acquire for value (or permit any of its
Subsidiaries to do so) any shares of any class of capital stock of the Borrower
or any warrants, rights or options to acquire any such shares, now or hereafter
outstanding, except that, so long as no Default shall have occurred and be
continuing at the time of any action described below or would result therefrom,
the Borrower may (i) declare and make any dividend payment or other distribution
payable in common stock of the Borrower,
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(ii) purchase, redeem or otherwise acquire shares of its common stock
or warrants, rights or options to acquire any such shares with the
proceeds received from the substantially concurrent issue of new shares
of its common stock, (iii) declare and make any cash dividend payments
or other distributions to its stockholders in an aggregate amount not
to exceed $1,300,000,000 solely from proceeds of the Advances or
proceeds from the issuance of unsecured Debt maturing within one year
from the date incurred and evidenced by commercial paper, and (iv)
declare or pay cash dividends to its stockholders and purchase, redeem
or otherwise acquire shares of its capital stock or warrants, rights or
options to acquire any such shares for cash solely out of the aggregate
amount of cash dividends and distributions received by the Borrower
after the date hereof from its Insurance Subsidiaries.
(g) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
as carried on at the date hereof.
SECTION 5.03. Financial Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Minimum Consolidated Statutory Surplus. Cause its Insurance
Subsidiaries to maintain at the end of each fiscal quarter of the
Borrower and its Subsidiaries the sum of (i) Consolidated Statutory
Surplus at the end of such fiscal quarter plus (ii) AVR at the end of
such fiscal quarter of not less than $1,200,000,000.
(b) Risk Based Capital Rate. Cause its Insurance Subsidiaries to
maintain at the end of each fiscal quarter of the Borrower and its
Subsidiaries a ratio of Total Adjusted Capital to Risk-Based Capital
(after covariance) of not less than 1.5 to 1.00.
(c) Net Worth. Maintain an excess of Consolidated total assets
over Consolidated total liabilities (in each case as determined in
accordance with GAAP) of not less than $750,000,000.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable; or the Borrower shall fail to
pay any interest on any Advance or make any other payment of fees or
other amounts payable under this Agreement or any Note within ten days
after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein or
by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e), (h) or (i),
5.02 or 5.03, or (ii) the Borrower shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if such failure shall remain
unremedied for 10 days after written notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
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(d) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $10,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of the Borrower or such Subsidiary (as the
case may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be declared to be due and payable, or required
to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior
to the stated maturity thereof; or
(e) The Borrower or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, conservatorship or composition of it or its debts under any
law relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian,
conservator or other similar official for, it or for any substantial part of its
property) shall occur; or the Borrower or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Borrower or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 60 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered against the
Borrower or any of its Subsidiaries that could be reasonably expected to have a
Material Adverse Effect, and there shall be any period of 10 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(h) (i) Any Person or two or more Persons (other than ITT Hartford
Group, Inc. or any of its Subsidiaries) acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934), directly or
indirectly, of Voting Stock of the Borrower (or other securities convertible
into such Voting Stock) representing [20]% or more of the combined voting power
of all Voting Stock of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing after the date of this Agreement, individuals who
at the beginning of such 24-month period were directors of the Borrower shall
cease for any reason to constitute a majority of the board of directors of the
Borrower; or (iii) any Person or two or more Persons acting in concert shall
have acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of
the power to
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exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(i) The Borrower or any of its ERISA Affiliates shall incur, or,
in the reasonable opinion of the Required Lenders, shall be reasonably
likely to incur liability in excess of $10,000,000 in the aggregate as
a result of one or more of the following; (i) the occurrence of any
ERISA Event; (ii) the partial or complete withdrawal of the Borrower or
any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lenders and all holders of
Notes; provided, however, that the Administrative Agent shall not be required to
take any action that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or applicable law. The Administrative Agent
agrees to give to each Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent; (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower;
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(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other instrument
or document furnished pursuant hereto; and (vi) shall incur no liability under
or in respect of this Agreement by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if
Citibank were not the Administrative Agent and without any duty to account
therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Notes then held by each of
them (or if no Notes are at the time outstanding or if any Notes are held by
Persons that are not Lenders, ratably according to the respective amounts of
their Commitments), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Administrative Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the
Administrative Agent under this Agreement (collectively, the "Indemnified
Costs"), provided that no Lender shall be liable for any portion of the
Indemnified Costs resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its ratable share of
any out-of-pocket expenses (including counsel fees) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the
Administrative Agent is not reimbursed for such expenses by the Borrower. In the
case of any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 7.05 applies whether any such investigation,
litigation or proceeding is brought by the Administrative Agent, any Lender or a
third party.
SECTION 7.06. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders and
the Borrower and may be removed at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance
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of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder or (f)
amend this Section 8.01: and provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to the Borrower, at its address at c/o The Hartford Insurance Group, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; if to any Initial
Lender, at its Domestic Lending Office specified opposite its name on Schedule I
hereto: if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Administrative Agent, at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ 8, New
York, New York 10043, Attention: ▇▇▇▇▇ ▇▇▇▇▇, Global Insurance Department: or,
as to the Borrower or the Administrative Agent, at such other address as shall
be designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Administrative Agent. All such notices
and communications shall, when mailed, telecopied, telegraphed or telexed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VII
shall not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof: nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay
on demand all costs and expenses of the Administrative Agent in connection with
the preparation, execution, delivery, administration,
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modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all due
diligence, syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and expenses of counsel for the Administrative Agent
with respect thereto and with respect to advising the Administrative Agent as to
its rights and responsibilities under this Agreement. The Borrower further
agrees to pay on demand all costs and expenses of the Administrative Agent and
the Lenders, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without limitation, reasonable
fees and expenses of counsel for the Administrative Agent and each Lender in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (i) the
Notes, this Agreement, any of the transactions contemplated herein or the actual
or proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 8.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.06(d) or (e), 2.08 or 2.10,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason or by an Eligible Assignee to a Lender other than on the last day
of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a result of a
demand by the Borrower pursuant to Section 2.15, the Borrower shall, upon demand
by such Lender (with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.09, 2.12 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Note held by such
38
34
Lender, whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial Lender that
such Initial Lender has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and each Lender
and their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
and, if demanded by the Borrower pursuant to Section 2.15, will assign to one or
more Persons all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a constant, and not a varying, percentage of all
rights and obligations under this Agreement, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender
or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, (iii) each
such assignment shall be to an Eligible Assignee, (iv) each such assignment made
as a result of a demand by the Borrower pursuant to Section 2.15 shall be
arranged by the Borrower after consultation with the Administrative Agent and
shall be either an assignment of all of the rights and obligations of the
assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the right and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower pursuant to Section
2.15 unless and until such Lender shall have received one or more payments from
either the Borrower or one or more Eligible Assignees in an aggregate amount at
least equal to the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the date of payment of
such principal amount and all other amounts payable to such Lender under this
Agreement, and (vi) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note subject to such
assignment and a processing and recordation fee of $3,000. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or
39
35
the performance or observance by the Borrower of any of its obligations under
this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to
be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances owing
to, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note a new Note to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, a new Note to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
40
36
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to the Borrower
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 8.08. Confidentiality. Neither the Administrative Agent
nor any Lender shall disclose any Confidential Information to any other Person
without the consent of the Borrower, other than (a) to the Administrative
Agent's or such Lender's Affiliates and their officers, directors, employees,
agents and advisors and, as contemplated by Section 8.07(f), to actual or
prospective assignees and participants, and then only on a confidential basis,
(b) as required by any law, rule or regulation or judicial process and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking.
SECTION 8.09 Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or
the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
41
37
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
HARTFORD LIFE, INC.
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
CITIBANK, N.A.,
as Administrative Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇
ATTORNEY-IN-FACT
CITIBANK, N.A.
Initial Lenders
Commitment
$406,250,002 CITIBANK, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇
ATTORNEY-IN-FACT
CITIBANK, N.A.
$297,916,666 BANK OF AMERICA ILLINOIS
By /s/
---------------------------------------
Title: VICE PRESIDENT
$297,916,666 MELLON BANK, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: Asst. Vice President
42
38
$297,916,666 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK
By /s/ ▇▇▇▇▇ ▇. Fall
---------------------------------------
Title: ▇▇▇▇▇ ▇. FALL
VICE PRESIDENT
$1,300,000,000 Total of the Commitments
43
SCHEDULE I
Hartford Life, Inc.
APPLICABLE LENDING OFFICES
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
---------------------- ----------------------- -------------------------
Citibank, N.A. 1 Court Square Same.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 11120
Attention: ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America Illinois Account Administration 200/9 Same.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Mellon Bank, N.A. Three Mellon Bank Center Same.
Floor 23, c/o Loan Administration
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Guaranty Trust ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Center Same.
Company of New York ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
44
SCHEDULE 4.01(c)
REQUIRED AUTHORIZATIONS AND APPROVALS
None.
45
SCHEDULE 5.02(a)
EXISTING LIENS
None.
46
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S. $ _____________ Dated: February_, 1997
FOR VALUE RECEIVED, the undersigned, HARTFORD LIFE, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_____________________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$ _______ or, if less, the aggregate
principal amount of the Advances made by the Lender to the Borrower pursuant to
the Credit Agreement dated as of February _, 1997 among the Borrower, the Lender
and certain other lenders parties thereto, and Citibank, N.A., as Administrative
Agent for the Lender and such other lenders (as amended or modified from time to
time, the "Credit Agreement"; the terms defined therein being used herein as
therein defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A. as Administrative Agent, at
_________________________, New York, New York, in same day funds. Each Advance
owing to the Lender by the Borrower pursuant to the Credit Agreement, and all
payments made on account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached hereto which is
part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
HARTFORD LIFE, INC.
By________________________________
Title:
47
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
48
EXHIBIT B - FORM OF
NOTICE OF BORROWING
Citibank, N A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ [▇▇▇▇]
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇/Global Insurance Department
Ladies and Gentlemen:
The undersigned, Hartford Life, Inc., refers to the Credit
Agreement, dated as of February ___, 1997 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto and
Citibank, N.A., as Administrative Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
__________________, 199_.
(ii) The Type of Advances comprising the Proposed Borrowing
is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$___________.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is month(s).]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
Hartford Life, Inc.
By _______________________________
Title:
49
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of February
___, 1997 (as amended or modified from time to time, the "Credit Agreement")
among Hartford Life, Inc., a Delaware corporation (the "Borrower"), the Lenders
(as defined in the Credit Agreement) and Citibank, N.A. as administrative agent
for the Lenders (the "Administrative Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the
Credit Agreement as of the date hereof equal to the percentage interest
specified on Schedule 1 hereto of all outstanding rights and
obligations under the Credit Agreement. After giving effect to such
sale and assignment, the Assignee's Commitment and the amount of the
Advances owing to the Assignee will be as set forth on Schedule 1
hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or
document furnished pursuant thereto; (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto; and (iv)
attaches the Note held by the Assignor and requests that the
Administrative Agent exchange such Note for a new Note payable to the
order of the Assignee in an amount equal to the Commitment assumed by
the Assignee pursuant hereto or new Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee
pursuant hereto and the Assignor in an amount equal to the Commitment
retained by the Assignor under the Credit Agreement, respectively, as
specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance;
(ii) agrees that it will, independently and without reliance upon the
Administrative Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (iii) confirms that it is an
Eligible Assignee; (iv) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers and discretion under the Credit Agreement as are delegated to
the Administrative Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (v) agrees
that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to
be performed by it as a Lender; and (vi) attaches any U.S. Internal
Revenue Service forms required under Section 2.12 of the Credit
Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and
recording by the Administrative Agent. The effective date for this
Assignment and Acceptance (the "Effective Date") shall be the date of
acceptance hereof by the Administrative Agent, unless otherwise
specified on Schedule 1 hereto.
50
2
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and
(ii) the Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations
under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent
shall make all payments under the Credit Agreement and the Notes in
respect of the interest assigned hereby (including, without limitation,
all payments of principal, interest and facility fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement and the
Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of Schedule 1 to
this Assignment and Acceptance by telecopier shall be effective as
delivery of a manually executed counterpart of this Assignment and
Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
51
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: ____%
Assignee's Commitment: $___________
Aggregate outstanding principal amount of Advances assigned: $___________
Principal amount of Note payable to Assignee: $___________
Principal amount of Note payable to Assignor: $___________
Effective Date*:__________________, 199__
[NAME OF ASSIGNOR], as Assignor
By ________________________________
Title:
Dated:_______________, 199_
[NAME OF ASSIGNEE], as Assignee
By ________________________________
Title:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved]** this
__________ day of _____________, 199__
CITIBANK, N.A., as Administrative Agent
By ___________________________________
Title:
______________________
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Administrative Agent.
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (viii) of the definition of "Eligible Assignee".
52
2
[Approved this ____________ day
of _______________, 199__
Hartford Life, Inc.
By ___________________________]*
Title:
____________________
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (viii) of the definition of "Eligible Assignee".
53
[ITT HARTFORD LOGO] EXHIBIT D -- FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Hartford Plaza
Senior Vice President and ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
General Counsel Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
February 12, 1997
To each of the Lenders Parties
to the Credit Agreement dated
as of February 10, 1997
among Hartford Life, Inc.,
said Lenders and Citibank, N.A.,
as Administrative Agent for said Lenders, and
to Citibank, N.A., as Administrative Agent
Hartford Life, Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(h)(iv) of the Credit
Agreement, dated as of February 10, 1997 (the "Credit Agreement"), among
Hartford Life, Inc., a Delaware corporation (the "Borrower"), the Lenders
parties thereto and Citibank, N.A. as Administrative Agent for said Lenders.
Terms defined in the Credit Agreement are used herein as therein defined.
In connection with the preparation, execution and delivery of the Credit
Agreement and this opinion, I, as Senior Vice President and General Counsel of
ITT Hartford Group, Inc. ("Hartford Group", the ultimate parent company of the
Borrower), or lawyers on Hartford Group's legal staff working under my
supervision, have examined:
(1) The Credit Agreement;
(2) The documents furnished by the Borrower pursuant to Article
III of the Credit Agreement;
ITT Hartford Group, Inc.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
54
To each of the Lenders parties
February 12, 1997
Page 2
(3) The Certificate of Incorporation of the Borrower and all
amendments thereto (the "Charter");
(4) The by-laws of the Borrower and all amendments thereto (the
"By-laws") and;
(5) A certificate of the Secretary of State of the State of
Delaware, dated February 7, 1997, attesting to the continued
corporate existence and good standing of the Borrower in that
State.
We have also examined the originals, or copies certified to our satisfaction, of
the documents listed in a certificate of the chief financial officer of the
Borrower, dated the date hereof (the "Certificate"), certifying that the
documents listed in such certificate are all of the indentures, loan or credit
agreements, leases, guarantees, mortgages, security agreements, bonds, notes and
other agreements or instruments, and all of the orders, writs, judgments,
awards, injunctions and decrees, that affect or purport to affect the Borrower's
right to borrow money or the Borrower's obligations under the Credit Agreement
or the Notes. In addition, we have examined the originals, or copies certified
to our satisfaction, of such other corporate records of the Borrower,
certificates of public officials and of officers of the Borrower, and
agreements, instruments and other documents, as we have deemed necessary as a
basis for the opinions expressed below. As to questions of fact material to such
opinions, we have, when relevant facts were not independently established by us,
relied upon certificates of the Borrower or its officers or of public officials.
We have assumed the due execution and delivery, pursuant to due authorization,
of the Credit Agreement by the Initial Lenders and the Administrative Agent.
The opinions expressed below are limited to the law of the State of Connecticut,
the General Corporation Law of the State of Delaware and the Federal law of the
United States.
Based upon the foregoing and upon such investigation as I have deemed necessary,
I am of the following opinion:
55
To each of the Lenders parties
February 12, 1997
Page 3
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes, and the consummation of the
transactions contemplated thereby, are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (I) the Charter or the
By-laws or (ii) any law, rule or regulation applicable to the
Borrower (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System) or (iii) any
contractual or legal restriction contained in any document
listed in the Certificate or, to the best of our knowledge,
contained in any other similar document. The Credit Agreement
and the Notes have been duly executed and delivered on behalf
of the Borrower.
3. No authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory
body or any other third party is required for the due
execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes, except for the authorizations,
approvals, actions, notices and filings listing on Schedule
4.01 (c) to the Credit Agreement, all of which have been duly
obtained, taken, given or made and are in full force and
effect.
4. The Credit Agreement is, and after giving effect to the
initial Borrowing, the Notes will be, legal, valid and binding
obligations of the Borrower enforceable against the Borrower
in accordance with their respective terms.
5. To the best of our knowledge, there are no pending or overtly
threatened actions or proceedings against the Borrower or any
of its Subsidiaries before any court, governmental agency or
arbitrator that purport to affect the legality, validity,
binding effect or enforceability of the Credit Agreement or
any of the Notes or the consummation of the transactions
contemplated thereby or that are likely to have a materially
adverse effect upon the financial condition or operations of
the Borrower or any of its Subsidiaries.
56
To each of the Lenders parties
February 12, 1997
Page 4
The opinions set forth above are subject to the following qualifications:
a. The opinion in Paragraph 4 above as to enforceability is
subject to the effect of any applicable bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar
law affecting creditors' rights generally.
b. The opinion in Paragraph 4 above as to enforceability is
subject to the effect of general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
c. We express no opinion as to (i) Section 2.13 of the Credit
Agreement insofar as it provides that any Lender purchasing a
participation from another Lender pursuant thereto may
exercise set-off or similar rights with respect to such
participation.
This opinion is solely for your benefit and may not be quoted or relied upon by,
nor copies delivered to, any other person, nor used for any other purpose,
without my prior written consent.
Very truly yours,
57
PROMISSORY NOTE
U.S.$406,250,002 Dated: February 10, 1997
FOR VALUE RECEIVED, the undersigned, HARTFORD LIFE, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
CITIBANK, N.A. (the "Lender") for the account of its Applicable Lending Office
on the Termination Date (each as defined in the Credit Agreement referred to
below) the principal sum of U.S.$406,250,002 or, if less, the aggregate
principal amount of the Advances made by the Lender to the Borrower pursuant to
the Credit Agreement dated as of February 10, 1997 among the Borrower, the
Lender and certain other lenders parties thereto, and Citibank, N.A., as
Administrative Agent for the Lender and such other lenders (as amended or
modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A. as Administrative Agent, at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Advance owing to the
Lender by the Borrower pursuant to the Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
HARTFORD LIFE, INC.
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
58
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
59
PROMISSORY NOTE
U.S.$297,916,666 Dated: February 10, 1997
FOR VALUE RECEIVED, the undersigned, HARTFORD LIFE, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$297,916,666 or, if less,
the aggregate principal amount of the Advances made by the Lender to the
Borrower pursuant to the Credit Agreement dated as of February 10, 1997 among
the Borrower, the Lender and certain other lenders parties thereto, and
Citibank, N.A., as Administrative Agent for the Lender and such other lenders
(as amended or modified from time to time, the "Credit Agreement"; the terms
defined therein being used herein as therein defined) outstanding on the
Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A. as Administrative Agent, at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Advance owing to the
Lender by the Borrower pursuant to the Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
HARTFORD LIFE, INC.
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
60
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
61
PROMISSORY NOTE
U.S.$297,916,666 Dated: February 10, 1997
FOR VALUE RECEIVED, the undersigned, HARTFORD LIFE, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
MELLON BANK, N.A. (the "Lender") for the account of its Applicable Lending
Office on the Termination Date (each as defined in the Credit Agreement referred
to below) the principal sum of U.S.$297,916,666 or, if less, the aggregate
principal amount of the advances made by the Lender to the Borrower pursuant to
the Credit Agreement dated as of February 10, 1997 among the Borrower, the
Lender and certain other lenders parties thereto, and Citibank, N.A., as
Administrative Agent for the Lender and such other lenders (as amended or
modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A. as Administrative Agent, at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Advance owing to the
Lender by the Borrower pursuant to the Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
HARTFORD LIFE, INC.
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
62
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
63
PROMISSORY NOTE
U.S.$297,916,666 Dated: February 10, 1997
FOR VALUE RECEIVED, the undersigned, HARTFORD LIFE, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
BANK OF AMERICA ILLINOIS (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$297,916,666 or, if less, the
aggregate principal amount of the Advances made by the Lender to the Borrower
pursuant to the Credit Agreement dated as of February 10, 1997 among the
Borrower, the Lender and certain other lenders parties thereto, and Citibank,
N.A., as Administrative Agent for the Lender and such other lenders (as amended
or modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A. as Administrative Agent, at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Advance owing to the
Lender by the Borrower pursuant to the Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
HARTFORD LIFE, INC.
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
64
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
65
HARTFORD LIFE, INC.
CERTIFICATE OF CORPORATE SECRETARY
I, ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇, being the duly elected and acting Corporate
Secretary of Hartford Life, Inc., a Delaware corporation (the "Company"), hereby
certify that:
1. The attached copy of the resolutions adopted by the Board of
Directors of the Company on February 7, 1997, authorizing the
execution, delivery and performance of the Credit Agreement
dated as of February 10, 1997 (the "Credit Agreement"), are
true and complete and are in full force and effect without
modification or amendment.
2. J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is a duly elected and acting Vice President
of the Company, was in office as of the date of the execution
of the Credit Agreements and a sample of his genuine signature
is set forth below:
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the Company this
12th day of February, 1997.
/s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
Corporate Secretary
[seal]
66
RESOLVED, that the Management of the Corporation has determined that it
is necessary for the Corporation to obtain certain financing arrangements for
the Corporation and its subsidiaries by establishing (i) an up to $1,300,000,000
commercial paper program (the "CP Program") and (ii) an up to $1,300,000,000
364-Day Credit Facility (the "Credit Facility Agreement") among the
Corporation, certain lenders and Citibank, N.A., as Administrative Agent;
RESOLVED, that the Corporation be and it hereby is authorized to
establish the CP Program and the Credit Facility upon terms and conditions
satisfactory to the Management of the Corporation;
RESOLVED, that the Authorized Officers are each hereby authorized, in
the name and on behalf of the Corporation, to take any and all actions and to
execute and deliver any and all instruments, certificates and other documents as
may be necessary and advisable, in the opinion of the officer executing the
same, to effectuate and comply with any of the foregoing resolutions.
67
HARTFORD LIFE, INC.
CERTIFICATE OF INCUMBENCY
I, J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, being a duly elected and acting Vice President
of Hartford Life, Inc., a Delaware corporation (the "Company"), hereby certify
that:
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇ is the duly elected and acting Corporate Secretary
of the Company and a sample of his genuine signature is set forth
below:
/s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
IN WITNESS WHEREOF, I have hereunto set my hand and seal of the Company this
12th day of February, 1997.
[seal] /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
68
[ITT HARTFORD LOGO]
February 12, 1997 J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Hartford Plaza
Vice President & Treasurer ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇▇▇▇▇/Global Insurance Department
Ladies and Gentlemen:
The undersigned, Hartford Life, Inc., refers to the Credit Agreement,
dated as of February 10, 1997 (as amended or modified from time to time, the
"Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, certain Lenders parties thereto and Citibank,
N.A., as Administrative Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is February 18,
1997.
(ii) The Type of Advances comprising the Proposed Borrowing is
Eurodollar Rate Advances.
(iii) The aggregate amount of the Proposed Borrowing is
$l,084,000,000.
(iv) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is two (2) months[s].
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01
of the Credit Agreement are correct, before and after giving
effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the
proceeds, therefrom, that constitutes a Default.
Very truly yours,
HARTFORD LIFE, INC.
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
ITT Hartford Insurance Group
Hartford Fire Insurance Company and its Affiliates
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
69
[ITT HARTFORD LOGO]
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Hartford Plaza
Senior Vice President and ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
General Counsel Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
February 12, 1997
To each of the Lenders Parties
to the Credit Agreement dated
as of February 10, 1997
among Hartford Life, Inc.,
said Lenders and Citibank, N.A.,
as Administrative Agent for said Lenders, and
to Citibank, N.A., as Administrative Agent
Hartford Life, Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01 (h)(iv) of the Credit
Agreement, dated as of February 10, 1997 (the "Credit Agreement"), among
Hartford Life, Inc., a Delaware corporation (the "Borrower"), the Lenders
parties thereto and Citibank, N.A. as Administrative Agent for said Lenders.
Terms defined in the Credit Agreement are used herein as therein defined.
In connection with the preparation, execution and delivery of the Credit
Agreement and this opinion, I, as Senior Vice President and General Counsel of
ITT Hartford Group, Inc. ("Hartford Group", the ultimate parent company of the
Borrower), or lawyers on Hartford Group's legal staff working under my
supervision, have examined:
(1) The Credit Agreement;
(2) The documents furnished by the Borrower pursuant to Article
III of the Credit Agreement;
ITT Hartford Group, Inc.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
70
To each of the Lenders parties
February 12, 1997
Page 2
(3) The Certificate of Incorporation of the Borrower and all
amendments thereto (the "Charter");
(4) The by-laws of the Borrower and all amendments thereto (the
"By-laws") and;
(5) A certificate of the Secretary of State of the State of
Delaware, dated February 7, 1997, attesting to the continued
corporate existence and good standing of the Borrower in that
State.
We have also examined the originals, or copies certified to our satisfaction, of
the documents listed in a certificate of the chief financial officer of the
Borrower, dated the date hereof (the "Certificate"), certifying that the
documents listed in such certificate are all of the indentures, loan or credit
agreements, leases, guarantees, mortgages, security agreements, bonds, notes and
other agreements or instruments, and all of the orders, writs, judgments,
awards, injunctions and decrees, that affect or purport to affect the Borrower's
right to borrow money or the Borrower's obligations under the Credit Agreement
or the Notes. In addition, we have examined the originals, or copies certified
to our satisfaction, of such other corporate records of the Borrower,
certificates of public officials and of officers of the Borrower, and
agreements, instruments and other documents, as we have deemed necessary as a
basis for the opinions expressed below. As to questions of fact material to such
opinions, we have, when relevant facts were not independently established by us,
relied upon certificates of the Borrower or its officers or of public officials.
We have assumed the due execution and delivery, pursuant to due authorization,
of the Credit Agreement by the Initial Lenders and the Administrative Agent.
The opinions expressed below are limited to the law of the State of Connecticut,
the General Corporation Law of the State of Delaware and the Federal law of the
United States.
Based upon the foregoing and upon such investigation as I have deemed necessary,
I am of the following opinion:
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February 12, 1997
Page 3
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes, and the consummation of the
transactions contemplated thereby, are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Charter or the
By-laws or (ii) any law, rule or regulation applicable to the
Borrower (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System) or (iii) any
contractual or legal restriction contained in any document
listed in the Certificate or, to the best of our knowledge,
contained in any other similar document. The Credit Agreement
and the Notes have been duly executed and delivered on behalf
of the Borrower.
3. No authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory
body or any other third party is required for the due
execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes, except for the authorizations,
approvals, actions, notices and filings listing on Schedule
4.01(c) to the Credit Agreement, all of which have been duly
obtained, taken, given or made and are in full force and
effect.
4. The Credit Agreement is, and after giving effect to the
initial Borrowing, the Notes will be, legal, valid and binding
obligations of the Borrower enforceable against the Borrower
in accordance with their respective terms.
5. To the best of our knowledge, there are no pending or overtly
threatened actions or proceedings against the Borrower or any
of its Subsidiaries before any court, governmental agency or
arbitrator that purport to affect the legality, validity,
binding effect or enforceability of the Credit Agreement or
any of the Notes or the consummation of the transactions
contemplated thereby or that are likely to have a materially
adverse effect upon the financial condition or operations of
the Borrower or any of its Subsidiaries.
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February 12, 1997
Page 4
The opinions set forth above are subject to the following qualifications:
a. The opinion in Paragraph 4 above as to enforceability is
subject to the effect of any applicable bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar
law affecting creditors' rights generally.
b. The opinion in Paragraph 4 above as to enforceability is
subject to the effect of general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
c. We express no opinion as to (i) Section 2.13 of the Credit
Agreement insofar as it provides that any Lender purchasing a
participation from another Lender pursuant thereto may
exercise set-off or similar rights with respect to such
participation.
This opinion is solely for your benefit and may not be quoted or relied upon by,
nor copies delivered to, any other person, nor used for any other purpose,
without my prior written consent.
Very truly yours,