EXHIBIT 4.4
OMNIBUS INSTRUMENT
WITH REGARD TO
HARTFORD LIFE GLOBAL FUNDING TRUST 2006-033
WHEREAS, the parties named herein desire to enter into certain Issuance
Documents, each such document dated as of the date specified in this Omnibus
Instrument relating to the issuance by Hartford Life Global Funding Trust
2006-033 (the "Trust") of Hartford Life Global Funding Trust 2006-033 Notes (the
"Notes") with the terms specified in the Pricing Supplement attached to this
Omnibus Instrument as Exhibit A (the "Pricing Supplement") to investors under
Hartford Life's secured notes program;
WHEREAS, the Trust will be organized under and its activities will be
governed by (i) the provisions of the Trust Agreement (set forth in Section A of
this Omnibus Instrument), dated as of March 22, 2006 (the "Formation Date") by
and between the parties thereto indicated in Section E herein, and (ii) the
certificate of trust of the Trust;
WHEREAS, the Notes will be issued pursuant to the Indenture (set forth
in Section B of this Omnibus Instrument), dated as of March 29, 2006 (the
"Issuance Date"), by and between the parties thereto indicated in Section E
herein;
WHEREAS, the sale of the Notes will be governed by the Distribution
Agreement (set forth in Section C of this Omnibus Instrument), dated as of the
Formation Date, by and between the parties thereto indicated in Section E
herein; and
WHEREAS, certain agreements relating to the Notes and the funding
agreement identified in the Pricing Supplement (the "Funding Agreement") are set
forth in the Coordination Agreement (set forth in Section D of this Omnibus
Instrument), dated as of the Formation Date, by and among the parties thereto
indicated in Section E herein.
All capitalized terms used herein and not otherwise defined will have
the meanings set forth in the Indenture. This Omnibus Instrument is executed as
of the Formation Date.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party hereby agrees as set forth herein.
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SECTION A
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of the Formation Date, is entered into
by and among AMACAR Pacific Corp., a Delaware corporation, as administrator (in
such capacity, the "Administrator") and as trust beneficial owner (in such
capacity, the "Trust Beneficial Owner") and Wilmington Trust Company, a Delaware
banking corporation, as Delaware trustee (the "Delaware Trustee").
W I T N E S S E T H:
--------------------
WHEREAS, the Trust Beneficial Owner, the Administrator and the Delaware
Trustee desire to establish a statutory trust organized pursuant to the Delaware
Statutory Trust Act for the purpose of issuing Notes to investors which will be
secured, and payments with respect to which will be funded, solely by the assets
held in the Trust (as defined in this Omnibus Instrument), the proceeds of which
will be used to purchase the Funding Agreement;
WHEREAS, the Trust Beneficial Owner, the Administrator and the Delaware
Trustee desire to authorize the issuance of a Trust Beneficial Interest and the
Notes in connection with the entry into this Trust Agreement and the Indenture;
WHEREAS, all things necessary to make this Trust Agreement a valid and
legally binding agreement of the Trust Beneficial Owner, the Administrator and
the Delaware Trustee, enforceable in accordance with its terms, have been done;
WHEREAS, the parties intend to provide for, among other things, (i) the
issuance and sale of the Notes (pursuant to the Indenture and the Distribution
Agreement) and the Trust Beneficial Interest, (ii) the use of the proceeds of
the sale of the Notes and Trust Beneficial Interest to acquire the Funding
Agreement and (iii) all other actions deemed necessary or desirable in
connection with the transactions contemplated by this Trust Agreement; and
WHEREAS, the parties hereto desire to incorporate by reference those
certain Standard Trust Agreement Terms, filed as Exhibit 4.7 to the Registration
Statement dated March 18, 2005, filed with the Securities Exchange Commission by
Hartford Life (the "Standard Trust Agreement Terms") and all capitalized terms
not otherwise defined in this Omnibus Instrument shall have the meaning set
forth in the Standard Trust Agreement Terms (the Standard Trust Agreement Terms
and this Trust Agreement, collectively, the "Trust Agreement").
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party hereby agrees as follows:
PART 1. AGREEMENT TO BE BOUND. The Delaware Trustee, the Administrator
and the Trust Beneficial Owner each hereby agrees to be bound by all of the
terms, provisions and agreements set forth herein, with respect to all matters
contemplated herein, including, without limitation, those relating to the
issuance of the Notes.
PART 2. INCORPORATION BY REFERENCE. All terms, provisions and
agreements of the Standard Trust Agreement Terms (except to the extent expressly
modified herein) are hereby incorporated herein by reference with the same force
and effect as though fully set forth herein. To the extent that the terms set
forth herein are inconsistent with the terms of the Standard Trust Agreement
Terms, the terms set forth herein shall apply.
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PART 3. NAME. The Trust created and governed by this Trust Agreement
shall be designated as indicated in this Omnibus Instrument, as such name may be
modified from time to time by the Delaware Trustee following written notice to
the Trust Beneficial Owner.
PART 4. INITIAL CAPITAL CONTRIBUTION AND OWNERSHIP. The Trust
Beneficial Owner has paid to, or to an account at the direction of, the Delaware
Trustee, on the date hereof, the sum of $15 (or, if the Trust issues Notes at a
discount, the product of $15 and the issue price (expressed as a percentage of
the original principal amount of the Notes)). The Delaware Trustee hereby
acknowledges receipt in trust from the Trust Beneficial Owner, as of the date
hereof, of the foregoing contribution, which shall be used along with the
proceeds from the sale of the Notes to purchase the Funding Agreement. Upon the
creation of the Trust and the registration of the Trust Beneficial Interest in
the Securities Register by the Registrar (as defined in the Standard Trust
Agreement Terms) in the name of the Trust Beneficial Owner, the Trust Beneficial
Owner shall be the sole beneficial owner of the Trust.
PART 5. ACKNOWLEDGMENT. The Delaware Trustee, on behalf of the Trust,
expressly acknowledges its duties and obligations set forth in Section 2.07 of
the Standard Trust Agreement Terms incorporated herein.
PART 6. ADDITIONAL TERMS. None.
PART 7. OMNIBUS INSTRUMENT; EXECUTION AND INCORPORATION OF TERMS. The
parties to this Trust Agreement will enter into this Trust Agreement by
executing the Omnibus Instrument. By executing the Omnibus Instrument, the
Delaware Trustee, the Trust Beneficial Owner and the Administrator hereby agree
that this Trust Agreement will constitute a legal, valid and binding agreement
between the Delaware Trustee, the Trust Beneficial Owner and the Administrator
as of the date specified in the Omnibus Instrument. All terms relating to the
Trust or the Notes not otherwise included in this Trust Agreement will be as
specified in the Omnibus Instrument or Pricing Supplement as indicated herein.
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SECTION B
INDENTURE
THIS INDENTURE, dated as of the Issuance Date, is entered into by and
among JPMorgan Chase Bank, N.A., as indenture trustee, registrar, transfer
agent, paying agent and calculation agent (collectively, the "Indenture
Trustee") and the Trust (as defined in this Omnibus Instrument).
W I T N E S S E T H:
--------------------
WHEREAS, the Trust has duly authorized the execution and delivery of
this Indenture to provide for the issuance of the Notes (as defined in this
Omnibus Instrument);
WHEREAS, all things necessary to make this Indenture a valid and
legally binding agreement of the Trust and the other parties to this Indenture,
enforceable in accordance with its terms, have been done, and the Trust proposes
to do all things necessary to make the Notes, when executed and authenticated
and delivered pursuant hereto, valid and legally binding obligations of the
Trust as hereinafter provided; and
WHEREAS, the parties hereto desire to incorporate by reference those
certain Standard Indenture Terms, filed as Exhibit 4.1 to the Registration
Statement dated March 18, 2005 filed with the Securities Exchange Commission by
Hartford Life (the "Standard Indenture Terms") and all capitalized terms not
otherwise defined in this Omnibus Instrument shall have the meaning set forth in
the Standard Indenture Terms (the Standard Indenture Terms and this Indenture,
collectively, the "Indenture").
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party hereby agrees as follows:
PART 1. AGREEMENT TO BE BOUND. The Trust and the Indenture Trustee each
hereby agrees to be bound by all of the terms, provisions and agreements set
forth herein, with respect to all matters contemplated herein, including,
without limitation, those relating to the issuance of the Notes.
PART 2. INCORPORATION BY REFERENCE. All terms, provisions and
agreements of the Standard Indenture Terms (except to the extent expressly
modified herein) are hereby incorporated herein by reference with the same force
and effect as though fully set forth herein. To the extent that the terms set
forth herein are inconsistent with the terms of the Standard Indenture Terms,
the terms set forth herein shall apply.
PART 3. DESIGNATION OF THE NOTES. The Notes issued pursuant to this
Indenture shall be designated as specified in this Omnibus Instrument.
PART 4. ADDITIONAL TERMS. None.
PART 5. OMNIBUS INSTRUMENT; EXECUTION AND INCORPORATION OF TERMS. The
parties to this Indenture will enter into this Indenture by executing the
Omnibus Instrument. By executing the Omnibus Instrument, the Trust and the
Indenture Trustee hereby agree that this Indenture will constitute a legal,
valid and binding agreement between the Trust and the Indenture Trustee as of
the date specified in the Omnibus Instrument. All terms relating to the Trust or
the Notes not otherwise included in this Indenture will be as specified in the
Omnibus Instrument or Pricing Supplement as indicated herein.
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SECTION C
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT, dated as of the Formation Date, is entered
into by and among each Agent specified in the Pricing Supplement as Agent(s),
(each an "Agent"), Hartford Life Insurance Company, a Connecticut insurance
company ("Hartford Life") and the Trust (as defined in this Omnibus Instrument).
W I T N E S S E T H:
--------------------
WHEREAS, the Trust has entered into the Indenture, dated as of the
Issuance Date by and between the Trust and JPMorgan Chase Bank, N.A., as
indenture trustee (the "Indenture Trustee") to provide for the issuance by the
Trust of the Notes (as defined in this Omnibus Instrument);
WHEREAS, all things necessary to make this Distribution Agreement a
valid and legally binding agreement of the Trust and the other parties to this
Distribution Agreement, enforceable in accordance with its terms, have been
done, and the Trust proposes to do all things necessary to make the Notes, when
executed by the Trust and authenticated and delivered pursuant hereto and the
Indenture, valid and legally binding obligations of the Trust as hereinafter
provided; and
WHEREAS, the parties hereto desire to incorporate by reference those
certain Standard Distribution Agreement Terms, attached as Exhibit C to this
Omnibus Instrument (the "Standard Distribution Agreement Terms") and all
capitalized terms not otherwise defined in this Omnibus Instrument shall have
the meaning set forth in the Standard Distribution Agreement Terms (the Standard
Distribution Agreement Terms and this Distribution Agreement, collectively, the
"Distribution Agreement").
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party hereby agrees as follows:
PART 1. AGREEMENT TO BE BOUND. The Agent(s), Hartford Life and the
Trust each hereby agrees to be bound by all of the terms, provisions and
agreements set forth herein, with respect to all matters contemplated herein,
including, without limitation, those relating to the issuance of the Notes.
PART 2. INCORPORATION BY REFERENCE. All terms, provisions and
agreements of the Standard Distribution Agreement Terms (except to the extent
expressly modified herein) are hereby incorporated herein by reference with the
same force and effect as though fully set forth herein. To the extent that the
terms set forth herein are inconsistent with the terms of the Standard
Distribution Agreement Terms, the terms set forth herein shall apply.
PART 3. PURCHASE OF NOTES. The Agent(s) agree to purchase the Notes
having the terms set forth in the Pricing Supplement for the Notes.
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PART 4. DELIVERY OF OPINIONS. Pursuant to Sections 5.1, 5.2 and 5.5,
Hartford Life, the Trust and the Agent(s) have mutually agreed that the
opinions, negative assurances and/or comfort letter, if any, set forth in
Exhibit B to this Omnibus Instrument are required to be delivered on the
Issuance Date.
PART 5. TIME OF SALE. With respect to the Notes, the "Time of Sale" is
2:30 p.m. (New York City time) on the Issuance Date.
PART 6. ADDITIONAL TERMS. Notices to the Agent shall be sent to:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Debt Capital Markets,
Financial Institutions Group
With a copy to:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
PART 7. OMNIBUS INSTRUMENT; EXECUTION AND INCORPORATION OF TERMS. The
parties to this Distribution Agreement will enter into this Distribution
Agreement by executing the Omnibus Instrument. By executing the Omnibus
Instrument the Agents, Hartford Life and the Trust hereby agree that this
Distribution Agreement will constitute a legal, valid and binding agreement
between the Agents, Hartford Life and the Trust as of the date specified in the
Omnibus Instrument. All terms relating to the Trust or the Notes not otherwise
included in this Distribution Agreement will be as specified in the Omnibus
Instrument or Pricing Supplement as indicated herein.
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SECTION D
COORDINATION AGREEMENT
THIS COORDINATION AGREEMENT, dated as of the Formation Date, is entered
into by and among Hartford Life, the Trust and the Indenture Trustee and the
Administrator.
W I T N E S S E T H:
--------------------
WHEREAS, the Trust will enter into the Funding Agreement with Hartford
Life dated as of the Issuance Date;
WHEREAS, the Agent(s) have agreed to sell the Notes in accordance with
the Registration Statement; and
WHEREAS, the Trust intends to issue the Notes in accordance with the
Indenture and to transfer the Funding Agreement to the Indenture Trustee in
accordance with the Indenture to secure payment of the Notes.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party hereby agrees as follows:
PART 1. AGREEMENT TO BE BOUND. Hartford Life, the Trust and the
Indenture Trustee each hereby agrees to be bound by all of the terms, provisions
and agreements set forth herein, with respect to all matters contemplated
herein, including, without limitation, those relating to the issuance of the
Notes.
PART 2. DELIVERY OF THE FUNDING AGREEMENT. The Trust hereby authorizes
the Indenture Trustee to receive the Funding Agreement from Hartford Life
pursuant to the Assignment of the Funding Agreement (the "Assignment"), to be
entered into on the Issuance Date, and included in the closing instrument dated
as of the Issuance Date (the "Closing Instrument").
PART 3. ISSUANCE AND PURCHASE OF THE NOTES. Delivery of the Funding
Agreement to the Indenture Trustee pursuant to the Assignment of the Funding
Agreement shall be confirmation of payment by the Trust for the Funding
Agreement. The Trust hereby directs the Indenture Trustee, upon receipt of the
Funding Agreement pursuant to the Assignment, (a) to authenticate the Notes in
accordance with the Indenture and (b) to (i) deliver each relevant Note to the
clearing system or systems identified in each such Note, or to the nominee or
custodian of such clearing system, for credit to such accounts as the Agent(s)
may direct, or (ii) deliver each relevant Note to the purchasers thereof as
identified by the Agent(s).
PART 4. DIRECTIONS REGARDING PERIODIC PAYMENTS. As registered owner of
the Funding Agreement as collateral securing payments on the Notes, the
Indenture Trustee will receive payments on the Funding Agreement on behalf of
the Trust. The Trust hereby directs the Indenture Trustee to use such funds to
make payments on behalf of the Trust pursuant to the Trust Agreement and the
Indenture.
PART 5. MATURITY OF THE FUNDING AGREEMENT. Upon the maturity of the
Funding Agreement and the return of funds thereunder, the Trust hereby directs
the Indenture Trustee to set aside from such funds an amount sufficient for the
repayment of the outstanding principal on the Notes when due.
PART 6. ACKNOWLEDGEMENT OF PRIOR AGREEMENTS. The Trust hereby
acknowledges, agrees to and become a party to each of the Administrative
Services Agreement, the License Agreement, and the Expense and Indemnity
Agreement related to the Delaware Trustee. The Administrator hereby acknowledges
the formation of the Trust and affirms its obligations to provide services to
the Trust as set forth in the Administrative Services Agreement.
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PART 7. CERTIFICATES. Hartford Life and the Trust each hereby agree to
deliver, on a quarterly basis, such certificate(s) as are required by any rating
agency then rating the Program.
PART 8. NO ADDITIONAL LIABILITY. Nothing in this agreement shall impose
any liability or obligation on the part of any party to this agreement to make
any payment or disbursement in addition to any liability or obligation such
party has under the Issuance Documents or any other agreements related to the
Program, except to the extent that a party has actually received funds which it
is obligated to disburse pursuant to this agreement.
PART 9. NO CONFLICT. This Coordination Agreement is intended to be in
furtherance of the agreements reflected in the documents related to the Issuance
Documents, and not in conflict. To the extent that a provision of this
Coordination Agreement conflicts with the provisions of one or more Issuance
Documents, the provisions of such documents shall govern.
PART 10. GOVERNING LAW. This agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the principles of conflicts of laws thereof.
PART 11. SEVERABILITY. If any provision in this agreement shall be
invalid, illegal or unenforceable, such provisions shall be deemed severable
from the remaining provisions of this agreement and shall in no way affect the
validity or enforceability of such other provisions of this agreement.
PART 12. OMNIBUS INSTRUMENT; EXECUTION AND INCORPORATION OF TERMS. The
parties to this Coordination Agreement will enter into this Coordination
Agreement by executing the Omnibus Instrument. By executing the Omnibus
Instrument, each party hereto agrees that this Coordination Agreement will
constitute a legal, valid and binding agreement by and among Hartford Life, the
Trust and the Indenture Trustee as of the Issuance Date. All terms relating to
the Trust or the Notes not otherwise included in this Coordination Agreement
will be as specified in the Omnibus Instrument or Pricing Supplement as
indicated in the Omnibus Instrument.
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SECTION E
MISCELLANEOUS AND EXECUTION PAGES
Notwithstanding any other provisions of this Omnibus Instrument, no
amendment to this Omnibus Instrument may be made if such amendment would cause
the Trust not to be disregarded or treated as a grantor trust (assuming the
Trust were not disregarded) for U.S. federal income tax purposes.
This Omnibus Instrument may be executed by each of the parties hereto
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument. Facsimile signatures shall be deemed original
signatures.
Each signatory, by its execution hereof, does hereby become a party to
each of the agreements identified for such party as of the date specified in
such agreements.
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IN WITNESS WHEREOF, the undersigned have executed this Omnibus
Instrument.
HARTFORD LIFE INSURANCE COMPANY (in executing
below agrees and becomes a party to (i) the
Distribution Agreement set forth in Section C
herein, and (ii) the Coordination Agreement set
forth in Section D herein).
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: VP, IIP
Hartford Life Global Funding Trust 2006-033
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IN WITNESS WHEREOF, the undersigned have executed this Omnibus Instrument.
HARTFORD LIFE GLOBAL FUNDING TRUST 2006-033 in
executing below agrees and becomes a party to
(i) the Indenture set forth in Section B herein,
(ii) the Distribution Agreement set forth in
Section C herein and (iii) the Coordination
Agreement set forth in Section D herein).
By: Wilmington Trust Company, not in its
individual capacity but solely as Delaware
Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Financial Services Officer
WILMINGTON TRUST COMPANY, in executing below
agrees and becomes a party to the Trust
Agreement set forth in Section A herein, not in
its individual capacity but solely as Delaware
Trustee.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Financial Services Officer
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IN WITNESS WHEREOF, the undersigned have executed this Omnibus Instrument.
AMACAR PACIFIC CORP. in executing below agrees
and becomes a party to (i) the Trust Agreement
set forth in Section A herein in its capacity as
Trust Beneficial Owner and Administrator and
(ii) the Coordination Agreement set forth in
Section D herein in its capacity as
Administrator.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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IN WITNESS WHEREOF, the undersigned have executed this Omnibus Instrument.
JPMORGAN CHASE BANK, N.A. in executing below
agrees and becomes a party to (i) the Indenture
set forth in Section B herein in its capacity as
Indenture Trustee, Registrar, Transfer Agent,
Paying Agent and Calculation Agent, and (ii) the
Coordination Agreement, set forth in Section D
herein in its capacity as Indenture Trustee.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: VICE PRESIDENT
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IN WITNESS WHEREOF, the undersigned have executed this Omnibus Instrument.
▇▇▇▇▇▇ BROTHERS INC., in executing below agrees
and becomes a party to the Distribution
Agreement set forth in Section C herein.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
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EXHIBIT A
PRICING SUPPLEMENT
Filed pursuant to Rule 424(b)(5)
File No. 333-123441
Pricing Supplement No. 128 dated March 22, 2006.
(To Prospectus dated April 15, 2005 and Prospectus
Supplement dated May 5, 2005)
This Pricing Supplement consists of 3 pages.
HARTFORD LIFE INSURANCE COMPANY
DEPOSITOR
SECURED MEDIUM-TERM NOTES
ISSUED THROUGH
HARTFORD LIFE GLOBAL FUNDING TRUST 2006-033
FLOATING RATE NOTES DUE MARCH 15, 2011
The description in this pricing supplement of the particular terms of the
Secured Medium-Term Notes offered hereby and the Funding Agreement sold by
Hartford Life Insurance Company to the Trust specified herein supplements the
description of the general terms and provisions of the notes and the funding
agreements set forth in the accompanying prospectus and prospectus supplement,
to which reference is hereby made.
PROVISIONS RELATING TO THE NOTES
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Principal Amount: $100,000,000 Type of Interest Rate: [ ] Fixed [X] Floating
Price to Public: 100 % If Fixed Rate Notes: Interest Rate:
Net Proceeds to Trust: $99,950,000 If Floating Rate Notes: Initial Interest Rate: THE
INITIAL INTEREST RATE FOR THE NOTES OFFERED BY THIS
CUSIP Number: ▇▇▇▇▇▇▇▇▇ PRICING SUPPLEMENT WILL BE THREE MONTH LIBOR PLUS 10
BASIS POINTS DETERMINED IN ACCORDANCE WITH THE
Agent's Discount: 0.05% PROVISIONS OF THIS PRICING SUPPLEMENT AND THE
PROSPECTUS SUPPLEMENT ON THE SECOND LONDON BANKING DAY
IMMEDIATELY PRECEDING THE ISSUANCE DATE.
Base Rate: [ ] CD Rate [ ] Commercial Paper Rate
[ ] CMT Rate [ ] Federal Funds Rate
[X] LIBOR [ ] Treasury Rate
[ ] Prime Rate [ ] Other (See Attached)
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If LIBOR: [ ] LIBOR Reuters Page
Issuance Date: MARCH 29, 2006 [X] LIBOR Telerate Page 3750
Designated LIBOR Currency
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Stated Maturity Date: MARCH 15, 2011 If CMT Rate, Telerate Page: [ ] 7051 [ ] 7052
If 7052: [ ] Weekly Average [ ] Monthly Average
Initial Interest Payment Date: JUNE 15, 2006 Designated CMT Maturity Index:
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Interest Reset Dates: QUARTERLY
Interest Payment Frequency: QUARTERLY Initial Interest Reset Date: JUNE 15, 2006
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Index Maturity: THREE MONTHS
Specified Currency: U.S. DOLLARS
Interest Rate Determination Dates: AS SPECIFIED IN THE
PROSPECTUS SUPPLEMENT FOR THE INDICATED BASE RATE.
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Regular Record Dates: 15 DAYS PRIOR TO AN INTEREST Spread: + 10 BASIS POINTS Spread Multiplier: N/A
PAYMENT DATE.
Maximum Interest Rate: NONE
Minimum Interest Rate: NONE
Floating Rate/Fixed Rate Note: [ ] Yes [X] No. If yes:
Day Count Convention: ACTUAL/360 Fixed Rate: N/A
Fixed Rate Commencement Date: N/A
Computation of Interest: AS SPECIFIED IN THE PROSPECTUS Inverse Floating Rate Note [ ] Yes [X] No. If yes,
SUPPLEMENT FOR THE INDICATED BASE RATE. Fixed Interest Rate: N/A
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Authorized Denominations: $1,000 INCREMENTS. Sinking Fund: NONE.
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Optional Redemption: Yes [ ] No [X] Calculation Agent: JPMORGAN CHASE BANK, N.A.
Optional Redemption Date: N/A
Initial Redemption Percentage: N/A Exchange Rate Agent: N/A
Annual Percentage Reduction: N/A
Redemption may be: [ ] In whole only. Securities Exchange Listing: NONE.
[ ] In whole or in part.
Additional Amounts to be Paid: [ ] Yes [X] No
Optional Repayment: [ ] Yes [X] No Discount Note: [ ] Yes [X] No If Yes:
Optional Repayment Dates: N/A Total Amount of Discount: N/A
Yield to Maturity: N/A
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Amortizing Note: [ ] Yes (See attached) [X] No
Other Provisions Relating to the Notes: NONE.
Agents: ▇▇▇▇▇▇ BROTHERS
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Special Tax Considerations: NONE.
INFORMATION RELATING TO THE FUNDING AGREEMENT
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Funding Agreement Provider: HARTFORD LIFE INSURANCE Type of Interest Rate: [ ] Fixed [X] Floating
COMPANY
If Fixed Rate Funding Agreement: Interest Rate:
Funding Agreement: FA-406033 If Floating Rate Funding Agreement Initial Interest
Rate: THE INITIAL INTEREST RATE FOR THE NOTES OFFERED
Contract Payment: $100,000,015 BY THIS PRICING SUPPLEMENT WILL BE THREE MONTH LIBOR
PLUS 10 BASIS POINTS, DETERMINED IN ACCORDANCE WITH THE
Deposit Amount : $99,950,015 PROVISIONS OF THIS PRICING SUPPLEMENT AND THE
(if different from Contract Payment) PROSPECTUS SUPPLEMENT ON THE SECOND LONDON BANKING DAY
IMMEDIATELY PRECEDING THE ISSUANCE DATE.
Base Rate: [ ] CD Rate [ ] Commercial Paper Rate
[ ] CMT Rate [ ] Federal Funds Rate
[X] LIBOR [ ] Treasury Rate
[ ] Prime Rate [ ] Other (See Attached)
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If LIBOR: [ ] LIBOR Reuters Page
Effective Date: MARCH 29, 2006 [X] LIBOR Telerate Page 3750
Designated LIBOR Currency: U.S. DOLLARS
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Stated Maturity Date: MARCH 15, 2011 If CMT Rate, Telerate Page: [ ] 7051 [ ] 7052
If 7052: [ ] Weekly Average [ ] Monthly Average
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Initial Interest Payment Date: JUNE 15, 2006 Designated CMT Maturity Index:
Interest Reset Frequency: QUARTERLY
------------------------------------------------------------------------------------------------------------------------------------
Interest Payment Frequency: QUARTERLY Initial Interest Reset Date: JUNE 15, 2006
Index Maturity: THREE MONTHS
Specified Currency: U.S. DOLLARS Interest Rate Determination Date: AS SPECIFIED IN THE
PROSPECTUS SUPPLEMENT FOR THE INDICATED BASE RATE.
------------------------------------------------------------------------------------------------------------------------------------
Day Count Convention: ACTUAL/360 Spread: + 10 BASIS POINTS Spread Multiplier: N/A
Maximum Interest Rate: NONE
Minimum Interest Rate: NONE
------------------------------------------------------------------------------------------------------------------------------------
Floating Rate/Fixed Rate Funding Agreement: [ ] Yes [X] No
Computation of Interest: AS SPECIFIED IN THE PROSPECTUS If yes: Fixed Rate: N/A
SUPPLEMENT FOR THE INDICATED BASE RATE. Fixed Rate Commencement Date: N/A
------------------------------------------------------------------------------------------------------------------------------------
Inverse Floating Rate Funding Agreement: [ ] Yes [X] No
Optional Redemption: Yes [ ] No [X] If yes: Fixed Interest Rate: N/A
Optional Redemption Date: NONE
Initial Redemption Percentage: N/A
Annual Percentage Reduction: N/A Amortizing Funding Agreement: [ ] Yes (See attached)
Redemption may be: [ ] In whole only. [X] No
[ ] In whole or in part
Optional Repayment: [ ] Yes [X] No Discount Funding Agreement: [ ] Yes [X] No. If yes:
Optional Repayment Dates: N/A Total Amount of Discount: N/A
Yield to Maturity: N/A
Other Provisions Relating to the Funding Agreement: NONE.
Additional Amounts to be Paid: [ ] Yes [X] No
Special Tax Considerations: NONE.
------------------------------------------------------------------------------------------------------------------------------------
Note: The Opinion regarding the enforceability of the Funding Agreement and the
related Consent of Counsel for Hartford Life Insurance Company is given by ▇▇▇▇
▇. ▇▇▇▇▇▇▇, Associate Counsel.
INFORMATION PERTAINING TO THE RATINGS OF
THE NOTES AND THE FUNDING AGREEMENT
It is anticipated that, as of March 29, 2006, the Notes will be rated by the
indicated rating agencies as follows:
Standard & Poor's: AA- Moody's: Aa3
A.M. Best: aa- Fitch: AA
The ▇▇▇▇▇'▇ rating also extends to the Program under which the Notes are issued.
It is anticipated that, as of March 29, 2006, the Funding Agreement will be
rated by the indicated rating agencies as follows:
Standard & Poor's: AA- Moody's: Aa3
A.M. Best: aa- Fitch: AA
Hartford Life Global Funding Trust 2006-033
Omnibus Instrument
16
EXHIBIT B
RATINGS; REQUIRED DELIVERIES
RATINGS:
In connection with Section 1.1.3 of the Distribution Agreement, the Program
under which the Notes are issued, as well as the Notes, are anticipated to be
rated Aa3 by Moody's and the Notes are rated AA- by S&P. In connection with
Section 1.3.10 of the Distribution Agreement, the Company's financial strength
rating is Aa3 by ▇▇▇▇▇'▇, ▇▇- by S&P, aa- by A.M. Best, and AA by Fitch.
REQUIRED DELIVERIES:
Pursuant to Section 4.1, 4.2 and/or 4.5 of the Distribution Agreement the
following opinions, negative assurances and/or comfort letter are required to be
delivered on the Issuance Date (as defined in the Omnibus Instrument):
None.
Hartford Life Global Funding Trust 2006-033
Omnibus Instrument
17
EXHIBIT C
STANDARD DISTRIBUTION AGREEMENT TERMS
WITH RESPECT TO
HARTFORD LIFE GLOBAL FUNDING
SECURED MEDIUM-TERM NOTES AND INCOMENOTES(sm)
DATED AS OF MARCH 22, 2006
STANDARD DISTRIBUTION AGREEMENT TERMS
This document constitutes Standard Distribution Agreement Terms which
are incorporated by reference in the Distribution Agreement included in the
omnibus instrument through which certain of the documents related to the
issuance of the Notes are executed (the "OMNIBUS INSTRUMENT"), dated as of the
date set forth therein (the "DISTRIBUTION AGREEMENT"), by and among the Trust,
Hartford Life Insurance Company (the "COMPANY"), and each Agent specified in the
Distribution Agreement.
These Standard Distribution Agreement Terms shall be of no force and
effect unless and until incorporated by reference into, and then only to the
extent not modified by, the Distribution Agreement.
The following terms and provisions shall govern the terms of the
distribution of the Notes issued by the Trust, subject to such other terms and
provisions expressly adopted in the Distribution Agreement.
Capitalized terms not otherwise defined in these Standard Distribution
Agreement Terms shall have their respective meanings ascribed to them in the
Distribution Agreement.
In connection with the Hartford Life Global Funding Program (the
"PROGRAM") arranged by Bear ▇▇▇▇▇▇▇ & Co. Inc., as arranger, the Company has
authorized the issuance and sale of a funding agreement to the Trust in order to
secure the Notes issued to the Agent(s) pursuant to the terms of the
Distribution Agreement.
The Notes are to be issued pursuant to the Indenture. The Trust shall
issue only the Notes. The Trust will use the net proceeds from the sale of the
Notes to purchase a funding agreement (the "FUNDING AGREEMENT") from the
Company. The Notes will be secured by the Funding Agreement which will be
assigned by the Trust to the Indenture
18
Trustee on behalf of the holders of the Notes pursuant to the Indenture. In
connection with the sale of the Notes, the Trust will prepare a Pricing
Supplement (the "PRICING SUPPLEMENT") including or incorporating by reference a
description of the terms of the Notes, the terms of the offering and a
description of the Trust.
Subject to the terms and conditions contained in the Distribution
Agreement, the Company and the Trust hereby (1) appoint only Bear, ▇▇▇▇▇▇▇ & Co.
Inc. as purchasing agent (the "PURCHASING AGENT"); and (2) appoint the
Purchasing Agent and/or such other parties specified in the Pricing Supplement
(the Purchasing Agent and each such party, an "AGENT") for the purpose of
purchasing and selling the Notes. For purposes of the Distribution Agreement,
all references to any Agent shall be deemed to include the Purchasing Agent.
The Distribution Agreement specifies terms and conditions on which the
Notes may be sold by the Trust to the Agent(s) as principal for resale to
investors.
The Company has made the requisite filings with the Securities and
Exchange Commission (the "COMMISSION") pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 ACT"), and the rules and regulations of the
Commission under the 1934 Act (the "1934 ACT REGULATIONS"). The Company has
filed with the Commission a (a) registration statement on Form S-3 relating to
the registration of the Notes of the Trust and the Funding Agreement under the
Securities Act of 1933, as amended (the "1933 ACT"), (b) the related prospectus
dated April 15, 2005 covering all notes to be offered under the Program (the
"BASE PROSPECTUS"), (c) the prospectus supplement to the Base Prospectus dated
May 5, 2005 covering the notes offered under the Institutional Program (the
"INSTITUTIONAL PROSPECTUS SUPPLEMENT" and, together with the Base Prospectus,
the "INSTITUTIONAL PROSPECTUS") and (d) the prospectus supplement to the Base
Prospectus dated May 5, 2005 covering the Notes offered under the
IncomeNotes(sm) Program (the "INCOMENOTES(sm) PROSPECTUS SUPPLEMENT" and,
together with the Base Prospectus, the "INCOMENOTES(sm) PROSPECTUS"). Such
registration statement has been declared effective by the Commission and the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 ACT") and the rules and regulations of the Commission under
the 1939 Act (the "1939 ACT REGULATIONS"), and the Company has filed such post-
effective amendments thereto as may be required prior to the Trust's acceptance
of any offer for the purchase of Notes and each such post-effective amendment
has been declared effective by the Commission. Such registration statement (as
so amended, if applicable) is referred to herein as the "REGISTRATION
STATEMENT"; and the final prospectus and all applicable amendments or
supplements thereto (including the applicable final prospectus supplement and
Pricing Supplement relating to the offering of the Notes), in the form first
furnished to the Agent(s) for use in confirming sales of the Notes, are
collectively referred to herein as the "PROSPECTUS"; PROVIDED, HOWEVER, that all
references to the "Registration Statement", and the "Prospectus" shall also be
deemed to include all documents incorporated therein by reference pursuant to
the 1934 Act; PROVIDED, FURTHER, that if the Company files a post-effective
amendment to the Registration Statement with the Commission pursuant to Rule
462(b) of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") (the "RULE 462(b) REGISTRATION
19
STATEMENT") or files a registration statement containing a combined
prospectus pursuant to Rule 429 of the 1933 Act Regulations (the "RULE 429
REGISTRATION STATEMENT"), then, after such filing, all references to the
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement or the Rule 429 Registration Statement, as applicable. A
"PRELIMINARY PROSPECTUS" shall be deemed to refer to any prospectus and any
prospectus supplement used before the Registration Statement became effective
and any prospectus and any prospectus supplement furnished by the Company or the
Trust after the Registration Statement became effective and before the Time of
Sale (as defined below) with respect to the Notes which, pursuant to Rule 430B,
omitted information to be included upon pricing in a form of prospectus and
prospectus supplement filed with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations.
The term "FREE WRITING PROSPECTUS" has the meaning set forth in Rule
405 of the 1933 Act Regulations. The term "TIME OF SALE PROSPECTUS" means (1)
with respect to the offer and sale of any series of notes under the
Institutional Program, the Institutional Prospectus and (2) with respect to the
offer and sale of any series of notes under the IncomeNotes(sm) Program, the
IncomeNotes(sm) Prospectus, in each case, as amended or supplemented from time
to time prior to the Time of Sale and together with any preliminary prospectus
or preliminary pricing supplement relating to the offer and sale of such series
of Notes prior to the Time of Sale, any Pricing Supplement relating to the offer
and sale of such Series of Notes filed or used prior to the Time of Sale, any
Final Term Sheet (as defined in Section 4.1 hereof) relating to the offer and
sale of such Notes and each Free Writing Prospectus in the form, furnished to
the Agent(s) by the Company or approved by the Company for use prior to the Time
of Sale. "TIME OF SALE" means the time or date set forth in the applicable
Distribution Agreement. For purposes of the Distribution Agreement, all
references to the Registration Statement, Prospectus, Time of Sale Prospectus,
Free Writing Prospectus, Pricing Supplement or preliminary prospectus or to any
amendment or supplement thereto shall be deemed to include any copy filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
All references in the Distribution Agreement to financial statements
and schedules and other information which is "disclosed", "contained",
"included" or "stated" (or other references of like import) in the Registration
Statement, Prospectus, Time of Sale Prospectus, Free Writing Prospectus, Pricing
Supplement or preliminary prospectus shall be deemed to include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, Prospectus, Time of Sale Prospectus,
Free Writing Prospectus, Pricing Supplement or preliminary prospectus, as the
case may be; and all references in the Distribution Agreement to amendments or
supplements to the Registration Statement, Prospectus, Time of Sale Prospectus,
Free Writing Prospectus, Pricing Supplement or preliminary prospectus shall be
deemed to include the filing of any document under the 1934 Act which is
incorporated by reference in the Registration Statement, Prospectus, Time of
Sale Prospectus, Free Writing Prospectus, Pricing Supplement or preliminary
prospectus, as the case may be.
20
SECTION 1.
REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE COMPANY
1.1 REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE COMPANY. Each
of the Trust and the Company jointly and severally represents and warrants (i)
to each Agent (a) as of the date hereof, (b) as of the date that the
Registration Statement became effective (the "INITIAL EFFECTIVE DATE") and (c)
as of any time that the Registration Statement or the Prospectus shall be
amended or supplemented (with respect to the Registration Statement, a
"SUBSEQUENT EFFECTIVE DATE") and (ii) to each applicable Agent, (a) as of the
Time of Sale, (b) as of the date the Notes are delivered in exchange for payment
(the "SETTLEMENT DATE") and (c) as of the new effective date as determined
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations with respect to the
Notes (the "NOTE EFFECTIVE DATE" and together with the Initial Effective Date
and any Subsequent Effective Date, the "REGISTRATION STATEMENT EFFECTIVE DATE")
(each of the times referenced above being referred to herein as a
"REPRESENTATION DATE") as follows:
1.1.1 NO FILINGS OR REGULATORY APPROVALS. Other than as set
forth or contemplated in the Time of Sale Prospectus, no filing with,
or approval, authorization, consent, license, registration,
qualification, order or decree of, any court or governmental authority
or agency, is necessary or required for the issuance and sale of the
Notes by the Trust, except such as have been previously made, obtained
or rendered, as applicable, and except such consents, approvals,
authorizations, registrations, qualifications, orders or decrees as may
be required under the 1933 Act or the 1939 Act or under state or
foreign securities or blue sky laws or any rules or regulations of any
securities exchange.
1.1.2 INVESTMENT COMPANY ACT. The Trust is not, and upon the
issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the Time of
Sale Prospectus will not be, required to register as an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "1940 ACT").
1.1.3 RATINGS. The Program under which the Notes are issued,
as well as the Notes, as applicable, are rated Aa3 by ▇▇▇▇▇'▇ Investors
Service, Inc. or its successor ("MOODY'S") and AA- by Standard & Poor's
Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or its
successor ("S&P") (Moody's and S&P are referred to herein as the
"Ratings Agencies" and each a "RATINGS AGENCY"), or such other rating
as to which the Company or the Trust shall have most recently notified
the Agent(s) pursuant to Section 2.3.5 hereof and set forth in the
Omnibus Instrument. Except as otherwise disclosed to the Agent(s), no
public announcement has been made by a Ratings Agency that it has under
surveillance or review, with possible negative implications, its rating
of the Program, the Notes or any notes issued pursuant to the
Registration Statement, as applicable, or has withdrawn its rating of
the Program, the Notes or any notes issued pursuant to the Registration
Statement, as applicable.
21
1.1.4 LISTING. If specified in the Pricing Supplement, the
Notes described in such Pricing Supplement shall be listed on the
securities exchange designated in the Pricing Supplement.
1.2 REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust represents
and warrants to each Agent as of each Representation Date as follows:
1.2.1 DUE FORMATION AND GOOD STANDING OF THE TRUST. The Trust
is a statutory trust, duly formed under Delaware law pursuant to the
Trust Agreement (the "TRUST AGREEMENT") between Wilmington Trust
Company, as Trustee (the "DELAWARE TRUSTEE") and AMACAR Pacific
Corporation, as administrator and trust beneficial holder, and the
filing of a certificate of trust with the Delaware Secretary of State,
which is validly existing and in good standing as a statutory trust
under the laws of the State of Delaware.
1.2.2 NO MATERIAL CHANGES. Since the respective dates as of
which information is given in the Registration Statement and the Time
of Sale Prospectus, except as otherwise stated therein, (A) there has
been no event or occurrence that would reasonably be expected to have a
material adverse effect on the condition (financial or otherwise) of
the Trust or on the power or ability of the Trust to perform its
obligations under the Distribution Agreement, the Indenture, the Notes,
the Trust Agreement, the Funding Agreement, the Administrative Services
Agreement (the "ADMINISTRATION AGREEMENT"), between the Delaware
Trustee, on behalf of the Trust, and AMACAR Pacific Corporation, as
administrator (the "ADMINISTRATOR") or the License Agreement (the
"LICENSE AGREEMENT") between the Trust and Hartford Fire Insurance
Company, or to consummate the transactions to be performed by it as
contemplated in the Time of Sale Prospectus (a "TRUST MATERIAL ADVERSE
EFFECT") and (B) there have been no transactions entered into by the
Trust, other than those related to the Program or in the ordinary
course of business, which are material with respect to the Trust.
1.2.3 AUTHORIZATION OF AGREEMENTS. The Distribution Agreement,
the Indenture, the Notes, the Administration Agreement and the License
Agreement have been or will be duly authorized, executed and delivered
by the Trust. Assuming that each party to the Distribution Agreement,
the Indenture, the Administration Agreement, the License Agreement and
the Trust Agreement, other than the Trust, has duly authorized,
executed and delivered each such agreement, then the Distribution
Agreement, the Indenture, the Administration Agreement, the License
Agreement and the Trust Agreement will each be a valid and legally
binding agreement of the Trust enforceable against the Trust in
accordance with its terms, except (A) as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law), (B) that no
representation or warranty is made with respect to the enforceability
of the indemnification and contribution provided for in Section 7
22
hereof and (C) except as enforcement thereof may be limited by
requirements that a claim with respect to any Notes issued under the
Indenture that are payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United
States. The Notes have been duly authorized by the Trust for offer,
sale, issuance and delivery pursuant to the Distribution Agreement and
when issued, authenticated and delivered in the manner provided for in
the Indenture and delivered against payment of the consideration
therefor, will constitute valid and legally binding obligations of the
Trust, enforceable against the Trust in accordance with their terms,
except (1) as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (2) except as enforcement thereof
may be limited by requirements that a claim with respect to any Notes
issued under the Indenture that are payable in a foreign or composite
currency (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of
payments outside the United States. Subject to the exceptions set forth
in the preceding sentence, the Notes when executed by the Trust and
issued authenticated and delivered in the manner provided for in the
Indenture and delivered against payment of the consideration therefor,
will be entitled to the benefits of the Indenture.
1.2.4 ABSENCE OF DEFAULTS AND CONFLICTS. (A) The execution,
delivery and performance of the Distribution Agreement, the Indenture,
the Notes, the Funding Agreement, the Administration Agreement, the
License Agreement and any other agreement or instrument entered into or
issued or to be entered into or issued by the Trust in connection with
the issuance of the Notes and the transactions contemplated thereby,
(B) the performance of the Trust Agreement (all agreements and
instruments referenced in clauses (A) and (B) above are referred to
herein as the "ISSUANCE DOCUMENTS"), (C) the consummation of the
transactions contemplated in the Time of Sale Prospectus (including the
issuance and sale of the Notes and the use of proceeds therefrom as
described in the Time of Sale Prospectus) and (D) the compliance by the
Trust with its obligations under the Issuance Documents, do not and
will not constitute a breach, violation or default which (1) gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Trust, or (2) results in the creation or imposition
of any lien, charge or encumbrance upon any assets, properties or
operations of the Trust pursuant to, any contract, indenture, mortgage,
loan or credit agreement, note, lease or other agreement or instrument
to which the Trust is a party or by which it may be bound or to which
any of the property or assets of the Trust is subject, nor will such
23
action result in any violation of the Trust's Certificate of Trust or
the Trust Agreement and the Trust is not in default in the performance
or observance of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Trust or any of its assets, properties or operations; PROVIDED,
that no representation or warranty is made with respect to compliance
with law of the Funding Agreement to the extent that the source of the
funds used by the Trust to purchase such Funding Agreement renders such
funds, or any property or investment acquired with such funds, subject
to governmental seizure or other penalty under the USA Patriot Act of
2001, as amended (the "USA PATRIOT ACT"); PROVIDED, FURTHER that in the
case of clause (1) of this Section 1.2.4, this representation and
warranty shall not extend to such repurchase, redemption or repayment
that would not result in a Trust Material Adverse Effect and in the
case of clause (2) of this Section 1.2.4, this representation and
warranty shall not extend to such lien, charges or encumbrances or any
violations or defaults that would not result in a Trust Material
Adverse Effect.
1.2.5 BENEFICIAL INTEREST. The beneficial interest of the
Trust when issued will be duly authorized and, when registered in the
Securities Register (as defined in the Trust Agreement) in accordance
with the provisions of the Trust Agreement, will be a valid and legally
binding obligation of the Trust, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, conservatorship, receivership or similar
laws affecting creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
1.2.6 NO PROCEEDINGS. There is no action, suit, proceeding
or investigation pending of which the Trust has received notice or
service of process, or before or brought by any court or governmental
agency or body, or to the knowledge of the Trust threatened, against
the Trust or its assets which is required to be disclosed in the
Registration Statement and the Time of Sale Prospectus (other than as
disclosed therein).
1.3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Agent as of each Representation Date as follows:
1.3.1 DUE INCORPORATION, GOOD STANDING AND DUE QUALIFICATION
OF THE COMPANY AND SIGNIFICANT SUBSIDIARIES. The Company, and each
significant subsidiary (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the ▇▇▇▇ ▇▇▇) that is an operating
company, if any (each, a "SIGNIFICANT SUBSIDIARY"), is duly
incorporated and validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation with corporate
power and authority to own its properties and to conduct its business
as described in the Time of Sale Prospectus; each of the Company and
each Significant Subsidiary is duly qualified as a foreign corporation
to transact business and is in
24
good standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify would result in a
Company Material Adverse Effect (defined below). Since the respective
dates as of which information is given in the Registration Statement
and the Time of Sale Prospectus, except as otherwise stated therein,
there has been no event or occurrence that would reasonably be expected
to have a material adverse effect on the condition (financial or
otherwise) of the Company and its subsidiaries considered as one
enterprise or on the power or ability of the Company to perform its
obligations under any of the Issuance Documents or to consummate the
transactions to be performed by it as contemplated in the Time of Sale
Prospectus (a "COMPANY MATERIAL ADVERSE EFFECT").
1.3.2 REGISTRATION STATEMENT; PROSPECTUS; TIME OF SALE
PROSPECTUS; FREE WRITING PROSPECTUS. The Company meets the requirements
for use of Form S-3 under the ▇▇▇▇ ▇▇▇. The Company is not an
"ineligible issuer" as that term is defined in Rule 405 of the 1933 Act
Regulations (i) during any period beginning with the first BONA FIDE
offer of the Notes and ending on the Settlement Date (the "OFFERING
PERIOD"), and (ii) at any time other than during the Offering Period,
at the time of the use of a Free Writing Prospectus, if any. The
Registration Statement, filed with the Commission pursuant to the 1933
Act, as of the Initial Effective Date, did not and, as of any Note
Effective Date or Subsequent Effective Date, will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Each Prospectus filed with the Commission
pursuant to the 1933 Act and the 1933 Act Regulations, complied when so
filed in all material respects with the 1933 Act and the 1933 Act
Regulations. The Registration Statement, each Prospectus and each Time
of Sale Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the 1933 Act and
the 1933 Act Regulations. As of the Time of Sale, the Time of Sale
Prospectus, will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The Company makes no representations or warranties as
to (A) that part of the Registration Statement which shall constitute
the Statement of Eligibility (Form T-1) under the 1939 Act of the
Indenture Trustee or (B) any statements in or omissions from the
Registration Statement, any Prospectus or any Time of Sale Prospectus
made in reliance on and in conformity with written information provided
by the Agent(s) to the Trust or to the Company expressly for use in the
Registration Statement, any Prospectus, any Time of Sale Prospectus or
any amendment or supplement thereto.
1.3.3 COMPANY FINANCIAL STATEMENTS. The consolidated financial
statements (including the related notes but excluding the supporting
schedules) included or incorporated by reference in the Registration
Statement, the Prospectus and the Time of Sale Prospectus present
fairly in all material respects the consolidated financial position,
results of operations and cash flows of the
25
entities purported to be shown thereby, at the dates and for the
periods indicated and have been prepared in accordance with United
States generally accepted accounting principles applied on a consistent
basis throughout the periods indicated and conform in all material
respects with the 1933 Act, except as otherwise noted therein; and the
supporting schedules, selected financial data and the summary financial
data included or incorporated by reference in the Registration
Statement when considered in relation to such financial statements
taken as a whole, present fairly in all material respects the
information required to be stated therein.
1.3.4 AUTHORIZATION OF THE DISTRIBUTION AGREEMENT AND THE
FUNDING AGREEMENT. The Distribution Agreement has been, and the Funding
Agreement when issued will be, duly authorized, executed and delivered
by the Company and, assuming that each party to the Distribution
Agreement and the Funding Agreement, other than the Company, has duly
authorized executed and delivered such agreement, then the Distribution
Agreement and the Funding Agreement will each be a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except (A) as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law), (B) that no
representation or warranty is made with respect to the enforceability
of the indemnification and contribution provided for in Section 7
hereof and (C) that no representation or warranty is made with respect
to the enforceability of the Funding Agreement to the extent that the
source of the funds used by the Trust to purchase such Funding
Agreement renders such funds, or any property or investment acquired
with such funds, subject to governmental seizure or other penalty under
the USA Patriot Act.
1.3.5 NO PROCEEDINGS. There is no action, suit, proceeding or
investigation pending of which the Company has received notice or
service of process, or before or brought by any court or governmental
agency or body, or to the knowledge of the Company threatened, against
the Company which is required to be disclosed in the Registration
Statement or the Time of Sale Prospectus (other than as disclosed
therein).
1.3.6 ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any of its Significant Subsidiaries is in violation of the
provisions of its charter or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which
the Company or any of its Significant Subsidiaries is a party or by
which it or any of them may be bound or to which any of the property or
assets of the Company or any of its Significant Subsidiaries is subject
(collectively, "COMPANY AGREEMENTS AND INSTRUMENTS"), except for such
defaults that would not result in a Company Material Adverse Effect;
the execution, delivery and performance of
26
the Distribution Agreement, the Funding Agreement and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
in the Time of Sale Prospectus, the consummation of the transactions
contemplated in the Time of Sale Prospectus and the compliance by the
Company with its obligations thereunder have been duly authorized by
all necessary corporate action and do not and will not constitute a
breach, violation or default (A) which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or
any of its Significant Subsidiaries, or (B) of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties, except
for such breaches, violations or defaults under subsections (A) or (B)
immediately above that would not result in a Company Material Adverse
Effect; PROVIDED, that no representation or warranty is made with
respect to compliance with law of the Funding Agreement to the extent
that the source of the funds used by the Trust to purchase such Funding
Agreement renders such funds, or any property or investment acquired
with such funds, subject to governmental seizure or other penalty under
the USA Patriot Act.
1.3.7 LICENSES AND PERMITS. Each of the Company and the
Significant Subsidiaries has all necessary consents, licenses,
authorizations, approvals, exemptions, orders, certificates and permits
(collectively, the "COMPANY GOVERNMENTAL LICENSES") of and from, and
has made all filings and declarations (collectively, the "COMPANY
GOVERNMENTAL FILINGS") with, all Federal, state, local and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, necessary to own, lease, license and use
its properties and assets and to conduct its business in the manner
described in the Time of Sale Prospectus, except where the failure to
have such Company Governmental Licenses or to make such Company
Governmental Filings would not, individually or in the aggregate,
result in a Company Material Adverse Effect. All such Company
Governmental Licenses and Company Governmental Filings are in full
force and effect, except to the extent that any such failure to be in
full force and effect would not result, singly or in the aggregate, in
a Company Material Adverse Effect. The Company and the Significant
Subsidiaries are in compliance with such Company Governmental Licenses
and neither the Company nor any of the Significant Subsidiaries has
received any notice of any inquiry, investigation or proceeding that
would reasonably be expected to result in the suspension, revocation or
limitation of any such Company Governmental Licenses or otherwise
impose any limitation on the conduct of the business of the Company or
any of the Significant Subsidiaries, except as set forth in the Time of
Sale Prospectus or to the extent that any such failure to be in
compliance, suspension, revocation or limitation would not, singly or
in the aggregate, result in a Company Material Adverse Effect.
27
1.3.8 FILINGS AND REGULATORY APPROVALS. Other than as set
forth or contemplated in the Time of Sale Prospectus, no filing with or
approval, authorization, consent, license, registration, qualification,
order or decree of any governmental authority or agency, is necessary
or required for the issuance and sale of the Funding Agreement by the
Company, except such as have been previously made, obtained or
rendered, as applicable, and except such consents, approvals,
authorizations, registrations, qualifications, orders or decrees as may
be required under the 1933 Act or the 1939 Act or under state or
foreign securities or blue sky laws or any rules or regulations of any
securities exchange.
1.3.9 INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the Time of
Sale Prospectus will not be, required to register as an "investment
company" within the meaning of the 1940 Act.
1.3.10 RATINGS. The Company's financial strength rating is Aa3
by ▇▇▇▇▇'▇ and AA- by S&P, or such other rating as to which the Company
shall have most recently notified the Agent(s) pursuant to Section
2.3.5 hereof and set forth in the Omnibus Instrument. Except as
otherwise disclosed to the Agent(s) no public announcement has been
made by a Ratings Agency that it has under surveillance or review, with
possible negative implications, its rating of the financial strength of
the Company or has withdrawn its rating of the financial strength of
the Company.
1.3.11 ABSENCE OF DEFAULT UNDER THE FUNDING AGREEMENT. To the
Company's knowledge there exists no event or circumstance which does or
may (with the passing of time, the giving of notice, the making of any
determination or any combination thereof) be reasonably expected to
constitute an event of default under any outstanding funding agreement
issued in connection with the Registration Statement.
1.3.12 INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Time of Sale Prospectus,
at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations.
1.3.13 INDEPENDENT ACCOUNTANTS. The accountants who certified
the financial statements and any supporting schedules thereto included
in the Registration Statement and the Time of Sale Prospectus are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
1.3.14 CONFORMITY OF ISSUANCE DOCUMENTS. The statements
relating to the Issuance Documents contained in the Time of Sale
Prospectus conform and will conform in all material respects to the
Issuance
28
Documents and the Issuance Documents are substantially in the form
filed or incorporated by reference, as the case may be, as exhibits to
the Registration Statement, to the extent so filed or incorporated by
reference.
1.3 Any certificate signed by the Administrator or any authorized
officer of the Delaware Trustee and delivered to the Agent(s) or Sidley Austin
LLP, as legal counsel to the Agent(s), or any other legal counsel selected by
the Agent(s) (or the bookrunning lead manager(s), in the case of a syndicated
issue) to replace such previous legal counsel (the "AGENT APPROVED COUNSEL") in
connection with the sale of Notes to the Agent(s) shall be deemed a
representation and warranty by the Trust to such Agent(s) as to the matters
covered thereby on the date of such certificate. Any certificate signed by any
authorized officer of the Company and delivered to the Agent(s) or the Agent
Approved Counsel in connection with the sale of Notes to the Agent(s) shall be
deemed a representation and warranty by the Company to such Agent(s) as to the
matters covered thereby on the date of such certificate.
SECTION 2.
COVENANTS OF THE TRUST AND THE COMPANY
2.1 COVENANTS OF THE TRUST AND THE COMPANY. In further consideration of
the Agent's agreements herein contained, the Trust and the Company jointly and
severally covenant and agree with each Agent as follows:
2.1.1 PREPARATION OF PRICING SUPPLEMENTS. The Trust and the
Company will prepare a Pricing Supplement with respect to the Notes
sold to the Agent(s) in a form previously agreed to by the Agent(s).
The Trust and the Company will use their reasonable best efforts to
deliver such Pricing Supplement no later than 11:00 a.m., New York City
time, on the business day following the Time of Sale of such Notes and
will file such Pricing Supplement pursuant to the applicable
subparagraph of Rule 424(b) of the 1933 Act Regulations.
2.1.2 BLUE SKY QUALIFICATIONS. Subject to Section 3.9, below,
the Trust and the Company shall take reasonable efforts to establish
and maintain the qualification of the Notes for offer and sale under
the securities blue sky laws of such jurisdictions as the Agent(s) (or
the bookrunning lead manager(s), in the case of a syndicated issue)
shall reasonably request; PROVIDED, HOWEVER, that if either the Trust
or the Company, in its reasonable judgment, determines that such
qualification in a particular jurisdiction would cause an undue burden,
its sole obligation is to so advise the Agent(s) (or the bookrunning
lead manager(s), in the case of a syndicated issue); and PROVIDED
FURTHER, HOWEVER, that the Trust and the Company shall not be obligated
to file any general consent to service of process or to qualify as a
foreign corporation or a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not
otherwise so subject.
29
2.1.3 LISTING. The Trust and the Company, with the assistance
of the Agent(s) (or the bookrunning lead manager(s), in the case of a
syndicated issue), shall use reasonable efforts to obtain and maintain
approval for the listing of the Notes of at least one trust issued
pursuant to the Registration Statement on a national securities
exchange as defined in Section 18(a)(3)(B) of the 1933 Act until such
time as none of the notes issued pursuant to the Registration Statement
are outstanding.
2.1.4 DEPOSITORY TRUST COMPANY. The Trust and the Company
shall assist the Agent(s) in arranging to cause the Notes to be
eligible for settlement through the facilities of The Depository Trust
Company.
2.1.5 SECURITY INTEREST. As required by the Indenture, the
Trust pursuant to the Indenture, will create, in favor of the Indenture
Trustee, for the benefit of the holders of the Notes, a first priority
perfected security interest in the Collateral (as defined in the
Indenture), under New York law or the law of such other applicable
jurisdiction whose law governs such perfection, non-perfection or
priority.
2.2 COVENANTS OF THE TRUST. In further consideration of the Agent's
agreements herein contained, the Trust covenants and agrees with each Agent as
follows:
2.2.1 NOTICE OF AMENDMENT TO THE INDENTURE OR THE TRUST
AGREEMENT. The Trust will give the Agent(s) at least seven (7) days'
prior notice in writing of any proposed amendment to the Indenture or
the Trust Agreement and, except in accordance with the applicable
provisions of the Indenture or the Trust Agreement, not make or permit
to become effective any amendment to the Indenture or the Trust
Agreement.
2.2.2 AUTHORIZATION TO ACT ON BEHALF OF THE TRUST. The Trust
will, from time to time, after receiving a written request from an
Agent, deliver to the Agent(s) a certificate as to the names and
signatures of those persons authorized to act on behalf of the Trust in
relation to the Program if such information has changed.
2.2.3 USE OF PROCEEDS. The Trust will use the net proceeds
received by it from the issuance and sale of the Notes in the manner
specified in the Time of Sale Prospectus.
2.2.4 NOTICE OF MEETINGS. The Trust will furnish to the
Agent(s), at the same time as it is dispatched, a copy of any notice of
any meeting of the holders of Notes which is called to consider any
matter which is material in the context of the Trust.
30
2.3 COVENANTS OF THE COMPANY. In further consideration of the Agent's
agreements herein contained, the Company covenants and agrees with each Agent as
follows:
2.3.1 FILING OR USE OF AMENDMENTS. The Company will give the
Agent(s) advance notice of their intention to file or prepare any
additional registration statement with respect to the registration of
additional notes to be issued pursuant to the Registration Statement,
any amendment or supplement to the Registration Statement or any
amendment or supplement to the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus or the
Time of Sale Prospectus (other than an amendment or supplement thereto
providing solely for the determination of the variable terms of the
notes to be issued pursuant to the Registration Statement), whether
pursuant to the 1933 Act the 1934 Act, or otherwise, will furnish to
the Agent(s) copies of any such document a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will
afford the Agent Approved Counsel a reasonable opportunity to comment
on any such proposed filing prior to such proposed filing.
2.3.2 DELIVERY OF THE REGISTRATION STATEMENT. The Company will
furnish to the Agent(s) and Agent Approved Counsel, without charge, one
conformed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed
to be incorporated by reference therein) and copies of all consents and
certificates of experts. The Registration Statement and each amendment
thereto furnished to an Agent will be identical in all material
respects to any electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
2.3.3 DELIVERY OF THE PROSPECTUS AND THE TIME OF SALE
PROSPECTUS. The Company will deliver to each Agent, without charge, as
many copies of any Preliminary Prospectus as such Agent may reasonably
request, and the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Company will furnish to each
Agent, without charge, such number of copies of the Time of Sale
Prospectus (as amended or supplemented) as such Agent may reasonably
request. It is hereby acknowledged that the Company intends to rely on
the provisions of Rule 172 of the 1933 Act Regulations with respect to
delivery of the Prospectus. The Company will furnish to each Agent,
without charge, such number of copies of the Prospectus (as amended or
supplemented) as such Agent may reasonably request to meet its
obligations under the 1933 Act and the 1933 Act Regulations. The
Prospectus and any amendments or supplements thereto furnished to such
Agent will be identical in all material respects to any electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
31
2.3.4 REVISIONS OF PROSPECTUS; MATERIAL CHANGES. If at any
time when the delivery of the Prospectus shall be required by law in
connection with the sale of the Notes, in the opinion of Agent Approved
Counsel, counsel for the Company or counsel for the Trust, either (A)
any event shall have occurred as a result of which the Registration
Statement or the Prospectus, as then amended or supplemented, would
include any untrue statement of a material fact, or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading
or (B) for any other reason it shall be necessary to amend or
supplement the Registration Statement or the Prospectus, as then
amended or supplemented, in order to comply with the 1933 Act or the
1933 Act Regulations, as applicable, the Company will (1) notify the
Agent(s) to suspend the solicitation of offers to purchase Notes and if
notified by the Company, the Agent(s) shall forthwith suspend such
solicitation and cease using the Prospectus as then amended or
supplemented and (2) promptly prepare and file with the Commission such
amendment or supplement to the Registration Statement or the Prospectus
which will correct such statement or omission or effect such compliance
and will provide to the Agent(s) without charge a reasonable number of
copies thereof, which the Agent(s) shall use thereafter.
2.3.5 NOTICE OF CERTAIN EVENTS. The Company will notify the
Agent(s) promptly (but in no event later than one business day), and
confirm such notice in writing, as applicable, of (A) with respect to
its filings with the Commission under the 1934 Act, (i) the
effectiveness of any post-effective amendment to the Registration
Statement or the filing of any amendment or supplement to the
Prospectus (other than any amendment or supplement thereto providing
solely for the determination of the variable terms of notes offered
pursuant to the Registration Statement), (ii) the receipt of any
comments from the Commission during the period commencing on and
including the Time of Sale continuing to and including the Settlement
Date, with respect to the Registration Statement, the Prospectus or the
Time of Sale Prospectus, (iii) any request by the Commission for any
amendments to such filings or for additional information, (iv) the
issuance by the Commission or any state of any stop order or trading
suspension which suspends the effectiveness of such filings, or of the
initiation of any proceedings for that purpose or (v) any action
whereby the Company becomes the subject of a proceeding under Section
8A of the 1933 Act or any proceeding in connection with the offering of
the Notes or (B) any change in the rating assigned by any Ratings
Agency to any debt securities or financial strength of the Company, the
Program, the Notes or any notes offered pursuant to the Registration
Statement or the withdrawal by any Ratings Agency of its rating of any
debt securities or the financial strength of the Company, the Program,
the Notes or any notes offered pursuant to the Registration Statement.
The Company will use reasonable best efforts to prevent the issuance of
any stop order and, if any stop order is issued, to obtain the lifting
thereof unless, in the reasonable judgment of the Company, such effort
is not warranted.
32
2.3.6 OUTSTANDING AGGREGATE PRINCIPAL AMOUNT OF NOTES. The
Company will promptly (but in no event later than one business day),
upon request by an Agent, notify such Agent of the aggregate principal
amount of notes issued pursuant to the Registration Statement from time
to time outstanding under the Program in their currency of denomination
and (if so requested) expressed in United States dollars. For the
purpose of determining the aggregate principal amount of such notes
outstanding (A) the principal amount of notes issued pursuant to the
Registration Statement, denominated in a currency other than United
States dollars shall be converted into United States dollars using the
spot rate of exchange for the purchase of the relevant currency against
payment of United States dollars being quoted by the Paying Agent (as
defined in the Indenture) on the date on which the relevant notes
issued pursuant to the Registration Statement were initially offered,
(B) any notes issued pursuant to the Registration Statement which
provide for an amount less than the principal amount thereof to be due
and payable upon redemption following an Event of Default as defined in
the Indenture in respect of such notes, shall have a principal amount
equal to their redemption amount, (C) any zero coupon (and any other
notes issued pursuant to the Registration Statement issued at a
discount or premium) shall have a principal amount equal to their price
to the public and (D) the currency in which any notes issued pursuant
to the Registration Statement are payable, if different from the
currency of their denomination, shall be disregarded.
2.3.7 EARNINGS STATEMENT. The Company will file such reports
pursuant to the 1934 Act and the 1934 Act Regulations, as are necessary
in order to make generally available to its security holders as soon as
practicable an earning statement within the meaning of Rule 158 under
the 1933 Act Regulations for the purposes of, and to provide the
benefits contemplated by the last paragraph of Section 11(a) of the
1933 Act.
2.3.8 1933 ACT AND 1934 ACT REPORTING REQUIREMENTS. The
Company, during the Offering Period, will file all documents required
to be filed with the Commission pursuant to the 1933 Act and the 1934
Act within the time periods prescribed by the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations,
respectively.
2.3.9 AUTHORIZATION TO ACT ON BEHALF OF THE COMPANY. The
Company will, from time to time, after receiving a written request from
an Agent, deliver to the Agent(s) a certificate as to the names and
signatures of those persons authorized to act on behalf of the Company
in relation to the Program if such information has changed.
2.3.10 USE OF PROCEEDS. The Company will use the net proceeds
received by it from the issuance and sale of the Funding Agreement in
the manner specified in the Time of Sale Prospectus.
33
2.3.11 RESTRICTIONS ON ISSUANCE OF FUNDING AGREEMENTS. The
Company shall not issue or agree to issue, during the period commencing
on the date of the Distribution Agreement and continuing to and
including the Settlement Date with respect to the Notes, any funding
agreement or similar agreement for the purpose of supporting the
issuance by a special purpose entity of securities denominated in the
same currency or substantially similar to the Notes, in each case,
without the prior written consent of the Agent(s).
2.3.12 REVISIONS OF TIME OF SALE PROSPECTUS. If any event
shall occur or condition shall exist as a result of which it is
necessary, in the opinion of Agent Approved Counsel, counsel for the
Company or counsel for the Trust, to amend or supplement the Time of
Sale Prospectus being used to solicit offers to buy Notes in writing in
order that such Time of Sale Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary, in the opinion of such counsel, to amend or
supplement such Time of Sale Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company
shall give immediate notice, confirmed in writing, to each of the
applicable Agents, and the Company will promptly prepare and, if
applicable, file with the Commission, subject to Section 2.3.1 hereof,
such amendment or supplement as may be necessary to correct such
statement or omission or to make such Time of Sale Prospectus comply
with such requirements and the Company will furnish to the applicable
Agents, without charge, such number of copies of such amendment or
supplement as the applicable Agents may reasonably request.
2.4 SUSPENSION OF CERTAIN OBLIGATIONS. After the completion of the
distribution of Notes by the Agent(s), the Company and the Trust, as applicable,
shall not be required to comply with the provisions of Section 2.3.3, Section
2.3.4 or Section 2.3.5.
SECTION 3.
APPOINTMENT OF AGENTS; PURCHASES OF NOTES
3.1 APPOINTMENT. Subject to the terms and conditions stated herein, the
Trust and Company hereby agree that the Notes will be sold to the Agent(s) as
principal pursuant to the terms of the Distribution Agreement. The Trust and the
Company agree that, other than the Purchasing Agent pursuant to Section 3.5
hereof, each will not appoint any other agents, dealers or underwriters in
connection with the placement of the Notes.
3.2 ARM'S-LENGTH TRANSACTION. Each of the Company and the Trust
acknowledge and agree that (i) the purchase and sale of Notes pursuant to the
Distribution Agreement, including the determination of the public offering price
of the Notes and any related discounts and commissions, is an arm's-length
commercial transaction between each of the Company and the Trust, on the one
hand, and the Purchasing Agent and/or Agent(s),
34
on the other hand, (ii) in connection with the offering contemplated hereby and
the process leading to such transaction the Purchasing Agent and each Agent is
and has been acting solely as a principal and is not the agent or fiduciary of
the Company, the Trust or any of their respective employees, (iii) neither the
Purchasing Agent, nor any Agent has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company or the Trust with respect to
the offering contemplated hereby or the process leading thereto (irrespective of
whether such Purchasing Agent or Agent has advised or is currently advising the
Company or the Trust on other matters) and neither the Purchasing Agent nor any
Agent has any obligation to the Company or the Trust with respect to any
offering contemplated hereby except the obligations expressly set forth in the
Distribution Agreement or the Omnibus Instrument, (iv) the Purchasing Agent, the
Agent(s) and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company and
the Trust, and (v) the Purchasing Agent and the Agent(s) have not provided any
legal, accounting, regulatory or tax advice with respect to any offering
contemplated hereby and the Company and the Trust have consulted their own
legal, accounting, regulatory and tax advisors to the extent they deemed
appropriate.
3.3 RETAIL NOTES. In connection with the issuance of notes described in
the prospectus supplement for the Hartford Life Global Funding IncomeNotes(sm)
program (the "RETAIL NOTES") as amended and supplemented and included in the
Registration Statement, such Retail Notes shall be issued and sold only to the
Purchasing Agent, as principal. All issuances and sales of Retail Notes to the
Purchasing Agent shall be subject to the terms of the Distribution Agreement,
unless the Trust, the Company and the Purchasing Agent otherwise agree in
writing.
3.4 INSTITUTIONAL NOTES. In connection with the issuance of notes
described in the prospectus supplement for the Hartford Life Global Funding
Secured Medium-Term Note program (the "INSTITUTIONAL NOTES"), as amended and
supplemented and included in the Registration Statement, nothing in the
Distribution Agreement shall be construed to limit or restrict the ability of
the Trust to issue and sell Institutional Notes directly to any Agent or to any
other underwriter pursuant to a distribution agreement other than the
Distribution Agreement; PROVIDED, that the terms of such other distribution
agreement shall be no more favorable to such underwriter than the Distribution
Agreement.
3.5 PURCHASES AS PRINCIPAL. The sale of the Notes to an Agent shall be
made in accordance with the terms of the Distribution Agreement. The agreement
of the Agent(s) to purchase Notes shall be deemed to have been made on the basis
of the representations, warranties, covenants and agreements of the Trust and
the Company herein contained and shall be subject to the terms and conditions
herein set forth. In connection with the resale of the Notes purchased, without
the consent of the Trust and Company, Agents are not authorized to appoint
sub-agents or to engage the service of any other broker or dealer; PROVIDED,
HOWEVER, that in connection with the resale of the Retail Notes, the Purchasing
Agent may appoint any sub-agent or engage the service of any other broker or
dealer without the consent of the Trust or the Company, so long as any such
broker or dealer
35
engaged has entered into a Master Selected Dealer Agreement substantially in the
form attached hereto as Exhibit A.
3.6 PURCHASES AT DISCOUNT. Unless otherwise specified in the
Distribution Agreement, each purchase of Retail Notes by the Purchasing Agent
shall be at a discount from the principal amount of each such Retail Note
equivalent to the applicable percentage set forth in Schedule 1 hereto. Unless
otherwise specified in the Distribution Agreement, each purchase of
Institutional Notes by any Agent shall be at a discount from the principal
amount of each such Institutional Note equivalent to the applicable percentage
set forth in Schedule 2 hereto.
3.7 ACTION BY TRUST OR COMPANY. The Agent(s) are aware that other than
registering the Notes under the 1933 Act, the filing of required reports under
the 1934 Act and the actions required pursuant to Section 2.1.3, no action has
been or will be taken by the Trust or the Company that would permit the offer or
sale of the Notes or the possession or distribution of the Prospectus or any
other offering material relating to the Notes in any jurisdiction where action
for that purpose is required.
3.8 AGGREGATE OFFERING LIMITATION. The Company shall not issue funding
agreements to trusts organized under the Program to support the issuance of
notes with an aggregate initial offering price in excess of the aggregate
initial offering price of notes registered pursuant to the Registration
Statement. The Agent(s) shall have no responsibility for maintaining records
with respect to the aggregate initial offering price of notes sold, and of
otherwise monitoring the availability of notes for sale, under the Registration
Statement.
3.9 ACKNOWLEDGEMENT. The Company, the Trust and each Agent acknowledge
that they understand that (A) the form of the Funding Agreement has only been
filed and approved by the Insurance Departments in the State of Connecticut and
the State of Delaware, (B) the Notes have not been registered as securities
under any state's securities laws, in reliance on the exemption set forth in
Section 18 of the 1933 Act, and if the Trust, the Company or any Agent learns of
any action by any state's insurance or securities regulatory body (or of any
change in state insurance laws or regulations) which creates a material risk
that the sale of Notes in such state may violate the insurance or securities
laws of such state, the Trust or the Company shall advise Agents of such risks
and may direct the Agent(s) to cease all sales of Notes in the affected states
and, absent such direction, any Agent may elect to cease sales of Notes in any
or all affected states, PROVIDED, that such Agent shall notify the Company and
the Trust of such election, and (C) the Company and the Trust instruct the
Agent(s) to solicit offers to purchase Notes only as permitted or contemplated
in the Prospectus or in the Distribution Agreement and as permitted by the 1933
Act and the applicable securities laws or regulations of any jurisdiction.
3.10 ADMINISTRATIVE PROCEDURES. Administrative procedural details
relating to the issuance and delivery of the Notes, and related matters, may be
set forth in written administrative procedures (the "ADMINISTRATIVE PROCEDURES")
agreed to and accepted by
36
the parties to the Issuance Documents. If previously so agreed to and accepted,
such Administrative Procedures shall apply to the transactions contemplated
hereunder and shall serve to define the administrative agreements of the
parties. Notwithstanding the foregoing, if the terms of the Administrative
Procedures conflict in any manner with the terms of any Issuance Document, as to
such conflicting term, the relevant Issuance Document shall govern.
3.11 MISCELLANEOUS. For purposes of the Distribution Agreement (other
than Section 3.2 and Section 3.3), all references to Notes shall be deemed to
include the Retail Notes and the Institutional Notes.
SECTION 4.
FREE WRITING PROSPECTUSES
4.1 FINAL TERM SHEET. (A) The Company covenants and agrees to (1)
review and (subject to such changes deemed appropriate by the Company and the
Agent(s)) approve, at the reasonable request of the Agent(s) in connection with
the offer and sale of Institutional Notes, a final term sheet prepared by the
Agent(s) (as so approved, the "FINAL TERM SHEET") reflecting the final terms of
such Notes, and (2) file such Final Term Sheet pursuant to Rule 433 of the 1933
Act Regulations and (B) if the Notes are Institutional Notes, the Agent(s)
covenant and agree to convey the Final Term Sheet to the purchasers of such
Institutional Notes prior to the Time of Sale.
4.2 DELIVERY AND USE OF FREE WRITING PROSPECTUSES BY AGENTS. In
connection with the offer and sale of the Notes, each Agent covenants and agrees
that, except as otherwise provided in the Distribution Agreement, it will
furnish the Company with each proposed Free Writing Prospectus, other than a
Free Writing Prospectus including only information set forth in a Final Term
Sheet filed pursuant to Rule 433 of the 1933 Act Regulations, that (i) is
required to be filed pursuant to Rule 433(d) of the 1933 Act Regulations or (ii)
is or will be a part of the Time of Sale Prospectus relating to or to be used in
connection with the offer and sale of the Notes to be prepared by or on behalf
of such Agent before its first use and will not use any such Free Writing
Prospectus to which the Company objects. It is understood that an Agent's
obligation to furnish any such form shall be deemed satisfied if another Agent
has so furnished such form. Each Agent covenants and agrees that it will use a
Free Writing Prospectus prepared by or on behalf of such Agent only if such Free
Writing Prospectus complies with the requirements of the 1933 Act and the 1933
Act Regulations.
4.3 FREE WRITING PROSPECTUSES OF THE COMPANY AND THE TRUST. In
connection with the offer and sale of the Notes, each of the Company and the
Trust represents, warrants, covenants and agrees that, without the prior consent
of the Agent(s), it has not made and will not make any offer relating to the
Notes or the related Funding Agreement that would constitute a Free Writing
Prospectus required to be filed pursuant to Rule 433 of the 1933 Act Regulations
except for any Final Term Sheet or as identified to the
37
Agents in writing; PROVIDED that to the extent that no Agent is involved in an
offer and sale of any Series of Notes, no such prior consent shall be required.
4.4 DISTRIBUTION OF FREE WRITING PROSPECTUSES. Each Agent covenants and
agrees that it will not distribute any Free Writing Prospectus used or referred
to by such Agent in a manner reasonably designed to lead to its broad
unrestricted dissemination; provided, that such covenant and agreement shall not
apply to any such Free Writing Prospectus forming part of the Time of Sale
Prospectus or any such Free Writing Prospectus approved by the Company for broad
unrestricted dissemination.
4.5 NO CONFLICTING INFORMATION. In connection with the offer and sale
of the Notes, any Free Writing Prospectus (i) that is required to be filed
pursuant to Rule 433(d) of the 1933 Act Regulations (including any Final Term
Sheet), (ii) that is or will be a part of the Time of Sale Prospectus relating
to or to be used in connection with such offer and sale of the Notes or (iii)
the use of which has been consented to by the applicable Agent(s) pursuant to
Section 4.3 hereof is referred to herein as a "PERMITTED FREE WRITING
PROSPECTUS". Each of the Company and the Trust represents, warrants, covenants
and agrees that each Permitted Free Writing Prospectus, as of its first date of
use and at all subsequent times through the completion of the public offer and
sale of the Notes or until any earlier date that the issuer of such Permitted
Free Writing Prospectus notified or gives notice to the Agent(s) in accordance
with Section 4.6 hereof, did not and does not include any information that
conflicted or conflicts with the information contained in the Registration
Statement, the applicable Time of Sale Prospectus or the Prospectus; provided,
however, that no representation, warranty, covenant or agreement is made with
respect to information contained in or omissions from such Permitted Free
Writing Prospectus based upon and in conformity with written information
furnished to the Company by the applicable Agent(s) specifically for use
therein. Each Agent represents, warrants, covenants and agrees that it shall not
prepare and disseminate any Free Writing Prospectus that contains information
that conflicts with the information contained in the Registration Statement, the
applicable Time of Sale Prospectus or the applicable Prospectus.
4.6 FURTHER ASSURANCES. Each of the Company and the Trust covenants and
agrees that if at any time following issuance of a Permitted Free Writing
Prospectus any event or development occurred or occurs as a result of which such
Permitted Free Writing Prospectus conflicted or conflicts with the information
in the Registration Statement, any applicable Time of Sale Prospectus or the
Prospectus or included or includes an untrue statement of a material fact or
omitted or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, the Company will give prompt notice thereof to the
Agent(s) and, if requested by the Agent(s), will prepare and furnish without
charge to each Agent a Permitted Free Writing Prospectus or other document that
will correct such conflict, statement or omission. In the event that such
conflict, misstatement or omission is based upon and in conformity with written
information furnished to the Company by the applicable Agent(s) specifically for
use therein, the applicable Agent(s) shall use
38
reasonable best efforts to assist the Company in updating such previously
furnished written information.
4.7 COPIES. The Company will deliver to each Agent, without charge,
such number of copies of each Free Writing Prospectus prepared by or on behalf
of or used or referred to by the Company as each such Agent may reasonably
request. To the extent applicable, each such document furnished to the Agent(s)
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
SECTION 5.
CONDITIONS OF AGENT'S OBLIGATIONS
Each Agent's obligations hereunder are subject to the following
conditions:
5.1 OPINIONS. On the Settlement Date for the first notes issued under
the Program (the "Initial Settlement Date") and, if applicable, on the first
Settlement Date following each anniversary of the Initial Settlement Date,
except as otherwise indicated in the Distribution Agreement or otherwise agreed
among the Company, the Trust and the Agent(s), the Company and the Trust shall
have made available to the Agent(s) or the Agent(s) shall have received the
following legal opinions, dated as of such Settlement Date and in form and
substance satisfactory to the Agent(s) (which shall be the bookrunning lead
manager(s) in the case of a syndicated issue):
5.1.1 OPINION OF INTERNAL COUNSEL FOR THE COMPANY. The opinion
of Internal Counsel for the Company to the effect set forth in Exhibit
B hereto and to such further effect as the Agent(s) may reasonably
request;
5.1.2 OPINION OF COUNSEL FOR THE COMPANY CONCERNING CERTAIN
CONNECTICUT INSOLVENCY MATTERS. The opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
Connecticut counsel for the Company or other external counsel
reasonably satisfactory to the Agent(s) (or the bookrunning lead
manager(s), in the case of a syndicated issue) to the effect set forth
in Exhibit C hereto and to such further effect as the Agent(s) may
reasonably request;
5.1.3 OPINION OF AGENT APPROVED COUNSEL CONCERNING CERTAIN
FEDERAL SECURITIES MATTERS. The opinion of Agent Approved Counsel to
the effect set forth in Exhibit D hereto and to such further effect as
the Agent(s) may reasonably request;
5.1.4 OPINION OF AGENT APPROVED COUNSEL CONCERNING CERTAIN NEW
YORK LAW MATTERS. The opinion of Agent Approved Counsel to the effect
set forth in Exhibit E hereto and to such further effect as the
Agent(s) may reasonably request;
39
5.1.5 OPINION OF AGENT APPROVED COUNSEL CONCERNING CERTAIN NEW
YORK SECURITY INTEREST MATTERS. The opinion of Agent Approved Counsel
to the effect set forth in Exhibit F hereto and to such further effect
as the Agent(s) may reasonably request;
5.1.6 OPINION OF AGENT APPROVED COUNSEL CONCERNING CERTAIN TAX
MATTERS. The opinion of Agent Approved Counsel to the effect set forth
in Exhibit G hereto and to such further effect as the Agent(s) may
reasonably request;
5.1.7 MEMORANDUM OF AGENT APPROVED COUNSEL CONCERNING CERTAIN
INSURANCE MATTERS. The memorandum of Agent Approved Counsel to the
effect set forth in Exhibit H hereto and to such further effect as the
Agent(s) may reasonably request; PROVIDED, that this memorandum shall
only be issued on September 9, 2004;
5.1.8 OPINION OF AGENT APPROVED COUNSEL CONCERNING CERTAIN
INSURANCE MATTERS. The opinion of Agent Approved Counsel to the effect
set forth in Exhibit I hereto and to such further effect as the
Agent(s) may reasonably request; PROVIDED, that this opinion shall only
be issued on September 9, 2004;
5.1.9 OPINION OF COUNSEL FOR THE TRUST. The opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A. or other external counsel reasonably
satisfactory to the Agent(s) (or the bookrunning lead manager(s), in
the case of a syndicated issue), as counsel for the Trust, to the
effect set forth in Exhibit J hereto and to such further effect as the
Agent(s) may reasonably request;
5.1.10 OPINION OF COUNSEL FOR THE DELAWARE TRUSTEE. The
opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A. or other external counsel
reasonably satisfactory to the Agent(s) (or the bookrunning lead
manager(s), in the case of a syndicated issue), as counsel for the
Delaware Trustee, to the effect set forth in Exhibit K hereto and to
such further effect as the Agent(s) may reasonably request;
5.1.11 OPINION OF COUNSEL FOR THE TRUST CONCERNING DELAWARE
SECURITY INTEREST MATTERS. The opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
P.A. or other external counsel reasonably satisfactory to the Agent(s)
(or the bookrunning lead manager(s), in the case of a syndicated
issue), as counsel for the Delaware Trustee, to the effect set forth in
Exhibit L hereto and to such further effect as the Agent(s) may
reasonably request;
5.1.12 OPINION OF COUNSEL FOR THE ADMINISTRATOR. The opinion
of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Syracuse & Hirschtritt LLP or other external
counsel reasonably satisfactory to the Agent(s) (or the bookrunning
lead manager(s), in the case of a syndicated issue), as counsel for the
Administrator, to the effect set forth in Exhibit M hereto and to such
further effect as the Agent(s) may reasonably request;
40
5.1.13 OPINION OF COUNSEL FOR THE INDENTURE TRUSTEE. The
opinion of Cravath, Swaine & ▇▇▇▇▇ LLP or other external counsel
reasonably satisfactory to the Agent(s) (or the bookrunning lead
manager(s), in the case of a syndicated issue), as counsel for the
Indenture Trustee, to the effect set forth in Exhibit N hereto and to
such further effect as the Agent(s) may reasonably request.
5.2 NEGATIVE ASSURANCES. On the Initial Settlement Date, on each date
preceding the Settlement Date specified in Section 6.3 hereof, if applicable,
or, in the case of an issuance of Institutional Notes, upon the request of the
Agent(s) (which shall be the bookrunning lead manager(s) in the case of a
syndicated issue) on the Settlement Date, unless otherwise agreed, the Agent(s)
shall have received the following negative assurances, dated as of the date
thereof and in form and substance satisfactory to the Agent(s) (which shall be
the bookrunning lead manager(s) in the case of a syndicated issue and the
Purchasing Agent in the case of an issue of Retail Notes):
5.2.1 NEGATIVE ASSURANCE OF COMPANY APPROVED COUNSEL. The
negative assurance letter of Company Approved Counsel (as defined
below) to the effect set forth in Exhibit O hereto; and
5.2.2 NEGATIVE ASSURANCE OF AGENT APPROVED COUNSEL. The
negative assurance letter of Agent Approved Counsel to the effect set
forth in Exhibit P hereto.
5.3 COMPANY CERTIFICATE. Unless otherwise agreed, on the Settlement
Date the Agent(s) shall have received a certificate of a vice president of the
Company with responsibility for the funding agreement business dated as of the
date thereof to the effect that (A) to the best of such vice president's
knowledge, there has been no material adverse change in the condition, financial
or otherwise, of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (B) the
representations and warranties of the Company herein contained are true and
correct with the same force and effect as though expressly made at and as of the
date of such certificate, (C) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date of such certificate (except to the extent that such non-compliance has
no material effect on the Company's ability to perform the transactions
contemplated by the Distribution Agreement and the Time of Sale Prospectus) and
(D) no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted, are
pending or, to the best of such person's knowledge, are threatened by the
Commission.
5.4 TRUST CERTIFICATE. Unless otherwise agreed, on the Settlement Date
the Agent(s) shall have received a certificate of an officer of the
Administrator dated as of the date thereof to the effect that (A) to the best of
such officer's knowledge, there has been no material adverse change in the
condition, financial or otherwise, of the Trust, whether or not arising in the
ordinary course of business, (B) the representations and warranties of the Trust
herein contained are true and correct with the same force and
41
effect as though expressly made at and as of the date of such certificate, (C)
the Trust has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the date of such certificate
(except to the extent that such non-compliance has no material effect on the
Trust's ability to perform the transactions contemplated by the Distribution
Agreement and the Time of Sale Prospectus) and (D) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted, are pending or, to the best of such
person's knowledge, are threatened by the Commission.
5.5 COMFORT LETTER. On the Initial Settlement Date, on each date
preceding the Settlement Date specified in Section 6.4 hereof, if applicable,
or, in the case of an issuance of Institutional Notes, upon the request of the
Agent(s) (or the bookrunning lead manager(s), in the case of a syndicated issue)
on the Settlement Date, unless otherwise agreed, the Agent(s) shall have
received a letter from Deloitte & Touche or its successor, as accountants to the
Company (the "ACCOUNTANTS"), dated as of the date thereof and in form and
substance satisfactory to the Agent(s) (or the bookrunning lead manager(s), in
the case of a syndicated issue) to the effect set forth in Exhibit Q hereto.
5.6 CONDITIONS TO PURCHASE. The obligations of the Agent(s) to purchase
Notes as principal under the Distribution Agreement are further subject to the
conditions (A) of the accuracy of the representations and warranties, as of the
date on which such representations and warranties were made or deemed to be made
pursuant to Section 1 on the part of the Company and Trust, herein contained or
contained in any certificate of an officer or trustee of the Company or Trust,
respectively, delivered pursuant to the provisions hereof and the performance
and observance by each of the Trust and the Company of its covenants and other
obligations hereunder and (B) that the Registration Statement has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or by any
state, and no proceedings for such purpose shall have been instituted or shall
be pending or, to the knowledge of the Company or the Trust, threatened by the
Commission or any state and any request on the part of the Commission or any
state for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Agent(s).
5.7 NECESSARY DOCUMENTS. Each time the Registration Statement, the
Prospectus, the Institutional Prospectus or the IncomeNotes(sm) Prospectus shall
be amended or supplemented (other than by a pricing supplement) by the filing of
a post-effective amendment with the Commission, including the filing by the
Company of a Form 10-K or Form 10-Q under the Exchange Act, or, if so agreed in
the Distribution Agreement, the Company shall furnish Agent Approved Counsel
with such documents and opinions as may reasonably be required for the purpose
of enabling such Agent Approved Counsel to pass upon the issuance and sale of
Notes as herein contemplated, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment of
any of the conditions, contained herein; and all proceedings taken by the
Company and the Trust in connection with the issuance and sale of Notes as
herein
42
contemplated shall be reasonably satisfactory in form and substance to the
Agent(s) and Agent Approved Counsel.
5.8 FAILURE TO SATISFY CONDITIONS. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the Distribution Agreement may be terminated by any Agent (as to itself only) by
notice to the Company and the Trust at any time and any such termination shall
be without liability of any party to any other party except as provided in
Section 12 hereof and except that Section 7, Section 8.2, Section 10 and Section
11 hereof shall survive any such termination and remain in full force and
effect.
SECTION 6.
REGISTRATION STATEMENT AMENDMENTS; COMPANY PERIODIC REPORTS
6.1 AFFIRMATION OF REPRESENTATIONS AND WARRANTIES. The execution of the
Distribution Agreement and the delivery of the Notes to an Agent shall be deemed
to be an affirmation that the representations and warranties of the Trust and
the Company made to the Agent(s) and in any certificate theretofore delivered
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the Agent(s) of the Notes
relating to such acceptance or sale as though made at and as of each such time
(and it is understood that such representations and warranties shall relate to
the Registration Statement, the Prospectus and the Time of Sale Prospectus as
amended and supplemented to each such time).
6.2 SUBSEQUENT DELIVERY OF COMPANY CERTIFICATE AND TRUST CERTIFICATE.
In the event that:
6.2.1 the Registration Statement, the Institutional Prospectus
or the IncomeNotes(sm) Prospectus has been amended or supplemented
(other than (a) by an amendment or supplement providing solely for the
determination of the variable terms of the notes issued pursuant to the
Registration Statement or (b) in connection with the filing of any
report under Section 13 or 15(d) of the ▇▇▇▇ ▇▇▇) (each, a
"REGISTRATION STATEMENT AMENDMENT"), or
6.2.2 the Company has filed, pursuant to the 1934 Act, its
quarterly report on Form 10-Q or annual report on Form 10-K, as the
case may be (each, a "COMPANY PERIODIC REPORT"),
then each of the Company and the Trust shall furnish or cause to be
furnished to the Agent(s) promptly upon such Registration Statement
Amendment or Company Periodic Report, as applicable, a certificate
dated the date of filing or effectiveness of the Registration Statement
Amendment, as applicable, or the date of the Company Periodic Report,
as the case may be, in a form reasonably
43
satisfactory to the Agent(s) to the effect that the statements
contained in the certificates respectively referred to in Section 5.2
and Section 5.3 hereof which were last furnished to the Agent(s) are
true and correct in all material respects at the date of filing or
effectiveness of the Registration Statement Amendment, as applicable,
or the date of the Company Periodic Report, as the case may be, as
though made at and as of such date or, in lieu of such certificate, a
certificate of substantially the same tenor as the certificates
referred to in Section 5.2 and Section 5.3 hereof, modified as
necessary to relate to the Registration Statement Amendment or Company
Periodic Report to the date of delivery of such certificate.
6.3 SUBSEQUENT DELIVERY OF NEGATIVE ASSURANCES. In the event of:
6.3.1 a Registration Statement Amendment, or
6.3.2 a Company Periodic Report,
then the Company and the Trust shall furnish or cause to be furnished to the
Agent(s), promptly upon such Registration Statement Amendment or Company
Periodic Report, as the case may be, the negative assurance of external counsel
selected by the Company and reasonably satisfactory to the Agent(s) or internal
legal counsel to the Company which shall be at least an Associate Counsel to the
Company (in either case, the "COMPANY APPROVED COUNSEL") and the negative
assurance of Agent Approved Counsel, each dated the date of filing or
effectiveness of such Registration Statement Amendment, as applicable, or the
date of the Company Periodic Report, as the case may be, in form and substance
satisfactory to the Agent(s), of substantially the same tenor as the negative
assurances referred to in Section 5.2.1 and Section 5.2.2 hereof, respectively,
but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such negative
assurance or, in lieu of such negative assurance, counsel last furnishing such
negative assurance to the Agent(s) shall furnish such Agent(s) with a letter
substantially to the effect that the Agent(s) may rely on such last negative
assurance to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last negative assurance
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter authorizing
reliance).
6.4 SUBSEQUENT DELIVERY OF COMFORT LETTER. In the event of:
6.4.1 a Registration Statement Amendment, or
6.4.2 a Company Periodic Report,
then the Company shall cause the Accountants forthwith to furnish to the
Agent(s), promptly upon such Registration Statement Amendment or Company
Periodic Report, as the case may be, a letter, dated the date of filing or
effectiveness of such Registration
44
Statement Amendment, as applicable, or the date of the Company Periodic Report,
as the case may be, in form reasonably satisfactory to the Agent(s), of
substantially the same tenor as the letter referred to in Section 5.5 hereof but
modified to relate to the Registration Statement and Prospectus as amended and
supplemented to the date of such letter; PROVIDED HOWEVER, that if the
Registration Statement or Prospectus is amended or supplemented solely to
include unaudited financial information as of and for a fiscal quarter, the
Accountants may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement.
SECTION 7.
INDEMNIFICATION AND CONTRIBUTION
7.1 The Company agrees to indemnify and hold harmless each Agent, its
officers and directors and each person, if any, who controls such Agent within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading, or arising out of an untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus, the Time of Sale Prospectus, the Prospectus (or any
amendment or supplement thereto) or any Permitted Free Writing Prospectus or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that this indemnity does not apply to
(i) any loss, liability, claim, damage or expense to the extent arising out of
an untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information furnished to the Company or
Trust in writing by such Agent expressly for use in the Registration Statement
(or any amendment thereto) or any preliminary prospectus, the Time of Sale
Prospectus or the Prospectus (or any amendment or supplement thereto) or any
Permitted Free Writing Prospectus, or (ii) any loss, liability, claim, damage or
expense arising out of any statements in or omissions from that part of the
Registration Statement which constitutes the Statements of Eligibility (Form
T-1) under the 1939 Act of the Indenture Trustee.
7.2 Each Agent agrees, severally but not jointly, to indemnify and hold
harmless the Company, the Trust and each of their respective directors, officers
and trustees (if applicable) that signed the Registration Statement and each
person, if any, who controls the Company or Trust within the meaning of Section
15 of the 1933 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 7.1 hereof, as incurred,
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or any Permitted Free Writing Prospectus or any preliminary prospectus,
the Time of Sale Prospectus or the Prospectus (or any amendment or
45
supplement thereto) in reliance upon and in conformity with information
furnished to the Company or the Trust in writing by such Agent expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus, such Time of Sale Prospectus or the Prospectus (or any amendment or
supplement thereto) or any such Permitted Free Writing Prospectus.
7.3 Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 7.1 hereof, counsel to the indemnified parties shall be
selected by the Company and, in the case of parties indemnified pursuant to
Section 7.2 hereof, counsel to the indemnified parties shall be selected by the
Agent(s). Counsel to the indemnifying party may, with the consent of the
indemnified party, also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, which consent shall not be unreasonably withheld, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 (whether or
not the indemnified parties are actual or potential parties thereto); unless
such settlement, compromise or consent (i) is for monetary damages only, (ii)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (iii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
7.4 If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein (other than as provided therein), then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on one hand, and the Agent(s), on the other hand, from the offering of
the Notes, as the case may be, that were the subject of the claim for
indemnification or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and Trust, on one hand, and the Agent(s), on the other
hand, in connection with the statements or omissions which
46
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Agent(s), on the other hand, in connection with the offering of the Notes, as
the case may be, that were the subject of the claim for indemnification shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Notes (before deducting expenses) received by the Trust and
the total discount received by the Agent(s), as the case may be, bears to the
aggregate initial offering price of such Notes.
The relative fault of the Company and the Trust, on one hand, and the
Agent(s), on the other hand, shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Trust, on one hand, or by the Agent(s), on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7.4 were determined by pro rata allocation
(even if the Agent(s) were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7.4. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7.4 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any applicable untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7.4, (i) no Agent shall
be required to contribute any amount in excess of the amount by which the total
price, at which the Notes underwritten by such Agent and distributed to the
public, were offered to the public exceeds the amount of any damages which such
Agent has otherwise been required to pay by reason of any applicable untrue or
alleged untrue statement or omission or alleged omission and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. In addition, in connection with an
offering of Notes purchased from the Trust by two or more Agent(s) as principal,
the respective obligations of such Agent(s) to contribute pursuant to this
Section 7.4 are several, and not joint, in proportion to the aggregate principal
amount of Notes that each such Agent has agreed to purchase from the Trust.
For purposes of this Section 7.4, each director and officer of an agent
and each person, if any, who "controls," within the meaning of Section 15 of the
1933 Act, an Agent, shall have the same rights to contribution as such Agent,
and each director, officer and trustee (if applicable) of the Company or Trust,
as applicable, and each person, if
47
any, who "controls," within the meaning of Section 15 of the 1933 Act, the
Company or Trust, shall have the same rights to contribution as the Company or
Trust, as applicable.
SECTION 8.
TERMINATION
8.1 TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The
Agent(s) (or the bookrunning lead manager(s), in the case of a syndicated issue)
may terminate any agreement by such Agent(s) (and any other Agent(s), in the
case of a syndicated issue) to purchase Notes immediately upon written notice to
the Trust and the Company, at any time on or prior to the Settlement Date
relating thereto, if (i) there has been, since the time of such agreement or
since the respective dates as of which information is given in the Time of Sale
Prospectus, any material adverse change in the condition, financial or
otherwise, of (1) the Company and its subsidiaries considered as one enterprise,
or (2) the Trust, in each case, whether or not arising in the ordinary course of
business, or (ii) there has occurred any material adverse change in the
financial markets in the United States or any outbreak of hostilities or major
escalation of existing hostilities or other calamity or crisis or any similar
major change or event (including, without limitation, an act of terrorism)
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the reasonable judgment of the Agent(s) (or the bookrunning lead manager(s),
in the case of a syndicated issue) after consultation with the Company,
impracticable to market such Notes or enforce contracts for the sale of such
Notes, (iii) trading in any securities of The Hartford Financial Services Group,
Inc. (the "CORPORATION"), the Company, or Trust has been suspended or materially
limited by the Commission or The New York Stock Exchange, or if trading
generally on The New York Stock Exchange or the American Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, in each
case the effect of which is such as to make it, in the reasonable judgment of
the Agent(s) (or bookrunning lead manager(s), in the case of a syndicated issue)
after consultation with the Company, impracticable to market such Notes or
enforce contracts for the sale of such Notes, (iv) a banking moratorium has been
declared by either Federal or New York authorities or a material disruption has
occurred in commercial banking or securities settlement or clearance services in
the United States, in each case the effect of which is such as to make it, in
the reasonable judgment of the Agent(s) (or bookrunning lead manager(s), in the
case of a syndicated issue) after consultation with the Company, impracticable
to market such Notes or enforce contracts for the sale of such Notes or (v) the
rating assigned by any nationally recognized statistical rating organization to
the Program, any notes issued pursuant to the Registration Statement or any debt
securities (including the Notes) of the Trust or any securities or the financial
strength of the Company as of the date of such agreement shall have been lowered
or withdrawn since that date or if any such rating organization shall have
publicly announced that it has under surveillance or review its rating of the
Program, any notes issued pursuant to the Registration Statement or any such
debt securities (including the Notes) of the Trust or any securities or the
financial strength of the Company.
48
8.2 GENERAL. In the event of any termination under Section 8.1 above,
neither party will have any liability to the other party hereto, except that the
covenant set forth in Section 2.3.7 hereof, the indemnity and contribution
agreements set forth in Section 7 hereof, the provisions of Section 10 and
Section 11 hereof and the provisions of Section 12 hereof shall remain in
effect.
SECTION 9.
NOTICES
Except as otherwise specifically provided herein, all statements,
requests, notices and advices hereunder shall be in writing, or if by telephone,
promptly confirmed in writing, and if to an Agent shall be sufficient in all
respects if delivered in person or sent by facsimile transmission (confirmed in
writing), or registered mail to such Agent at its address or facsimile number
set forth in the Distribution Agreement and if to the Company or the Trust shall
be sufficient in all respects if delivered or sent by facsimile transmission
(confirmed in writing) or registered mail to the Company or the Trust at the
applicable address specified below. All such notices shall be effective on
receipt.
If to the Company:
Hartford Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Or, if by U.S. Mail, to:
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Vice President and Actuary
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Hartford Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
49
Or, if by U.S. Mail, to:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇,
Deputy General Counsel
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to the Trust:
Hartford Life Global Funding (followed by the
number of the Trust designated in the Distribution Agreement)
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and:
Hartford Life Global Funding (followed by the number of the Trust
designated in the Distribution Agreement) c/o AMACAR Pacific
Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to the Purchasing Agent:
Bear ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ "Chip" ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
50
With a copy to:
Bear ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: HG Capital Markets
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agents:
To each Agent at the address specified in ANNEX I or as otherwise
indicated in the Distribution Agreement
or at such other address as such party may designate from time to time
by notice duly given in accordance with the terms of this Section 9.
SECTION 10.
PARTIES
The Distribution Agreement shall be binding upon the Agent(s), the
Trust and the Company, and inure solely to the benefit of the Agent(s), the
Trust and the Company and any other person expressly entitled to indemnification
hereunder and the respective personal representatives, successors and assigns of
each, and no other person shall acquire or have any rights under or by virtue of
the Distribution Agreement.
SECTION 11.
GOVERNING LAW
PURSUANT TO SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK, THE DISTRIBUTION AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF
THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
SECTION 12.
FEES AND EXPENSES
12.1 COMPANY LIABILITY FOR PROGRAM EXPENSES. The Company will pay the
expenses of the Program, either directly, pursuant to the Distribution Agreement
(including through the performance of the obligations of the Company and the
Trust), or
51
through one or more Expense and Indemnity Agreements (as defined in the
Indenture), including the following:
(i) the preparation, filing, printing and delivery of the
Registration Statement and any amendments and supplements thereto;
(ii) fees and expenses relating to the issuance of Notes and
the cost of obtaining CUSIP or other identification numbers for the
Notes;
(iii) the fees and certain other disbursements of the Delaware
Trustee, the Administrator, the Indenture Trustee and other Trust
service providers;
(iv) the fees charged by the nationally recognized statistical
rating organizations selected for the rating of the Program and the
Notes;
(v) the fees and disbursements of the Company's accountants,
counsel and other advisors or agents;
(vi) the qualification of the Notes under securities laws in
accordance with the provisions of Section 2.1.2 hereof, including
filing fees and the fees and disbursements of counsel for the Agents
incurred in connection with the preparation and delivery any blue sky
memorandum to be delivered subsequent to the Initial Settlement Date as
reasonably requested by the applicable Agent;
(vii) the filing fees incident to the review of the program,
if any, by the National Association of Securities Dealers, Inc.;
(viii) the fees and expenses incurred in connection with any
listing of Notes on a securities exchange; and
(ix) any costs and expenses (including, without limitation,
any damages or other amounts payable in connection with legal or
contractual liability) resulting directly from the reforming of any
contracts for any sale of Notes made by an Agent caused by a breach of
the representation contained in the sixth sentence of Section 1.3.2
hereof (including the application of clause (B) of Section 1.3.2
hereof).
12.2 EXPENSES OF AGENTS. The Company shall agree to pay or reimburse an
Agent for certain expenses such Agent may incur in connection with the Program.
Such expenses shall be paid or reimbursed only to the extent described in the
Distribution Agreement or other written agreement between the Company and such
Agent. Each Agent agrees that, except as provided in the Distribution Agreement
or other written agreement, each Agent is responsible for its own expenses.
12.3 OBLIGATIONS OF TRUST LIMITED. The Trust shall have no obligation
to pay or reimburse any Agent for any expenses such Agent incurs in connection
with the Distribution Agreement or the Program.
52
12.4 REIMBURSEMENT AFTER TERMINATION. In the event that the proposed
offering of Notes is not completed pursuant to Section 8.1, the Company will
reimburse the Agent(s) for the expenses set forth in the Distribution Agreement
and any other written agreement between the Company and such Agent(s).
SECTION 13.
MISCELLANEOUS
13.1 POWER OF ATTORNEY. If the Distribution Agreement is executed by or
on behalf of any party, such person hereby states that at the time of the
execution of the Distribution Agreement such person has no notice of revocation
of the power of attorney by which he has executed the Distribution Agreement as
such attorney.
13.2 COUNTERPARTS. The Distribution Agreement may be executed by each
of the parties hereto in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument. Facsimile signatures
shall be deemed original signatures.
13.3 AMENDMENT. The Distribution Agreement may be amended or
supplemented if, but only if, such amendment or supplement is in writing and is
signed by the Company, the Trust, and the Agent(s).
13.4 LIMITATION OF DELAWARE TRUSTEE LIABILITY. Notwithstanding any
provision hereof to the contrary, it is expressly understood and agreed by the
parties that (a) the Distribution Agreement is executed and delivered by
Wilmington Trust Company, not individually or personally, but solely as Delaware
Trustee, in the exercise of the powers and authority conferred and vested in it,
pursuant to the Trust Agreement, (b) each of the representations, undertakings
and agreements herein made on the part of the Trust is made and intended not as
personal representations, undertakings and agreements by the Delaware Trustee
but is made and intended for the purpose of binding only the Trust, (c) nothing
herein contained shall be construed as creating any liability on the Delaware
Trustee, individually or personally, to perform any covenant either expressed or
implied contained herein, all such liability, if any, being expressly waived by
the parties hereto and by any person claiming by, through or under the parties
hereto, and (d) under no circumstances shall the Delaware Trustee be personally
liable for the payment of any indebtedness or expenses of the Trust or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Trust under the Distribution Agreement or any
other related documents.
53
LIST OF EXHIBITS, SCHEDULES AND ANNEX
EXHIBITS
--------
Exhibit A Form of Master Selected Dealer Agreement
Exhibit B Opinion of Internal Counsel for the Company
Exhibit C Opinion of Counsel for the Company Concerning Connecticut Insolvency
Law
Exhibit D Opinion of Agent Approved Counsel Concerning Federal Securities Law
Exhibit E Opinion of Agent Approved Counsel Concerning New York Law
Exhibit F Opinion of Agent Approved Counsel Concerning New York Security
Interests
Exhibit G Opinion of Agent Approved Counsel Concerning Tax
Exhibit H Memorandum of Agent Approved Counsel Concerning Insurance
Exhibit I Opinion of Agent Approved Counsel Concerning Insurance
Exhibit J Opinion of Counsel for the Trust
Exhibit K Opinion of Counsel for the Delaware Trustee
Exhibit L Opinion of Counsel for the Trust Concerning Delaware Security
Interests
Exhibit M Opinion of Counsel for the Administrator
Exhibit N Opinion of Counsel for the Indenture Trustee
Exhibit O Negative Assurance of Company Approved Counsel
Exhibit P Negative Assurance of Agent Approved Counsel
Exhibit Q Comfort Letter from Accountants to the Company
54
SCHEDULES
---------
Schedule 1 Discount Determination for Purchasing Agent (Retail Notes)
Schedule 2 Discount Determination for Agents (Institutional Notes)
ANNEX
------
Annex I Notice Information of Agents
55