EXHIBIT 4.1
HARTFORD LIFE INSURANCE COMPANY
AND
JPMORGAN CHASE BANK, N.A.,
AS INDENTURE TRUSTEE
INDENTURE
DATED AS OF SEPTEMBER 8, 2006
MEDIUM-TERM NOTES
Reconciliation and tie between
Trust Indenture Act of 1939 (the "TRUST INDENTURE ACT")
and Indenture
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310(a)..............................................................7.11
(b).........................................................................7.11
Section 311(a)..............................................................7.08
Section 312(a)..............................................................3.11
(b).........................................................................3.11
(c).........................................................................3.11
Section 313(a)..............................................................3.11
(b).........................................................................3.11
(c).........................................................................3.11
(d).........................................................................3.11
Section 314(a)..............................................................3.08
(c).........................................................................3.08
(e)...................................................................1.03, 3.08
Section 315(c)..............................................................7.01
Section 316(a)(1)(A)..................................................6.02, 6.12
(a)(1)(B)...................................................................6.13
(b).........................................................................6.08
(c).........................................................................1.04
Section 317(a)(1)...........................................................6.03
(a)(2)......................................................................6.04
(b).........................................................................3.02
Section 318(a)..............................................................1.15
(c).........................................................................1.15
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust Indenture
Act, which provides that certain provisions of Sections 310 to and
including 317 are a part of and govern every qualified indenture, whether
or not physically contained herein.
TABLE OF CONTENTS
PAGE
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01 Definitions....................................................1
Section 1.02 Compliance Certificates and Opinions..........................13
Section 1.03 Form of Documents Delivered to Indenture Trustee..............13
Section 1.04 Acts of Holders...............................................14
Section 1.05 Notices.......................................................17
Section 1.06 Notice to Holders; Waiver.....................................17
Section 1.07 Severability..................................................18
Section 1.08 Successors and Assigns........................................18
Section 1.09 Benefits of Indenture.........................................18
Section 1.10 Language of Notices...........................................18
Section 1.11 Governing Law.................................................18
Section 1.12 Waiver of Jury Trial..........................................19
Section 1.13 Counterparts..................................................19
Section 1.14 Third Party Beneficiaries.....................................20
Section 1.15 Conflict with Trust Indenture Act.............................20
ARTICLE 2
The Notes
Section 2.01 Forms Generally...............................................20
Section 2.02 Denominations; No Limitation on Aggregate Principal Amount
of Notes......................................................23
Section 2.03 Listing.......................................................26
Section 2.04 Redemption....................................................26
Section 2.05 Execution and Delivery of Notes...............................28
Section 2.06 Authentication and Delivery of Notes..........................29
Section 2.07 Registration..................................................32
Section 2.08 Transfer......................................................32
Section 2.09 Mutilated, Destroyed, Lost and Stolen Notes...................33
Section 2.10 Payment of Interest; Rights to Interest Preserved.............33
Section 2.11 Cancellation..................................................34
Section 2.12 Persons Deemed Owners.........................................35
Section 2.13 No Association................................................35
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PAGE
ARTICLE 3
Covenants, Representations and Warranties
Section 3.01 Payment of Principal and any Premium and Interest.............35
Section 3.02 Agreements of the Paying Agent................................35
Section 3.03 Maintenance of Office or Agency...............................38
Section 3.04 Duties of the Agents..........................................39
Section 3.05 Duties of the Transfer Agent..................................40
Section 3.06 Duties of the Registrar.......................................41
Section 3.07 Unclaimed Monies..............................................42
Section 3.08 Annual Statement as to Compliance.............................42
Section 3.09 Existence.....................................................44
Section 3.10 Reports; Financial Information; Notices of Defaults...........44
Section 3.11 Payment of Taxes and Other Claims.............................45
Section 3.12 Limitations on Liens..........................................46
Section 3.13 Ancillary Documents...........................................46
ARTICLE 4
Consolidation, Merger, Sale or Conveyance
Section 4.01 Company May Consolidate, Etc. on Certain Terms................46
Section 4.02 Successor Corporation to be Substituted for Company...........46
Section 4.03 Opinion of Counsel to Be Given to Indenture Trustee...........47
ARTICLE 5
Satisfaction and Discharge; Subrogation
Section 5.01 Satisfaction and Discharge of Indenture.......................47
Section 5.02 Application of Trust Money....................................49
Section 5.03 Repayment of Funds Held by Paying Agent.......................49
ARTICLE 6
Defaults and Remedies
Section 6.01 Events of Default.............................................49
Section 6.02 Acceleration of Maturity Date; Rescission and Annulment.......51
Section 6.03 Collection of Indebtedness and Suits for Enforcement..........52
Section 6.04 Indenture Trustee May File Proofs of Claim....................53
Section 6.05 Indenture Trustee May Enforce Claims Without Possession of
Notes.........................................................54
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PAGE
Section 6.06 Application of Money Collected................................54
Section 6.07 Limitation on Suits...........................................54
Section 6.08 Unconditional Rights of Holders to Receive Payments...........55
Section 6.09 Restoration of Rights and Remedies............................55
Section 6.10 Rights and Remedies Cumulative................................56
Section 6.11 Delay or Omission Not Waiver..................................56
Section 6.12 Control by Holders............................................56
Section 6.13 Waiver of Past Defaults.......................................56
Section 6.14 Undertaking for Costs.........................................57
Section 6.15 Waiver of Stay or Extension Laws..............................57
ARTICLE 7
The Indenture Trustee and Other Agents
Section 7.01 Duties of Indenture Trustee...................................57
Section 7.02 No Liability to Invest........................................59
Section 7.03 Performance Upon Default......................................59
Section 7.04 No Assumption by Paying Agent, Transfer Agent, Calculation
Agent or Registrar............................................59
Section 7.05 Notice of Default.............................................59
Section 7.06 Rights of Indenture Trustee...................................59
Section 7.07 Not Responsible for Recitals or Issuance of Notes.............62
Section 7.08 Indenture Trustee May Hold Notes..............................62
Section 7.09 Money Held in Trust...........................................62
Section 7.10 Compensation and Reimbursement................................62
Section 7.11 Indenture Trustee Required Eligibility........................62
Section 7.12 Resignation and Removal; Appointment of Successor.............63
Section 7.13 Acceptance of Appointment by Successor........................64
Section 7.14 Merger, Conversion, Consolidation or Succession to Business
of Indenture Trustee..........................................66
Section 7.15 Appointment and Duties of the Calculation Agent...............66
Section 7.16 Changes in Agents.............................................67
ARTICLE 8
Supplemental Indentures
Section 8.01 Supplemental Indentures without Consent of Holders............69
Section 8.02 Supplemental Indenture with Consent of Holders................70
Section 8.03 Execution of Supplemental Indentures..........................71
Section 8.04 Effect of Supplemental Indenture..............................72
Section 8.05 Reference in Notes to Supplemental Indentures.................72
Section 8.06 Conformity with Trust Indenture Act...........................72
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PAGE
ARTICLE 9
Non-Recourse Provisions
Section 9.01 Nonrecourse Enforcement.......................................72
ARTICLE 10
Meetings of Holders of Notes
Section 10.01 Purposes for Which Meetings May Be Called.....................73
Section 10.02 Call, Notice and Place of Meetings............................73
Section 10.03 Persons Entitled to Vote at Meetings..........................73
Section 10.04 Quorum; Action................................................74
Section 10.05 Determination of Voting Rights; Conduct and Adjournment of
Meetings......................................................75
Section 10.06 Counting Votes and Recording Action of Meetings...............76
ARTICLE 11
Notes in Canadian Dollars
Section 11.01 Notes in Canadian Dollars.....................................76
ARTICLE 12
Defeasance and Covenant Defeasance
Section 12.01 Company's Option to Effect Defeasance or Covenant
Defeasance....................................................77
Section 12.02 Defeasance and Discharge......................................77
Section 12.03 Covenant Defeasance...........................................77
Section 12.04 Conditions to Defeasance or Covenant Defeasance...............78
Section 12.05 Deposited Money and Government Obligations to Be Held in
Trust; Miscellaneous Provisions...............................80
Section 12.06 Reinstatement.................................................80
Section 12.07 Qualifying Trustee............................................81
Exhibit A Form of Global Note A-1
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THIS INDENTURE, dated as of September 8, 2006, is entered into between
Hartford Life Insurance Company (the "COMPANY") and JPMorgan Chase Bank, N.A. as
Indenture Trustee, Registrar, Transfer Agent, Paying Agent and Calculation Agent
(all as defined herein).
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of the Notes;
WHEREAS, all things necessary to make this Indenture a valid and
legally binding agreement of the Company and the other parties to this
Indenture, enforceable in accordance with its terms, have been done, and the
Company 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 Company as hereinafter provided; and
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:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 DEFINITIONS. For all purposes of this Indenture, of all
indentures supplemental hereto and of all Notes issued hereunder or thereunder,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Indenture have the meanings
assigned to them in this Article 1, and include the plural as well as
the singular;
(b) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation in the United
States;
(c) the word "including" shall be construed to be
followed by the words "without limitation";
(d) Article and Section headings are for the convenience
of the reader and shall not be considered in interpreting this
Indenture or the intent of the parties hereto; and
(e) the words "hereby", "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section, Exhibit or other
subdivision.
(f) References herein to Articles, Sections, Exhibits and
Schedules shall, unless otherwise specified, refer respectively to
Articles, Sections, Exhibits and Schedules of this Indenture, unless
otherwise expressly provided.
"ACT", with respect to any Holder, has the meaning set forth in Section
1.04.
"AFFILIATE" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, that Person and, in the case of an individual, any spouse or other
member of that individual's immediate family. For the purposes of this
definition, "control" (including with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as applied to
any Person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of that Person, whether
through the ownership of voting securities or by contract or otherwise.
"AGENT" means any of the Registrar, Transfer Agent, Paying Agent or
Calculation Agent.
"AUTHORIZED NEWSPAPER" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a business day in the place of publication, whether or not
published on days that are not business days in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and, in each case, on any day that is a business day in
the place of publication.
"AUTHORIZED OFFICER" means, the Company's Chairman of the Board of
Directors, Chief Executive Officer, Chief Financial Officer, Chief Accounting
Officer or any authorized officer, employee or agent of the Company specified in
a notice to the Indenture Trustee, with a copy to the Registrar, the Transfer
Agent, the Paying Agent and the Calculation Agent, as being an authorized
officer of the Company.
"BANKING DAY" means a day (other than a Saturday or Sunday) on which
commercial banks are generally open for business (including, in the case of
Notes
2
denominated in Canadian dollars, dealings in Canadian dollar exchange and
Canadian dollar deposits) in the place where the specified office of the Paying
Agent or, as the case may be, the Registrar, is located.
"BOARD OF DIRECTORS" means either the board of directors of the Company
or any duly authorized committee of that board.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors, and to be in full force and effect on the date of such
certification, and delivered to the Indenture Trustee.
"BUSINESS DAY" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New York;
provided, however, that, with respect to Canadian dollar denominated notes, the
day must also not be a day on which commercial banks are authorized or required
by law, regulation or executive order to close in Toronto, Canada, and with
respect to LIBOR Notes, the day must also be a London Banking Day.
"CALCULATION AGENT" means, in relation to each series of Notes, the
institution appointed as calculation agent for the purposes of such Notes and,
if other than the Paying Agent, the institution named as such in the applicable
Pricing Supplement.
"CLEARING SYSTEM" means DTC and any other Clearing System specified in
the Pricing Supplement.
"COMMISSION" means the Securities and Exchange Commission or any
successor body performing such duties of the Commission.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY ORDER" means any request, order or confirmation of the Company
signed by an Authorized Officer.
"CONSOLIDATED NET TANGIBLE ASSETS" means at any date, the total assets
appearing on the most recently prepared quarterly consolidated balance sheet of
the Company and its Subsidiaries, prepared in accordance with GAAP, less each of
the following as shown on such balance sheet: (I) all short-term debt, dividends
payable to policyholders and unpaid claims and any claim expense reserve, (II)
all goodwill, tradenames, trademarks,
3
licenses, patents and copyrights, (III) all deferred policy acquisition costs,
and (IV) all assets allocated to separate accounts.
"CORPORATE TRUST OFFICE" means the office of the Indenture Trustee at
which the corporate trust business of the Indenture Trustee shall, at any
particular time, be principally administered, which office at the date of this
Indenture is located as indicated in Section 1.05.
"COVENANT DEFEASANCE" has the meaning specified in Section 12.03.
"DEFAULT" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"DEFAULTED INTEREST" has the meaning set forth in Section 2.10.
"DEFEASANCE" has the meaning specified in Section 12.02.
"DEFINITIVE NOTE" means a Note in certificated and registered form that
is not registered in the name of a Depositary or its nominee.
"DEPOSITARY" means the Person designated as Depositary by the Company
pursuant to this Indenture, which Person, if required by any applicable law,
regulation or exchange requirement, must be a clearing agency registered under
the Securities Exchange Act and, if so provided with respect to any Note, any
successor to such Person. Initially, the "Depositary" shall be DTC.
"DISTRIBUTION AGREEMENT" means the Distribution Agreement, dated as of
September 8, 2006, by and among the Company and the agents named therein (or
such agents that become a party to the agreement from time to time) relating to
the issuance and sale of the Notes under the Program, as the same may be
amended, modified or supplemented from time to time.
"DOLLARS", "$", "U.S. $" and "U.S. DOLLARS" mean such coin or currency
of the United States as at the time shall be legal tender for the payment of
public or private debts.
"DTC" means The Depository Trust Company, and its successors and
assigns.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXPENSE AND INDEMNITY AGREEMENT" means that certain Expense and
Indemnity Agreement, dated as of September 8, 2006, by and between the Company
and the Indenture Trustee as the same may be amended, modified or supplemented
from time to time.
4
"GAAP" means generally accepted accounting principles in the United
States, consistently applied.
"GLOBAL NOTE" means a Note issued in book-entry and registered form.
"GOVERNMENT OBLIGATIONS" means, with respect to the Notes of any
series, securities which are (I) direct obligations of the United States of
America or (II) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed by the United States of America and which,
in either case, are full faith and credit obligations of the United States of
America and are not callable or redeemable at the option of the issuer thereof
and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any such
Government Obligation held by such custodian for the account of the holder of
such depository receipt; PROVIDED that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by such depository receipt.
"HOLDER" means the Person in whose name a Note is registered in the
Register.
"INDEBTEDNESS" means, as applied to any Person, (I) all indebtedness
for borrowed money or for the deferred purchase price of property or services in
respect of which such Person is liable, contingent or otherwise, or in respect
of which such Person otherwise assures a creditor against loss (excluding trade
accounts payable and accrued expenses arising in the ordinary course of business
as determined in good faith by such Person), (II) that portion of obligations
with respect to capital leases which is properly classified as a liability on
the balance sheet of such Person in conformity with GAAP, (III) all obligations
evidenced by bonds, notes, debentures or similar instruments of such Person, and
notes payable by such Person and drafts accepted by such Person representing
extensions of credit whether or not representing obligations for borrowed money,
(IV) the face amount of all drafts drawn thereunder, and (V) all indebtedness
secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is non-recourse to the credit of that Person; provided that
the term Indebtedness shall not include (Y) obligations for which recourse for
payment is limited to specified assets of a Person or (Z) obligations of a
Person which is an insurance company (1) which arise in connection with policies
or contracts of insurance, reinsurance, guaranteed investment contracts, funding
agreements and other similar contracts entered into in the ordinary conduct of
such Person's insurance business or (2) to the extent that recourse for the
payment of such obligations is limited to assets held in separate accounts of
such Person.
5
"INDENTURE" means this instrument as originally executed or as it may
be amended or supplemented from time to time, and shall include the terms of the
Notes established as contemplated by Section 2.02 hereunder.
"INDENTURE TRUSTEE" means JPMorgan Chase Bank, N.A. and, subject to the
provisions of Article 7 hereof, shall also include its successors and assigns as
Indenture Trustee hereunder and, if at any time there is more than one such
Person, "Indenture Trustee" as used with respect to the Notes of any series
shall mean the Indenture Trustee with respect to the Notes of that series.
"INTEREST PAYMENT DATE" means, with respect to any Note, the Stated
Maturity Date of an installment of interest on such Note.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended, as it may be amended or supplemented from time to time, and any
successor statute thereto, and the rules, regulations and published
interpretations of the Commission promulgated thereunder from time to time.
"ISSUANCE DATE" means, with respect to any Note, the date of original
issuance of such Note.
"ISSUANCE ORDER" means a Company Order specifying the terms and
conditions applicable to a particular series of Notes, executed by the Company
and acknowledged by the Indenture Trustee on or prior to the Issuance Date of
such series of Notes.
"LIBOR NOTES" means Notes that bear interest based on LIBOR (as defined
in the Notes).
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including without limitation any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the UCC or comparable law of any jurisdiction).
"LONDON BANKING DAY" means a day on which commercial banks in London
are open for business (including dealings in the designated LIBOR Currency (as
defined in the applicable Note)).
"MATURITY DATE" means, with respect to any Note, the date on which the
principal of such Note becomes due and payable as therein or herein provided,
whether at the Stated Maturity Date thereof or by declaration of acceleration or
otherwise.
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"NONRECOURSE PARTIES" has the meaning set forth in Section 9.01.
"NOTE" means any note designated in this Indenture and authenticated
and delivered hereunder, which is in registered form and may be represented by a
Global Note, which shall be substantially in the form attached as Exhibit A, or
a Definitive Note, which shall be in a form substantially similar to the form of
Global Note attached as Exhibit A with such appropriate modification, revision
and additions as agreed between the Company and the Indenture Trustee.
"NOTICE OF DEFAULT" has the meaning set forth in Section 6.01.
"OFFICE OR AGENCY" means with respect to the Notes, an office or agency
of the Company, the Indenture Trustee, the Paying Agent or the Registrar, as the
case may be, maintained or designated as the Place of Payment for such Notes
pursuant to Section 3.03 or any other office or agency of the Company, Indenture
Trustee, Paying Agent or Registrar, as the case may be, maintained or designated
for such Notes pursuant to Section 3.03.
"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized
Officer. The officer signing an Officer's Certificate given pursuant to Section
3.08 shall be the principal executive, financial or accounting officer of the
Company.
"OPINION OF COUNSEL" means a written opinion addressed to the Indenture
Trustee (among other addressees) by legal counsel, who may be internal or
external legal counsel to the Company or other counsel and who shall be
reasonably satisfactory to the Indenture Trustee.
"OUTSTANDING" means, with respect to Notes of a series, as of any date
of determination, all Notes of such series theretofore authenticated and
delivered under this Indenture, except:
(i) Notes theretofore cancelled by the Indenture Trustee
or delivered to the Indenture Trustee for cancellation;
(ii) Notes or portions thereof for the payment or
redemption of which money in the necessary amount has been theretofore
deposited with the Indenture Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Notes, provided that, if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made;
7
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a holder in due course;
(iv) Notes alleged to have been destroyed, lost, stolen or
mutilated and surrendered to the Indenture Trustee for which either
replacement Notes have been issued or payment has been made as provided
for in Section 2.09 unless proof satisfactory to the Indenture Trustee
is presented that any such Notes are held by a holder in due course;
and
(v) Notes represented by Global Notes to the extent that
they shall have been duly exchanged for Definitive Notes pursuant to
this Indenture unless proof satisfactory to the Indenture Trustee is
presented that any such Notes are held by a holder in due course;
provided further, however, that in determining whether the Holders of the
requisite percentage of the principal amount of Outstanding Notes have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Notes owned by the Company or any Affiliate of the Company shall be disregarded
and deemed not to be Outstanding, except that in determining whether the
Indenture Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that the
Indenture Trustee knows to be so owned shall be so disregarded. Notes so owned
that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee that the
pledgee is entitled so to act with respect to such Notes and that the pledgee is
not the Company or any Affiliate of the Company.
"PAYING AGENT" means, unless otherwise specified herein or in a
supplemental indenture hereto, the Indenture Trustee, in its capacity as paying
agent under this Indenture or its successors or assigns.
"PERIODIC OFFERING" has the meaning specified in Section 2.06(a).
"PERMITTED COLLATERALIZATION ASSETS" means assets pledged to secure
Permitted Collateralization Obligations.
"PERMITTED COLLATERALIZATION OBLIGATION" means any obligation relating
to pass-through obligations, collateralized mortgage obligations, collateralized
bond obligations or similar instruments, except an obligation of the Company or
any Subsidiary (excluding any Subsidiary that is the issuer of the pass-through
obligation, collateralized mortgage obligation, collateralized bond obligation
or similar instrument) to the extent that such obligation requires a cash
payment by the Company or such Subsidiary, recourse for the payment of which is
not limited to specific assets of the Company or such Subsidiary
8
(excluding any obligation of the Company or such Subsidiary (i) to make advances
in connection with the servicing of such pass-through obligation, collateralized
mortgage obligation, collateralized bond obligation or similar instrument or
(ii) to repurchase collateral).
"PERMITTED SECURED INDEBTEDNESS" mean any Secured Indebtedness
described below:
(i) Secured Indebtedness secured by a Lien on any asset
of the Company, if the Secured Indebtedness was incurred or assumed for
the purpose of financing all or any part of the cost of the
acquisition, construction or improvement of such asset and if such Lien
existed prior to the acquisition of such asset or attaches to such
asset concurrently or within 90 days after the acquisition or
commencement of construction or improvement thereof;
(ii) Secured Indebtedness secured by a Lien on any asset
of a corporation or other entity if such Secured Indebtedness and such
Lien are in existence at the time such corporation or other entity is
merged or consolidated with or into, or substantially all of the assets
of such corporation or other entity are transferred to, the Company, or
substantially all of the assets of the Company are transferred to such
corporation or other entity, provided such Secured Indebtedness and
Lien were not incurred in contemplation of such transaction;
(iii) Secured Indebtedness secured by a Lien on any asset
which Lien was in existence at the time the applicable asset was
acquired by the Company, provided such Lien was not incurred in
contemplation of such acquisition;
(iv) Secured Indebtedness secured by a Lien on any asset
of the Company, if recourse on such Secured Indebtedness is limited to
such asset;
(v) Secured Indebtedness arising out of the refinancing,
extension, renewal or refunding of any Indebtedness permitted under
clause (i), (ii), (iii) or (iv) of this definition, provided such
Secured Indebtedness is not increased and is not secured by any
additional assets of the Company;
(vi) Secured Indebtedness if the only assets of the
Company securing such Secured Indebtedness are assets held in separate
accounts of the Company and, in the Company's discretion, other assets
which are permitted to secure Permitted Secured Indebtedness under
another clause of this definition;
(vii) Secured Indebtedness if the only assets of the
Company securing such Secured Indebtedness are Permitted
Collateralization Assets and, in the Company's discretion, other assets
which are permitted to secure Permitted Secured Indebtedness under
another clause of this definition;
9
(viii) Secured Indebtedness (a) secured by securities loaned
by the Company or (b) arising out of repurchase agreements, reverse
repurchase agreements or swap contracts entered into by the Company, in
either case in the ordinary course of the Company's business;
(ix) Secured Indebtedness arising in connection with
policies or contracts of insurance, reinsurance, guaranteed investment
contracts, funding agreements and similar contracts entered into in the
ordinary conduct of the Company's insurance business;
(x) Secured Indebtedness secured by a Lien on real
property, to the extent that such Lien consists of easements, rights of
way and similar Liens that do not in the aggregate materially impair
the use of such property;
(xi) Secured Indebtedness owing from the Company to one or
more Subsidiaries; and
(xii) Secured Indebtedness which, when added to the
aggregate amount of all Secured Indebtedness then outstanding (not
including in this computation Secured Indebtedness if the Notes are
secured equally and ratably with (or prior to) such Secured
Indebtedness and further not including in this computation any Secured
Indebtedness which is concurrently being retired or any Permitted
Secured Indebtedness under clauses (i) through (xi) hereof), would not
exceed 10% of Consolidated Net Tangible Assets.
"PERSON" means any natural person, corporation, limited partnership,
general partnership, joint stock company, joint venture, association, company,
limited liability company, trust (including any beneficiary thereof), bank,
trust company, land trust, business trust, statutory trust or other
organization, whether or not a legal entity, and governments and agencies and
political subdivisions thereof.
"PLACE OF PAYMENT" means the place where the principal of, premium, if
any, and interest on the Notes of any series are payable which, unless otherwise
specified herein, shall be the address specified in Section 1.05 for the
Indenture Trustee.
"PREDECESSOR NOTE" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under Section 2.09 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Note shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Note.
"PRICING SUPPLEMENT" means the pricing supplement which is prepared by
the Company in connection with the issuance by the Company of any Notes and
agreed to by the Company and the relevant agents appointed under the
Distribution Agreement, as
10
such Pricing Supplement may be amended, modified, supplemented or replaced from
time to time.
"PRINCIPAL FINANCIAL CENTER" means, as applicable, the capital city of
the country issuing the Specified Currency or the capital city of the country to
which the LIBOR Currency (as defined in the applicable Note) relates; provided,
however, that with respect to United States Dollars, Australian dollars,
Canadian dollars, Euros, South African rands and Swiss francs, the "Principal
Financial Center" shall be The City of New York, Sydney, Toronto, London,
Johannesburg and Zurich, respectively.
"PROGRAM" means, collectively, the Company's program pursuant to which
unsecured senior notes will be issued as either IncomeNotes(sm) or medium-term
notes.
"REDEMPTION PRICE" means the price at which any Notes are to be
redeemed pursuant to Section 2.04(a), as set forth in the applicable Pricing
Supplement or the Notes.
"REGISTER" has the meaning set forth in Section 2.07.
"REGISTRAR" means, unless otherwise specified in this Indenture, the
Indenture Trustee, in its capacity as registrar under this Indenture, or its
successors or assigns.
"REGISTRATION STATEMENT" means (A) a registration statement on Form S 3
or other appropriate form, including any prospectus or prospectus supplements
and the exhibits included therein, any post-effective amendments thereto and any
registration statements filed subsequent thereto under rules promulgated under
the Securities Act, relating to the registration under the Securities Act of the
Notes, (B) any preliminary prospectus or prospectus supplements thereto relating
to the Notes required to be filed pursuant to the Securities Act and any
documents or filings incorporated therein by reference, and (C) a registration
statement and such other documents, forms or filings as may be required by the
Securities Act or the Trust Indenture Act, or other securities laws in each case
relating to the Notes of the Company.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Notes of any series, means the date specified for that purpose in
such Note or this Indenture.
"RESPONSIBLE OFFICER" means, with respect to the Indenture Trustee, any
vice president, assistant vice president, any assistant secretary, any assistant
treasurer, any trust officer or assistant trust officer, or any other officer of
the Indenture Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and
11
familiarity with the particular subject, and also, any other officer having
direct responsibility for the administration of this Indenture.
"SECURED INDEBTEDNESS" means Indebtedness of the Company which is
secured by any Lien upon any asset of the Company.
"SECURITIES ACT" means the Securities Act of 1933, as it may be amended
or supplemented from time to time, and any successor statute thereto, and the
rules, regulations and published interpretations of the Commission promulgated
thereunder from time to time.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
it may be amended or supplemented from time to time, and any successor statute
thereto, and the rules, regulations and published interpretations of the
Commission promulgated thereunder from time to time.
"SPECIAL RECORD DATE" means a date fixed by the Indenture Trustee
pursuant to Section 2.10 for the payment of any Defaulted Interest on any Note.
"SPECIFIED CURRENCY" means the currency in which the Notes are
denominated (or, if such currency is no longer legal tender for the payment of
public and private debts in the country issuing such currency, such currency
which is then such legal tender).
"STATED MATURITY DATE" means, with respect to any Note or any
installment of interest thereon, the date specified in such Note, as the fixed
date on which the principal of such Note or such installment of interest is due
and payable; provided that the Stated Maturity Date of any Note shall not exceed
thirty (30) years after the Issuance Date of such Note, unless otherwise
specified in the applicable Pricing Supplement.
"SUBSIDIARY" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
same time directly or indirectly owned by the Company.
"SURVIVOR'S OPTION" has the meaning set forth in the Notes of a series.
"TRANSFER AGENT" means, unless otherwise specified in this Indenture,
the Indenture Trustee, in its capacity as transfer agent under this Indenture or
its successors or assigns.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as it may
be amended or supplemented from time to time, and any successor statute thereto,
and the rules, regulations and published interpretations of the Commission
promulgated thereunder from time to time.
12
"UCC" means the Uniform Commercial Code, as from time to time in effect
in the applicable jurisdiction whose law governs perfection, non-perfection or
priority of a security interest.
"UNITED STATES" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
Section 1.02 COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application
or request by the Company to the Indenture Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Indenture Trustee
an Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Section 1.03 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE.
(a) In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless the Company knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which its certificate or opinion is based are
erroneous. Any such certificate or opinion or any Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, the Company stating that the information with respect
to such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous. Any
Opinion of Counsel may be based on the written opinion of other counsel, in
which event such Opinion of Counsel shall be accompanied by a copy of such other
counsel's opinion and shall include a statement to the effect that such counsel
believes that such counsel and the Indenture Trustee may reasonably rely upon
the opinion of such other counsel. Any certificate or opinion of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or
13
firm of accountants in the employ of the Company, unless the Company knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the accounting matters upon which its
certificate, statement or opinion is based are erroneous.
(c) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
(d) Wherever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the
Company shall deliver any document as a condition of the granting of such
application, or as evidence of compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Company to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to limit the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Section 7.01.
(e) Every certificate (other than the Officer's Certificate
required by Section 3.08(a)) or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including one furnished
pursuant to specific requirements of this Indenture relating to a particular
application or request) shall substantially include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 1.04 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by any Holder may be
14
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holder in person or by one or more agents duly appointed in
writing. Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may,
alternatively, be embodied in and evidenced by the record of Holders of Notes
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Notes duly called and held in accordance
with the provisions of Article 10, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
delivered to the Indenture Trustee. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at any meeting. Proof of execution of any such
instrument or of writing appointing any such agent, or of the holding by any
Person of a Note, shall be sufficient for any purpose of this Indenture and
(subject to Section 7.01) conclusive in favor of the Indenture Trustee, and the
Company, if made in the manner provided in this Section 1.04. The record of any
meeting of Holders of Notes shall be proved in the manner provided in Section
10.06. Without limiting the generality of this Section 1.04, unless otherwise
provided herein, a Clearing System that is or whose nominee is a Holder of a
Global Note may allow its account holders who have beneficial interests in such
Global Note credited to accounts with such Clearing System to direct such
Clearing System in taking such action through such Clearing System's standing
instructions and customary practices. The Clearing System shall report only one
result of its solicitation of proxies to the Indenture Trustee.
(b) Subject to Section 7.01, the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Whenever such execution is by a signer acting in a capacity other than his or
her individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may be proved in any other manner that the Indenture Trustee deems
sufficient.
(c) The ownership, principal amount and serial numbers of Notes
held by any Person, and the date of the commencement and the date of the
termination of holding the same, shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by
15
the Indenture Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Note.
(e) Except as provided in subsection (f) below, if the Company
shall solicit from the Holders of Notes any Act referred to in Section 1.04(a),
the Company may, at its option, fix in advance a record date for the
determination of Holders entitled to vote or consent in connection with any such
Act, but the Company shall have no obligation to do so. If such record date is
fixed, such Act may be given after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Notes have authorized or agreed or consented to such
Act, and for that purpose the Outstanding Notes shall be computed as of such
record date; provided, that no such Act by Holders on such record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date. Nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Notes on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company shall cause notice of such record date and the proposed action by
Holders to be given to the Indenture Trustee in writing and to each Holder of
the Notes in the manner set forth in Section 1.06.
(f) The Indenture Trustee may set any day as a record date for the
purpose of determining the Holders entitled to join in the giving or making of
(I) any notice delivered pursuant to Section 6.01(d), (II) any declaration of
acceleration referred to in Section 6.02, (III) any request to institute
proceedings referred to in Section 6.07(b), or (IV) any direction referred to in
Section 6.12. If such a record date is fixed pursuant to this paragraph, the
relevant action may be taken or given after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Notes have authorized or agreed or consented to such
action, and for that purpose the Outstanding Notes shall be computed as of such
record date; provided, that no such action by Holders on such record date shall
be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date. Nothing in
this paragraph shall be construed to prevent the Indenture Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding Notes
on the date such action is taken. Promptly after any record date is set pursuant
to this paragraph, the Indenture Trustee shall cause notice of such record date
and the proposed action by Holders to be given to the Company in writing and to
each Holder of the Notes in the manner set forth in Section 1.06.
16
Section 1.05 NOTICES. Any request, demand, authorization, direction,
notice, consent, waiver or other action required or permitted by this Indenture
to be made upon, given or furnished to, or filed with, the Indenture Trustee,
the Registrar, the Transfer Agent, the Paying Agent, the Calculation Agent and
the Company shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class mail or
overnight courier, in each case postage prepaid, at the address specified in
this Section 1.05 or at any other address previously furnished in writing.
Such notices shall be addressed
if to the Indenture Trustee, to:
JPMorgan Chase Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Worldwide Securities Services
if to the Registrar, Transfer Agent, Paying Agent and Calculation
Agent, to:
JPMorgan Chase Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Worldwide Securities Services
if to the Company, to:
Hartford Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Law Department
or at such other address previously furnished in writing by one party
to the other parties.
Section 1.06 NOTICE TO HOLDERS; WAIVER.
(a) Except as otherwise expressly provided herein or pursuant to
this Indenture, notices to Holders required under the Notes shall be
sufficiently given upon
17
the mailing by overnight courier or first-class mail (or equivalent), or (if
posted to an overseas address) by airmail, postage prepaid, of such notices to
each Holder of the Notes at their registered addresses as recorded in the
Register.
(b) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Indenture
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver. In any case, neither the failure
to give such notice, nor any defect in any notice to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders, and any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given.
(c) In the case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of the
Indenture Trustee shall constitute a sufficient notification for every purpose
hereunder.
Section 1.07 SEVERABILITY. In case any provision in or obligation under
this Indenture or any Notes issued hereunder shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby to
the fullest extent permitted under applicable law.
Section 1.08 SUCCESSORS AND ASSIGNS. All covenants, stipulations,
promises and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 1.09 BENEFITS OF INDENTURE. Nothing in this Indenture or in any
Note, expressed or implied, shall give to any Person other than the parties
hereto and their successors and the Holders, any legal or equitable right,
remedy or claim under this Indenture.
Section 1.10 LANGUAGE OF NOTICES. Any request, demand, authorization,
direction, notice, consent, election or waiver required or permitted under this
Indenture shall be in the English language, except that, if the Company so
elects, any published notice may be in an official language of the country of
publication.
Section 1.11 GOVERNING LAW.
(a) This Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to conflict of law principles, except as required by mandatory provisions of
law.
18
(b) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE COMPANY, THE
INDENTURE TRUSTEE, REGISTRAR, TRANSFER AGENT OR PAYING AGENT OR ANY OTHER AGENT,
ARISING OUT OF OR RELATING TO THIS INDENTURE OR ANY NOTE MAY BE BROUGHT IN A
UNITED STATES FEDERAL COURT LOCATED IN NEW YORK CITY, THE BOROUGH OF MANHATTAN,
AND BY EXECUTION AND DELIVERY OF THIS INDENTURE EACH OF THE COMPANY, THE
INDENTURE TRUSTEE, THE REGISTRAR, THE TRANSFER AGENT, THE PAYING AGENT, AND ANY
OTHER AGENT, (IN SUCH CAPACITIES) ACCEPT, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURT AND WAIVE ANY DEFENSE OF FORUM
NON CONVENIENS AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS INDENTURE OR ANY NOTE.
Section 1.12 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS
INDENTURE HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS INDENTURE, THE NOTES
OR ANY DEALINGS AMONG THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION.
The scope of this waiver is intended to encompass any and all disputes that may
be filed in any court and that relate to the subject matter of this transaction
including without limitation contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. Each party hereto
acknowledges that this waiver is a material inducement to enter into a business
relationship, that such party has already relied on the waiver in entering into
this Indenture, and that such party will continue to rely on the waiver in its
related future dealings. Each party hereto further warrants and represents that
it has reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS INDENTURE OR ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING TO THIS INDENTURE. In the event of litigation, this
Indenture may be filed as a written consent to a trial by the court.
Section 1.13 COUNTERPARTS. This Indenture and any amendments, waivers,
consents or supplements hereto or thereto, may be executed in any number of
counterparts, and by different parties hereto in separate counterparts, and each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
This Indenture shall become effective upon the execution of a counterpart hereof
by each of the parties hereto.
19
Section 1.14 THIRD PARTY BENEFICIARIES. This Indenture will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
Section 1.15 CONFLICT WITH TRUST INDENTURE ACT. If any provision of
this Indenture limits, qualifies or conflicts with any duties imposed by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act through operation of
Section 318(c) thereof, such imposed duties shall control.
ARTICLE 2
THE NOTES
Section 2.01 FORMS GENERALLY.
(a) The Notes constitute direct, unconditional, unsecured, senior
obligations of the Company and rank equally among themselves. The Notes shall be
in substantially the form set forth in Exhibit A attached hereto, or in such
other form or forms as shall be established by or pursuant to a Board
Resolution, Issuance Order or indenture supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required by this Indenture or as may in the Company's judgment be necessary,
appropriate or convenient to permit such Notes to be issued and sold, or to
comply, or facilitate compliance, with applicable laws, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange on which such Notes may be listed, or as may, consistently
herewith, be determined by the Company as evidenced by its execution thereof.
Any portion of the text of any Note may be set forth on the reverse thereof with
an appropriate reference on the face of the Note.
(b) The terms and provisions contained in the Notes of any series
shall constitute, and are hereby expressly made a part of this Indenture, and,
to the extent applicable, the Indenture Trustee, by its execution and delivery
of this Indenture and its authentication and delivery of such Notes, and the
Company by its execution and delivery of this Indenture and such Notes,
expressly agrees to such terms and provisions and to be bound thereby.
(c) Except as described in this Section 2.01(c), no Global Note
evidencing any of the Notes and deposited with or on behalf of any Clearing
System shall be exchangeable for Definitive Notes. Subject to the foregoing
sentence, if (I) such Clearing System notifies the Company that it is unwilling
or unable to continue as Depositary or the Company becomes aware that the
Clearing System has ceased to be a clearing agency registered under the
Securities Exchange Act and in any such case the Company fails to appoint a
successor depositary within ninety (90) days after receipt of such notice or
after
20
it becomes aware of such cessation or (II) the Company shall have decided in its
sole discretion and subject to the procedures of the Depositary that the Notes
should no longer be evidenced solely by one or more Global Notes, then, pursuant
to written instructions by the Company to the Indenture Trustee (in the case of
clause (i)), or pursuant to written instructions by the Company to the Indenture
Trustee and Clearing System (in the case of clause (ii)):
(A) with respect to each Global Note evidencing such
Notes, the Company shall execute, and the Indenture Trustee shall
authenticate and deliver Definitive Notes of the same series in
authorized denominations in exchange for the Global Note, in an
aggregate principal amount equal to the Outstanding principal amount of
the related Global Note. Upon the exchange of the Global Note for the
Definitive Notes of the same series, such Global Note shall be
cancelled by the Registrar. Definitive Notes issued in exchange for a
Global Note pursuant to this Section 2.01(c) shall be registered in the
Register in such names and in such denominations as the Clearing System
for such Global Note, pursuant to the instructions from its direct or
indirect participants or otherwise, shall instruct the Indenture
Trustee, serving as custodian, on behalf of the nominee of the
Depositary, of the Global Note. The Indenture Trustee shall immediately
provide the information to the Registrar. Immediately after the
authentication of the Definitive Notes by the Indenture Trustee, the
Indenture Trustee shall deliver such Definitive Notes to the Holders of
such Notes;
(B) if Definitive Notes are issued in exchange for any
portion of a Global Note after the close of business at the Office or
Agency for such Note where such exchange occurs on (1) any Regular
Record Date for such Notes and before the opening of business at such
Office or Agency on the next Interest Payment Date, or (2) any Special
Record Date for such Notes and before the opening of business at such
Office or Agency on the related proposed date for payment of interest
or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Definitive Notes, but shall be
payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such
portion of such Global Note shall be payable in accordance with the
provisions of this Indenture; and
(C) if for any reason Definitive Notes are not issued,
authenticated and delivered to the Holders in accordance with paragraph
(A) of this Section 2.01(c), then:
21
(1) the Clearing System or its successors may
provide to each of its accountholders a statement of such
accountholder's interest in the Notes evidenced by each Global
Note held by such Clearing System or its successors, together
with a copy of such Global Note; and
(2) subject to the limitations on individual
Holder action contained in the Notes or this Indenture, each
such accountholder or its successors and assigns (X) shall
have a claim, directly against the Company, for the payment of
any amount due or to become due in respect of such
accountholder's interest in the Notes evidenced by such Global
Note, and shall be empowered to bring any claim, to the extent
of such accountholder's interest in the Notes evidenced by
such Global Note and to the exclusion of such Clearing System
or its successors, that as a matter of law could be brought by
the Holder of such Global Note and the Person in whose name
the Notes are registered and (Y) may, without the consent and
to the exclusion of such Clearing System or its successors,
file any claim, take any action or institute any proceeding,
directly against the Company, to compel the payment of such
amount or enforce any such rights, as fully as though the
interest of such accountholder in the Notes evidenced by such
Global Note were evidenced by a Definitive Note in such
accountholder's actual possession and as if an amount of Notes
equal to such accountholder's stated interest were registered
in such accountholder's name and without the need to produce
such Global Note in its original form.
Notwithstanding anything in this paragraph (C) to the contrary, the
Indenture Trustee shall not be required to recognize any accountholder
or any of its successors and assigns referred to in said paragraph as a
Holder for any purpose of this Indenture or the relevant Notes and
shall be entitled to treat the Person in whose name the relevant Global
Note is registered as a Holder for all purposes of this Indenture and
the Notes until Definitive Notes are issued to and registered in the
names of such accountholders or their successors and assigns.
The account records of any Clearing System or its successor shall, in the
absence of manifest error, be conclusive evidence of the identity of each
accountholder that has any interest in Notes evidenced by a Global Note held by
such Clearing System or its successor and the amount of such interest.
Definitive Notes shall be issued only in denominations as specified in the
applicable Pricing Supplement.
(d) Subject to the other provisions of this Indenture, if any
Global Note is exchanged for Definitive Notes, then:
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(i) the Company, the Indenture Trustee and any Paying
Agent will have the right to treat each Holder of Definitive Notes as
the Person exclusively entitled to receive interest and other payments
or property in respect of or in exchange for the Notes, and otherwise
to exercise all the rights and powers with respect to any Note (subject
to the record date provisions hereof and of the Notes); and
(ii) the obligation of the Company to make payments of
principal, premium, if any, interest and other amounts with respect to
the relevant Notes shall be discharged at the time payment in the
appropriate amount is made in accordance with this Indenture to each
Holder.
Section 2.02 DENOMINATIONS; NO LIMITATION ON AGGREGATE PRINCIPAL AMOUNT
OF NOTES.
(a) Unless otherwise specified in the applicable Pricing
Supplement, Notes shall be issued in denominations of $1,000 and any larger
amount that is a multiple of $1,000; the authorized denomination of Notes that
have a Specified Currency of Canadian dollars will be the approximate Canadian
dollar equivalent of $1,000 and any larger amount that is a multiple of such
$1,000 equivalent. Nothing in this Indenture shall limit the minimum
denomination of Notes that may be specified in a Pricing Supplement.
(b) Upon the execution of this Indenture, or from time to time
thereafter, Notes up to the aggregate principal amount authorized by or pursuant
to a Board Resolution may be executed and delivered by the Company. Notes will
be delivered to the Indenture Trustee for authentication, after execution by the
Company, and the Indenture Trustee shall thereupon authenticate and deliver said
Notes to, or upon the written order of, the Company, as provided in an Issuance
Order, without any further action by the Company, but subject to the provisions
of Section 2.06.
The Notes may be issued in one or more series. The aggregate principal
amount of Notes of all series which may be authenticated and delivered and
Outstanding under this Indenture is not limited; provided that the aggregate
principal amount of Notes Outstanding shall not exceed the amount authorized
from time to time by Board Resolution. Notwithstanding Section 2.02(b)(2) herein
and unless otherwise expressly provided with respect to a series of Notes, the
aggregate principal amount of a series of Notes may be increased and additional
Notes of such series may be issued up to the maximum aggregate principal amount
authorized with respect to such series as increased.
There shall be established in or pursuant to a Board Resolution, or set
forth in one or more Issuance Orders, or established in one or more indentures
supplemental hereto, prior to the issuance of Notes of a series:
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(1) the designation of the series of the Notes (which
shall distinguish the Notes of such series from all other Notes);
(2) any limit upon the aggregate principal amount of the
Notes of the series which may be authenticated and delivered under this
Indenture (except for Notes authenticated and delivered upon
registration of, transfer of, or in exchange for, or in lieu of, other
Notes of the series pursuant to Section 2.01(c), 2.04(h), 2.08, 2.09 or
8.05);
(3) the date or dates on which the principal of the Notes
of the series, is payable (which date shall not be less than nine (9)
months nor more than thirty (30) years from the Issuance Date of the
applicable Notes, unless otherwise specified therein);
(4) the rate at which Notes of the series, shall bear
interest, if any, the Interest Payment Dates on which such interest
shall be payable (if other than those specified in the form of Note
attached hereto), the date from which interest shall accrue on such
Notes (if other than the Issuance Date) and the Regular Record Date for
the determination of Holders of such Notes to whom interest is payable
on any Interest Payment Date (if other than the Regular Record Date
specified in the form of Note attached hereto);
(5) if applicable, the place or places (in addition to
such place or places specified in this Indenture) where the principal
of and interest, if any, on Notes of the series, shall be payable;
(6) the obligation, if any, of the Company to redeem,
purchase or repay Notes of the series pursuant to any mandatory
redemption sinking fund or analogous provisions or at the option of a
Holder thereof pursuant to the Survivor's Option, and the period or
periods within which, the price or prices at which, and the terms and
conditions upon which, Notes of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(7) if the amount of payments of principal of and any
premium or interest on the Notes of the series may be determined with
reference to an index, a formula or any other method, the manner in
which such amounts shall be determined;
(8) the denominations in which Notes of the series shall
be issuable, if other than $1,000 and integral multiples of $1,000;
(9) if the notes are denominated in Canadian dollars;
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(10) the currency in which payment of the principal of (or
premium, if any) or interest, if any, on the Notes of the series shall
be payable, if other than the Specified Currency;
(11) if other than 100% of the principal amount, the
portion of the principal amount of Notes of the series which shall be
payable upon declaration of acceleration of the maturity thereof or
which the Indenture Trustee shall be entitled to claim pursuant to
Section 6.04;
(12) if the Notes of the series shall be issued in whole
or in part in the form of one or more Global Notes, the Depositary for
such Note or Notes, if other than DTC;
(13) if beneficial owners of interests in any Global Notes
may exchange such interests for Definitive Notes of such series of any
authorized form and denomination, the circumstances under which and the
place or places where any such exchanges may occur, if other than in
the manner provided in Section 2.01(c);
(14) limitations, if any, on the provisions for the
Defeasance or Covenant Defeasance of the Notes of the series and any
additional terms, provisions, conditions or covenants under this
Indenture that may be subject to Covenant Defeasance in the case of
Notes of such series;
(15) if the Notes of such series are to be issuable in
definitive form upon original issue only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(16) any trustees, depositories, authenticating or paying
agents, registrars or any other agents with respect to the Notes of
such series, if different from those specified in this Indenture;
(17) any additions, modifications or deletions in the
Events of Default or covenants of the Company set forth herein with
respect to the Notes of such series;
(18) if other than the period specified in Section 2.04,
the period prior to a redemption date within which the Indenture
Trustee must give notice to the Holders of Notes of such series
selected for redemption regarding such selection and redemption date;
(19) if the Notes of such series will be listed on any
securities exchange, the exchange on which such Notes will be listed;
and
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(20) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Notes of any one series shall be substantially identical except (I)
as to denomination and (II) as may otherwise be set forth in any such
supplemental indentures or Issuance Orders.
Section 2.03 LISTING. If specified in the applicable Pricing
Supplement, Notes of a series will be listed on the securities exchange set
forth in such Pricing Supplement.
Section 2.04 REDEMPTION.
(a) Unless otherwise specified in the applicable Pricing
Supplement and the Notes of the relevant series, the Company may not redeem such
Notes after the date that is thirty (30) days prior to the Stated Maturity Date
of such Notes.
(b) If, but only if, specified in the applicable Pricing
Supplement and the Notes of the relevant series, such Notes will be redeemable
at the option of the Company and/or the Holders thereof, as the case may be, in
accordance with the redemption provisions included in such Pricing Supplement
and such Notes.
(c) Unless otherwise specified in the applicable Pricing
Supplement, in connection with the redemption by the Company of Notes under
Section 2.04(b) hereof, the Company will give written notice to the Holders in
accordance with Section 1.06 hereunder not less than thirty (30) days and no
more than seventy-five (75) days prior to the date set for such redemption. All
notices of redemption shall state:
(i) the redemption date;
(ii) the Redemption Price or, if not then ascertainable,
the manner of calculation thereof;
(iii) that on the redemption date the Redemption Price will
become due and payable on the Notes to be redeemed and that interest
thereon will cease to accrue on and after said date; and
(iv) the place or places where the Notes to be redeemed
are to be surrendered for payment of the Redemption Price.
Notice of redemption of Notes to be redeemed by the Company shall be given by
the Company or, at the Company's request, by the Indenture Trustee in the name
and at the expense of the Company.
(d) Prior to any redemption date, the Company shall deposit with
the Paying Agent an amount of money sufficient to pay the Redemption Price of
and (except if the
26
redemption date shall be an Interest Payment Date) accrued and unpaid interest
on, all Notes which are to be redeemed on that date.
(e) Upon notice of redemption having been given pursuant to
Section 2.04(c) hereunder, the Notes to be so redeemed shall, on the redemption
date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest, if any) such Notes shall cease to bear or
accrue any interest. Upon surrender of Notes for redemption in accordance with
said notice, such Notes shall be paid by the Company at the Redemption Price,
together with any accrued but unpaid interest to, but not including the
redemption date provided that, installments of interest whose Stated Maturity
Date is on or prior to the redemption date will be payable to the Holders of
such Notes, or one or more Predecessor Notes, registered as such at the close of
business on the relevant Record Date according to their terms and the provisions
of Section 2.10, unless, in connection with a redemption date falling on an
Interest Payment Date, the Notes of the particular series provide that interest
payable on an Interest Payment Date that is a redemption date shall be paid to
the Person to whom principal is payable.
(f) In case of any redemption by the Company, the Company shall,
at least forty-five (45) days prior to the redemption date fixed by the Company
(unless a shorter notice shall be satisfactory to the Indenture Trustee), notify
the Indenture Trustee by an Officer's Certificate of such redemption date, and
of the principal amount of Notes to be redeemed. In the case of any redemption
of Notes (A) prior to the expiration of any restriction on such redemption
provided in the terms of such Notes or elsewhere in this Indenture, or (B) which
is subject to a condition specified in the terms of such Notes or elsewhere in
this Indenture, the Company shall furnish the Indenture Trustee with an
Officer's Certificate evidencing compliance with such restriction or condition.
(g) If less than all Notes of a series are to be redeemed (unless
such redemption affects only a single Note), the particular Notes of such series
to be redeemed shall be selected not more than seventy-five (75) days prior to
the redemption date by the Indenture Trustee, from the Outstanding Notes of such
series not previously called for redemption, by such method as the Indenture
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of a portion of the principal amount of any Note of such series;
provided that the unredeemed portion of the principal amount of any Note of such
series shall be in an authorized denomination (which shall not be less than the
minimum authorized denomination) for Notes of such series.
The Indenture Trustee shall promptly notify the Company in writing of
the Notes selected for redemption as aforesaid and, in the case of any Notes of
a series selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Note, whether such Note is to
be redeemed in
27
whole or in part. In the case of any such redemption in part, the unredeemed
portion of the principal amount of the Note shall be in an authorized
denomination (which shall not be less than the minimum denomination) for such
Note.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Notes redeemed or to be redeemed only in part, to the portion of
the principal amount of such Notes which has been or is to be redeemed.
(h) Any Note which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Indenture Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Indenture Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Indenture Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or Notes,
of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Note so surrendered.
Section 2.05 EXECUTION AND DELIVERY OF NOTES.
The Notes shall be signed on behalf of the Company by an Authorized
Officer. The signature of any of these officers may be manual or facsimile.
Only such Notes as shall bear thereon a certificate of authentication
substantially in the form recited in Section 2.06(d) hereof and executed by the
Indenture Trustee by manual signature of one of its authorized officers, shall
be entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate upon any Note shall be conclusive evidence that the
Note so authenticated has been duly authenticated and delivered hereunder and
that the Holder is entitled to the benefits of this Indenture.
In case any Authorized Officer who shall have signed any of the Notes
shall cease to be such Authorized Officer before the Note so signed shall be
authenticated and delivered by the Indenture Trustee or the Company or disposed
of by the Company, such Note nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Note had not ceased to be such
Authorized Officer. In addition, any Note may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Note, shall be
Authorized Officers of the Company, although at the date of the execution of
this Indenture any such person was not such officer.
The Indenture Trustee may conclusively rely on the documents delivered
pursuant to Sections 2.01, 2.02 and 2.06 hereof (unless revoked by superseding
comparable documents) as to the authorization of the Board of Directors of any
Notes delivered hereunder, the legality, binding effect and enforceability
thereof and the form and terms
28
▇▇▇▇▇▇▇, and as to the authority of the instructing officers referred to in this
Section so to act.
Section 2.06 AUTHENTICATION AND DELIVERY OF NOTES.
(a) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Global Notes or Definitive
Notes, without interest coupons, of any series executed by the Company to the
Indenture Trustee for authentication by the Indenture Trustee together with the
applicable Pricing Supplement and an Issuance Order for the authentication and
delivery of such Notes, and the Indenture Trustee shall authenticate and deliver
such Notes in accordance with such Issuance Order. A Company Order may specify
that written instructions to the Indenture Trustee as to the authentication and
delivery of Notes may be given on behalf of the Company by any Person designated
in such Company Order, and the Indenture Trustee may conclusively rely on any
such instructions as if given by the Company until such authorization is
expressly revoked by a subsequent Company Order. The Company Order may specify
such other procedures as shall be acceptable to the Indenture Trustee for the
authentication and delivery from time to time of Notes of a series that are not
to be originally issued at one time (a "Periodic Offering"). If the form or
forms or terms of the Notes of the series have been established by or pursuant
to one or more Board Resolutions, supplemental indentures or Issuance Orders as
permitted by Sections 2.01 and 2.02, in authenticating such Notes, and accepting
the additional responsibilities under this Indenture in relation to such Notes,
the Indenture Trustee shall be entitled to receive upon its request, and
(subject to Section 7.01) shall be fully protected in relying upon, an Opinion
of Counsel stating:
(1) that such form or forms have been established in
conformity with the provisions of this Indenture;
(2) that such terms have been, or in the case of Notes of
a series offered in a Periodic Offering, will be, established in
conformity with the provisions of this Indenture, subject, in the case
of Notes of a series offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel; and
(3) that such Notes, when authenticated and delivered by
the Indenture Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
29
If such form or forms or terms have been so established, the Indenture
Trustee shall not be required to authenticate such Notes if the issue of such
Notes pursuant to this Indenture will affect the Indenture Trustee's own rights,
duties or immunities under the Notes and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Indenture Trustee or if the terms of
such Notes are not administratively acceptable to the Indenture Trustee.
Notwithstanding any contrary provisions of Section 2.01 or 2.02 or this
Section 2.06, if all Notes of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Opinion of Counsel otherwise
required upon the authentication of each Note of such series if such Opinion of
Counsel is delivered at or prior to the authentication upon original issuance of
the first Note of such series to be issued.
With respect to Notes of a series offered in a Periodic Offering, the
Indenture Trustee may rely, as to the authorization by the Company of any of
such Notes, the form or forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and the
other documents delivered pursuant to Sections 2.01 and 2.02 of this Section, as
applicable, in connection with the first authentication of such series.
Notwithstanding any contrary provision of this Section 2.06 and in lieu
of receiving or being required to request the receipt of the Opinion of Counsel
contemplated by this Section 2.06 in connection with each series of the Notes,
the Trustee shall be entitled to conclusively rely and shall be fully protected
in relying upon the Opinion or Opinions of Counsel for the Company delivered to
the Trustee upon commencement of and upon any increase in the size of the
Company's Program and upon commencement of and upon any increase in the size of
a new program for the issuance of Notes, as to the due authorization by the
Company of and the legality, validity, binding effect and enforceability of the
Notes of all series.
(b) Having received from the Company the documents referred to in
Sections 2.02(b) and 2.06(a) (to the extent applicable), including the Issuance
Order for the authentication and delivery of such Notes, on or before 10:00 a.m.
(New York time) on the Issuance Date in relation to such Notes (unless otherwise
agreed by the parties), the Indenture Trustee shall authenticate and deliver the
relevant Global Note to the relevant custodian for DTC and/or any other relevant
Clearing System or otherwise in accordance with such Clearing System's
procedures. The Registrar shall give instructions to DTC and/or any other
relevant Clearing System to credit Notes represented by a Global Note registered
in the name of a nominee for such Clearing System, to the Registrar's
distribution account and to hold each such Note to the order of the Company
pending delivery to the purchasing agent(s) on a delivery against payment basis
(or on such other basis as shall have been agreed between the Company and the
purchasing agent(s) and notified to the Registrar) in accordance with the normal
procedures of DTC or such other Clearing System, as the case may be and,
following payment (unless otherwise agreed),
30
to debit the Notes represented by such Global Note to such securities account(s)
as shall have been notified in writing to the Registrar by the Company. The
Indenture Trustee shall on the Issuance Date in respect of such Notes, and upon
receipt of funds from the purchasing agent(s), transfer, or cause to be
transferred, the proceeds of issue (net of any applicable commissions, fees or
like amounts specified in writing by the Company) to or as directed by the
Company. It is understood that the preceding two sentences are applicable only
to Periodic Offerings.
If no such securities account(s) shall have been specified, or the
Notes are not intended to be cleared through any Clearing System, the Registrar
shall authenticate and make available at its specified office on the Issuance
Date in respect of the Notes the relevant Global Note or the relevant Definitive
Notes, as the case may be, duly executed and made available to the Registrar by
the Company.
(c) Each Note shall be dated the date of its authentication.
(d) The Indenture Trustee's certificate of authentication shall be
in substantially the following form:
This is one of the Notes of Hartford Life Insurance Company referred to
in the within-mentioned Indenture.
Dated:
JPMorgan Chase Bank, N.A.
as Indenture Trustee
By:________________________________
authorized officer
In case any officer of the Indenture Trustee who shall have signed any
of the Notes shall cease to be such officer before the Note so signed shall be
delivered by the Indenture Trustee or the Company or disposed of by the Company,
such Note nevertheless may be delivered or disposed of as though the person who
signed such Note had not ceased to be such officer of the Indenture Trustee. In
addition, any Note may be signed on behalf of the Indenture Trustee by such
persons as, at the actual date of the execution of such Note, shall be
authorized officers of the Indenture Trustee, although at the date of the
execution of this Indenture any such person was not such officer.
In authenticating Notes hereunder, the Indenture Trustee shall be
entitled to conclusively assume that any Note authenticated by it has been duly
executed on behalf
31
of, and is a legal, valid, binding and enforceable obligation of, the Company
and is entitled to the benefits of this Indenture.
Section 2.07 REGISTRATION. All Notes shall be registered and may be
represented either as Global Notes or Definitive Notes. Unless otherwise
specified in the applicable Pricing Supplement, Global Notes will be registered
in the name of a nominee for, and deposited with, a custodian for DTC. The
Registrar shall maintain a register (herein sometimes referred to as the
"REGISTER") in which, subject to such reasonable regulations as it may
prescribe, the Registrar shall provide for the registration of the Notes and
registration of transfer of the Notes. The Register shall be in written form in
English or in any other form capable of being converted into such form within a
reasonable time. The Indenture Trustee is hereby initially appointed as the
Registrar. In the event that the Indenture Trustee shall not be the Registrar,
it shall have the right to examine the Register at all reasonable times. The
Company, the Indenture Trustee, Registrar, Paying Agent or any other Agent may
become the owner or pledgee of Notes and may deal with the Notes with the same
rights of any other Holder of such Notes.
Section 2.08 TRANSFER.
(a) Subject to Section 2.01(c) and (d), (A) upon surrender for
registration of transfer of any Note in accordance with its terms, the Company
shall execute, and the Indenture Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Notes of the
same series denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions and (B) at the option
of the Holder, Notes may be exchanged, in accordance with their terms, for other
Notes of the same series containing identical terms and provisions, in any
authorized denominations, and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at the Office or Agency of the Indenture
Trustee. Whenever any Notes are surrendered for exchange as contemplated by this
Section 2.08(a), the Company shall execute, and the Indenture Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive. Beneficial interests in Global Notes may be transferred or
exchanged only through the Depositary. No Global Note may be transferred except
as a whole by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or another nominee of the
Depositary to a successor of the Depositary or a nominee of a successor to the
Depositary. With respect to any Global Note, the Depositary or its nominee is
the Holder of such Global Note for the purposes of this Indenture. Except as set
forth in Section 2.01(c), the beneficial owners of any Global Note will not be
entitled to receive Definitive Notes and shall not be considered "Holders" under
this Indenture.
(b) All Notes issued upon a registration of transfer or exchange
of Notes shall be the valid obligations of the Company evidencing the same debt
and entitling the
32
Holders thereof to the same benefits under this Indenture as the Notes
surrendered upon such registration of transfer or exchange.
(c) No service charge shall be made for any registration of
transfer or exchange, of Notes, but the Indenture Trustee may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes.
Section 2.09 MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
(a) If (I) any mutilated Note is surrendered to the Indenture
Trustee directly or through any Paying Agent or (II) in the case of an alleged
destroyed, lost or stolen Note, the Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of the Note and there is
delivered to the Indenture Trustee, the Registrar and the Company such security
or indemnity as may be required by the Indenture Trustee, the Registrar and the
Company to save the Indenture Trustee, the Registrar and the Company harmless,
then in either case the Company shall execute and the Registrar shall
authenticate and deliver, in exchange for or in lieu of such mutilated,
destroyed, lost or stolen Note, a new Note of the same series, maturity, tenor
and principal amount as such mutilated, destroyed, lost or stolen Note, bearing
a number not contemporaneously outstanding; provided, however, that if any such
mutilated, destroyed, lost or stolen Note shall have become or shall be about to
become due and payable, instead of issuing a new Note, the Company may pay such
Note without surrender of such Note, except that any mutilated Note shall be
surrendered.
(b) Upon the issuance of any new Note, under this Section 2.09,
the Indenture Trustee or the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee, Registrar or any Paying Agent) connected therewith.
(c) Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute a separate obligation of the
Company, whether or not the destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.10 PAYMENT OF INTEREST; RIGHTS TO INTEREST PRESERVED.
(a) Each Note shall bear interest at a rate and on terms stated in
the Note.
33
(b) Any interest on any Note which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date, shall be paid to the
Person in whose name that Note is registered at the close of business on the
Regular Record Date for such interest payment.
(c) Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of their having been such Holder,
and such Defaulted Interest shall be paid by the Company to the Persons in whose
names such Notes (or their respective Predecessor Notes) are registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall notify
the Indenture Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Note and the date of the proposed payment. Thereupon the
Indenture Trustee shall fix a date for the payment of such Defaulted Interest
which shall be not more than fifteen (15) days and not less than ten (10) days
prior to the date of the proposed payment and not less than ten (10) days after
the receipt by the Indenture Trustee of the notice of the proposed payment (the
"SPECIAL RECORD DATE"). The Indenture Trustee shall promptly notify the Company
of such Special Record Date and, in the name of the Company shall cause notice
of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder in accordance with Section 1.06. The Company
may make payment of any Defaulted Interest on the Notes in any other lawful
manner not inconsistent with the requirements of any securities exchange, if
any, on which such Notes may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Indenture Trustee
of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Indenture Trustee. Subject to the foregoing provisions
of this Section, each Note delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Note shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Note.
Section 2.11 CANCELLATION. All Notes surrendered for payment,
registration of transfer or exchange shall, if surrendered to any Person other
than the Indenture Trustee, be delivered to the Indenture Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Indenture
Trustee for cancellation any Note previously authenticated and delivered
hereunder that the Company may have acquired in any manner whatsoever, and all
Notes so delivered shall be promptly cancelled by the Indenture Trustee. No
Notes shall be authenticated in lieu of or in exchange for any Notes cancelled
as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Notes held by the Indenture Trustee shall be disposed of by the
Indenture Trustee in accordance with its customary procedures, unless the
Company shall otherwise direct by a Company Order.
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Section 2.12 PERSONS DEEMED OWNERS. Prior to due presentment for
registration of transfer of any Note, the Company, the Indenture Trustee, the
Registrar, the Paying Agent, any Agent, and any other agent of the Company, or
the Indenture Trustee may treat the Person in whose name any Note is registered
as the owner of such Note for the purpose of receiving payment of the principal
of, any premium, or (subject to Section 2.10) interest on such Note and for all
other purposes whatsoever, whether or not such Note shall be overdue, and,
except as otherwise required by applicable law, none of the Company, the
Indenture Trustee, the Registrar, the Paying Agent, any Agent, or any other
agent of the Company or the Indenture Trustee shall be affected by notice to the
contrary.
Section 2.13 NO ASSOCIATION. Nothing set forth in this Indenture shall
be construed to constitute the Holders of Notes, from time to time, as members
of an association.
ARTICLE 3
COVENANTS, REPRESENTATIONS AND WARRANTIES
Section 3.01 PAYMENT OF PRINCIPAL AND ANY PREMIUM AND INTEREST.
(a) The Company covenants and agrees, for the benefit of the
Holders of Notes, that it will pay or cause to be paid to the Paying Agent on or
before the date on which any payment becomes due, an amount equal to the amount
of principal (and premium, if any) or interest and any other amount payable in
respect of such Notes.
(b) An installment of principal, premium, if any, or interest and
any other amount payable in respect of any Notes shall be considered paid on the
date it is due if the Company has deposited, or caused to be deposited, with the
Paying Agent by such date money designated for, and capable of being applied
towards, and sufficient to pay the installment.
Section 3.02 AGREEMENTS OF THE PAYING AGENT. The Paying Agent agrees
that:
(a) If the Company shall at any time act as its own
Paying Agent with respect to any series of Notes, it will, on or before
each due date of the principal of or premium, if any, or interest on
any of the Notes of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the
principal, premium, if any, and any interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Indenture Trustee of its action
or failure so to act.
(b) The Paying Agent shall be entitled to deal with each
amount paid to it hereunder in the same manner as other amounts paid to
it as a banker by its customers provided that:
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(i) the Paying Agent shall not, against the
Company or any Holder of a Note, exercise any lien, right of
set-off or similar claim in respect thereof (except as
otherwise provided or permitted under this Indenture);
(ii) the Paying Agent shall not be liable to any
person for interest thereon;
(iii) the Paying Agent need not segregate any
money held by it except as required by law or as otherwise
provided under this Indenture; and
(iv) the Paying Agent shall comply with the
provisions of Sections 317(b) of the Trust Indenture Act and
agrees that it will, during the continuance of any default by
the Company in the making of any payment in respect of Notes
of a series (or a default by any other obligor upon such
Notes), upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums held in trust
by such Paying Agent for payment in respect of such Notes.
(c) The Paying Agent shall pay or cause to be paid by
transfer of immediately available funds to Holders all monies received
by the Paying Agent for such purpose from the Company pursuant to
Section 3.01. In the event a Note is issued between a Regular Record
Date or Special Record Date and the related Interest Payment Date,
interest for the period beginning on the original issue date for such
Note or the previous Interest Payment Date, as the case may be, and
ending on the subject Interest Payment Date will be paid on the
immediately following Interest Payment Date to the Person who was the
registered Holder of such Note as of the immediately preceding Regular
Record Date. With respect to Global Notes, the Paying Agent shall pay
principal, premium, if any, interest and any other amounts due on such
Global Notes in accordance with the arrangements established by and
between the Paying Agent and the Depositary. Notwithstanding anything
herein to the contrary, payments of principal in respect of Definitive
Notes shall be made as provided in or pursuant to this Indenture
against presentation and surrender of the relevant Definitive Notes at
the designated office of the Paying Agent, as provided herein or in the
applicable Definitive Note. Notwithstanding anything herein to the
contrary, interest on Definitive Notes shall be paid to the person
shown in the applicable Register at the close of business on the
Regular Record Date or Special Record Date, as applicable, as provided
in or pursuant to this Indenture before the due date for payment
thereof. Notwithstanding anything herein to the contrary, payments of
interest on each Definitive Note shall be made in the currency in which
such payments are due by check mailed to the Holder (or to the first
named of joint Holders) of such Definitive Note at its address
appearing in the applicable
36
Register. Upon application by a Holder of at least $250,000 in
aggregate principal amount of Notes of a series (or its equivalent in
Canadian dollars if the Specified Currency is Canadian dollars) to the
specified office of the Paying Agent at least five (5) Business Days
before the Regular Record Date or Special Record Date, as applicable,
such payment of interest may be made by transfer to an account
maintained by the payee with a bank in the City of New York if the
Specified Currency is U.S. dollars, or in the city of Toronto if the
Specified Currency is Canadian dollars. All monies paid to the Paying
Agent by the Company in respect of any Note shall be held by the Paying
Agent from the moment when such monies are received until the time of
actual payment thereof, for the persons entitled thereto, and shall be
applied in accordance with Section 3.02 paragraphs (c) through (h);
provided, that the obligation of the Paying Agent to hold such monies
shall be subject to the provisions of Section 3.07.
(d) The Paying Agent acting through its specified office
shall make payments of interest or, as the case may be, principal in
respect of any Notes in accordance with the terms thereof and of this
Indenture, provided that such Paying Agent shall not be obliged (but
shall be entitled) to make such payments if it is not able to establish
that it has received (whether or not at the due time) the full amount
of the relevant payment due to it under Section 3.01(a). Payment of any
Note redemption amount (together with accrued interest) due in respect
of Notes will be made against presentation and surrender of the
relevant Notes at the specified office of the Paying Agent, subject to
Section 2.04(h). Payment of interest due in respect of Notes will be
paid by the Paying Agent to the Holder thereof (or, in the case of
joint Holders, the first named) which shall be the person appearing as
Holder in the register kept by the Registrar as at the close of
business (local time in the place of the specified office of the
Registrar) on the Regular Record Date.
(e) The Paying Agent shall not exercise any lien, right
of set-off or similar claim against any person to whom it makes any
payment under paragraph (c) in respect thereof, nor shall any
commission or expense be charged by it to any such person in respect
thereof.
(f) If a Paying Agent makes any payment in accordance
with paragraph (c), it shall be entitled to appropriate for its own
account out of the funds received by it under Section 3.01(a) an amount
equal to the amount so paid by it.
(g) If a Paying Agent makes a payment in respect of Notes
at a time at which it has not received the full amount of the relevant
payment due to it under Section 3.01(a) and is not able to reimburse
itself out of funds received by it under Section 3.01(a) therefor by
appropriation under paragraph (e) the Company shall from time to time
on demand pay to the Paying Agent for its own account:
37
(i) the amount so paid out by such Paying Agent
and not so reimbursed to it; and
(ii) interest on such amount from the date on
which such Paying Agent made such payment until the date of
reimbursement of such amount;
provided that any payment made under paragraph (i) above shall satisfy
pro tanto the Company's obligations under Section 3.01(a).
(h) Interest shall accrue for the purpose of paragraph
(ii) of paragraph (f) (as well after as before judgment) on the basis
of a year of 360 days and the actual number of days elapsed and at the
rate per annum which is the aggregate of one percent per annum and the
rate per annum specified by the Paying Agent as reflecting its cost of
funds for the time being in relation to the unpaid amount.
(i) If at any time and for any reason a Paying Agent
makes a partial payment in respect of any Note surrendered for payment
to it, such Paying Agent shall endorse thereon and in the register a
statement indicating the amount and date of such payment.
Section 3.03 MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company will maintain in the Place of Payment an Office or
Agency where Notes may be presented or surrendered for payment, where Notes may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of any Notes and this Indenture may be
served; provided, however, that if Notes of any series are listed on any stock
exchange and the rules of such stock exchange shall so require, the Company
shall maintain an Office or Agency in any other required city so long as such
Notes are listed on such exchange. The Company will give prompt written notice
to the Indenture Trustee of the location, and any change in the location, of
such Office or Agency. If at any time the Company shall fail to maintain any
such required Office or Agency or shall fail to furnish the Indenture Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Indenture Trustee and
the Company hereby appoints the Indenture Trustee as its agent to receive such
respective presentations, surrenders, notices and demands. The Company shall
promptly notify the Indenture Trustee of the name and address of each Paying
Agent appointed by it and will notify the Indenture Trustee of the resignation
or termination of any Paying Agent.
(b) The Company may also from time to time designate one or more
other Offices or Agencies where Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its
38
obligation to maintain the Offices or Agencies for Notes in the Place of Payment
for the foregoing purposes. The Company shall give prompt written notice to the
Indenture Trustee of any such designation or rescission and of any change in the
location of any such Office or Agency.
(c) Unless otherwise provided in or pursuant to this Indenture,
the Company hereby appoints the Indenture Trustee as Paying Agent, Registrar and
Transfer Agent.
Section 3.04 DUTIES OF THE AGENTS.
(a) The Company shall provide to the Paying Agent (unless the
Company is acting as its own Paying Agent) sufficient copies of all documents
required to be available for inspection as provided in the Registration
Statement or the applicable Pricing Supplement in respect of the Notes of a
series.
(b) To the extent permitted by applicable law, the Paying Agent
shall make available for inspection during normal business hours at its
specified office such documents as may be specified as so available at the
specified office of the Paying Agent in respect of such Notes, or as may be
required by any stock exchange on which such Notes may be listed.
(c) Notwithstanding anything to the contrary, the Company shall be
solely responsible for ensuring that each Note to be issued or other
transactions to be effected hereunder shall comply with all applicable laws and
regulations of any governmental or other regulatory authority in connection with
any Note and that all necessary consents and approvals of, notifications to and
registrations and filings with, any such authority in connection therewith are
effected, obtained and maintained in full force and effect.
(d) The Paying Agent shall collect all forms from Holders or, in
the case of Notes held in a Clearing System, from the relevant Clearing System,
if any, that are required to exempt payments under the Notes from United States
federal income tax withholding. The Paying Agent shall (I) withhold from each
payment hereunder or under any Note any and all United States federal or state
withholding taxes applicable thereto as required by law and (II) file any
information reports as it may be required to file under applicable law.
(e) Each Agent shall be obligated to perform such duties and only
such duties as are set out in this Indenture and no implied duties or
obligations shall be read into this Indenture against such Agent.
(f) Each Agent shall be protected and shall incur no liability for
or in respect of any action taken, omitted or suffered in reliance upon any
instruction, request or order from the Company (however, the foregoing portion
of this clause (f) shall not apply to the Company acting as its own Paying Agent
or Calculation Agent) or any notice, resolution,
39
direction, consent, certificate, affidavit, statement, facsimile, telex or other
paper or document (duly signed or which it believes in good faith to have been
duly signed, where applicable) which it believes in good faith to be genuine and
to have been delivered, signed or sent by the proper party or parties.
(g) Each Agent and any of its officers, directors, employees or
controlling persons may become the owner of, or acquire any interest in any
Note, with the same rights that it or he would have if it or he were not
appointed under this Indenture, and may engage or be interested in, any
financial or other transaction with the Company, or may act as depositary,
trustee or agent for any committee or body of Holders, as freely as if it or he
were not appointed under this Indenture.
(h) Each Agent may consult with legal and other professional
advisers and the opinion of the advisers shall be full and complete protection
in respect of action taken, omitted or suffered under this Indenture in good
faith and in accordance with the opinion of the advisers (however, this clause
(h) shall not apply to the Company acting as its own Paying Agent or Calculation
Agent).
(i) Under no circumstances will the Paying Agent or any other
Agent be liable to the Company, the Holders or any other party to this
Indenture, for special, indirect or consequential loss or damage of any kind
whatsoever (including, but not limited to, lost profits) even if the Agent has
been advised of the likelihood of such loss or damage and regardless of the form
of action.
Section 3.05 DUTIES OF THE TRANSFER AGENT. If and to the extent
specified in the terms and conditions of Notes of a series or if otherwise
requested by the Company or Indenture Trustee, the Transfer Agent shall in
compliance with such Notes and this Indenture:
(a) Receive requests from Holders of such Notes for the transfer
of Definitive Notes, inform the Registrar in writing of the receipt of such
requests, forward the deposited Definitive Note(s) to or to the order of the
Registrar and assist in the issuance of a new Definitive Note and in particular,
without limitation, notify the Registrar in writing of (I) the name and address
of the Holder of the Definitive Note, (II) the serial number and principal
amount of the Definitive Note, (III) in the case of a transfer of a portion of a
Note only, the principal amount of the Definitive Note to be so transferred and
(IV) the name and address of the transferee to be entered on the Register;
(b) Make available for collection by each relevant Holder new
Definitive Notes;
(c) Accept surrender of Definitive Notes and assist in effecting
final payment of the Notes on the due date for payment;
40
(d) Keep the Registrar informed of all transfers; and
(e) Carry out such other acts as may reasonably be necessary to
give effect to such Notes and this Indenture.
Section 3.06 DUTIES OF THE REGISTRAR.
(a) The Registrar shall maintain a Register which shall show the
aggregate principal amount and date of issue of Notes of a series, the names and
addresses of the initial Holders thereof and the dates of all transfers to, and
the names and addresses of, all subsequent Holders thereof.
(b) The Registrar shall by the issue of new Notes, the
cancellation of old Notes and the making of entries in the Register give effect
to transfers of Notes in accordance with this Indenture.
(c) The Company may from time to time deliver to the Registrar
Notes of which it is the Holder for cancellation, whereupon the Registrar shall
cancel the same and shall make the corresponding entries in the Register.
(d) As soon as reasonably practicable but in any event within
ninety (90) days after each date on which Notes fall due for redemption, the
Registrar shall notify the Company of the serial numbers of any Notes against
surrender of which payment has been made and of the serial numbers of any Notes
(and the names and addresses of the Holders thereof) which have not yet been
surrendered for payment.
(e) The Registrar shall, upon and in accordance with the
instructions of the Company but not otherwise, arrange for the delivery in
accordance with this Indenture of any notice which is to be given to a Holder of
Notes and shall supply a copy thereof to the Indenture Trustee and the Paying
Agent.
(f) The Company shall ensure that each Registrar has available to
it supplies of such Notes as shall be necessary in connection with the transfer
of Notes and the exchange of Global Notes for Definitive Notes.
(g) The Registrar shall make available, at the request of the
Holder of any Note, forms of proxy in a form and manner which comply with the
provisions of this Indenture relating to meetings and shall perform and comply
with the provisions of this Indenture applicable to it.
(h) The Company shall provide to the Registrar:
(i) specimen Notes in definitive form; and
41
(ii) sufficient copies of all documents required to be
available for inspection as provided in the Registration Statement or
the Pricing Supplement in respect of Notes of a series, as may be
required by any securities exchange on which such Notes may be listed,
or as may be required by applicable law.
(i) The Registrar shall make available for inspection during
normal business hours at its specified office such documents as may be specified
as so available at the specified office of such Registrar, as may be required by
any securities exchange on which Notes of a series may be listed, or as may be
required by applicable law.
(j) The Registrar shall provide the Paying Agent and/or Indenture
Trustee with all such information in the Registrar's possession with respect to
Notes of a series as the Paying Agent or the Indenture Trustee, as the case may
be, may reasonably require in order to perform the obligations set out in this
Indenture.
(k) The Registrar shall ensure that in no event shall Definitive
Notes be exchanged for Global Notes.
Section 3.07 UNCLAIMED MONIES. Any money or payment in respect of
Government Obligations deposited with the Indenture Trustee, Registrar or the
Paying Agent or then held by the Company, in trust, for the payment of the
principal of, premium, if any, or interest on any Note and remaining unclaimed
for two years after such principal or any such premium or interest had become
due and payable shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be paid to the
Company pursuant to a Company Order or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Indenture Trustee, Registrar or the Paying Agent with
respect to such trust money and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Indenture Trustee, Registrar
or the Paying Agent, before being required to make any such repayment, may cause
to be published once, in an Authorized Newspaper in each Place of Payment or to
be mailed to Holders, or both, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than thirty (30)
days from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 3.08 ANNUAL STATEMENT AS TO COMPLIANCE.
(a) On or before the fifteenth (15th) day of November in each
calendar year, commencing on the first such date following the Issuance Date of
the first series of Notes issued under this Indenture, the Company shall deliver
to the Indenture Trustee an Officer's Certificate stating, as to each signer
thereof, that in the course of the performance by each signer of such Officer's
Certificate of his or her present duties as an officer of the Company, such
signer would normally obtain knowledge or have made due
42
inquiry as to the existence of any condition or event which would constitute a
Default or Event of Default and that to the best of such signer's knowledge,
based on such review:
(i) a review of the fulfillment by the Company and during
such year of its obligations under this Indenture has been made under
the supervision of such signer; and
(ii) the Company has fulfilled in all material respects
its obligations under this Indenture throughout such year, or, if there
has been a Default or Event of Default in the fulfillment of any such
obligation, specifying each such Default or Event of Default known to
such signer and the nature and status thereof.
(b) The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(i) file with the Indenture Trustee, within fifteen (15)
days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections,
then it shall file with the Indenture Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations; provided that if, pursuant
to any publicly available interpretations of the Commission, the
Company would not be required to make such filings under Section 314(a)
of the Trust Indenture Act, then the Company shall not be required to
make such filings.
(ii) file with the Indenture Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time
by the Commission, such additional information, documents and reports
with respect to compliance by the Company, with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) transmit within thirty (30) days after the filing
thereof with the Indenture Trustee, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, such summaries
of any information, documents and reports required to be filed by the
Company pursuant to paragraphs (i) and (ii) of
43
this Section 3.08(b) as may be required by rules and regulations
prescribed from time to time by the Commission.
(c) The Company shall comply with the provisions of Section 314(d)
of the Trust Indenture Act.
Section 3.09 EXISTENCE. Subject to Section 4.01, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and all licenses and permits material to the
normal conduct of its business; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not disadvantageous in
any material respect to the Holders.
Section 3.10 REPORTS; FINANCIAL INFORMATION; NOTICES OF DEFAULTS.
(a) The Company shall promptly inform the Indenture Trustee in
writing of the occurrence of any Default or Event of Default which is continuing
of which it has actual knowledge. Each notice given pursuant to this Section
3.10(a) shall be accompanied by an Officer's Certificate setting forth details
of the occurrence referred to therein and stating what action, if any, the
Company has taken or proposes to take with respect thereto.
(b) The Company shall collect all forms (or, if applicable, copies
of such forms), if any, from the Paying Agent or Registrar (or from such other
persons as are relevant) that are required to exempt payments under the Notes
from United States federal income tax withholding. In addition, the Company
shall execute and file such forms and take such actions for United States
federal income tax purposes as shall be reasonable and necessary to ensure that
payments of interest, principal and premium, if applicable, in respect of any
Notes, are not subject to United States federal withholding or backup
withholding tax.
(c) In accordance with Section 312(a) of the Trust Indenture Act,
the Company shall furnish or cause to be furnished to the Indenture Trustee:
(i) semi-annually with respect to Notes not later than
the fifteenth (15th) day of May and the fifteenth (15th) day of
November of each year or upon such other dates as are set forth in or
pursuant to a Company Order or indenture supplemental hereto a list, in
each case in such form as the Indenture Trustee may reasonably require,
of the names and addresses of Holders as of the applicable date, and
(ii) at such other times as the Indenture Trustee may
request in writing, within thirty (30) days after the receipt by the
Company of any such request, a list
44
of similar form and content as of a date not more than fifteen (15)
days prior to the time such list is furnished,
provided, however, that so long as the Indenture Trustee is the Registrar no
such list shall be required to be furnished.
(d) The Indenture Trustee shall comply with the obligations
imposed upon it pursuant to Section 312 of the Trust Indenture Act.
Every Holder, by receiving and holding Notes, agrees with the Company
and the Indenture Trustee that neither the Company, the Indenture Trustee, the
Paying Agent or the Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 312(c) of the Trust Indenture Act, regardless of the
source from which such information was derived, and that the Indenture Trustee
shall not be held accountable by reason of mailing any material pursuant to a
request made under Section 312(b) of the Trust Indenture Act.
(e) (i) On or before July 15, 2007 and on or before July 15
of each year thereafter, if required by Section 313(a) of the Trust Indenture
Act, the Indenture Trustee shall transmit, pursuant to Section 313(c) of the
Trust Indenture Act, a brief report dated as of the previous May 15 with respect
to any of the events specified in said Section 313(a) of the Trust Indenture Act
which may have occurred within the previous 12 months or the date of this
Indenture, if later.
(ii) The Indenture Trustee shall transmit, pursuant to
Section 313(c) of the Trust Indenture Act, the reports required by
Section 313(b) of the Trust Indenture Act at the time specified
therein.
(iii) Reports pursuant to this Section shall be transmitted
in the manner and to the Persons required by Sections 313(c) and 313(d)
of the Trust Indenture Act.
(iv) The Company will promptly notify the Indenture
Trustee when any Notes are listed on any stock exchange.
Section 3.11 PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or upon the income, profits or property of the Company,
and (2) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a Lien upon the property of the Company; PROVIDED, HOWEVER,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
45
proceedings. The Company shall comply with the requirements of all other
applicable laws, the non-compliance with which would, individually or in the
aggregate, materially and adversely affect the condition (financial or
otherwise) of the Company or which would impair in any material respect the
ability of the Company to perform its obligations under the Notes or this
Indenture.
Section 3.12 LIMITATIONS ON LIENS. The Company shall not create, assume
or incur any Secured Indebtedness, other than Permitted Secured Indebtedness,
without making provision whereby all the Notes shall be secured equally and
ratably with (or prior to) such Secured Indebtedness (together with, if the
Company shall so determine, any other Indebtedness of the Company then existing
or thereafter created which is not subordinate to the Notes) so long as such
Secured Indebtedness shall be outstanding or so secured.
Section 3.13 ANCILLARY DOCUMENTS. The Company hereby expressly
authorizes and directs the Indenture Trustee to execute and deliver each of the
documents, instruments and agreements attached as Exhibits or otherwise
expressly contemplated by the terms of, this Indenture with respect to the Notes
of any series from time to time.
ARTICLE 4
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 4.01 COMPANY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS. The
Company will not merge or consolidate with any other corporation or sell,
assign, transfer, lease or convey all or substantially all of its assets to any
Person unless (I) either (A) the Company shall be the continuing corporation in
any such merger or consolidation, or (B) the successor corporation (if other
than the Company) in any such merger or consolidation, or the entity to which
all or substantially all of the Company's assets have been sold, assigned,
transferred, leased or conveyed, shall expressly assume the due and punctual
payment of the principal of and any interest on all the Notes, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company by
supplemental indenture in form satisfactory to the Indenture Trustee, executed
and delivered to the Indenture Trustee by such corporation or other entity and
(II) the Company or such successor corporation or other entity, as the case may
be, shall not, immediately after such merger or consolidation, or such sale,
assignment, transfer, lease or conveyance, be in default in the performance of
any such covenant or condition, and there shall be no event resulting therefrom
which, after notice or the lapse of time or both, would become an Event of
Default under this Indenture.
Section 4.02 SUCCESSOR CORPORATION TO BE SUBSTITUTED FOR COMPANY. In
case of any such consolidation, merger, sale, assignment, transfer, lease or
conveyance and upon any such assumption by the successor corporation, or the
entity to which all or
46
substantially all of the Company's assets have been sold, assigned, transferred,
leased or conveyed, such successor corporation or other entity shall succeed to
and be substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and thereafter, except in the case of a
lease, the predecessor corporation or entity shall be relieved of all
obligations and covenants under this Indenture and the Notes. Such successor
corporation or other entity thereupon may cause to be signed, and may issue
either in its own name or in the name of Hartford Life Insurance Company, any or
all of the Notes issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Indenture Trustee; and, upon the order of
such successor corporation or other entity, instead of the Company, and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Indenture Trustee shall authenticate and shall deliver any Notes which
previously shall have been signed and delivered by an Authorized Officer of the
Company to the Indenture Trustee for authentication, and any Notes which such
successor corporation or other entity thereafter shall cause to be signed and
delivered to the Indenture Trustee for that purpose. All of the Notes, so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Notes, if any, theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Notes had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance, such changes in phraseology and form (but not in substance)
may be made in the Notes thereafter to be issued as may be appropriate.
Section 4.03 OPINION OF COUNSEL TO BE GIVEN TO INDENTURE TRUSTEE. The
Indenture Trustee, subject to the provisions of Section 7.01, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale or conveyance, and any such assumption, complies with the provisions of
Sections 4.01 and 4.02.
ARTICLE 5
SATISFACTION AND DISCHARGE; SUBROGATION
Section 5.01 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect with respect to Notes of a series (except as
to any surviving rights of registration of transfer or exchange of Notes herein
expressly provided for) and the Indenture Trustee, on written demand at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to such Notes, when:
(a) either:
(i) all such Notes theretofore authenticated and
delivered (other than (X) Notes which have been mutilated,
destroyed, lost or stolen
47
and which have been replaced or paid as provided in Section
2.09 and (Y) Notes for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 3.07) have been
delivered to the Indenture Trustee for cancellation; or
(ii) all such Notes not theretofore delivered to
the Indenture Trustee for cancellation:
(A) have become due and payable,
(B) will become due and payable at their Stated
Maturity Date within one year, or
(C) are to be called for redemption within one
year under arrangements satisfactory to the Indenture Trustee
for the giving of notice of redemption by the Indenture
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has
deposited or caused to be deposited with the Indenture Trustee
as trust funds: (1) money; (2) Government Obligations which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment,
money; or (3) a combination thereof, in each case in an amount
sufficient to pay and discharge, and which shall be applied by
the Indenture Trustee, to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the
Indenture Trustee for cancellation, for principal of, premium,
if any, or any interest on, the Notes to the date of such
deposit (in the case of Notes which have become due and
payable) or to the Stated Maturity or redemption date, as the
case may be; provided that the Indenture Trustee shall have
the right (but not the obligation) to require the Company to
deliver to the Indenture Trustee an opinion of a nationally
recognized firm of independent public accountants expressed in
a written certification, or other evidence satisfactory to the
Indenture Trustee, as to the sufficiency of deposits made by
the Company pursuant to this section;
(b) the Company has paid or caused to be paid in full all
other sums payable hereunder by the Company with respect to such Notes;
and
(c) the Company has delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent
48
herein providing for the satisfaction and discharge of this Indenture
with respect to Notes of such series have been complied with.
The Company shall pay and indemnify the Indenture Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to this Section 5.01 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding Notes.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Indenture Trustee under the Expense and
Indemnity Agreement and the preceding paragraph, and, if money and/or Government
Obligations shall have been deposited with the Indenture Trustee pursuant to
subclause (ii) of Clause (a) of this Section, the obligations of the Indenture
Trustee under Section 5.02 and Section 3.07 shall survive.
Section 5.02 APPLICATION OF TRUST MONEY. Subject to the provisions of
Section 3.07, all money and Government Obligations deposited with the Indenture
Trustee pursuant to Section 5.01 and all proceeds of such Government Obligations
and the interest thereon, shall be held in trust and applied by it, in
accordance with the provisions of the relevant Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Indenture Trustee may determine, to the
Persons entitled thereto, of the principal, premium, if any, and interest, if
any, for whose payment such money and Government Obligations have been deposited
with or received by the Indenture Trustee.
Section 5.03 REPAYMENT OF FUNDS HELD BY PAYING AGENT. In connection
with the satisfaction and discharge of Notes of a series as set forth in Section
5.01 above, all funds or Government Obligations then held by any Paying Agent
under the provisions of this Indenture that relate to such Notes shall, upon
demand of the Company, be repaid to the Company or paid to the Indenture Trustee
and thereupon such Paying Agent shall be released from all further liability
with respect to such funds.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT.
"EVENT OF DEFAULT," wherever used herein, means any one of the
following events with respect to a particular series of Notes (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
49
(a) failure to pay the principal of any of the Notes of
such series and the continuance of such failure for a period of five
(5) Business Days after such principal becomes due and payable;
(b) failure to pay any interest or premium, if any, on
any of the Notes of such series and continuance of such failure for a
period of thirty (30) days after such interest becomes due and payable;
(c) a material failure in the performance, or breach, of
any one or more of the other covenants in this Indenture or the Notes
of such series (other than a covenant, a default in whose performance
or whose breach is elsewhere in this section specifically dealt with or
which has expressly been included in this Indenture solely for the
benefit of any series of Notes other than that series), for a period of
sixty (60) days after the date on which there shall have been given
written notice thereof to the Company by the Indenture Trustee or to
the Company and the Indenture Trustee by the Holders of Notes
representing at least twenty-five percent (25%) of the aggregate
principal amount of the Outstanding Notes of such series, which notice
shall specify such default or breach and require it to be remedied and
which notice shall state that it is a "Notice of Default";
(d) either (I) a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of the
Company in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect in the State
of Connecticut or any other applicable jurisdiction, which decree or
order is not stayed; or any other similar relief shall be granted under
any applicable law; or (II) an involuntary case shall be commenced
against the Company under any applicable bankruptcy, insolvency or
other similar law of the State of Connecticut or any other applicable
jurisdiction; or a decree or order of a court having jurisdiction in
the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers
over the Company, or over all or a substantial part of its property,
shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of the
Company for all or a substantial part of its property; or a court
having jurisdiction in the premises shall enter a decree or order
declaring the dissolution of the Company; or a warrant of attachment,
execution or similar process shall have been issued against any
substantial part of the property of the Company and any such event
described in this clause (ii) shall continue for sixty (60) days unless
dismissed, bonded or discharged;
(e) either (I) the Company shall have an order for relief
entered with respect to it or shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law of the State of
Connecticut or any other applicable jurisdiction, or shall consent to
the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any
50
such law, or shall consent to the appointment of or taking possession
by a receiver, trustee or other custodian for all or a substantial part
of its property; or the Company shall make any assignment for the
benefit of creditors; or (II) the Company shall fail or be unable, or
the Company admits in writing its inability, to pay its debts as such
debts become due; or the Board of Directors of the Company shall adopt
any resolution or otherwise authorize any action to approve or for the
purpose of effecting any of the actions referred to in this paragraph
(e); or
(f) any other Event of Default with respect to the Notes
of such series.
Section 6.02 ACCELERATION OF MATURITY DATE; RESCISSION AND ANNULMENT.
If an Event of Default specified in any of Sections 6.01 (d) or (e) hereof
occurs with respect to Notes of a series, the principal of and all accrued and
unpaid interest and any other amounts payable on such Notes shall automatically
be and become due and payable immediately, without any declaration or other act
whatsoever on the part of the Company, the Indenture Trustee or any Holder. If
any Event of Default other than those specified in Sections 6.01 (d) or (e)
hereof occurs with respect to Notes of a series, and is continuing, then in
every such case the Indenture Trustee or the Holders of more than twenty-five
percent (25%) in aggregate principal amount of the Outstanding Notes of such
series, by a notice in writing to the Company (and to the Indenture Trustee if
given by the Holders of such Notes), may (but are not required to) declare the
sum of (A) the principal amount of all such Outstanding Notes and (B) any other
amounts, including accrued and unpaid interest, payable to the Holders of such
Notes to the extent such amounts are permitted by law to be paid, to be due and
payable immediately, and upon any such declaration such amount shall become due
and payable on the date the written declaration is received by the Company;
provided, however, that with respect to any Note issued with original issue
discount (other than indexed Notes) the amount of principal due and payable for
such Note will be the amount determined as set forth in the applicable Pricing
Supplement or, if not so set forth, by multiplying (I) the then outstanding
aggregate principal amount of such Note by (II) the sum of (A) the original
issue price of the Note (expressed as a percentage of the then outstanding
aggregate principal amount of such Note) plus (B) the original issue discount
(expressed as a percentage) amortized from the original issue date of such Note
to the date of declaration of acceleration of maturity of such Note (calculated
using the interest method in accordance with generally accepted accounting
principles in effect on the date of determination).
At any time after such a declaration of acceleration of maturity of the
Notes of a series has been made pursuant to the second sentence of this Section
and before a judgment or decree for payment of the money due has been obtained
by the Indenture Trustee as hereinafter provided in this Article, the Holders of
Notes representing at least sixty-six and two-thirds percent (66 2/3%) of the
aggregate principal amount of the
51
Outstanding Notes of that series, by written notice to the Company and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(a) the Company has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(i) all overdue installments of interest on the
Notes of that series,
(ii) the principal and premium, if any, of the
Notes of that series which have become due otherwise than by
such declaration of acceleration and interest thereon with
respect thereto at the rate borne by such Notes, and
(iii) all sums paid or advanced by the Indenture
Trustee hereunder; and
(b) all Events of Default, other than the nonpayment of
the principal of or interest on the Notes of that series which have
become due solely as a result of such acceleration, have been cured or
waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 6.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT. The
Company covenants that if:
(a) default is made in the payment of any installment of
interest on any Note of any series when such interest becomes due and
payable (after the expiration of any applicable cure period), or
(b) default is made in the payment of the principal or
premium, if any, of any Note of any series when such principal or
premium, if any, becomes due and payable (after the expiration of any
applicable grace period),
the Company will upon demand of the Indenture Trustee (which the Indenture
Trustee may make, but is not required to make) pay to the Indenture Trustee, for
the benefit of all the Holders of such Notes, the whole amount then due and
payable on all such Notes and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel.
If the Company fails to pay such amounts it is required to pay the
Indenture Trustee pursuant to the preceding paragraph, then forthwith upon the
demand of the Indenture Trustee, in its own name and as trustee of an express
trust, the Indenture
52
Trustee may (but is not required to) institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any
other obligor upon any of such Notes and collect the monies adjudged or decreed
to be payable in the manner provided by law out of the property of the Company
or any other obligor upon such Notes, wherever situated.
If an Event of Default with respect to a particular series of Notes
occurs and is continuing, the Indenture Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of such Notes by
such appropriate judicial proceedings as the Indenture Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.04 INDENTURE TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, composition or other judicial proceeding relative
to the Company or any other obligor upon the Notes of any series or their
property or their creditors, the Indenture Trustee (irrespective of whether any
Notes of such series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand on the Company for the payment of any overdue principal,
premium or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal of, and any premium and interest owing and unpaid in respect
of, the Notes of such series and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Indenture Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its
agents and counsel) and of the Holders of Notes of such series allowed
in such proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Notes of such series to make such payments to the Indenture
Trustee and, in the event that the Indenture Trustee shall consent to the making
of such payments directly to the Holders of Notes of such series, to pay to the
Indenture Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, and any other amounts due to the Indenture Trustee under Section 7.10.
53
Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment, or composition affecting
any of the Notes or the rights of any Holder thereof, or to authorize the
Indenture Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.05 INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
NOTES. All rights of action and claims under this Indenture or under any of the
Notes of any series may be prosecuted and enforced by the Indenture Trustee
without the possession of any of such Notes or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Indenture
Trustee in accordance with the terms hereof shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee, its agents and counsel, be for the ratable
benefit of the Holders of Notes of such series in respect of which such judgment
has been recovered.
Section 6.06 APPLICATION OF MONEY COLLECTED. Any money collected by the
Indenture Trustee under this Article with respect to a series of Notes and any
monies that may then be held or thereafter received by the Indenture Trustee
with respect to a series of Notes shall be applied in the following order, at
the date or dates fixed by the Indenture Trustee and, in case of the
distribution on account of principal or interest, upon presentation of such
Notes, or both, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST, to the payment of the reasonable and customary expenses
and counsel fees incurred by the Indenture Trustee and any other
amounts due and unpaid to the Indenture Trustee in accordance with the
Expense and Indemnity Agreement;
SECOND, to the payment of the amounts then due and unpaid upon
the applicable series of Notes for principal, premium, if any, and
interest and all other amounts in respect of which, or for the benefit
of which such amount has been collected, ratably, without preference or
priority of any kind, according to the aggregate principal amounts due
and payable on such series of Notes; and
THIRD, any remaining balance shall be paid to the Company.
Section 6.07 LIMITATION ON SUITS. Except as otherwise provided in
Section 6.08, no Holder of any Note of any series shall have any right to
institute any proceedings, judicial or otherwise, with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
54
(a) such ▇▇▇▇▇▇ has previously given written notice to
the Indenture Trustee of a continuing Event of Default with respect to
the Notes of that series;
(b) the Holder or Holders of Notes representing not less
than twenty-five percent (25%) of the aggregate principal amount of the
Outstanding Notes of that series shall have made written request to the
Indenture Trustee to institute proceedings in respect of such Event of
Default in its own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity or security satisfactory to it against the
costs, expenses and liabilities to be incurred in compliance with such
request;
(d) the Indenture Trustee for sixty (60) days after its
receipt of such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request
has been given to the Indenture Trustee during such sixty (60) day
period by the Holder or Holders of Notes representing at least a
majority in aggregate principal amount of the Outstanding Notes of that
series;
it being understood and intended that no one or more Holders of Notes of any
series shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights
of any other Holder of Notes of such series or to obtain or to seek to obtain
priority or preference over any other Holder of Notes of such series or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all the Holders of the Notes of such
series.
Section 6.08 UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE PAYMENTS.
Notwithstanding any other provision in this Indenture, each Holder of any Note
shall have the right, which is absolute and unconditional, to receive payment of
the principal of, any interest on, and premium, if any, on such Note on the
respective Stated Maturity Date or redemption date thereof and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 6.09 RESTORATION OF RIGHTS AND REMEDIES. If the Indenture
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Indenture
Trustee or to such Holder, then and in every such case the Company, the
Indenture Trustee and each such Holder shall, subject to any determination in
such proceeding, be restored severally and respectively to their former
55
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 6.10 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes in Section 2.09, no right or remedy herein conferred upon
or reserved to the Indenture Trustee or to each and every Holder is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.11 DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Indenture Trustee or of any Holder to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such right or remedy accruing upon any Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Indenture Trustee or to any Holder may be exercised from time to time, and
as often as may be deemed expedient, by the Indenture Trustee or by such ▇▇▇▇▇▇,
as the case may be.
Section 6.12 CONTROL BY HOLDERS. Holders, representing at least a
majority of the aggregate principal amount of the Outstanding Notes of any
series, who provide the Indenture Trustee with indemnification satisfactory to
the Indenture Trustee, shall have the right to direct the time, method and place
of conducting any proceedings for exercising any remedy available to the
Indenture Trustee or exercising any trust or power conferred on the Indenture
Trustee with respect to the Notes of such series; provided, however, that (A)
such direction shall not be in conflict with any rule of law or with this
Indenture, (B) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction and (C)
subject to the provisions of Section 7.01, the Indenture Trustee shall have the
right to decline to follow any such direction if the Indenture Trustee in good
faith shall, by a Responsible Officer or Officers of the Indenture Trustee,
determine that the proceeding so directed would involve the Indenture Trustee in
personal liability.
Section 6.13 WAIVER OF PAST DEFAULTS. Notwithstanding anything herein
to the contrary, Holders representing a majority of the aggregate principal
amount of the Outstanding Notes of any series may on behalf of the Holders of
all the Notes of such series waive any past Default hereunder with respect
thereto and its consequences, except a Default
(a) in the payment of any principal of, any interest on,
or premium, if any, on any Note of such series, or
56
(b) in respect of a covenant or provision hereof that
cannot be modified or amended without the consent of the Holder of each
Outstanding Note of such series.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture with respect to the Notes of such series; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent
thereon.
Section 6.14 UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder, by acceptance of a Note, shall be deemed to have agreed
that, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Indenture Trustee for any action taken,
suffered or omitted by it as Indenture Trustee, any court may in its discretion
require the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Indenture Trustee or any
Agent, to any suit instituted by any Holder of Notes of a series, or group of
such Holders, holding in the aggregate Notes representing more than ten percent
(10%) of the aggregate principal amount of the Outstanding Notes of such series,
or to any suit instituted by any Holder of Notes of a series for the enforcement
of the payment of any installment of interest on any such Note on or after the
Stated Maturity Date thereof expressed in such Note or for the enforcement of
the payment of any principal of such Note at the Stated Maturity Date therefor.
Section 6.15 WAIVER OF STAY OR EXTENSION LAWS. The Company covenants
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any law wherever enacted, now or at
any time hereafter in force, providing for any appraisement, valuation, stay,
extension or redemption, which may affect the covenants in, or the performance
of, this Indenture; and the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Indenture Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
THE INDENTURE TRUSTEE AND OTHER AGENTS
Section 7.01 DUTIES OF INDENTURE TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use
57
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default, the
Indenture Trustee undertakes to perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or
obligations of the Indenture Trustee shall be read into this Indenture.
(c) No provision of this Indenture shall be construed to relieve
the Indenture Trustee or any Agent from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) this subsection does not limit the effect of
subsection (b) of this Section 7.01;
(ii) the Indenture Trustee may in good faith rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to it and
conforming to the requirements of this Indenture unless a Responsible
Officer of the Indenture Trustee has actual knowledge that such
statements or opinions are false; provided that the Indenture Trustee
shall examine such certificates and opinions to determine whether they
conform to the requirements of this Indenture;
(iii) each of the Indenture Trustee and each Agent shall
not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Indenture Trustee or
Agent, as the case may be, was negligent in ascertaining the pertinent
facts;
(iv) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with the direction of Holders representing at least a
majority of the aggregate principal amount of the Outstanding Notes of
any series or pursuant to Section 6.07 for actions or omissions
relating to the time, method and place of conducting any proceeding for
any remedy available to the Indenture Trustee, or exercising any trust
or power conferred upon the Indenture Trustee, under this Indenture
with respect to any Notes; and
(v) no provision of this Indenture shall require the
Indenture Trustee or any Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Indenture Trustee shall be subject to the provisions
of this Section 7.01.
(e) The Indenture Trustee shall, on behalf of the Company, and to
the extent that the relevant information shall be reasonably available to it,
submit such reports or information as may be required from time to time in
relation to the issue of any Notes by applicable law, regulations and guidelines
by governmental regulatory authorities as may be subsequently requested by the
Company and agreed to in writing between the Company and the Indenture Trustee.
Section 7.02 NO LIABILITY TO INVEST. None of the Agents shall be under
any liability for interest on, or have any responsibility to invest, any monies
received by it pursuant to any of the provisions of this Indenture or the Notes
of any series.
Section 7.03 PERFORMANCE UPON DEFAULT. None of the Agents shall have
any duty or responsibility in case of any default by the Company in the
performance of its obligations (including, without limiting the generality of
the foregoing, any duty or responsibility to accelerate all or any of the Notes
or to initiate or to attempt to initiate any proceedings at law or otherwise or
to make any demand for the payment thereof upon the Company).
Section 7.04 NO ASSUMPTION BY PAYING AGENT, TRANSFER AGENT, CALCULATION
AGENT OR REGISTRAR. In acting hereunder and in connection with the Notes of any
series, the Paying Agent, the Transfer Agent, the Calculation Agent and the
Registrar shall act solely as agents of the Company and will not thereby assume
any obligations towards, or relationship of agency or trust for, any Holder.
Section 7.05 NOTICE OF DEFAULT. Within ninety (90) days after a
Responsible Officer of the Indenture Trustee becomes aware of the occurrence of
any Default or Event of Default with respect to a series of Notes which is
continuing hereunder, the Indenture Trustee shall transmit to the Company and
all Holders of the Notes of such series notice of each such Default or Event of
Default hereunder known to the Indenture Trustee, unless such Default or Event
of Default shall have been cured or waived; provided, however, that, except in
the case of a Default of the kind described in Section 6.01(a), (b), (d) or (e)
the Indenture Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Indenture Trustee in good faith
determine that the withholding of such notice is in the interests of such
Holders.
Section 7.06 RIGHTS OF INDENTURE TRUSTEE. Subject to the provisions of
Section 7.01(c):
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(a) The Indenture Trustee may rely on any document
believed by it in good faith to be genuine and to have been signed or
presented by the proper Person. The Indenture Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from
acting it may require an Officer's Certificate or an Opinion of Counsel
(or may consult with financial or other advisors or consultants
appointed with due care). The Indenture Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on any
Company Order, Officer's Certificate, Opinion of Counsel or advice from
financial or other advisors or consultants appointed with due care.
(c) The Indenture Trustee may act through agents or
attorneys and shall not be responsible for monitoring or supervising
the actions of, or for the misconduct or negligence of, any agent or
attorney appointed with due care.
(d) The Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith that it believes to be
authorized or within its rights or powers.
(e) (i) The Indenture Trustee may employ or retain
such counsel, accountants, appraisers, agents or other experts or
advisers as it may reasonably require for the purpose of determining
and discharging its rights and duties hereunder and shall not be
responsible for misconduct or negligence on the part of any such person
appointed with due care.
(ii) The Indenture Trustee may act and rely and shall be
protected in acting and relying in good faith on the opinion or advice
of or information obtained from any counsel, accountant, appraiser,
agents or other expert or adviser, whether retained or employed by the
Company or by the Indenture Trustee, in relation to any matter arising
in the administration of the trusts hereof.
(f) The Indenture Trustee may consult with counsel of its
selection and the advice of such counsel or any opinion of counsel
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon.
(g) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any Holders of Notes pursuant to this
Indenture, unless such Holders shall have offered to the Indenture
Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction.
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(h) The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Indenture Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Indenture Trustee
shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney, with any reasonable costs related
thereto to be paid by the Company pursuant to the Expense and Indemnity
Agreement, and shall incur no liability or additional liability of any
kind by reason of such inquiry or investigation.
(i) The Indenture Trustee shall not be deemed to have
notice of any Default or Event of Default with respect to a series of
Notes unless a Responsible Officer of the Indenture Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact such a default is received by a Responsible Officer of the
Indenture Trustee at the Corporate Trust Office of the Indenture
Trustee from the Company or the Holders of at least twenty-five percent
(25%) in aggregate principal amount of the Notes of such series and
such notice references the Notes of such series and this Indenture and
states that a Default or Event of Default with respect to such series
of Notes has occurred.
(j) Permissive powers granted to the Indenture Trustee
hereunder shall not be construed to be mandatory duties on its part.
(k) The rights and protections afforded to the Indenture
Trustee pursuant to this Article 7 shall also be afforded to the Paying
Agent, Calculation Agent, Registrar or Transfer Agent, or any successor
or agent thereof.
(l) The Indenture Trustee shall have no liability for the
actions or omissions of the Paying Agent, Registrar, Calculation Agent
or Transfer Agent, provided that such action omission is not caused by
the Indenture Trustee's own negligence, bad faith or willful
misconduct.
(m) The Indenture Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through delegates, agents, attorneys, custodians, or nominees,
and the Indenture Trustee shall not be responsible for any misconduct
or negligence on the part, or the supervision, of any agent, attorney,
custodian, or nominee appointed with due care hereunder except as
otherwise agreed in writing with the Company.
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(n) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Order or as
otherwise expressly provided herein.
(o) Whenever in the administration of this Indenture the
Indenture Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Indenture Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate.
Section 7.07 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Notes of a series, except the certificates
of authentication on any Notes, shall be taken as the statements of the Company
and neither the Indenture Trustee nor any Agent assumes any responsibility for
their correctness. Neither the Indenture Trustee nor any Agent makes any
representations as to the validity, enforceability or sufficiency of this
Indenture or of any Notes issued under this Indenture. Neither the Indenture
Trustee nor any Agent shall be accountable for the use or application by the
Company of the Notes of a series or the proceeds thereof or any money paid to
the Company or upon Company Order pursuant to the provisions hereof.
Section 7.08 INDENTURE TRUSTEE MAY HOLD NOTES. The Indenture Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Notes and, subject to Section 7.11 herein and Section 311(a) of the Trust
Indenture Act, may otherwise deal with the Company with the same rights it would
have if it were not Indenture Trustee.
Section 7.09 MONEY HELD IN TRUST. Money held by the Indenture Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by this Indenture or by law. The Indenture Trustee shall be under no
liability for interest on any money received by it hereunder and shall not
invest such money, unless otherwise agreed to in writing and permitted by law.
Section 7.10 COMPENSATION AND REIMBURSEMENT. The Indenture Trustee and
the Agents will be entitled to payment of fees, reimbursement for and with
respect to, costs and expenses for services rendered hereunder and to
indemnification against any losses, liabilities or expense arising out of or in
connection with the acceptance or the administration of the trust or trusts or
duties hereunder to the extent provided in the Expense and Indemnity Agreement
and, with respect to only the Indenture Trustee, Section 6.06.
Section 7.11 INDENTURE TRUSTEE REQUIRED ELIGIBILITY. The Company
agrees, for the benefit of the Holders, that there shall at all times be an
Indenture Trustee hereunder which shall be a corporation or national banking
association organized and doing business under the laws of the United States,
any state thereof or the District of Columbia, authorized under such law to
exercise corporate trust powers, having a
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combined capital and surplus of at least $250,000,000 subject to supervision or
examination by federal or state authority and having a credit rating of BBB- or
better by Standard & Poor's Ratings Service, a Division of The ▇▇▇▇▇▇-▇▇▇▇
Companies or a credit rating of Baa3 or better by ▇▇▇▇▇'▇ Investors Service,
Inc. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section 7.11, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition as published.
Notwithstanding any provision of this Indenture to the contrary the Indenture
Trustee also must meet the requirements set forth in Section 310 of the Trust
Indenture Act, to the extent applicable. To the extent permitted by the Trust
Indenture Act, the Indenture Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to Notes
of more than one series. If at any time the Indenture Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 7.12 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Section shall
become effective until the acceptance of appointment by the successor Indenture
Trustee under Section 7.13.
(b) The Indenture Trustee may resign at any time with respect to
one or more series of Notes by giving not less than sixty (60) days' prior
written notice thereof to the Company and the Holders of such series of Notes.
If an instrument of acceptance by a successor Indenture Trustee shall not have
been delivered to the Indenture Trustee within thirty (30) days after the giving
of such notice of resignation, the resigning Indenture Trustee may petition any
court of competent jurisdiction for the appointment of a successor Indenture
Trustee and any and all amounts then due and owing to the retiring Indenture
Trustee shall be paid in full.
(c) The Indenture Trustee may be removed with respect to all
series of Notes Outstanding at any time by an Act of Holders of Notes
representing a majority of the aggregate principal amount of the Outstanding
Notes of all series voting as a class, delivered to the Indenture Trustee and to
the Company.
(d) If at any time (I) the Indenture Trustee shall cease to be
eligible under Section 7.11 and shall fail to resign after written request by
the Company or any Holder (who has been a bona fide Holder of a Note for at
least six (6) months), (II) the Indenture Trustee shall become incapable of
acting or shall be adjudged as bankrupt or insolvent, or a receiver or
liquidator of the Indenture Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Indenture Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation or (III) the
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Indenture Trustee shall fail to comply with the obligations imposed upon it
under Section 310(b) of the Trust Indenture Act with respect to the Notes of a
series after written request therefor by the Company or any Holder who has been
a bona fide Holder of a Note of such series for at least twelve (12) months,
then, (X) the Company (except during the existence of an Event of Default) by a
Company Order may, or (Y) subject to Section 6.14, any Holder who has been a
bona fide Holder of a Note of such series for at least six (6) months may, on
behalf of himself, herself or itself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Indenture Trustee and
the appointment of a successor Indenture Trustee, in each case with respect to
such series of Notes.
(e) If the Indenture Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Indenture
Trustee for any cause with respect to a series of Notes, the Company, by a
Company Order, shall promptly appoint a successor Indenture Trustee with respect
to such series and shall comply with the requirements of Section 7.13. If within
one year after such resignation, removal or incapability or the occurrence of
such vacancy a successor Indenture Trustee with respect to such series shall be
appointed by Act of Holders of Notes representing a majority of the aggregate
principal amount of the Outstanding Notes of such series delivered to the
Company and the retiring Indenture Trustee, the successor Indenture Trustee so
appointed shall, upon its acceptance of such appointment in accordance with the
requirements of Section 7.13, become the successor Indenture Trustee with
respect to such series and supersede the successor Indenture Trustee appointed
by the Company. If no successor Indenture Trustee with respect to such series
shall have been so appointed by the Company or Holders of Notes of such series
and shall have accepted appointment in the manner hereinafter provided, any
Holder who has been a Holder of a Note of such series for at least six months
may (subject to Section 6.14), on behalf of himself, herself or itself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee with respect to such series of
Notes.
(f) The Company shall give notice of each resignation and each
removal of the Indenture Trustee and each appointment of a successor Indenture
Trustee by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of the Notes of the affected series, if any, as their
names and addresses appear in the Register. Each notice shall include the name
of the successor Indenture Trustee and the address of its Corporate Trust
Office.
(g) Any successor Indenture Trustee shall satisfy all applicable
requirements under this Indenture.
Section 7.13 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Every successor Indenture Trustee appointed hereunder with
respect to all Notes shall execute, acknowledge and deliver to the Company and
the retiring Indenture
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Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Indenture Trustee shall become effective and such
successor Indenture Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Indenture Trustee. Notwithstanding the foregoing, on request of the Company or
the successor Indenture Trustee, such retiring Indenture Trustee shall, upon
payment of all amounts owed to it, execute and deliver an instrument
transferring to such successor Indenture Trustee all the rights, powers and
trusts of the retiring Indenture Trustee, and shall duly assign, transfer and
deliver to such successor Indenture Trustee all property and money held by such
retiring Indenture Trustee hereunder.
(b) In case of the appointment hereunder of a successor Indenture
Trustee with respect to the Notes of one or more (but not all) series, the
Company, the retiring Indenture Trustee and each successor Indenture Trustee
with respect to the Notes of that or those series shall execute and deliver an
indenture supplemental hereto wherein each successor Indenture Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Indenture Trustee all the rights, powers, trusts and duties of the
retiring Indenture Trustee with respect to the Notes of that or those series to
which the appointment of such successor Indenture Trustee relates, (2) if the
retiring Indenture Trustee is not retiring with respect to all Notes, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Indenture Trustee
with respect to the Notes of that or those series as to which the retiring
Indenture Trustee is not retiring shall continue to be vested in the retiring
Indenture Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Indenture Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such
Indenture Trustees co-trustees of the same trust and that each such Indenture
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Indenture Trustee
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Indenture Trustee shall become effective
to the extent provided therein and each such successor Indenture Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Indenture Trustee with
respect to the Notes of that or those series to which the appointment of such
successor Indenture Trustee relates; but, on request of the Company or any
successor Indenture Trustee, such retiring Indenture Trustee shall duly assign,
transfer and deliver to such successor Indenture Trustee all property and money
held by such retiring Indenture Trustee hereunder with respect to the Notes of
that or those series to which the appointment of such successor Indenture
Trustee relates.
(c) Upon request of any such successor Indenture Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to
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such successor Indenture Trustee all such rights, powers and trusts referred to
in this Section, as the case may be.
(d) No successor Indenture Trustee shall accept its appointment
unless at the time of such acceptance such successor Indenture Trustee shall be
qualified and eligible under this Article.
Section 7.14 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF INDENTURE TRUSTEE. Any corporation or national banking association
into which the Indenture Trustee may be merged or converted or with which it may
be consolidated, or any corporation or national banking association resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation or national banking association succeeding
to all or substantially all of the corporate trust business of the Indenture
Trustee, shall be the successor of the Indenture Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that such corporation or national banking
association shall be otherwise qualified and eligible under this Article. In
case any Notes have been authenticated, but not delivered, by the Indenture
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Indenture Trustee may adopt such authentication and deliver
the Notes so authenticated with the same effect as if such successor Indenture
Trustee had authenticated such Notes.
Section 7.15 APPOINTMENT AND DUTIES OF THE CALCULATION AGENT.
(a) Unless the Paying Agent advises the Company that it is unable
or unwilling to act as Calculation Agent, the Company appoints the Paying Agent
at its specified office as Calculation Agent in relation to any series of Notes
in respect of which it is named as such in the related Pricing Supplement for
the purposes specified in this Indenture and all matters incidental thereto.
(b) The Paying Agent accepts its appointment as Calculation Agent
in relation to any series of Notes in respect of which it is named as such in
the related Pricing Supplement and shall perform all matters expressly to be
performed by it in, and otherwise comply with, the terms and conditions of such
series of Notes and the provisions of this Indenture and, in connection
therewith, shall take all such action as may be incidental thereto. If the
Calculation Agent is incapable or unwilling to perform its duties hereunder, the
Indenture Trustee (or the Company if the Indenture Trustee is the Calculation
Agent) will appoint the Paying Agent or another leading commercial bank to serve
as Calculation Agent. Any resignation by or termination of a Calculation Agent
shall not be effective until a successor Calculation Agent has been appointed.
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(c) The Calculation Agent shall in respect of a series of Notes:
(i) obtain such quotes and rates and/or make such
determinations, calculations and adjustments as may be required under
such Notes and provide notice of any applicable interest rate
calculations or determinations or periods with respect to such Notes to
the Holders of such Notes upon their request and to the Indenture
Trustee, Paying Agent and the Company, and if such Notes are listed on
a stock exchange, and the rules of such exchange so require, such
exchange as soon as possible after the Calculation Agent's
determination or calculation of such interest rates or interest rate
periods, but in no event later than the fourth (4th) Banking Day
thereafter or, earlier in the case of notification to a stock exchange,
if the rules of such exchange so require; and
(ii) maintain a record of all quotations obtained by it
and of all amounts, rates and other items determined or calculated by
it and make such record available for inspection at all reasonable
times by the Company, the Indenture Trustee and the Paying Agent.
(d) The Calculation Agent shall have no liability to the Holders
of Notes of any series in respect of any determination, calculation, quote or
rate made or provided by the Calculation Agent in good faith.
Section 7.16 CHANGES IN AGENTS.
(a) Any Agent may resign its appointment hereunder upon the
expiration of not less than thirty (30) days' notice to that effect to the
Company (with a copy to the Indenture Trustee); provided, however, that any such
notice which would otherwise expire within thirty (30) days before or after the
Maturity Date or any interest or other payment date of a series of Notes shall
be deemed to expire on the thirtieth (30th) day following the Maturity Date or,
as the case may be, such interest or other payment date with respect to such
series.
(b) The Company may revoke its appointment of any Agent hereunder
upon not less than thirty (30) days notice to the applicable Agent and the
Indenture Trustee to that effect.
(c) The appointment of any Agent hereunder shall terminate
forthwith if any of the following events or circumstances shall occur or arise,
namely, such Agent becomes incapable of acting; is adjudged bankrupt or
insolvent; files a voluntary petition in bankruptcy or makes an assignment for
the benefit of its creditors or consents to the appointment of a receiver,
administrator or other similar official of all or any substantial part of its
property or admits in writing its inability to pay or meet its debts as they
mature or suspends payment thereof; a resolution is passed or an order is made
for the winding-up or dissolution of such Agent; a receiver, administrator or
other similar
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official of such Agent or of all or any substantial part of its property is
appointed; an order of any court is entered approving any petition filed by or
against such Agent under the provisions of any applicable bankruptcy or
insolvency law; or any public officer takes charge or control of such Agent or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation.
(d) The Company may (and shall where necessary to comply with the
terms and conditions of a series of Notes) appoint substitute or additional
agents in relation to such Notes and shall forthwith notify the other parties
hereto thereof, whereupon the parties hereto and such substitute or additional
agents shall thereafter have the same rights and obligations among them as would
have been the case had they then entered into an agreement in the form mutatis
mutandis of this Indenture.
(e) If any Agent gives notice of its resignation in accordance
with this Section 7.16, and a successor of such Agent in relation to such Notes
has not been appointed by the Company by the tenth (10th) day before the
expiration of such notice, such Agent may itself, following such consultation
with the Company as may be practicable in the circumstances, appoint as its
successor any reputable and experienced bank or financial institution (which
will ensure compliance with the terms and conditions of such Notes) and give
notice of such appointment in accordance with the terms and conditions of such
Notes, whereupon the parties hereto and such successor agent shall thereafter
have the same rights and obligations among them as would have been the case had
they then entered into an agreement in the form mutatis mutandis of this
Indenture.
(f) Upon any resignation or revocation becoming effective under
this Section, the relevant Agent shall:
(i) be released and discharged from its obligations under
this Indenture;
(ii) in the case of the Paying Agent, deliver to the
Company and to the successor Paying Agent a copy, certified as true and
up-to-date by an officer of the Paying Agent, of the records maintained
by it in accordance with Section 3.04;
(iii) in the case of the Registrar, deliver to the Company
and to the successor Registrar a copy, certified as true and up-to-date
by an officer of such Registrar, of each of the Registers and other
records maintained by it in accordance with Section 2.07;
(iv) in the case of a Calculation Agent, deliver to the
Company and to the successor Calculation Agent a copy, certified as
true and up-to-date by an officer of such Calculation Agent of the
records maintained by it in accordance with Section 7.15; and
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(v) upon payment to it by the Company of all amounts owed
to it, forthwith transfer all monies and papers (including any unissued
Global Notes or Definitive Notes) held by it hereunder to its successor
in that capacity and, upon appropriate notice, provide reasonable
assistance to such successor for the discharge by it of its duties and
responsibilities hereunder.
(g) Any corporation into which any Agent may be merged or
converted, any corporation with which any Agent may be consolidated, any
corporation resulting from any merger, conversion or consolidation to which any
Agent shall be a party or any corporation succeeding to all or substantially all
the corporate agency business of such Agent, shall, to the extent permitted by
applicable law, be the successor to such Agent hereunder and in relation to the
affected Notes without any further formality, whereupon the parties hereto and
such successor agent shall thereafter have the same rights and obligations among
them as would have been the case had they then entered into an agreement in the
form mutatis mutandis of this Indenture. Notice of any such merger, conversion,
consolidation or asset transfer shall forthwith be given by such successor to
the Company and the other parties hereto.
(h) If any Agent decides to change its specified office (which may
only be effected within the same city) it shall give notice to the Company (with
a copy to the Indenture Trustee) of the address of the new specified office
stating the date on which such change is to take effect, which date shall be not
less than thirty (30) days after the date of such notice. The relevant Agent
shall at its own expense not less than fourteen (14) days prior to the date on
which such change is to take effect (unless the appointment of the relevant
Agent is to terminate pursuant to any of the foregoing provisions of this
Section on or prior to the date of such change) publish or cause to be published
notice thereof.
Upon the execution hereof and thereafter forthwith upon any change of the same,
the Company shall deliver to the Indenture Trustee (with a copy to the Paying
Agent) a list of the Authorized Officers of the Company together with certified
specimen signatures of the same.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without notice to, or the consent of, any Holder, the Company and the Indenture
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Indenture Trustee,
for the purpose of:
(a) conveying, transferring, assigning, mortgaging or
pledging to the Indenture Trustee any property or assets as security
for the Notes of any series;
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(b) curing any ambiguity or correcting or supplementing
any provision contained herein, in any Notes or in any supplemental
indenture which may be defective or inconsistent with any other
provision contained in this Indenture, the relevant Notes, the relevant
supplemental indenture or any other documents in connection with the
Program, or making such other provisions in regard to matters or
questions arising under this Indenture which shall not materially
adversely affect the interests of any Holder of Notes;
(c) adding to the covenants of the Company or the
Indenture Trustee for the benefit of the Holders of any series of Notes
or to surrender any right or power conferred in this Indenture on the
Company;
(d) adding any additional Events of Default;
(e) evidencing and providing for the acceptance of
appointment hereunder by a successor Indenture Trustee with respect to
the Notes of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Indenture Trustee, pursuant to the requirements of Section 7.13;
(f) to provide for the issuance of and establish the form
and terms and conditions of Notes of any series as provided in Sections
2.02 and 2.06; or
(g) to establish the form of any certifications required
to be furnished pursuant to the terms of this Indenture or of Notes of
any series.
Section 8.02 SUPPLEMENTAL INDENTURE WITH CONSENT OF HOLDERS.
(a) With the consent of the Holders of Notes representing at least
a majority in aggregate principal amount of all Outstanding Notes affected by
such supplemental indenture, by Act of said Holders delivered to the Company and
the Indenture Trustee, the Company and the Indenture Trustee may enter one or
more indentures supplemental hereto in form satisfactory to the Indenture
Trustee for the purpose of adding any provisions to, or changing in any manner
or eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of such affected Holders under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Note affected thereby:
(i) change the Stated Maturity Date of the principal of,
or the time of payment of interest on, any Note;
(ii) reduce the principal amount of, the interest on or
any premium payable on, any Note;
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(iii) change any Place of Payment where, or the coin or
currency in which the principal of, premium, if any, or interest on,
any Note is payable;
(iv) impair or affect the right of any Holder to institute
suit for the enforcement of any payment on or with respect to the
Notes;
(v) reduce the percentage of the aggregate principal
amount of Outstanding Notes, the consent of the Holders of which is
required for any supplemental indenture, or the consent of the Holders
of which is required for any waiver of defaults hereunder and their
consequences provided for in this Indenture;
(vi) modify any of the provisions of this Section or
similar provisions, except to increase any percentage specified herein
or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Note;
(vii) modify or alter the definition of the term
"Outstanding" herein; or
(viii) modify or affect in any manner adverse to the
interest of any Holder the terms and conditions of the obligations of
the Company regarding the due and punctual payment of the principal of
or interest on, or any other amounts due with respect to, the Notes.
(b) The Indenture Trustee may in its discretion determine whether
or not any Notes would be affected by any supplemental indenture (and may
receive and conclusively rely upon an Opinion of Counsel in doing so) and any
such determination shall be conclusive upon all the Holders, whether theretofore
or thereafter authenticated and delivered hereunder. The Indenture Trustee shall
not be liable for any such determination made in good faith. It shall not be
necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such
Act shall approve the substance thereof. Promptly after the execution by the
Company and the Indenture Trustee of any supplemental indenture pursuant to this
Section, the Company shall mail to the Holders of the Notes affected thereby a
notice setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
Section 8.03 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Indenture Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental
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indenture is authorized or permitted by this Indenture and that such
supplemental indenture complies with the requirements of Section 8.01 or 8.02,
as the case may be. The Indenture Trustee may, but shall not be obligated to,
enter into any such supplemental indenture that affects the Indenture Trustee's
own rights, duties, indemnities or immunities under this Indenture or otherwise.
Section 8.04 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of a Note which has
theretofore been or thereafter authenticated and delivered hereunder shall be
bound thereby. Further, the Company shall be bound by any such supplemental
indenture.
Section 8.05 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Indenture Trustee and
the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated by the Indenture Trustee and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
Section 8.06 CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
ARTICLE 9
NON-RECOURSE PROVISIONS
Section 9.01 NONRECOURSE ENFORCEMENT. Notwithstanding anything to the
contrary contained in the Indenture or any Notes, other than as described
herein, none of the Company's past, present or future officers, directors,
Affiliates, employees or agents, or any of the Agents or any of their respective
officers, directors, Affiliates, employees or agents (the "Nonrecourse Parties")
will be personally liable for the payment of any principal, premium, if any,
interest or any other sums at any time owing under the terms of the Notes of any
series. If any Event of Default shall occur, the right of the Holders of the
Notes of the affected series and the Indenture Trustee on behalf of such Holders
in connection with a claim on such Notes shall be limited solely to a proceeding
against the Company. Neither such Holders nor the Indenture Trustee on behalf of
such Holders will have the right to proceed against the Nonrecourse Parties, to
enforce the Notes.
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It is expressly understood and agreed that nothing contained in this
Section 9.01 shall in any manner or way constitute or be deemed a release of the
debt or other obligations evidenced by the Notes.
ARTICLE 10
MEETINGS OF HOLDERS OF NOTES
Section 10.01 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Notes of any or all series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by the Holders of Notes.
Section 10.02 CALL, NOTICE AND PLACE OF MEETINGS.
(a) Unless otherwise provided in the Notes, the Indenture Trustee
may at any time call a meeting of Holders of the Notes of any or all series for
any purpose specified in Section 10.01, to be held at such time and at such
place in The City of New York or such other place as the Indenture Trustee shall
determine. Notice of every meeting of Holders of Notes of any or all series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.06, not less than twenty-one (21) nor more than 180 days
prior to the date fixed for the meeting.
(b) In case at any time the Company or the Holders of at least
twenty-five percent (25%) in principal amount of the Outstanding Notes of any or
all series shall have requested the Indenture Trustee to call a meeting of
Holders of Notes of such series for any purpose specified in Section 10.01, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Indenture Trustee shall not have mailed the notice
of such meeting within twenty-one (21) days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Notes of such series in the amount above
specified, as the case may be, may determine the time and the place in The City
of New York and may call such meeting for such purposes by giving notice thereof
as provided in paragraph (a) of this Section.
Section 10.03 PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders, a Person shall be (A) a Holder of one or more
Outstanding Notes of a series with respect to which a meeting is being held; or
(B) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more such Outstanding Notes by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the Persons entitled to vote at such meeting
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and their counsel, any representatives of the Indenture Trustee and its counsel
and any representatives of the Company and its counsel.
Section 10.04 QUORUM; ACTION. The Persons entitled to vote a majority
in principal amount of the Outstanding Notes of the series with respect to which
a meeting is being held shall constitute a quorum for a meeting of Holders of
such series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a majority in principal
amount of the Outstanding Notes of a series, the Persons entitled to vote a
majority in principal amount of the Outstanding Notes of such series shall
constitute a quorum. In the absence of a quorum within thirty (30) minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders, be dissolved. In any other case the meeting may be adjourned
for a period of not less than ten (10) days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be further adjourned for
a period of not less than ten (10) days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
10.02(a), except that such notice need only be given once not less than five (5)
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding Notes
of the applicable series which shall constitute a quorum.
Except as limited by Section 8.02(a) and Section 6.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Notes of such series with
respect to which such meeting is being held; provided, however, that, except as
limited by Section 8.02(a) and Section 6.13, any resolution with respect to any
consent or waiver which this Indenture expressly provides may be given by the
Holders of not less than a majority in principal amount of the Outstanding Notes
of the affected series may be adopted at a meeting or an adjourned meeting duly
convened and at which a quorum is present as aforesaid only by the affirmative
vote of the Holders of not less than a majority in principal amount of the
Outstanding Notes of such affected series; and provided, further, that, except
as limited by Section 8.02(a) and Section 6.13, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Notes of the affected series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Notes of such affected series.
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Notwithstanding the preceding two paragraphs, any request, demand,
authorization, direction, notice, consent, waiver or other action of Holders
under this Indenture or the Notes may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Indenture Trustee and, when it is expressly
required, to the Company. The percentage of principal amount of the Outstanding
Notes held by the Holders delivering such instruments which is required to
approve any such action shall be the same as the percentage required for
approval at a duly convened meeting of Holders.
Any resolution passed or decision taken at any meeting of Holders of
Notes of any or all series duly held or by duly executed instrument in
accordance with this Section shall be binding on all Holders of the Notes of
such series with respect to which such meeting was held, whether or not such
Holders were present or represented at the meeting.
Section 10.05 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Indenture Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders in regard to proof of the holding of Notes and of the
appointment of proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Notes shall be proved in the
manner specified in Section 1.04 and the appointment of any proxy shall be
proved in the manner specified in Section 1.04. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 1.04 or other
proof.
(b) The Indenture Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in Section 10.02(b), in which
case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Notes of such
series with respect to which such meeting is held represented at the meeting.
(c) At any meeting, each Holder or proxy shall be entitled to one
vote for each $1,000 of principal amount of Notes held or represented by him,
her or it, or, if the Notes are not denominated in increments of $1,000, such
other minimum authorized
75
denomination applicable to the Notes with respect to which such meeting is held;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Note challenged as not Outstanding and ruled by the chairman of
the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder or proxy.
(d) Notwithstanding any other provision herein to the contrary,
any meeting of Holders duly called pursuant to Section 10.02 at which a quorum
is present may be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Notes of such series with
respect to which such meeting is held represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 10.06 COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders shall be by written
ballots on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Notes held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 10.02 and, if
applicable, Section 10.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Indenture Trustee to
be preserved by the Indenture Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE 11
NOTES IN CANADIAN DOLLARS
Section 11.01 NOTES IN CANADIAN DOLLARS. In the absence of any
provision to the contrary in the form of Notes, whenever the Indenture provides
for (A) any action by, or the determination of any of the rights of, the Holders
of Notes if not all of the Notes are denominated in the same currency, or (B)
any distribution to the Holders of Notes of any amount in respect of any Note
denominated in Canadian dollars, then all Canadian dollar denominated Notes
shall be treated for any such action, determination of rights or distribution as
that amount of Dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the Regular Record Date with respect to such
76
Notes for such action, determination of rights or distribution (or, if there
shall be no applicable Regular Record Date, such other date reasonably proximate
to the date of such action, determination of rights or distribution) as the
Company may specify in a written notice to the Indenture Trustee or, in the
absence of such written notice, as the Indenture Trustee may determine.
ARTICLE 12
DEFEASANCE AND COVENANT DEFEASANCE
Section 12.01 COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE. The Company may elect, at its option at any time, to have Section
12.02 or Section 12.03 applied to the Notes of any series upon compliance with
the conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution.
Section 12.02 DEFEASANCE AND DISCHARGE. Upon the Company's exercise of
its option (if any) to have this Section applied to the Notes of any series, the
Company shall be deemed to have been discharged from its obligations with
respect to such Notes as provided in this Section on and after the date the
conditions set forth in Section 12.04 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Notes and to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and the Indenture Trustee, at the
expense of the Company and upon Company Order, shall execute proper instruments
acknowledging the same), subject to the following, which shall survive until
otherwise terminated or discharged hereunder: (1) the Company's obligations with
respect to such Notes under Sections 2.07, 2.08, 2.09 and 3.03(a); (2) the
rights, powers, trusts, duties and immunities of the Indenture Trustee hereunder
and under the Expense and Indemnity Agreement; and (3) this Article. Subject to
compliance with this Article, the Company may exercise its option (if any) to
have this Section applied to any Notes notwithstanding the prior exercise of its
option (if any) to have Section 12.03 applied to such Notes.
Section 12.03 COVENANT DEFEASANCE. Upon the Company's exercise of its
option (if any) to have this Section applied to the Notes of any series (1) the
Company shall be released from its obligations under Sections 4.01, 3.12 and
3.11, and any covenants provided pursuant to 8.01(c) or 2.02 for the benefit of
the Holders of such Notes; and (2) the occurrence of any event specified in
Sections 6.01(c) (with respect to any of Section 4.01, 3.12 and 3.11, and any
such covenants provided pursuant to Section 8.01(c) or 2.02) shall be deemed not
to be or result in an Event of Default, in each case with respect to such Notes
as provided in this Section on and after the date the conditions set forth in
Section 12.04 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such Notes, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such specified Section (to the
extent so specified in the case of
77
Section 6.01(c)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Notes shall be unaffected thereby.
Notwithstanding any Covenant Defeasance with respect to Section 4.01,
any Person that would otherwise have been required to assume the obligations of
the Company pursuant to said Section shall be required, as a condition to any
merger, consolidation, sale, assignment, conveyance, transfer or lease
contemplated thereby, to assume the obligations of the Company to the Indenture
Trustee under the Expense and Indemnity Agreement and Section 12.05.
Section 12.04 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to the application of Section 12.02 or Section
12.03 to the Notes of any series:
(1) The Company shall irrevocably have deposited
or caused to be deposited with the Indenture Trustee (or
another trustee which satisfies the requirements contemplated
by Section 7.11 and agrees to comply with the provisions of
this Article applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the
Holders of the Notes of such series, (A) money, or (B) - -
Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the
due date of any payment, money, or (C) a - combination
thereof, in each case in an amount sufficient to pay and
discharge, and which shall be applied by the Indenture Trustee
(or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on such Notes on
the respective Stated Maturity Dates or on the redemption
date, in accordance with the terms of this Indenture and such
Notes; provided that the Indenture Trustee shall have the
right (but not the obligation) to require the Company to
deliver to the Indenture Trustee an opinion of a nationally
recognized firm of independent public accountants expressed in
a written certification, or other evidence satisfactory to the
Indenture Trustee, as to the sufficiency of deposits made by
the Company pursuant to this section;
(2) In the event of an election to have Section
12.02 apply to the Notes of any series, the Company shall have
delivered to the Indenture Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has
been published - by, the Internal Revenue Service a ruling or
(B) since the date of this instrument, there has been a change
in the - applicable Federal income tax law, in the case of
either (A) or (B) to
78
the effect that, and based thereon such opinion shall confirm
that, the Holders of such Notes will not recognize gain or
loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect
to such Notes and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would
be the case if such deposit, Defeasance and discharge were not
to occur;
(3) In the event of an election to have Section
12.03 apply to the Notes of any series, the Company shall have
delivered to the Indenture Trustee an Opinion of Counsel to
the effect that the Holders of such Notes will not recognize
gain or loss for Federal income tax purposes as a result of
the deposit and Covenant Defeasance to be effected with
respect to such Notes and will be subject to Federal income
tax on the same amount, in the same manner and at the same
times as would be the case if such deposit and Covenant
Defeasance were not to occur;
(4) No event which is, or after notice or lapse
of time or both would become, an Event of Default with respect
to such Notes or any other Notes shall have occurred and be
continuing at the time of such deposit or, with regard to any
such event specified in Sections 6.01(d) and (e), at any time
on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until after such 90th day);
(5) Such Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a
default under, any indenture or other agreement or instrument
for borrowed money to which the Company is a party or by which
it is bound;
(6) Such Defeasance or Covenant Defeasance shall
not result in the trust arising from such deposit constituting
an investment company within the meaning of the Investment
Company Act unless such trust shall be registered under the
Investment Company Act or exempt from registration thereunder;
(7) If such Notes are to be redeemed prior to
their Stated Maturity Date (other than from mandatory sinking
fund payments or analogous payments), notice of such
redemption shall have been duly given pursuant to this
Indenture or provision therefor satisfactory to the Indenture
Trustee shall have been made; and
(8) The Company shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that all
79
conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
Section 12.05 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; MISCELLANEOUS PROVISIONS. Subject to the provisions of Section 3.07, all
money and Government Obligations (including the proceeds thereof and the
interest thereon) deposited with the Indenture Trustee or other qualifying
trustee (solely for purposes of this Section and Section 12.06, the Indenture
Trustee and any such other trustee are referred to collectively as the
"Trustee") pursuant to Section 12.04 in respect of the Notes of any series shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such Notes and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Notes, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 12.04 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Notes.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Order any
money or Government Obligations held by it as provided in Section 12.04 with
respect to any Notes which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee or in the opinion of such other Persons delivered to
the Indenture Trustee as shall be reasonably satisfactory to the Indenture
Trustee (which may be the same opinion delivered to the Indenture Trustee under
Section 12.04), are in excess of the amount thereof which would then be required
to be deposited to effect the Defeasance or Covenant Defeasance, as the case may
be, with respect to such Notes.
Section 12.06 REINSTATEMENT. If the Trustee or the Paying Agent is
unable to apply any money in accordance with this Article with respect to the
Notes of any series by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Notes from which
the Company has been discharged or released pursuant to Section 12.02 or 12.03
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article with respect to such Notes, until such time as the Trustee or
Paying Agent is permitted to apply all money held in trust pursuant to Section
12.05 with respect to such Notes in accordance with this Article; provided,
however, that if the Company makes any payment of principal of or any premium or
interest on any such Note following such reinstatement of its obligations, the
Company shall be
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subrogated to the rights (if any) of the Holders of such Notes to receive such
payment from the money so held in trust.
Section 12.07 QUALIFYING TRUSTEE. Any trustee appointed pursuant to
Section 12.04 for the purpose of holding trust funds deposited pursuant to that
Section shall be appointed under an agreement in form acceptable to the
Indenture Trustee and shall provide to the Indenture Trustee a certificate of
such trustee, upon which certificate the Indenture Trustee shall be entitled to
conclusively rely, that all conditions precedent provided for herein to the
related Defeasance or Covenant Defeasance have been complied with. In no event
shall the Indenture Trustee be liable for any acts or omissions of said trustee.
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SIGNATURES
Dated as of September 8, 2006
Hartford Life Insurance Company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: AVP, IIP
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JPMorgan Chase Bank, N.A.,
As Indenture Trustee
By: /s/ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇▇▇▇▇▇
Title: Authorized Officer
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EXHIBIT 4.1
EXHIBIT A
FORM OF GLOBAL NOTE
A-1
EXHIBIT A
FORM OF GLOBAL NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE (HEREINAFTER
DEFINED) AND IS REGISTERED IN THE NAME OF A DEPOSITARY (AS DEFINED IN THE
INDENTURE) OR A NOMINEE OF A DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (HEREINAFTER
DEFINED) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
UNLESS ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED NO.: CUSIP NO.: PRINCIPAL AMOUNT: [U.S. $]
[CAN $]
HARTFORD LIFE INSURANCE COMPANY
[INCOMENOTES(sm)]
[MEDIUM-TERM NOTES]
Issuance Date: Floating Rate Note: [ ] Yes [ ] No. If yes,
Issue Price: Regular Floating Rate Notes [ ]
Stated Maturity Date: Floating Rate/ Fixed Rate Notes: [ ]
Settlement Date: Fixed Interest Rate:
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Securities Exchange Listing: [ ] Yes [ ] No. If yes, Fixed Rate Commencement Date:
indicate name(s) of Securities Exchange(s): Interest Rate Basis(es):
__________________________________________.
Depositary: CD Rate [ ]
Authorized Denominations: CMT Rate [ ]
Specified Currency: Designated CMT Telerate Page:
Interest Rate or Formula: If Telerate Page 7052:
Fixed Rate Note: [ ] Yes [ ] No. If yes, [ ] Weekly Average
Interest Rate: [ ] Monthly Average
Interest Payment Dates: Designated CMT Maturity Index:
Additional/Other Terms: Commercial Paper Rate [ ]
Amortizing Note: [ ] Yes [ ] No. If yes, Constant Maturity Swap Rate [ ]
Amortization schedule or formula: CPI Adjustment Rate [ ]
Additional/Other Terms: Federal Funds Rate [ ]
Note Linked to Securities of One or More Issuers, One or More LIBOR [ ]
Currencies, One or More Commodities, Indices or any Other [ ] LIBOR Reuters Page:
Instrument(s) or Measure(s) or Baskets of any of the Foregoing: [ ] LIBOR Moneyline Telerate Page:
LIBOR Currency:
Discount Note: [ ] Yes [ ] No. If yes, Prime Rate [ ]
Total Amount of Discount: Treasury Rate [ ]
Initial Accrual Period of Discount: Other [ ]
Interest Payment Dates: Index Maturity:
Additional/Other Terms: Spread:
Redemption Provisions: [ ] Yes [ ] No. If yes, Spread Multiplier:
Initial Redemption Date: Initial Interest Rate, if any:
Redemption Dates: Initial Interest Reset Date:
Initial Redemption Percentage: Interest Reset Dates:
Annual Redemption Percentage Reduction, if any: Interest Determination Date(s):
Additional/Other Terms: Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Additional/Other Terms:
Regular Record Date(s):
Sinking Fund:
Day Count Convention:
Calculation Agent:
Survivor's Option: [ ] Yes [ ] No. If yes, the attached Survivor's
Option Rider is incorporated into this Note.
Aggregate Principal Amount of the Series:
Additional/Other Terms:
Hartford Life Insurance Company (the "COMPANY"), for value received,
hereby promises to pay to Cede & Co., or its registered assigns, the Principal
Amount specified above on the Stated Maturity Date specified above and, if so
specified above, to pay interest thereon from the Issuance Date specified above
or from the most recent Interest Payment Date specified above to which interest
has been paid or duly provided for at the rate per annum determined in
accordance with the provisions on the reverse hereof and as specified above,
until the principal hereof is paid or made available for payment. Unless
otherwise set forth above under "Specified Currency," payments of principal,
premium, if
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any, and interest hereon will be made in the lawful currency of the United
States of America ("U.S. DOLLARS" or "UNITED STATES DOLLARS"). The "PRINCIPAL
AMOUNT" of this Note at any time means (1) if this Note is a Discount Note (as
hereinafter defined), the Amortized Face Amount (as hereinafter defined) at such
time (as defined in Section 3(d) on the reverse hereof) and (2) in all other
cases, the Principal Amount hereof. Capitalized terms not otherwise defined
herein shall have their meanings set forth in the Indenture, dated as of
September 8, 2006 (the "INDENTURE"), between JPMorgan Chase Bank, N.A., as the
indenture trustee (the "INDENTURE TRUSTEE"), and the Company, as amended or
supplemented from time to time, or on the face hereof.
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes"), issued and to be issued in one or more
series under the Indenture and reference is hereby made to the Indenture for a
statement of the respective rights, limitation of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered.
This Note will mature on the Stated Maturity Date, unless its principal
(or any installment of its principal) becomes due and payable prior to the
Stated Maturity Date, whether, as applicable, by the declaration of acceleration
of maturity, notice of redemption by the Company or otherwise (the Stated
Maturity Date or any date prior to the Stated Maturity Date on which this Note
becomes due and payable, as the case may be, is referred to as the "MATURITY
DATE").
A "DISCOUNT NOTE" is any Note that has an Issue Price that is less than
100% of the Principal Amount thereof by more than a percentage equal to the
product of 0.25% and the number of full years to the Stated Maturity Date.
Unless otherwise specified above, the interest payable on each Interest
Payment Date or the Maturity Date will be the amount of interest accrued from
and including the Issuance Date or from and including the last Interest Payment
Date to which interest has been paid or duly provided for, as the case may be,
to, but excluding, such Interest Payment Date or the Maturity Date, as the case
may be.
Unless otherwise specified above, the interest payable on any Interest
Payment Date will be paid to the Holder on the Regular Record Date for such
Interest Payment Date, which Regular Record Date shall be the fifteenth (15th)
calendar day, whether or not a Business Day, immediately preceding the related
Interest Payment Date; provided that, notwithstanding any provision of the
Indenture to the contrary, interest payable on any Maturity Date shall be
payable to the Person to whom principal shall be payable; and provided, further,
that unless otherwise specified above, in the case of a Note initially issued
between a Regular Record Date and the Interest Payment Date relating to such
Regular Record Date, interest for the period beginning on the Issuance Date and
ending on such Interest Payment Date shall be paid on the Interest Payment Date
following the
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next succeeding Regular Record Date to the Holder on such next succeeding
Regular Record Date.
Payments of principal of, and premium, if any, and interest and other
amounts due and owing, if any, will be made through the Indenture Trustee to the
account of DTC or its nominee and will be made in accordance with depositary
arrangements with DTC.
Unless otherwise specified on the face hereof, the Holder hereof will
not be obligated to pay any administrative costs imposed by banks in making
payments in immediately available funds by the Company. Unless otherwise
specified on the face hereof, any tax assessment or governmental charge imposed
upon payments hereunder, including, without limitation, any withholding tax,
will be borne by the Holder hereof.
REFERENCE IS ▇▇▇▇▇▇ MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon shall have been
executed by the Indenture Trustee pursuant to the Indenture, this Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, by manual or facsimile signature.
HARTFORD LIFE INSURANCE
COMPANY
Dated: [-]
By: _____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of Hartford Life Insurance Company referred to
in the within-mentioned Indenture.
JPMORGAN CHASE BANK, N.A.
As Indenture Trustee
Dated: [-]
By: _____________________________
authorized officer
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[REVERSE OF NOTE]
Section 1. GENERAL. This Note is one of a duly authorized issue of
Notes of the Company. The Notes of this series are issued pursuant to the
Indenture.
Section 2. CURRENCY. This Note is denominated in, and payments of
principal, premium, if any, and/or interest, if any, will be made in the
Specified Currency specified on the face hereof.
Section 3. DETERMINATION OF INTEREST RATE AND CERTAIN OTHER TERMS.
(a) FIXED RATE NOTES. If this Note is specified on the face hereof
as a "Fixed Rate Note":
(i) This Note will bear interest at the rate per annum
specified on the face hereof. Interest on this Note will be computed on
the basis of a 360-day year of twelve 30-day months.
(ii) Unless otherwise specified on the face hereof, the
Interest Payment Dates for this Note will be as follows:
Interest Payment Frequency Interest Payment Dates
-------------------------- --------------------------
Monthly Fifteenth day of each
calendar month, beginning
in the first calendar
month following the month
this Note was issued.
Quarterly Fifteenth day of every
third calendar month,
beginning in the third
calendar month following
the month this Note was
issued.
Semi-annual Fifteenth day of every
sixth calendar month,
beginning in the sixth
calendar month following
the month this Note was
issued.
Annual Fifteenth day of every
twelfth calendar month,
beginning in the twelfth
calendar month following
the month this Note was
issued.
(iii) If any Interest Payment Date or the Maturity Date of
this Note falls on a day that is not a Business Day, the Company will
make the required payment
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of principal, premium, if any, and/or interest or other amounts on the
next succeeding Business Day, and no additional interest will accrue in
respect of the payment made on that next succeeding Business Day.
(b) FLOATING RATE NOTES. If this Note is specified on the face
hereof as a "Floating Rate Note":
(i) INTEREST RATE BASIS. Interest on this Note will be
determined by reference to the applicable Interest Rate Basis or
Interest Rate Bases, which may, as described below, include the CD
Rate, the CMT Rate, the Commercial Paper Rate, the Constant Maturity
Swap Rate, the CPI Adjustment Rate, the Federal Funds Rate, LIBOR, the
Prime Rate or the Treasury Rate (each as defined below) or such other
rate, in accordance with a schedule attached hereto.
(ii) EFFECTIVE RATE. The rate derived from the applicable
Interest Rate Basis will be determined in accordance with the related
provisions below. The interest rate in effect on each day will be based
on: (1) if that day is an Interest Reset Date, the rate determined as
of the Interest Determination Date immediately preceding that Interest
Reset Date; or (2) if that day is not an Interest Reset Date, the rate
determined as of the Interest Determination Date immediately preceding
the most recent Interest Reset Date.
(iii) SPREAD; SPREAD MULTIPLIER; INDEX MATURITY. The
"Spread" is the number of basis points (one one-hundredth of a
percentage point) specified on the face hereof to be added to or
subtracted from the related Interest Rate Basis or Interest Rate Bases
applicable to this Note. The "Spread Multiplier" is the percentage
specified on the face hereof of the related Interest Rate Basis or
Interest Rate Bases applicable to this Note by which the Interest Rate
Basis or Interest Rate Bases will be multiplied to determine the
applicable interest rate. The "Index Maturity" is the period to
maturity of the instrument or obligation with respect to which the
related Interest Rate Basis or Interest Rate Bases will be calculated.
(iv) REGULAR FLOATING RATE NOTE. Unless this Note is
specified on the face hereof as a Floating Rate/Fixed Rate Note, this
Note (a "Regular Floating Rate Note") will bear interest at the rate
determined by reference to the applicable Interest Rate Basis or
Interest Rate Bases: (1) multiplied by the applicable Spread
Multiplier, if any; and/or (2) plus or minus the applicable Spread, if
any. Commencing on the first Interest Reset Date, the rate at which
interest on this Regular Floating Rate Note is payable will be reset as
of each Interest Reset Date; provided, however, that the interest rate
in effect for the period, if any, from the Issuance Date to the first
Interest Reset Date will be the Initial Interest Rate.
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(v) FLOATING RATE/FIXED RATE NOTES. If this Note is
specified on the face hereof as a "Floating Rate/Fixed Rate Note", this
Note will bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Interest Rate Bases: (1) multiplied
by the applicable Spread Multiplier, if any; and/or (2) plus or minus
the applicable Spread, if any. Commencing on the first Interest Reset
Date, the rate at which this Floating Rate/Fixed Rate Note is payable
will be reset as of each Interest Reset Date; provided, however, that:
(A) the interest rate in effect for the period, if any, from the
Issuance Date to the first Interest Reset Date will be the Initial
Interest Rate specified on the face hereof; and (B) the interest rate
in effect commencing on the Fixed Rate Commencement Date will be the
Fixed Interest Rate, if specified on the face hereof, or, if not so
specified, the interest rate in effect on the day immediately preceding
the Fixed Rate Commencement Date.
(vi) INTEREST RESET DATES. The period between Interest
Reset Dates will be the "Interest Reset Period." Unless otherwise
specified on the face hereof, the Interest Reset Dates will be, in the
case of this Floating Rate Note if by its terms it resets: (1)
daily-each Business Day; (2) weekly-the Wednesday of each week, with
the exception of any weekly reset Floating Rate Note as to which the
Treasury Rate is an applicable Interest Rate Basis, which will reset
the Tuesday of each week; (3) monthly-the fifteenth day of each
calendar month; (4) quarterly-the fifteenth day of every third calendar
month, beginning in the third calendar month following the month in
which the Issuance Date occurred; (5) semi-annually-the fifteenth day
of every sixth calendar month, beginning in the sixth calendar month
following the month in which the Issuance Date occurred; and (6)
annually-the fifteenth day of every twelfth calendar month, beginning
in the twelfth calendar month following the month in which the Issuance
Date occurred; provided, however, that, with respect to a Floating
Rate/Fixed Rate Note, the rate of interest thereon will not reset after
the particular Fixed Rate Commencement Date. If any Interest Reset Date
for this Floating Rate Note would otherwise be a day that is not a
Business Day, the particular Interest Reset Date will be postponed to
the next succeeding Business Day, except that in the case of a Floating
Rate Note as to which LIBOR is an applicable Interest Rate Basis and
that Business Day falls in the next succeeding calendar month, the
particular Interest Reset Date will be the immediately preceding
Business Day.
(vii) INTEREST DETERMINATION DATES. The interest rate
applicable to a Floating Rate Note for an Interest Reset Period
commencing on the related Interest Reset Date will be determined by
reference to the applicable Interest Rate Basis as of the particular
"Interest Determination Date", which will be: (1) with respect to the
Commercial Paper Rate, Federal Funds Rate and the Prime Rate-the
Business Day immediately preceding the related Interest Reset Date; (2)
with respect to the CPI Adjustment Rate-as set forth on the face
hereof; (3) with
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respect to the CD Rate, the CMT Rate and the Constant Maturity Swap
Rate-the second Business Day preceding the related Interest Reset Date;
(4) with respect to LIBOR-the second London Banking Day preceding the
related Interest Reset Date, unless the applicable LIBOR Currency is
(A) pounds sterling, in which case the Interest Determination Date will
be the related Interest Reset Date, or (B) euro, in which case the
Interest Determination Date will be the second TARGET Settlement Day
(as defined below) preceding the applicable Interest Reset Date; and
(5) with respect to the Treasury Rate-the day of the week in which the
related Interest Reset Date falls on which day Treasury Bills (as
defined below) are normally auctioned (i.e., Treasury Bills are
normally sold at auction on Monday of each week, unless that day is a
legal holiday, in which case the auction is normally held on the
following Tuesday, except that the auction may be held on the preceding
Friday); provided, however, that if an auction is held on the Friday of
the week preceding the related Interest Reset Date, the Interest
Determination Date will be the preceding Friday. The Interest
Determination Date pertaining to a Floating Rate Note, the interest
rate of which is determined with reference to two or more Interest Rate
Bases, will be the latest Business Day which is at least two Business
Days before the related Interest Reset Date for the applicable Floating
Rate Note on which each Interest Reset Basis is determinable. "TARGET
Settlement Day" means a day on which the TARGET System is open. "TARGET
System" means the Trans-European Automated Real-Time Gross Settlement
Express Transfer System.
(viii) CALCULATION DATES. The interest rate applicable to
each Interest Reset Period will be determined by the Calculation Agent
on or prior to the Calculation Date (as defined below), except with
respect to LIBOR, which will be determined on the particular Interest
Determination Date. Upon request of the Holder of a Floating Rate Note,
the Calculation Agent will disclose the interest rate then in effect
and, if determined, the interest rate that will become effective as a
result of a determination made for the next succeeding Interest Reset
Date with respect to such Floating Rate Note. The "Calculation Date",
if applicable, pertaining to any Interest Determination Date will be
the earlier of: (1) the tenth calendar day after the particular
Interest Determination Date or, if such day is not a Business Day, the
next succeeding Business Day; or (2) the Business Day immediately
preceding the applicable Interest Payment Date or the Maturity Date, as
the case may be.
(ix) MAXIMUM OR MINIMUM INTEREST RATE. If specified on the
face hereof, this Note may have either or both of a Maximum Interest
Rate or a Minimum Interest Rate. If a Maximum Interest Rate is so
designated, the interest rate for a Floating Rate Note cannot ever
exceed such Maximum Interest Rate and in the event that the interest
rate on any Interest Reset Date would exceed such Maximum Interest Rate
(as if no Maximum Interest Rate were in effect) then the
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interest rate on such Interest Reset Date shall be the Maximum Interest
Rate. If a Minimum Interest Rate is so designated, the interest rate
for a Floating Rate Note cannot ever be less than such Minimum Interest
Rate and in the event that the interest rate on any Interest Reset Date
would be less than such Minimum Interest Rate (as if no Minimum
Interest Rate were in effect) then the interest rate on such Interest
Reset Date shall be the Minimum Interest Rate. Notwithstanding anything
to the contrary contained herein, the interest rate on a Floating Rate
Note shall not exceed the maximum interest rate permitted by applicable
law.
(x) INTEREST PAYMENTS. Unless otherwise specified on the
face hereof, the Interest Payment Dates will be, in the case of a
Floating Rate Note which resets: (1) daily, weekly or monthly-the
fifteenth day of each calendar month or on the fifteenth day of every
third calendar month, beginning in the third calendar month following
the month in which the Issuance Date occurred, as specified on the face
hereof; (2) quarterly-the fifteenth day of every third calendar month,
beginning in the third calendar month following the month in which the
Issuance Date occurred; (3) semi-annually-the fifteenth day of every
sixth calendar month, beginning in the sixth calendar month following
the month in which the Issuance Date occurred; and (4) annually-the
fifteenth day of every twelfth calendar month, beginning in the twelfth
calendar month following the month in which the Issuance Date occurred.
In addition, the Maturity Date will also be an Interest Payment Date.
If any Interest Payment Date other than the Maturity Date for this
Floating Rate Note would otherwise be a day that is not a Business Day,
such Interest Payment Date will be postponed to the next succeeding
Business Day, except that in the case of a Floating Rate Note as to
which LIBOR is an applicable Interest Rate Basis and that Business Day
falls in the next succeeding calendar month, the particular Interest
Payment Date will be the immediately preceding Business Day. If the
Maturity Date of a Floating Rate Note falls on a day that is not a
Business Day, the Company will make the required payment of principal,
premium, if any, and interest or other amounts on the next succeeding
Business Day, and no additional interest will accrue in respect of the
payment made on that next succeeding Business Day.
(xi) ROUNDING. Unless otherwise specified on the face
hereof, all percentages resulting from any calculation on this Floating
Rate Note will be rounded to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point
rounded upwards; provided, that if the Interest Rate Basis is the CPI
Adjustment Rate, all percentages resulting from any calculation on this
Floating Rate Note will be rounded to the nearest one hundredth of a
percentage point, with five one-thousandths of a percentage point
rounded upwards. All dollar amounts used in or resulting from any
calculation on this Floating Rate Note will be rounded, in the case of
U.S. Dollars, to the nearest
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cent or, in the case of a Foreign Currency, to the nearest unit (with
one-half cent or unit being rounded upwards).
(xii) INTEREST FACTOR. With respect to a Floating Rate
Note, accrued interest is calculated by multiplying the principal
amount of such Note by an accrued interest factor. The accrued interest
factor is computed by adding the interest factor calculated for each
day in the particular Interest Reset Period. The interest factor for
each day will be computed by dividing the interest rate applicable to
such day by 360, in the case of a Floating Rate Note as to which the CD
Rate, the Commercial Paper Rate, the Constant Maturity Swap Rate, the
CPI Adjustment Rate, the Federal Funds Rate, LIBOR or the Prime Rate is
an applicable Interest Rate Basis, or by the actual number of days in
the year, in the case of a Floating Rate Note as to which the CMT Rate
or the Treasury Rate is an applicable Interest Rate Basis. The interest
factor for a Floating Rate Note as to which the interest rate is
calculated with reference to two or more Interest Rate Bases will be
calculated in each period in the same manner as if only the Interest
Rate Basis specified under "Additional/Other Terms" applied.
(xiii) DETERMINATION OF INTEREST RATE BASIS. The Calculation
Agent shall determine the rate derived from each Interest Rate Basis in
accordance with the following provisions.
(A) CD RATE NOTES. If the Interest Rate Basis is
the CD Rate, this Note shall be deemed a "CD Rate Note."
Unless otherwise specified on the face hereof, "CD Rate"
means, from the Issuance Date to the first Interest Reset
Date, the Initial Interest Rate, if any, and thereafter:
(1) the rate on the particular Interest
Determination Date for negotiable United States
dollar certificates of deposit having the Index
Maturity specified on the face hereof as published in
H.15(519) (as defined below) under the caption "CDs
(secondary market)"; or
(2) if the rate referred to in clause
(1) is not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on
the particular Interest Determination Date for
negotiable United States dollar certificates of
deposit of the particular Index Maturity as published
in H.15 Daily Update (as defined below), or other
recognized electronic source used for the purpose of
displaying the applicable rate, under the caption
"CDs (secondary market)"; or
(3) if the rate referred to in clause
(2) is not so published by 3:00 P.M., New York City
time, on the related
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Calculation Date, the rate on the particular Interest
Determination Date calculated by the Calculation
Agent as the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time,
on that Interest Determination Date, of three leading
non-bank dealers in negotiable United States dollar
certificates of deposit in The City of New York
(which may include the purchasing agent or its
affiliates) selected by the Calculation Agent for
negotiable United States dollar certificates of
deposit of major United States money market banks for
negotiable United States certificates of deposit with
a remaining maturity closest to the particular Index
Maturity in an amount that is representative for a
single transaction in that market at that time; or
(4) if the dealers so selected by the
Calculation Agent are not quoting as mentioned in
clause (3), the CD Rate in effect on the particular
Interest Determination Date; provided that if no CD
Rate is then in effect, the interest rate for the
next Interest Reset Period will be the Initial
Interest Rate.
"H.15(519)" means the weekly statistical release designated as
H.15(519), or any successor publication, published by the
Board of Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15(519),
available through the world-wide-web site of the Board of
Governors of the Federal Reserve System at
http//▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇/▇▇▇▇▇▇, or any
successor site or publication.
(B) CMT RATE NOTES. If the Interest Rate Basis
is the CMT Rate, this Note shall be deemed a "CMT Rate Note."
Unless otherwise specified on the face hereof, "CMT Rate"
means, from the Issuance Date to the first Interest Reset
Date, the Initial Interest Rate, if any, and thereafter:
(1) if CMT Moneyline Telerate Page 7051
is specified on the face hereof:
i. the percentage equal to
the yield for United States Treasury
securities at "constant maturity" having the
Index Maturity specified on the face hereof
as published in H.15(519) under the caption
"Treasury Constant Maturities", as the yield
is displayed on Moneyline Telerate (or any
successor service) on page 7051 (or any
other page as may replace the specified page
on that service)
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("Moneyline Telerate Page 7051"), for the
particular Interest Determination Date; or
ii. if the rate referred to in
clause (i) does not so appear on Moneyline
Telerate Page 7051, the percentage equal to
the yield for United States Treasury
securities at "constant maturity" having the
particular Index Maturity and for the
particular Interest Determination Date as
published in H.15(519) under the caption
"Treasury Constant Maturities"; or
iii. if the rate referred to in
clause (ii) does not so appear in H.15(519),
the rate on the particular Interest
Determination Date for the period of the
particular Index Maturity as may then be
published by either the Federal Reserve
System Board of Governors or the United
States Department of the Treasury that the
Calculation Agent determines to be
comparable to the rate which would otherwise
have been published in H.15(519); or
iv. if the rate referred to in
clause (iii) is not so published, the rate
on the particular Interest Determination
Date calculated by the Calculation Agent as
a yield to maturity based on the arithmetic
mean of the secondary market bid prices at
approximately 3:30 P.M., New York City time,
on that Interest Determination Date of three
leading primary United States government
securities dealers in The City of New York
(which may include the purchasing agent or
its affiliates) (each, a "Reference Dealer")
selected by the Calculation Agent from five
Reference Dealers selected by the
Calculation Agent and eliminating the
highest quotation, or, in the event of
equality, one of the highest, and the lowest
quotation or, in the event of equality, one
of the lowest, for United States Treasury
securities with an original maturity equal
to the particular Index Maturity, a
remaining term to maturity no more than one
year shorter than that Index Maturity and in
a principal amount that is representative
for a single transaction in the securities
in that market at that time; or
v. if fewer than five but
more than two of the prices referred to in
clause (iv) are provided as requested, the
rate on the particular Interest
Determination Date calculated by the
Calculation Agent based on the arithmetic
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mean of the bid prices obtained and neither
the highest nor the lowest of the quotations
shall be eliminated; or
vi. if fewer than three prices
referred to in clause (iv) are provided as
requested, the rate on the particular
Interest Determination Date calculated by
the Calculation Agent as a yield to maturity
based on the arithmetic mean of the
secondary market bid prices as of
approximately 3:30 P.M., New York City time,
on that Interest Determination Date of three
Reference Dealers selected by the
Calculation Agent from five Reference
Dealers selected by the Calculation Agent
and eliminating the highest quotation or, in
the event of equality, one of the highest
and the lowest quotation or, in the event of
equality, one of the lowest, for United
States Treasury securities with an original
maturity greater than the particular Index
Maturity, a remaining term to maturity
closest to that Index Maturity and in a
principal amount that is representative for
a single transaction in the securities in
that market at that time; or
vii. if fewer than five but
more than two prices referred to in clause
(vi) are provided as requested, the rate on
the particular Interest Determination Date
calculated by the Calculation Agent based on
the arithmetic mean of the bid prices
obtained and neither the highest nor the
lowest of the quotations will be eliminated;
or
viii. if fewer than three prices
referred to in clause (vi) are provided as
requested, the CMT Rate in effect on the
particular Interest Determination Date;
provided that if no CMT Rate is then in
effect, the interest rate for the next
Interest Reset Period will be the Initial
Interest Rate; or
(2) if CMT Moneyline Telerate Page 7052
is specified on the face hereof:
i. the percentage equal to
the one-week or one-month, as specified on
the face hereof, average yield for United
States Treasury securities at "constant
maturity" having the Index Maturity
specified on the face hereof as published in
H.15(519) opposite the caption "Treasury
Constant Maturities", as the yield is
displayed on
A-15
Moneyline Telerate (or any successor
service) (on page 7052 or any other page as
may replace the specified page on that
service) ("Moneyline Telerate Page 7052"),
for the week or month, as applicable, ended
immediately preceding the week or month, as
applicable, in which the particular Interest
Determination Date falls; or
ii. if the rate referred to in
clause (i) does not so appear on Moneyline
Telerate Page 7052, the percentage equal to
the one-week or one-month, as specified on
the face hereof, average yield for United
States Treasury securities at "constant
maturity" having the particular Index
Maturity and for the week or month, as
applicable, preceding the particular
Interest Determination Date as published in
H.15(519) opposite the caption "Treasury
Constant Maturities"; or
iii. if the rate referred to in
clause (ii) does not so appear in H.15(519),
the one-week or one-month, as specified on
the face hereof, average yield for United
States Treasury securities at "constant
maturity" having the particular Index
Maturity as otherwise announced by the
Federal Reserve Bank of New York for the
week or month, as applicable, ended
immediately preceding the week or month, as
applicable, in which the particular Interest
Determination Date falls; or
iv. if the rate referred to in
clause (iii) is not so published, the rate
on the particular Interest Determination
Date calculated by the Calculation Agent as
a yield to maturity based on the arithmetic
mean of the secondary market bid prices at
approximately 3:30 P.M., New York City time,
on that Interest Determination Date of three
Reference Dealers selected by the
Calculation Agent from five Reference
Dealers selected by the Calculation Agent
and eliminating the highest quotation, or,
in the event of equality, one of the
highest, and the lowest quotation or, in the
event of equality, one of the lowest, for
United States Treasury securities with an
original maturity equal to the particular
Index Maturity, a remaining term to maturity
no more than one year shorter than that
Index Maturity and in a principal amount
that is representative for a single
transaction in the securities in that market
at that time; or
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v. if fewer than five but
more than two of the prices referred to in
clause (iv) are provided as requested, the
rate on the particular Interest
Determination Date calculated by the
Calculation Agent based on the arithmetic
mean of the bid prices obtained and neither
the highest nor the lowest of the quotations
shall be eliminated; or
vi. if fewer than three prices
referred to in clause (iv) are provided as
requested, the rate on the particular
Interest Determination Date calculated by
the Calculation Agent as a yield to maturity
based on the arithmetic mean of the
secondary market bid prices as of
approximately 3:30 P.M., New York City time,
on that Interest Determination Date of three
Reference Dealers selected by the
Calculation Agent from five Reference
Dealers selected by the Calculation Agent
and eliminating the highest quotation or, in
the event of equality, one of the highest
and the lowest quotation or, in the event of
equality, one of the lowest, for United
States Treasury securities with an original
maturity greater than the particular Index
Maturity, a remaining term to maturity
closest to that Index Maturity and in a
principal amount that is representative for
a single transaction in the securities in
that market at the time; or
vii. if fewer than five but
more than two prices referred to in clause
(vi) are provided as requested, the rate on
the particular Interest Determination Date
calculated by the Calculation Agent based on
the arithmetic mean of the bid prices
obtained and neither the highest nor the
lowest of the quotations will be eliminated;
or
viii. if fewer than three prices
referred to in clause (vi) are provided as
requested, the CMT Rate in effect on that
Interest Determination Date; provided that
if no CMT Rate is then in effect, the
interest rate for the next Interest Reset
Period will be the Initial Interest Rate.
If two United States Treasury securities with an
original maturity greater than the Index Maturity
specified on the face hereof have remaining terms to
maturity equally close to the particular Index
Maturity, the quotes for the United States Treasury
security with the shorter original remaining term to
maturity will be used.
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(C) COMMERCIAL PAPER RATE NOTES. If the Interest
Rate Basis is the Commercial Paper Rate, this Note shall be
deemed a "Commercial Paper Rate Note." Unless otherwise
specified on the face hereof, "Commercial Paper Rate" means,
from the Issuance Date to the first Interest Reset Date, the
Initial Interest Rate, if any, and thereafter:
(1) the Money Market Yield (as defined
below) on the particular Interest Determination Date
of the rate for commercial paper having the Index
Maturity specified on the face hereof as published in
H.15(519) under the caption "Commercial
Paper-Nonfinancial"; or
(2) if the rate referred to in clause
(1) is not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the Money
Market Yield of the rate on the particular Interest
Determination Date for commercial paper having the
particular Index Maturity as published in H.15 Daily
Update, or such other recognized electronic source
used for the purpose of displaying the applicable
rate, under the caption "Commercial
Paper-Nonfinancial"; or
(3) if the rate referred to in clause
(2) is not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on
the particular Interest Determination Date calculated
by the Calculation Agent as the Money Market Yield of
the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on that
Interest Determination Date of three leading dealers
of United States dollar commercial paper in The City
of New York (which may include the purchasing agent
or its affiliates) selected by the Calculation Agent
for commercial paper having the particular Index
Maturity placed for industrial issuers whose bond
rating is "Aa", or the equivalent, from a nationally
recognized statistical rating organization; or
(4) if the dealers so selected by the
Calculation Agent are not quoting as mentioned in
clause (3), the Commercial Paper Rate in effect on
the particular Interest Determination Date; provided
that if no Commercial Paper Rate is then in effect,
the interest rate for the next Interest Reset Period
will be the Initial Interest Rate.
"Money Market Yield" means a yield (expressed as a
percentage) calculated in accordance with the following
formula:
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D x 360
Money Market Yield = --------------- x 100
360-(D x M)
where "D" refers to the applicable per annum rate for
commercial paper quoted on a bank discount basis and expressed
as a decimal, and "M" refers to the actual number of days in
the applicable Interest Reset Period.
(D) CONSTANT MATURITY SWAP RATE NOTES. If the
Interest Rate Basis is the Constant Maturity Swap Rate, this
Note shall be deemed a "Constant Maturity Swap Rate Note."
Unless otherwise specified on the face hereof, "Constant
Maturity Swap Rate" means, from the Issuance Date to the first
Interest Reset Date, the Initial Interest Rate, if any, and
thereafter:
(1) with respect to each Interest
Determination Date, the mid-market U.S. Dollar fixed
rate for a floating rate interest rate swap
transaction with a term equal to the Index Maturity,
as it appears on Reuters Page ISDAFIX1, under "USD
11am Fix" on such Interest Determination Date; or
(2) if, as of such Interest
Determination Date, the above rate does not appear,
such page is not available or, if in the reasonable
opinion of the Calculation Agent, the method of
calculating such rate has been changed in a material
way, the Calculation Agent will request the principal
New York City office of five leading dealers to
provide quotations for such rate using the mid-market
rate at approximately 11:00 A.M., New York City time,
on such date. If five quotations are provided, the
Constant Maturity Swap Rate will be the arithmetic
mean of the three quotations remaining after
eliminating the highest (or, in the event of
equality, one of the highest) and lowest (or, in the
event of equality, one of the lowest) quotations; or
(3) if at least three, but fewer than
five, quotations are provided, the Constant Maturity
Swap Rate will be the arithmetic mean of the
quotations obtained; or
(4) if fewer than three quotations are
provided, the Constant Maturity Swap Rate will be the
Constant Maturity Swap Rate in effect on the
particular Interest Determination Date; provided that
if no Constant Maturity Swap Rate is then in effect,
the interest rate for the next Interest Reset Period
will be the Initial Interest Rate.
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(E) CPI ADJUSTMENT RATE NOTES. If the Interest
Rate Basis is the CPI Adjustment Rate, this Note shall be
deemed a "CPI Adjustment Rate Note." Unless otherwise
specified on the face hereof, "CPI Adjustment Rate" means,
from the Issuance Date to the first Interest Reset Date, the
Initial Interest Rate, if any, and thereafter:
(1) The percentage obtained by
deducting CPI(t-12) (defined below) from CPI(t)
(defined below), and dividing the result by
CPI(t-12). "CPI(t)" means the Index Level of the CPI
reported on Bloomberg CPURNSA or any successor
service by 3:00 PM on the applicable Interest
Determination Date as the non-seasonally adjusted
U.S. City Average All Items Consumer Price Index for
All Urban Consumers ("CPI") published in the calendar
month immediately preceding the applicable Interest
Determination Date by the Bureau of Labor Statistics
of the U.S. Department of Labor ("BLS") as the CPI
for the second calendar month preceding the
applicable Interest Determination Date. "CPI(t-12)"
means the Index Level of CPI for the calendar month
that is 12 calendar months prior to the calendar
month of the Index Level of CPI used for purposes of
CPI(t). If the CPI for the second calendar month
preceding the applicable Interest Determination Date
is not reported on Bloomberg CPURNSA or any successor
service by 3:00 PM on the applicable Interest
Determination Date, but has otherwise been published
by the BLS, the Calculation Agent will determine the
CPI as published by the BLS for such second calendar
month preceding the applicable Interest Determination
Date using such other source as on its face, and
after consultation with the Company, appears to
accurately set forth the CPI, as published by the
BLS.
In calculating CPI(t) and CPI(t-12) on the
applicable Interest Determination Date, the
Calculation Agent will use the most recently
available Index Level of the CPI for the applicable
second month preceding the applicable Interest
Determination Date, even if such Index Level has been
adjusted from a prior reported value for the relevant
month. However, if a value of CPI(t) or CPI(t-12)
used by the Calculation Agent on any Interest
Determination Date to determine the interest rate on
the Notes of this series (an "Initial CPI") is
subsequently revised by the BLS, the Calculation
Agent will continue to use the Initial CPI, and the
interest rate determined will not be revised. If the
CPI is rebased to a different year or period, the
base reference period for the purposes of
calculations relating to the CPI Adjustment Rate will
A-20
continue to be the 1982-1984 reference period as long
as the 1982-1984 CPI continues to be published; or
(2) if, while Floating Rate Notes
bearing interest at the CPI Adjustment Rate are
outstanding, the CPI is discontinued or, in the
opinion of the BLS, as evidenced by a public release,
which opinion is concurred with by the Company,
substantially altered, the applicable substitute
index for such Floating Rate Notes will be that
chosen by the Secretary of the Treasury for the
Department of Treasury's Inflation-Linked Treasuries
as described at 62 Federal Register 846-874 (January
6, 1997), and the procedures described in (1) will be
adapted by the Calculation Agent as directed by the
Company in accordance with general market practice at
the time for calculating an interest rate based on
changes in such substitute index, provided that the
procedure for determining the resulting interest rate
is administratively acceptable to the Calculation
Agent; or
(3) if, while Floating Rate Notes
bearing interest at the CPI Adjustment Rate are
outstanding, the CPI is discontinued or, in the
opinion of the BLS, as evidenced by a public release,
which opinion is concurred with by the Company,
substantially altered, and if at such time or
thereafter no Inflation-Linked Treasuries are
outstanding, at such time as no Inflation-Linked
Treasuries are outstanding the applicable substitute
index for such Floating Rate Notes will be determined
by the Calculation Agent as directed by the Company
in accordance with general market practice at the
time, and the procedures described in (1) will be
adapted by the Calculation Agent as directed by the
Company in accordance with general market practice at
the time for calculating an interest rate based on
changes in such substitute index, provided that the
procedure for determining the resulting interest rate
is administratively acceptable to the Calculation
Agent.
(F) FEDERAL FUNDS RATE NOTES. If the Interest
Rate Basis is the Federal Funds Rate, this Note shall be
deemed a "Federal Funds Rate Note." Unless otherwise specified
on the face hereof, "Federal Funds Rate" means, from the
Issuance Date to the first Interest Reset Date, the Initial
Interest Rate, if any, and thereafter:
(1) the rate on the particular Interest
Determination Date for United States dollar federal
funds as published in H.15(519) under the caption
"Federal Funds (Effective)" and displayed on
Moneyline Telerate (or any successor service) on
A-21
page 120 (or any other page as may replace the
specified page on that service) ("Moneyline Telerate
Page 120"); or
(2) if the rate referred to in clause
(1) does not so appear on Moneyline Telerate Page 120
or is not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on
the particular Interest Determination Date for United
States dollar federal funds as published in H.15
Daily Update, or such other recognized electronic
source used for the purpose of displaying the
applicable rate, under the caption "Federal Funds
(Effective)"; or
(3) if the rate referred to in clause
(2) is not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on
the particular Interest Determination Date calculated
by the Calculation Agent as the arithmetic mean of
the rates for the last transaction in overnight
United States dollar federal funds arranged by three
leading brokers of United States dollar federal funds
transactions in The City of New York (which may
include the purchasing agent or its affiliates)
selected by the Calculation Agent prior to 9:00 A.M.,
New York City time, on that Interest Determination
Date; or
(4) if the brokers so selected by the
Calculation Agent are not quoting as mentioned in
clause (3), the Federal Funds Rate in effect on the
particular Interest Determination Date; provided that
if no Federal Funds Rate is then in effect, the
interest rate for the next Interest Reset Period will
be the Initial Interest Rate.
(G) LIBOR NOTES. If the Interest Rate Basis is
LIBOR, this Note shall be deemed a "LIBOR Note." Unless
otherwise specified on the face hereof, "LIBOR" means, from
the Issuance Date to the first Interest Reset Date, the
Initial Interest Rate, if any, and thereafter:
(1) if "LIBOR Moneyline Telerate" is
specified on the face hereof or if neither "LIBOR
Reuters" nor "LIBOR Moneyline Telerate" is specified
on the face hereof as the method for calculating
LIBOR, the rate for deposits in the LIBOR Currency
(as defined below) having the Index Maturity
specified on the face hereof, commencing on the
related Interest Reset Date, that appears on the
LIBOR Page (as defined below) as of 11:00 A.M.,
London time, on the particular Interest Determination
Date; or
A-22
(2) if "LIBOR Reuters" is specified on
the face hereof, the arithmetic mean of the offered
rates, calculated by the Calculation Agent, or the
offered rate, if the LIBOR Page by its terms provides
only for a single rate, for deposits in the LIBOR
Currency having the particular Index Maturity,
commencing on the related Interest Reset Date, that
appear or appears, as the case may be, on the LIBOR
Page as of 11:00 A.M., London time, on the particular
Interest Determination Date; or
(3) if fewer than two offered rates
appear, or no rate appears, as the case may be, on
the particular Interest Determination Date on the
LIBOR Page as specified in clause (1) or (2), as
applicable, the rate calculated by the Calculation
Agent as the arithmetic mean of at least two offered
quotations obtained by the Calculation Agent after
requesting the principal London offices of each of
four major reference banks (which may include
affiliates of the purchasing agent) in the London
interbank market to provide the Calculation Agent
with its offered quotation for deposits in the LIBOR
Currency for the period of the particular Index
Maturity, commencing on the related Interest Reset
Date, to prime banks in the London interbank market
at approximately 11:00 A.M., London time, on that
Interest Determination Date and in a principal amount
that is representative for a single transaction in
the LIBOR Currency in that market at that time; or
(4) if fewer than two offered
quotations referred to in clause (3) are provided as
requested, the rate calculated by the Calculation
Agent as the arithmetic mean of the rates quoted at
approximately 11:00 A.M., in the applicable Principal
Financial Center, on the particular Interest
Determination Date by three major banks (which may
include affiliates of the purchasing agent) in that
Principal Financial Center selected by the
Calculation Agent for loans in the LIBOR Currency to
leading European banks, having the particular Index
Maturity and in a principal amount that is
representative for a single transaction in the LIBOR
Currency in that market at that time; or
(5) if the banks so selected by the
Calculation Agent are not quoting as mentioned in
clause (4), LIBOR in effect on the particular
Interest Determination Date; provided that if no
LIBOR is then in effect, the interest rate for the
next Interest Reset Period will be the Initial
Interest Rate.
A-23
"LIBOR Currency" means the currency specified on the
face hereof as to which LIBOR shall be calculated or, if no
currency is specified on the face hereof, United States
dollars.
"LIBOR Page" means either: (1) if "LIBOR Reuters" is
specified on the face hereof, the display on the Reuter
Monitor Money Rates Service (or any successor service) on the
page specified on the face hereof (or any other page as may
replace that page on that service) for the purpose of
displaying the London interbank rates of major banks for the
LIBOR Currency; or (2) if "LIBOR Moneyline Telerate" is
specified on the face hereof or neither "LIBOR Reuters" nor
"LIBOR Moneyline Telerate" is specified on the face hereof as
the method for calculating LIBOR, the display on Moneyline
Telerate (or any successor service) on the page specified on
the face hereof (or any other page as may replace such page on
such service), or if no such page is specified, on the
Moneyline Telerate (or any successor service) page generally
used for the purpose of displaying the London interbank rates
of major banks for the LIBOR Currency.
(H) PRIME RATE NOTES. If the Interest Rate Basis
is the Prime Rate, this Note shall be deemed a "Prime Rate
Note." Unless otherwise specified on the face hereof, "Prime
Rate" means, from the Issuance Date to the first Interest
Reset Date, the Initial Interest Rate, if any, and thereafter:
(1) the rate on the particular Interest
Determination Date as published in H.15(519) under
the caption "Bank Prime Loan"; or
(2) if the rate referred to in clause
(1) is not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on
the particular Interest Determination Date as
published in H.15 Daily Update, or such other
recognized electronic source used for the purpose of
displaying the applicable rate, under the caption
"Bank Prime Loan"; or
(3) if the rate referred to in clause
(2) is not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on
the particular Interest Determination Date calculated
by the Calculation Agent as the arithmetic mean of
the rates of interest publicly announced by each bank
that appears on the Reuters Screen US PRIME 1 Page
(as defined below) as the applicable bank's prime
rate or base lending rate as of 11:00 A.M., New York
City time, on that Interest Determination Date; or
A-24
(4) if fewer than four rates referred
to in clause (3) are so published by 3:00 p.m., New
York City time, on the related Calculation Date, the
rate calculated by the Calculation Agent as the
particular Interest Determination Date as the
arithmetic mean of the prime rates or base lending
rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the
close of business on that Interest Determination Date
by three major banks (which may include affiliates of
the purchasing agent) in The City of New York
selected by the Calculation Agent; or
(5) if the banks so selected by the
Calculation Agent are not quoting as mentioned in
clause (4), the Prime Rate in effect on the
particular Interest Determination Date; provided that
if no Prime Rate is then in effect, the interest rate
for the next Interest Reset Period will be the
Initial Interest Rate.
"Reuters Screen US PRIME 1 Page" means the display on
the Reuter Monitor Money Rates Service (or any successor
service) on the "US PRIME 1" page (or any other page as may
replace that page on that service) for the purpose of
displaying prime rates or base lending rates of major United
States banks.
(I) TREASURY RATE NOTES. If the Interest Rate
Basis is the Treasury Rate, this Note shall be deemed a
"TREASURY RATE NOTE." Unless otherwise specified on the face
hereof, "TREASURY RATE" means, from the Issuance Date to the
first Interest Reset Date, the Initial Interest Rate, if any,
and thereafter:
(1) the rate from the auction held on
the Interest Determination Date (the "AUCTION") of
direct obligations of the United States ("TREASURY
BILLS") having the Index Maturity specified on the
face hereof under the caption "INVESTMENT RATE" on
the display on Moneyline Telerate (or any successor
service) on page 56 (or any other page as may replace
that page on that service) ("Moneyline Telerate Page
56") or page 57 (or any other page as may replace
that page on that service) ("Moneyline Telerate Page
57"); or
(2) if the rate referred to in clause
(1) is not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the Bond
Equivalent Yield (as defined below) of the rate for
the applicable Treasury Bills as published in H.15
Daily Update, or another recognized electronic source
used for the
A-25
purpose of displaying the applicable rate, under the
caption "U.S. Government Securities/Treasury
Bills/Auction High"; or
(3) if the rate referred to in clause
(2) is not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the Bond
Equivalent Yield of the auction rate of the
applicable Treasury Bills as announced by the United
States Department of the Treasury; or
(4) if the rate referred to in clause
(3) is not so announced by the United States
Department of the Treasury, or if the Auction is not
held, the Bond Equivalent Yield of the rate on the
particular Interest Determination Date of the
applicable Treasury Bills as published in H.15(519)
under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market"; or
(5) if the rate referred to in clause
(4) is not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on
the particular Interest Determination Date of the
applicable Treasury Bills as published in H.15 Daily
Update, or another recognized electronic source used
for the purpose of displaying the applicable rate,
under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market"; or
(6) if the rate referred to in clause
(5) is not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on
the particular Interest Determination Date calculated
by the Calculation Agent as the Bond Equivalent Yield
of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City
time, on that Interest Determination Date, of three
primary United States government securities dealers
(which may include the purchasing agent or its
affiliates) selected by the Calculation Agent, for
the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face
hereof; or
(7) if the dealers so selected by the
Calculation Agent are not quoting as mentioned in
clause (6), the Treasury Rate in effect on the
particular Interest Determination Date; provided that
if no Treasury Rate is then in effect, the interest
rate for the next Interest Reset Period will be the
Initial Interest Rate.
"Bond Equivalent Yield" means a yield (expressed as a
percentage) calculated in accordance with the following
formula:
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D x N
Bond Equivalent Yield = --------------- x 100
360-(D x M)
where "D" refers to the applicable per annum rate for Treasury
Bills quoted on a bank discount basis and expressed as a
decimal, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the applicable Interest
Reset Period.
(c) NOTES LINKED TO SECURITIES, CURRENCIES, COMMODITIES, INDICES
OR OTHER INSTRUMENTS OR MEASURES OR BASKETS THEREOF. If this Note is specified
on the face hereof as a "Note Linked to Securities of One or More Issuers, One
or More Currencies, One or More Commodities, Indices, or any other Instrument(s)
or Measure(s) or Baskets of any of the Foregoing," the principal amount payable
and/or the amount of interest payable on any Interest Payment Date shall be
determined by reference to one or more securities, currencies, commodities,
indices or any other instrument or measure, a basket of any of the foregoing or
the value of one or more currencies as compared to the value of one or more
other currencies, and payment of principal, premium, if any, and interest on
this Note shall be made as set forth on the face hereof and/or in accordance
with Schedule II, attached hereto.
(d) DISCOUNT NOTES. If this Note is specified on the face hereof
as a "Discount Note":
(i) PRINCIPAL AND INTEREST. This Note will bear interest
in the same manner as set forth in Section 3(a) above, and payments of
principal and interest shall be made as set forth on the face hereof.
Discount Notes may not bear any interest currently or may bear interest
at a rate that is below market rates at the time of issuance. The
difference between the Issue Price of a Discount Note and par is
referred to as the "DISCOUNT".
(ii) REDEMPTION; REPAYMENT; ACCELERATION. In the event a
Discount Note is redeemed, repaid or accelerated, the amount payable to
the Holder of such Discount Note will be equal to the sum of: (A) the
Issue Price (increased by any accruals of Discount) and, in the event
of any redemption of such Discount Note, if applicable, multiplied by
the Initial Redemption Percentage (as adjusted by the Annual Redemption
Percentage Reduction, if applicable); and (B) any unpaid interest
accrued on such Discount Note to the Maturity Date ("AMORTIZED FACE
AMOUNT"). Unless otherwise specified on the face hereof, for purposes
of determining the amount of Discount that has accrued as of any date
on which a redemption, repayment or acceleration of maturity occurs for
a Discount Note, a Discount will be accrued using a constant yield
method. The constant yield will be calculated using a 30-day month,
360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the
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shortest period between Interest Payment Dates for the applicable
Discount Note (with ratable accruals within a compounding period), a
coupon rate equal to the initial coupon rate applicable to the
applicable Discount Note and an assumption that the maturity of such
Discount Note will not be accelerated. If the period from the date of
issue to the first Interest Payment Date for a Discount Note (the
"INITIAL PERIOD") is shorter than the compounding period for such
Discount Note, a proportionate amount of the yield for an entire
compounding period will be accrued. If the Initial Period is longer
than the compounding period, then the period will be divided into a
regular compounding period and a short period with the short period
being treated as provided above.
Section 4. REDEMPTION. If no redemption right is set forth on the face
hereof, this Note may not be redeemed prior to the Stated Maturity Date, except
as set forth in the Indenture. If a redemption right is set forth on the face of
this Note, the Company may redeem this Note on the Interest Payment Date on or
after the Initial Redemption Date set forth on the face hereof in whole or in
part (each, a "REDEMPTION DATE"), prior to the Stated Maturity Date, in
increments equal to the Authorized Denominations (provided that any remaining
Principal Amount hereof shall be at least equal to the Authorized Denomination)
at the applicable Redemption Price (as defined below), together with unpaid
interest, if any, accrued thereon to, but excluding, the applicable Redemption
Date. "Redemption Price" shall mean an amount equal to the Initial Redemption
Percentage (as adjusted by the Annual Redemption Percentage Reduction, if
applicable) multiplied by the unpaid Principal Amount of this Note to be
redeemed (or in the case of Discount Notes, multiplied as set forth in Section
3(d)(ii) above). The Initial Redemption Percentage, if any, applicable to this
Note shall decline at each anniversary of the Initial Redemption Date by an
amount equal to the applicable Annual Redemption Percentage Reduction, if any,
until the Redemption Price is equal to 100% of the unpaid amount thereof to be
redeemed. Unless otherwise set forth on the face of this Note, notice must be
given not more than seventy-five (75) nor less than thirty (30) calendar days
prior to the proposed Redemption Date. In the event of redemption of this Note
in part only, a new Note for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the surrender hereof.
Section 5. SINKING FUNDS AND AMORTIZING NOTES. Unless specified on the
face hereof, this Note will not be subject to, or entitled to the benefit of,
any sinking fund. If this Note is specified on the face hereof as an "Amortizing
Note", this Note will bear interest in the same manner as set forth in Section
3(a) above, and payments of principal, premium, if any, and interest will be
made as set forth on the face hereof and/or in accordance with Schedule I
attached hereto. The Company will make payments combining principal, premium (if
any) and interest, if applicable, on the dates and in the amounts set forth in
the table appearing in Schedule I attached to this Note or in accordance with
the formula specified on the face hereof. Payments made hereon will be
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applied first to interest due and payable hereon and then to the reduction of
the unpaid principal amount hereof.
Section 6. MODIFICATIONS AND WAIVERS. The Indenture contains provisions
permitting the Company and the Indenture Trustee (1) at any time and from time
to time without notice to, or the consent of, the Holders of any Notes issued
under the Indenture to enter into one or more supplemental indentures for
certain enumerated purposes and (2) with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Notes affected
thereby, to enter into one or more supplemental indentures for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture or of modifying in any manner the rights of Holders
of Notes under the Indenture; provided, that, with respect to certain enumerated
provisions, no such supplemental indenture shall be entered into without the
consent of the Holder of each Note affected thereby. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Note or such other
Notes.
Section 7. OBLIGATIONS UNCONDITIONAL. No reference herein to the
Indenture and no provisions of this Note or of the Indenture shall impair the
right of each Holder of any Note, which is absolute and unconditional, to
receive payment of the principal of, and any interest on, and premium, if any,
on, such Note on the respective Stated Maturity Date or redemption date thereof
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
Section 8. EVENTS OF DEFAULT. If an Event of Default with respect to
the Notes of this series shall occur and be continuing, the principal of, and
all other amounts payable on, the Notes of this series may be declared due and
payable, or may be automatically accelerated, as the case may be, in the manner
and with the effect provided in the Indenture. In the event that this Note is a
Discount Note, the amount of principal of this Note that becomes due and payable
upon such acceleration shall be equal to the amount calculated as set forth in
Section 3(d) hereof.
Section 9. WITHHOLDING; NO ADDITIONAL AMOUNTS. All amounts due in
respect of this Note will be made free and clear of any applicable withholding
or deduction for or on account of any present or future taxes, duties, levies,
assessments or other governmental charges of whatever nature imposed or levied
by or on behalf of any governmental authority, unless such withholding or
deduction is required by law. The Company will not pay any additional amounts to
the Holder of this Note in respect of any such withholding or deduction, any
such withholding or deduction will not give rise to an Event of Default or any
independent right or obligation to redeem this Note and the Holder will be
deemed for all purposes to have received cash in an amount equal to the
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portion of such withholding or deduction that is attributable to such ▇▇▇▇▇▇'s
interest in this Note as equitably determined by the Company.
Section 10. LISTING. Unless otherwise specified on the face hereof,
this Note will not be listed on any securities exchange.
Section 11. NO RECOURSE AGAINST CERTAIN PERSONS. No recourse shall be
had for the payment of any principal, interest or any other sums at any time
owing under the terms of this Note, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture against the
Nonrecourse Parties, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all such
personal liability being, by the acceptance hereof and as part of the
consideration for issue hereof, expressly waived and released.
Section 12. MISCELLANEOUS.
(a) This Note is issuable only as a registered Note without
coupons in denominations of $1,000 and any integral multiple of $1,000 in excess
thereof, or, if the specified currency of this Note is Canadian dollars, the
approximate Canadian dollar equivalent of $1,000 and any integral multiple of
such $1,000 equivalent in excess thereof, unless otherwise specified on the face
of this Note.
(b) Prior to due presentment for registration of transfer of this
Note, the Company, the Indenture Trustee, the Registrar, the Paying Agent, any
Agent, and any other agent of the Company or the Indenture Trustee may treat the
Person in whose name this Note is registered as the owner hereof for the purpose
of receiving payment as herein provided and for all other purposes, whether or
not this Note shall be overdue, and none of the Company, the Indenture Trustee,
the Registrar, the Paying Agent, any Agent, or any other agent of the Company or
the Indenture Trustee shall be affected by notice to the contrary.
(c) The Notes of this series are being issued by means of a
book-entry-only system with no physical distribution of certificates to be made
except as provided in the Indenture. The book-entry system maintained by DTC
will evidence ownership of the Notes of this series, with transfers of ownership
effected on the records of DTC and its participants pursuant to rules and
procedures established by DTC and its participants. The Company and the
Indenture Trustee will recognize Cede & Co., as nominee of DTC, as the
registered owner of the Notes of this series, as the Holder of the Notes of this
series for all purposes, including payment of principal, premium (if any) and
interest, notices and voting. Transfer of principal, premium (if any) and
interest to participants of DTC will be the responsibility of DTC, and transfer
of principal, premium (if any) and interest to beneficial holders of the Notes
of this series by participants of DTC will be the responsibility of such
participants and other nominees of such beneficial holders. So long as the
book-entry system is in effect, the selection of any Notes to be redeemed or
repaid
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will be determined by DTC pursuant to rules and procedures established by DTC
and its participants. Neither the Company nor the Indenture Trustee will be
responsible or liable for such transfers or payments or for maintaining,
supervising or reviewing the records maintained by DTC, its participants or
persons acting through such participants.
(d) This Note or portion hereof may not be exchanged for
Definitive Notes, except in the limited circumstances provided for in the
Indenture. The transfer or exchange of Definitive Notes shall be subject to the
terms of the Indenture. No service charge will be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Section 13. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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SURVIVOR'S OPTION RIDER
(a) Unless this Note, on its face, has been declared due and
payable prior to the Maturity Date by reason of any Event of Default under the
Indenture, or has been previously redeemed or otherwise repaid, the authorized
Representative (as defined below) of a deceased Beneficial Owner (as defined
below) of this Note shall have the option to elect repayment by the Company in
whole or in part prior to the Maturity Date following the death of the
Beneficial Owner (a "SURVIVOR'S OPTION"). The Survivor's Option may not be
exercised until 12 full months following the Issuance Date with respect to such
Note. "BENEFICIAL OWNER" as used in this Survivor's Option Rider means, with
respect to this Note, the person who has the right, immediately prior to such
person's death, to receive the proceeds from the disposition of this Note, as
well as the right to receive payments on this Note.
(b) Upon the valid exercise of the Survivor's Option and the
proper tender of this Note by or on behalf of a person that has authority to act
on behalf of the deceased Beneficial Owner of this Note under the laws of the
appropriate jurisdiction (including, without limitation, the personal
representative or executor of the deceased Beneficial Owner or the surviving
joint owner of the deceased Beneficial Owner) (the "Representative") the Company
shall repay this Note (or portion thereof) at a price equal to 100% of the
unpaid Principal Amount of the deceased Beneficial Owner's beneficial interest
in this Note plus accrued and unpaid interest to, but excluding, the date of
such repayment. However, the Company shall not be obligated to repay:
(i) beneficial ownership interests in Notes exceeding the
greater of $1,000,000 (or its equivalent in Canadian dollars, if
applicable) or 1% in aggregate principal amount for all Outstanding
Notes issued under the Program to which the Survivor's Option applies
as of the end of the most recent calendar year (the "Annual Put
Limitation") or such greater amounts as set forth in the Pricing
Supplement;
(ii) on behalf of a deceased Beneficial Owner, any
beneficial ownership interest in Notes issued under the Program that
exceeds $250,000 (or its equivalent in Canadian dollars, if applicable)
in aggregate in any calendar year (the "Individual Put Limitation"), or
such greater amount as set forth in the Pricing Supplement; or
(iii) beneficial ownership interests in Notes of a series
exceeding the Series Put Limitation, if any, specified in the Pricing
Supplement (the "Series Put Limitation").
(c) The Company shall not make principal repayments pursuant to
exercise of the Survivor's Option in amounts that are less than the Authorized
Denomination, and, in the event that the limitations described in the preceding
sentence would result in the
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partial repayment of this Note, the Principal Amount remaining Outstanding after
repayment must be at least the minimum authorized denomination of the Notes.
(d) An otherwise valid election to exercise the Survivor's Option
may not be withdrawn.
(e) Election to exercise the Survivor's Option will be accepted in
the order that elections are received by the Indenture Trustee, except for any
Notes (or portion thereof) the acceptance of which would contravene (1) the
Annual Put Limitation, (2) the Individual Put Limitation or (3) the Series Put
Limitation. Any Note (or portion thereof) accepted for repayment pursuant to
exercise of the Survivor's Option shall be repaid on the first Interest Payment
Date that occurs 20 or more calendar days after the date of such acceptance. Any
exercise(s) of the Survivor's Option with respect to Notes (or portions thereof)
not accepted during any calendar year, because such acceptance would have
contravened the Annual Put Limitation, the Individual Put Limitation or the
Series Put Limitation, shall be deemed to be tendered on the first day of the
following calendar year in the order all such Notes (or portions thereof) were
originally tendered. In the event that this Note (or any portion hereof)
tendered for repayment pursuant to valid exercise of the Survivor's Option is
not accepted or if repayment is to be delayed, the Indenture Trustee shall
deliver a notice by first-class mail to the presenting direct participant that
states the reason such Note (or portion thereof) has not been accepted for
payment or why repayment is to be delayed.
(f) In order to obtain repayment through exercise of the
Survivor's Option with respect to this Note (or portion hereof), the
Representative must provide the following items to the broker or other entity
through which the beneficial interest in this Note is held by the deceased
Beneficial Owner: (1) a written instruction to such broker or other entity to
notify the Depositary of the Representative's desire to obtain repayment through
the exercise of the Survivor's Option; (2) appropriate evidence satisfactory to
the Indenture Trustee and the Company that (I) the deceased was the Beneficial
Owner of this Note at the time of death, which evidence may be in the form of a
letter from the Representative, (II) the death of such Beneficial Owner has
occurred, and the date of such death, and (III) the Representative has authority
to act on behalf of the deceased Beneficial Owner; (3) if the interest in this
Note is held by a nominee of the deceased Beneficial Owner, a certificate or
letter satisfactory to the Indenture Trustee and the Company from such nominee
attesting to the deceased's beneficial ownership of this Note; (4) a written
request for repayment signed by the Representative, with the signature
guaranteed by a member firm of a registered national securities exchange or of
the National Association of Securities Dealers, Inc. or a commercial bank or
trust company having an office or correspondent in the United States; (5) if
applicable, a properly executed assignment or endorsement; (6) tax waivers and
such other instruments or documents that the Indenture Trustee and the Company
reasonably require in order to establish the validity of the beneficial
ownership of this Note and the claimant's
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entitlement to payment; and (7) any additional information the Indenture Trustee
and the Company reasonably require to evidence satisfaction of any conditions to
the exercise of such Survivor's Option or to document beneficial ownership or
authority to make the election and to cause the repayment of this Note. Such
broker or other entity shall then deliver each of these items to the direct
participant of the Depositary, such direct participant being the entity that
holds the beneficial interest in this Note on behalf of the deceased Beneficial
Owner, together with evidence satisfactory to the Indenture Trustee and the
Company from the broker or other entity stating that it represents the deceased
Beneficial Owner. Such direct participant shall then execute an election form in
the form attached hereto as Annex A and deliver the originals of such items to
the Indenture Trustee and retain photocopies thereof. If the Indenture Trustee
and the Company determine that the requisite documentation has been received and
information and all other conditions described in this Note and in the
applicable prospectus supplement and pricing supplement are satisfied, the
Indenture Trustee shall make payment of the applicable amount to the direct
participant through the Depositary. Such direct participant shall be responsible
for disbursing any payments it receives from the Depositary pursuant to exercise
of the Survivor's Option to the appropriate Representative. All questions, other
than with respect to the right to limit the aggregate Principal Amount of Notes
as to which exercises of the Survivor's Option shall be accepted in any one
calendar year, regarding the eligibility or validity of any exercise of the
Survivor's Option will be determined by the Company, in its sole discretion,
which determination shall be final and binding on all parties.
(g) The death of a person holding a beneficial interest in this
Note as a joint tenant or tenant by the entirety with another person, or as a
tenant in common with the deceased owner's spouse, will be deemed the death of
the Beneficial Owner of this Note, and the entire Principal Amount of this Note
so held shall be subject to repayment by the Company upon request in accordance
with the terms and provisions hereof. However, the death of a person holding a
beneficial interest in this Note as tenant in common with a person other than
such deceased owner's spouse will be deemed the death of a Beneficial Owner only
with respect to such deceased person's ownership interest in this Note.
(h) The death of a person who was a lifetime beneficiary of a
trust holding a beneficial interest in this Note will be treated as the death of
the Beneficial Owner of this Note to the extent of that person's interest in the
trust. The death of a person who was a tenant by the entirety or joint tenant in
a tenancy which is the beneficiary of a trust holding a beneficial interest in
this Note will be treated as the death of the Beneficial Owner of this Note. The
death of an individual who was a tenant in common in a tenancy which is the
beneficiary of a trust holding a beneficial interest in this Note will be
treated as the death of the Beneficial Owner of this Note only with respect to
the deceased person's beneficial interest in this Note, unless a husband and
wife are the tenants in common, in which case the death of either will be
treated as the death of the owner of this Note.
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(i) The death of a person who, during his or her lifetime, was
entitled to substantially all of the beneficial ownership interests in this Note
will be deemed the death of the Beneficial Owner of this Note for purposes of
the Survivor's Option, regardless of whether that Beneficial Owner was the
registered holder of this Note, if such beneficial ownership interest can be
established to the satisfaction of the Indenture Trustee and the Company. A
beneficial ownership interest will be deemed to exist in typical cases of
nominee ownership, such as ownership under the Uniform Transfers of Gifts to
Minors Act, community property or other joint ownership arrangements between a
husband and wife and lifetime custodial and trust arrangements.
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ANNEX A
REPAYMENT ELECTION FORM
HARTFORD LIFE INSURANCE COMPANY
HARTFORD LIFE [INCOMENOTES(sm)] [MEDIUM-TERM NOTES] PROGRAM
CUSIP NUMBER ________
To: Hartford Life Insurance Company ("HARTFORD LIFE")
The undersigned financial institution (the "FINANCIAL INSTITUTION")
represents the following:
- The Financial Institution has received a request for repayment
from the executor or other authorized representative (the
"AUTHORIZED REPRESENTATIVE") of the deceased beneficial owner
listed below (the "DECEASED BENEFICIAL OWNER") of the Hartford
Life [IncomeNotes(sm)] [Medium-Term Notes] program note (CUSIP
No. ____________) (the "NOTES").
- At the time of his or her death, the Deceased Beneficial Owner
owned Notes in the principal amount listed below.
- The Financial Institution currently holds such Notes as a
direct or indirect participant in The Depository Trust Company
(the "DEPOSITARY").
The Financial Institution agrees to the following terms:
- The Financial Institution shall follow the instructions (the
"INSTRUCTIONS") accompanying this Repayment Election Form
(this "FORM").
- The Financial Institution shall deliver to JPMorgan Chase
Bank, N.A. (the "INDENTURE TRUSTEE") the originals of all
records specified in the Instructions supporting the above
representations and all other related documents received from
the relevant broker or other entity, and shall retain
photocopies thereof and shall make such photocopies available
to Hartford Life for inspection and review within five
business days of Hartford Life's request.
- If the Financial Institution, the Indenture Trustee or
Hartford Life, in any such party's reasonable discretion,
deems any of the records specified in the Instructions
supporting the above representations or any such other
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related documents unsatisfactory to substantiate a claim for
repayment, the Financial Institution shall not be obligated to
submit this Form, and the Indenture Trustee, or Hartford Life
may deny repayment. If the Financial Institution cannot
substantiate a claim for repayment, it shall notify the
Indenture Trustee immediately.
- Survivor's Option Elections may not be withdrawn.
- The Financial Institution agrees to indemnify and hold
harmless the Indenture Trustee and Hartford Life against and
from any and all claims, liabilities, costs, losses, expenses,
suits and damages resulting from the Financial Institution's
above representations and request for repayment on behalf of
the Authorized Representative.
- The Notes will be repaid on the first Interest Payment Date to
occur at least 20 calendar days after the date of acceptance
of the Notes for repayment, unless such date is not a business
day, in which case the date of repayment shall be the next
succeeding business day.
- Hartford Life shall have the right to limit the aggregate
principal amount of Notes as to which exercises of the
Survivor's Option shall be accepted in any one calendar year
and all questions as to the eligibility or validity of any
exercise of the Survivor's Option will be determined by
Hartford Life, in its sole discretion, which determination
shall be final and binding on all parties.
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REPAYMENT ELECTION FORM
(1) ______________________________________________________
Name of Deceased Beneficial Owner
(2) ______________________________________________________
Date of Death
(3) ______________________________________________________
Name of Authorized Representative Requesting Repayment
(4) ______________________________________________________
Name of Financial Institution Requesting Repayment
(5) ______________________________________________________
Signature of Authorized Representative of Financial
Institution Requesting Repayment
(6) ______________________________________________________
Principal Amount of Requested Repayment
(7) ______________________________________________________
Date of Election
(8) Financial Institution
Representative Name:
Phone Number:
Fax Number:
Mailing Address (no P.O. Boxes):
(9) Wire instructions for payment:
Bank Name:
ABA Number:
Account Name:
Account Number:
Reference (optional):
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TO BE COMPLETED BY THE INDENTURE TRUSTEE:
(A) DELIVERY AND PAYMENT DATE:
(B) PRINCIPAL AMOUNT:
(C) ACCRUED INTEREST:
(D) DATE OF RECEIPT OF FORM BY THE INDENTURE TRUSTEE:
(E) DATE OF ACKNOWLEDGMENT BY THE INDENTURE TRUSTEE*
------------------
* An acknowledgement, in the form of a copy of this document, will be
returned to the party and location designated in item (8) above.
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INSTRUCTIONS FOR COMPLETING REPAYMENT ELECTION FORM AND
EXERCISING REPAYMENT OPTION
Capitalized terms used and not defined herein have the meanings defined
in the accompanying Repayment Election Form.
1. Collect and retain for a period of at least three years photocopies of
the following: (1) satisfactory evidence of the authority of the
Authorized Representative, (2) satisfactory evidence of death of the
Deceased Beneficial Owner, (3) satisfactory evidence that the Deceased
Beneficial Owner beneficially owned, at the time of his or her death,
the notes being submitted for repayment, which evidence may be in the
form of a letter from the Representative, and (4) any necessary tax
waivers. For purposes of determining whether the notes will be deemed
beneficially owned by an individual at any given time, the following
rules shall apply:
- If a note (or a portion thereof) is beneficially owned by
tenants by the entirety or joint tenants, the note (or
relevant portion thereof) will be regarded as beneficially
owned by a single owner. Accordingly, the death of a tenant by
the entirety or joint tenant will be deemed the death of the
beneficial owner and the entire principal amount so owned will
become eligible for repayment.
- The death of a person beneficially owning a note (or a portion
thereof) by tenancy in common will be deemed the death of the
beneficial owner only with respect to the deceased owner's
interest in the note (or relevant portion thereof) so owned,
unless a husband and wife are the tenants in common, in which
case the death of either will be deemed the death of the
beneficial owner and the entire principal amount so owned will
be eligible for repayment.
- A note (or a portion thereof) beneficially owned by a trust
will be regarded as beneficially owned by each beneficiary of
the trust to the extent of that beneficiary's interest in the
trust (however, a trust's beneficiaries collectively cannot be
beneficial owners of more notes than are owned by the trust).
The death of a beneficiary of a trust will be deemed the death
of the beneficial owner of the notes (or relevant portion
thereof) beneficially owned by the trust to the extent of that
beneficiary's interest in the trust. The death of an
individual who was a tenant by the entirety or joint tenant in
a tenancy which is the beneficiary of a trust will be deemed
the death of the beneficiary of the trust. The death of an
individual who was a tenant in common in a tenancy which is
the beneficiary of a trust will be deemed the death of the
beneficiary of the trust only with respect to the deceased
holder's beneficial interest in the note, unless a husband and
wife are the
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tenants in common, in which case the death of either will be
deemed the death of the beneficiary of the trust.
- The death of a person who, during his or her lifetime, was
entitled to substantially all of the beneficial interest in a
note (or a portion thereof) will be deemed the death of the
beneficial owner of that note (or relevant portion thereof),
regardless of the registration of ownership, if such
beneficial interest can be established to the satisfaction of
the Indenture Trustee and Hartford Life. Such beneficial
interest will exist in many cases of street name or nominee
ownership, custodial arrangements, ownership by a trustee,
ownership under the Uniform Transfers of Gifts to Minors Act
and community property or other joint ownership arrangements
between spouses. Beneficial interest will be evidenced by such
factors as the power to sell or otherwise dispose of a note,
the right to receive the proceeds of sale or disposition and
the right to receive interest and principal payments on a
note.
2. Indicate the name of the Deceased Beneficial Owner on line (1).
3. Indicate the date of death of the Deceased Beneficial Owner on line
(2).
4. Indicate the name of the Authorized Representative requesting repayment
on line (3).
5. Indicate the name of the Financial Institution requesting repayment on
line (4).
6. Affix the authorized signature of the Financial Institution's
representative on line (5). THE SIGNATURE MUST BE MEDALLION SIGNATURE
GUARANTEED.
7. Indicate the principal amount of notes to be repaid on line (6).
8. Indicate the date this Form was completed on line (7).
9. Indicate the name, mailing address (no P.O. boxes, please), telephone
number and facsimile-transmission number of the party to whom the
acknowledgment of this election may be sent in item (8).
10. Indicate the wire instruction for payment on line (9).
11. Leave lines (A), (B), (C), (D) and (E) blank.
12. Mail or otherwise deliver an original copy of the completed Form to:
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BY REGISTERED MAIL BY COURIER OR OVERNIGHT DELIVERY
------------------ --------------------------------
JPMorgan Chase Bank, N.A. JPMorgan Chase Bank, N.A.
WSS - Survivor Option Processing WSS - Survivor Option Processing
P.O. Box 2320 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
13. FACSIMILE TRANSMISSIONS OF THE REPAYMENT ELECTION FORM WILL NOT BE
ACCEPTED.
14. If the acknowledgement of the Indenture Trustee's receipt of this Form
is not received within ten days of the date such information is sent to
JPMorgan Chase Bank, N.A., contact JPMorgan Chase Bank, N.A., at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: WSS -
Survivor Option Processing, telephone number: ▇-▇▇▇-▇▇▇-▇▇▇▇.
15. For assistance with this Form or any questions relating thereto, please
contact JPMorgan Chase Bank, N.A., at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: WSS Survivor Option Processing,
telephone number: ▇-▇▇▇-▇▇▇-▇▇▇▇.
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SCHEDULE I
AMORTIZATION TABLE OR FORMULA
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SCHEDULE II
TERMS RELATED TO NOTES LINKED TO SECURITIES OF ONE OR MORE
ISSUERS, ONE OR MORE CURRENCIES, ONE OR MORE COMMODITIES,
INDICES, OR ANY OTHER INSTRUMENT(S) OR MEASURE(S) OR BASKETS
THEREOF
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