<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For The Quarterly Period Ended March 31, 1998
OR
[ ]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from ____________ to ______________
Commission file number 1-12749
HARTFORD LIFE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 06-1470915
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
200 HOPMEADOW STREET, SIMSBURY, CONNECTICUT 06089
(Address of principal executive offices)
(860) 843-7716
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No[ ]
As of April 30, 1998, there were outstanding 26,028,179 shares of Class A Common
Stock, $0.01 par value per share, and 114,000,000 shares of Class B Common
Stock, $0.01 par value per share, of the registrant.
<PAGE> 2
INDEX
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS PAGE
Condensed Consolidated Statements of Income - Three Months Ended
March 31, 1998 and 1997 3
Condensed Consolidated Balance Sheets - March 31, 1998 and
December 31, 1997 4
Condensed Consolidated Statements of Changes in Stockholders' Equity -
Three Months Ended March 31, 1998 and 1997 5
Condensed Consolidated Statements of Cash Flows - Three Months
Ended March 31, 1998 and 1997 6
Notes to Condensed Consolidated Financial Statements 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 9
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS 16
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 16
Signature 17
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
HARTFORD LIFE, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-------------------
(In millions, except for per share data) 1998 1997
------ ------
(Unaudited)
<S> <C> <C>
REVENUES
Premiums and other considerations $1,004 $ 679
Net investment income 400 375
Net realized capital gains -- 1
------ ------
TOTAL REVENUES 1,404 1,055
====== ======
BENEFITS, CLAIMS AND EXPENSES
Benefits, claims and claim adjustment expenses 771 659
Amortization of deferred policy acquisition costs 97 83
Dividends to policyholders 107 54
Interest expense 13 16
Other insurance expenses 287 143
------ ------
TOTAL BENEFITS, CLAIMS AND EXPENSES 1,275 955
====== ======
INCOME BEFORE INCOME TAX EXPENSE 129 100
Income tax expense 45 37
------ ------
NET INCOME $ 84 $ 63
====== ======
BASIC EARNINGS PER SHARE (1) $ 0.60 $ 0.51
DILUTED EARNINGS PER SHARE (1) 0.60 0.51
------ ------
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING (1) 140 127
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING AND
DILUTIVE POTENTIAL COMMON SHARES (1) 140 127
------ ------
CASH DIVIDENDS DECLARED PER SHARE SUBSEQUENT TO THE
INITIAL PUBLIC OFFERING (2) $ 0.09 $ --
</TABLE>
(1) Pro forma in 1997, see Note 3 of Notes to Condensed Consolidated Financial
Statements for further explanation.
(2) Cash dividends declared exclude amounts paid to the Company's parent prior
to the Company's Initial Public Offering (May 22, 1997).
SEE NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.
3
<PAGE> 4
HARTFORD LIFE, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
March 31, December 31,
(In millions, except for share data) 1998 1997
--------- ---------
(Unaudited)
<S> <C> <C>
ASSETS
Investments
Fixed maturities, available for sale, at fair value (amortized cost of
$17,028 and $16,475) $ 17,384 $ 16,848
Equity securities, available for sale, at fair value 188 181
Policy loans, at outstanding balance 3,764 3,759
Other investments, at cost 374 182
--------- ---------
Total investments 21,710 20,970
Cash 50 88
Premiums and amounts receivable 175 147
Reinsurance recoverable 5,498 5,765
Deferred policy acquisition costs 3,482 3,361
Deferred income tax 486 397
Other assets 850 890
Separate account assets 77,783 69,362
--------- ---------
TOTAL ASSETS $ 110,034 $ 100,980
========= =========
LIABILITIES
Future policy benefits $ 5,090 $ 4,939
Other policyholder funds 21,095 21,139
Short-term debt 50 50
Long-term debt 650 650
Other liabilities 3,150 2,696
Separate account liabilities 77,783 69,362
--------- ---------
TOTAL LIABILITIES 107,818 98,836
========= =========
STOCKHOLDERS' EQUITY
Class A common stock - authorized 600,000,000;
issued 26,068,014 and 0 shares, par value $0.01 -- --
Class B common stock - authorized 600,000,000;
issued and outstanding 114,000,000 shares, par value $0.01 1 1
Capital surplus 1,282 1,283
Treasury stock, at cost - 39,772 and 0 shares (2) (1)
Accumulated other comprehensive income
Net unrealized capital gains on securities, net of tax 238 237
Cumulative translation adjustments (3) (4)
--------- ---------
Total accumulated other comprehensive income 235 233
--------- ---------
Retained earnings 700 628
--------- ---------
TOTAL STOCKHOLDERS' EQUITY 2,216 2,144
--------- ---------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 110,034 $ 100,980
========= =========
</TABLE>
SEE NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.
4
<PAGE> 5
HARTFORD LIFE, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
THREE MONTHS ENDED MARCH 31, 1998
<TABLE>
<CAPTION>
ACCUMULATED OTHER
COMPREHENSIVE INCOME
------------------------
NET
UNREALIZED
CAPITAL
GAINS
CLASS A CLASS B TREASURY (LOSSES) ON CUMULATIVE TOTAL
COMMON COMMON CAPITAL STOCK, SECURITIES, TRANSLATION RETAINED STOCKHOLDERS'
(In millions) (Unaudited) STOCK STOCK SURPLUS AT COST NET OF TAX ADJUSTMENTS EARNINGS EQUITY
------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1997 $ -- $ 1 $ 1,283 $ (1) $ 237 $ (4) $ 628 $ 2,144
Comprehensive income
Net income -- -- -- -- -- -- 84 84
-------
Other comprehensive income, net of tax (1):
Changes in unrealized capital gains
on securities (2) -- -- -- -- 1 -- -- 1
Cumulative translation adjustments -- -- -- -- -- 1 -- 1
-------
Total other comprehensive income 2
-------
Total comprehensive income 86
-------
Dividends -- -- -- -- -- -- (12) (12)
Unearned compensation -- -- (1) 1 -- -- -- --
Net treasury stock activity -- -- -- (2) -- -- -- (2)
------- ------- ------- ------- ------- ------- ------- -------
BALANCE, MARCH 31, 1998 $ -- $ 1 $ 1,282 $ (2) $ 238 $ (3) $ 700 $ 2,216
======= ======= ======= ======= ======= ======= ======= =======
</TABLE>
THREE MONTHS ENDED MARCH 31, 1997
<TABLE>
<CAPTION>
ACCUMULATED OTHER
COMPREHENSIVE INCOME
------------------------
NET
UNREALIZED
CAPITAL
GAINS
CLASS A CLASS B TREASURY (LOSSES) ON CUMULATIVE TOTAL
COMMON COMMON CAPITAL STOCK, SECURITIES, TRANSLATION RETAINED STOCKHOLDERS'
(In millions) (Unaudited) STOCK STOCK SURPLUS AT COST NET OF TAX ADJUSTMENTS EARNINGS EQUITY
------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1996 $ -- $ -- $ 585 $ -- $ 29 $ (3) $ 663 $ 1,274
Comprehensive income
Net income -- -- -- -- -- -- 63 63
--------
Other comprehensive income, net of tax (1):
Changes in unrealized capital gains (losses)
on securities (2) -- -- -- -- (122) -- -- (122)
--------
Total other comprehensive income (122)
--------
Total comprehensive income (59)
--------
Dividends -- -- -- -- -- -- (291) (291)
-------- -------- -------- -------- -------- -------- -------- --------
BALANCE, MARCH 31, 1997 $ -- $ -- $ 585 $ -- $ (93) $ (3) $ 435 $ 924
======== ======== ======== ======== ======== ======== ======== ========
</TABLE>
(1) Net unrealized capital gains (losses) on securities is net of tax
(benefit) of $131 and $(50) for March 31, 1998 and 1997, respectively.
There is no tax effect on cumulative translation adjustments.
(2) Net of reclassification adjustment for gains realized in net income of
$0 and $1 for March 31, 1998 and 1997, respectively.
SEE NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.
5
<PAGE> 6
HARTFORD LIFE, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-----------------
(In millions) 1998 1997
------- -------
(Unaudited)
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 84 $ 63
ADJUSTMENTS TO NET INCOME:
Depreciation and amortization 5 7
Net realized capital gains -- (1)
(Increase) decrease in premiums receivable (27) 8
Increase in other liabilities 64 199
Change in receivables, payables, and accruals 35 (36)
Increase (decrease) in accrued taxes 35 (9)
(Increase) decrease in deferred income taxes (88) 23
Increase in deferred policy acquisition costs (121) (131)
Increase in liability for future policy benefits 157 200
Decrease (increase) in reinsurance recoverables and other related assets 5 (90)
------- -------
CASH PROVIDED BY OPERATING ACTIVITIES 149 233
------- -------
INVESTING ACTIVITIES
Purchases of fixed maturity investments (2,393) (1,935)
Sales of fixed maturity investments 1,455 1,177
Maturities and principal paydowns of fixed maturity investments 521 764
Purchases of other investments (231) (45)
Sales of other investments 109 164
Net sales of short-term investments 145 69
------- -------
CASH (USED FOR) PROVIDED BY INVESTING ACTIVITIES (394) 194
------- -------
FINANCING ACTIVITIES
Increase in short-term debt -- 1,084
Decrease in allocated advances from parent -- (893)
Dividends paid (12) (191)
Net receipts from (disbursements for) investment and universal life-type
contracts credited to (charged against) policyholder accounts 220 (417)
Acquisition of treasury stock (1) --
------- -------
CASH PROVIDED BY (USED FOR) FINANCING ACTIVITIES 207 (417)
------- -------
(Decrease) increase in cash (38) 10
Cash - beginning of period 88 72
------- -------
CASH - END OF PERIOD $ 50 $ 82
======= =======
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
NET CASH PAID DURING THE PERIOD FOR:
Income taxes $ 56 $ 11
Interest $ 1 $ 16
SUPPLEMENTAL DISCLOSURE OF NONCASH INFORMATION:
Dividends $ -- $ 100
</TABLE>
SEE NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.
6
<PAGE> 7
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN MILLIONS EXCEPT FOR SHARE DATA UNLESS OTHERWISE STATED)
(UNAUDITED)
NOTE 1. SIGNIFICANT ACCOUNTING POLICIES
(a) BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements of
Hartford Life, Inc. (the "Company") have been prepared pursuant to the rules and
regulations of the Securities and Exchange Commission. Certain information and
note disclosures which are normally included in financial statements prepared in
accordance with generally accepted accounting principles have been condensed or
omitted pursuant to those rules and regulations, although the Company believes
that the disclosures made are adequate to make the information presented not
misleading. In the opinion of management, these statements include all
adjustments which were normal recurring adjustments necessary to present fairly
the financial position, results of operations and cash flows for the periods
presented.
For a description of accounting policies, see Note 2 of Notes to Consolidated
Financial Statements in the Company's 1997 Form 10-K Annual Report.
Certain reclassifications have been made to prior year financial information to
conform to the current year classification of transactions and accounts.
(b) CHANGES IN ACCOUNTING PRINCIPLES
In March 1998, the American Institute of Certified Public Accountants issued
Statement of Position ("SOP") No. 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use". The SOP provides guidance on
accounting for the costs of internal use software and in determining whether the
software is for internal use. The SOP defines internal use software as software
that is acquired, internally developed, or modified solely to meet internal
needs and identifies stages of software development and accounting for the
related costs incurred during the stages. This statement is effective for fiscal
years beginning after December 15, 1998 and is not expected to have a material
impact on the Company's financial condition or results of operations.
Effective January 1, 1998, the Company adopted Statement of Financial Accounting
Standards ("SFAS") No. 130, "Reporting Comprehensive Income", which establishes
standards for reporting and display of comprehensive income and its components
in a full set of general purpose financial statements. The objective of this
statement is to report a measure of all changes in equity of an enterprise that
result from transactions and other economic events of the period other than
transactions with owners. Comprehensive income is the total of net income and
all other nonowner changes in equity. Accordingly, the Company has reported
comprehensive income in the Condensed Consolidated Statements of Changes in
Stockholders' Equity.
NOTE 2. INITIAL PUBLIC OFFERING ("IPO")
On February 10, 1997, the Company filed a registration statement, as amended,
with the Securities and Exchange Commission relating to the IPO of the Company's
Class A Common Stock. Pursuant to the IPO on May 22, 1997, the Company sold to
the public 26 million shares at $28.25 per share and received proceeds, net of
offering expenses, of $687. Of the proceeds, $527 was used to retire debt
related to the Company's promissory notes outstanding and the line of credit
discussed in Note 4 and the remaining $160 was contributed to the Company's
insurance subsidiaries to be used for growth in the Company's core businesses.
The 26 million shares sold in the IPO represent approximately 18.6% of the
equity ownership in the Company and approximately 4.4% of the combined voting
power of the Company's Class A and Class B Common Stock. The Hartford Financial
Services Group, Inc. ("The Hartford"), an indirect parent of the Company, owns
all of the 114 million outstanding shares of Class B Common Stock of the
Company, representing approximately 81.4% of the equity ownership in the Company
and approximately 95.6% of the combined voting power of the Company's Class A
and Class B Common Stock. Holders of Class A Common Stock generally have
identical rights to the holders of Class B Common Stock except that the holders
of Class A Common Stock are entitled to one vote per share while holders of
Class B Common Stock are entitled to five votes per share on all matters
submitted to a vote of the Company's stockholders.
The Company also has 50 million shares of preferred stock, authorized ($0.01 par
value) of which no shares were issued or outstanding as of March 31, 1998 and
December 31, 1997.
7
<PAGE> 8
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 3. EARNINGS PER SHARE
The Company adopted SFAS No. 128, "Earnings per Share", effective December 15,
1997. Basic earnings per share are computed based upon the weighted average
number of shares outstanding during the year. Diluted earnings per share include
the dilutive effect of outstanding options, using the treasury stock method, and
also contingently issuable shares. Under the treasury stock method, it is
assumed that options are exercised and the proceeds are used to purchase common
stock at the average market price for the period. The difference between the
number of shares assumed issued and number of shares purchased represents the
dilutive shares. Contingently issuable shares are included upon satisfaction of
certain conditions related to contingency.
Pro forma earnings per share amounts, on a basic and diluted basis, have been
calculated based upon the weighted average common shares deemed to be
outstanding during the respective periods. For periods prior to the closing of
the Company's IPO (May 22, 1997), outstanding shares are based upon 114 million
shares of Class B Common Stock owned by The Hartford plus an assumed issuance of
8.67 million shares of Class A Common Stock (the number of shares that, based
upon the IPO price and the underwriting discounts and expenses payable by the
Company, would result in net proceeds equal to the excess of the amount of the
February and April 1997 dividends over the earnings for the year ended December
31, 1996 and the three months ended March 31, 1997 and the Allocated Advances
from parent) and an additional assumed issuance of 4.47 million shares of Class
A Common Stock (the number of shares which, based upon the IPO price and the
underwriting discounts and expenses payable by the Company, would result in a
reduction of the Pre-IPO indebtedness and Allocated Advances from parent). In
addition, for the period prior to the IPO, amounts available to common
shareholders in regards to pro forma earnings per share is affected by an
assumed decline in interest expense of $1 related to the assumed reduction in
Pre-IPO indebtedness described above.
Pro forma effect has also been given for all periods presented for the
conversion of 1,000 shares of common stock, par value $0.01 per share, into 114
million shares of Class B Common Stock, par value $0.01 per share, which
occurred on April 3, 1997.
<TABLE>
<CAPTION>
For the three months ended March 31, 1998
-----------------------------------------
Income Shares Per Share Amount
----- ----- -----
<S> <C> <C> <C>
BASIC EARNINGS PER SHARE
Amounts available to common shareholders $ 84 140.0 $0.60
=====
Impact of options and contingently issuable shares -- 0.1
----- -----
DILUTED EARNINGS PER SHARE
Amounts available to common shareholders plus assumed conversions $ 84 140.1 $0.60
===== ===== =====
</TABLE>
<TABLE>
<CAPTION>
For the three months ended March 31, 1997
-----------------------------------------
Income Shares Per Share Amount
----- ----- -----
<S> <C> <C> <C>
PRO FORMA BASIC EARNINGS PER SHARE
Amounts available to common shareholders $ 63 127.1 $0.51
=====
Impact of options and contingently issuable shares -- --
----- -----
PRO FORMA DILUTED EARNINGS PER SHARE
Amounts available to common shareholders plus assumed conversions $ 63 127.1 $0.51
===== ===== =====
</TABLE>
If earnings per share was calculated based upon 140 million weighted average
shares outstanding for all periods presented (representing the weighted average
shares outstanding at the time of the IPO, May 22, 1997) earnings per share
would have been $0.60 and $0.45 for the three months ended March 31, 1998 and
1997, respectively.
NOTE 4. DEBT
On February 7, 1997, the Company declared a dividend of $1,184 payable to its
direct parent, Hartford Accident and Indemnity Company ("HA&I"). The Company
borrowed $1,084 on February 18, 1997, pursuant to a $1,300 line of credit, with
interest payable at the two-month Eurodollar rate plus 15 basis points, which,
together with a promissory note in the amount of $100, was paid as a dividend to
HA&I on February 20, 1997. Of the $1,184 dividend, $893 constituted a repayment
of the portion of the Company's third party indebtedness internally allocated,
for financial reporting purposes, to the Company's life insurance subsidiaries
(the "Allocated Advances"). In addition, on April 4, 1997, the Company declared
and paid a dividend of $25 to its parent in the form of a promissory note.
Subsequently, $12 of this note was forgiven and treated as a capital
contribution from HA&I.
On February 14, 1997, the Company filed a shelf registration statement for the
issuance and sale of up to $1.0 billion in the aggregate of senior debt
securities, subordinated debt securities and preferred stock. On June 12, 1997,
the Company issued $650 of unsecured
8
<PAGE> 9
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 4. DEBT (CONTINUED)
redeemable long-term debt in the form of notes and debentures. Of this amount,
$200 was in the form of 6.90% notes due June 15, 2004, $200 of 7.10% notes due
June 15, 2007, and $250 of 7.65% debentures due June 15, 2027. Interest on each
of the notes and debentures is payable semi-annually on June 15 and December 15,
of each year, commencing December 15, 1997. The Company also issued $50 of
short-term debt in the form of commercial paper. Of the proceeds from this
issuance, $670 was used to retire the remaining balance on the $1,300 line of
credit with the remainder being used to fund business growth. Subsequently, the
Company reduced the capacity of the line of credit from $1,300 to $250, which
will be primarily used to support the commercial paper program.
NOTE 5. COMMITMENTS AND CONTINGENCIES
LITIGATION
The Company is involved in pending and threatened litigation in the normal
course of its business in which claims for monetary and punitive damages have
been asserted. Although there can be no assurances, management, at the present
time, does not anticipate that the ultimate liability arising from such pending
or threatened litigation will have a material effect on the financial condition
or operating results of the Company.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
(DOLLAR AMOUNTS IN MILLIONS EXCEPT FOR PER SHARE DATA UNLESS OTHERWISE STATED)
Management's Discussion and Analysis of Financial Condition and Results of
Operations ("MD&A") addresses the financial condition of the Company as of March
31, 1998, compared with December 31, 1997, and its results of operations for the
three months ended March 31, 1998 compared with the equivalent period in 1997.
This discussion should be read in conjunction with the MD&A in the Company's
1997 Form 10-K Annual Report.
Certain statements contained in this discussion, other than statements of
historical fact, are forward-looking statements. These statements are made
pursuant to the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995 and include estimates and assumptions related to economic,
competitive, and legislative developments. These forward-looking statements are
subject to change and uncertainty which are, in many instances, beyond the
Company's control and have been made based upon management's expectations and
beliefs concerning future developments and their potential effect on Hartford
Life, Inc. and subsidiaries ("Hartford Life" or the "Company"). There can be no
assurance that future developments will be in accordance with management's
expectations or that the effect of future developments on Hartford Life will be
those anticipated by management. Actual results could differ materially from
those expected by the Company, depending on the outcome of certain factors,
including those described in the forward-looking statements.
Certain reclassifications have been made to prior year financial information to
conform to the current year classification of transactions and accounts.
INDEX
Consolidated Results of Operations: Operating Summary 9
Annuity 11
Individual Life Insurance 11
Employee Benefits 12
Guaranteed Investment Contracts 12
Investments 12
Capital Markets Risk Management 13
Capital Resources and Liquidity 14
Regulatory Initiatives 16
Accounting Standards 16
CONSOLIDATED RESULTS OF OPERATIONS: OPERATING SUMMARY
<TABLE>
<CAPTION>
OPERATING SUMMARY FIRST QUARTER ENDED
MARCH 31,
1998 1997
------ ------
<S> <C> <C>
REVENUES $1,404 $1,055
EXPENSES 1,320 992
------ ------
NET INCOME $ 84 $ 63
====== ======
</TABLE>
The Company's insurance business operates in three principal segments: Annuity,
Individual Life Insurance, and Employee Benefits as well as a Guaranteed
Investments Contracts segment, which is primarily comprised of business written
prior to 1995. The Company also maintains a Corporate Operation through which it
reports items that are not directly allocable to any of its business segments.
The Annuity segment focuses on the savings and retirement needs of the growing
number of individuals who are preparing for retirement or have already retired.
This segment consists of two areas of operation: Individual Annuity and Group
Annuity. The variety of products sold within this segment reflects the diverse
nature of the market. These include, in the Individual Annuity area, individual
variable
9
<PAGE> 10
annuities, fixed market value adjusted ("MVA") annuities, and mutual funds; and
in the Group Annuity area, deferred compensation and retirement plan services
for municipal governments and corporations, structured settlement contracts and
other special purpose annuity contracts, and investment management contracts.
The Individual Life Insurance segment, which focuses on the high end estate and
business planning markets, sells a variety of life insurance products, including
variable life and universal life insurance. The Employee Benefits segment
consists of two areas of operation: Group Insurance and Specialty Insurance.
Through Group Insurance, the Company offers products such as group life
insurance, group short- and long-term disability and accidental death and
dismemberment. Specialty Insurance primarily consists of the Company's corporate
owned life insurance ("COLI") business and its international operations. The
Guaranteed Investment Contracts segment consists of guaranteed rate contract
("GRC") business that is supported by assets held in either the Company's
general account or a guaranteed separate account and includes a closed block of
guaranteed rate contracts ("Closed Book GRC"). The Company decided in 1995,
after a thorough review of its GRC business, that it would significantly
de-emphasize general account GRC, choosing to focus its distribution efforts on
other products sold through other divisions. Management expects no material
income or loss from the Guaranteed Investment Contracts segment in the future.
Revenues increased $349, or 33%, to $1.4 billion for the first quarter of 1998
from $1.1 billion for the comparable period in 1997. This was partially due to
COLI revenues which increased $161 due to renewal premium on leveraged COLI and
increased fees associated with variable COLI sales. Excluding COLI, revenues
increased $188, or 21%, over the first quarter of 1997. This increase was driven
by the Annuity segment whose revenues increased $100, or 35%, for the first
quarter of 1998 as compared to the first quarter of 1997. This increase was due
to higher fee income earned on growing annuity account values where the average
account value grew $18.9 billion, or 37%, to $70.6 billion at March 31, 1998
from $51.7 billion at March 31, 1997 due to market appreciation and new sales.
Group Insurance revenues increased $90, or 23%, for the first quarter of 1998 as
compared to the first quarter of 1997. This increase was due to strong sales of
$166, an increase of $28, or 20%, over the comparable period in 1997. Also,
Individual Life Insurance revenues increased $16, or 14%, for the first quarter
of 1998 as compared to the first quarter of 1997 due to increased cost of
insurance charges and other fee income on the Company's growing block of
variable life business. Partially offsetting the increases discussed above was a
$20 decline in revenues related to Closed Book GRC.
Expenses increased $328, or 33%, to $1.3 billion for the first quarter of 1998
from $1.0 billion for the comparable period in 1997. The increase was partially
driven by COLI, whose expenses increased $160 as a result of increased operating
expenses associated with significant renewal premium and variable COLI sales for
the quarter ended March 31, 1998. Excluding COLI, expenses increased $168, or
20%, over the first quarter of 1997. Annuity expenses grew $82 primarily due to
higher amortization of deferred policy acquisition costs and operating expenses
directly related to the growth in this segment. Group Insurance and Individual
Life Insurance expenses increased $86 and $14, respectively, primarily due to
higher benefits, claims, and claim adjustment expenses, which is consistent with
the growth in these blocks of business.
Net income increased $21, or 33%, to $84 for the first quarter of 1998 from $63
for the first quarter of 1997 primarily due to growth in the Annuity segment and
the Group Insurance operation of the Employee Benefits segment. Annuity earnings
increased $18, or 42%, due to increasing account values resulting from
significant stock market appreciation and new sales, particularly in Individual
Annuity. Group Insurance earnings increased $4, or 36%, due to increased premium
revenue as well as favorable morbidity experience. Individual Life Insurance
earnings increased $2, or 18%, as a result of strong sales and growing account
values. Specialty Insurance earnings were impacted by a $2 loss related to the
Company's international operations and COLI earnings were consistent with the
prior year. Guaranteed Investment Contracts had no net income in the first
quarter of 1998 or 1997, consistent with management's expectations.
SEGMENT RESULTS
The Company's reporting segments consist of Annuity, Individual Life Insurance,
Employee Benefits, Guaranteed Investment Contracts and a Corporate Operation.
Below is a summary of net income (loss) by segment.
<TABLE>
<CAPTION>
FIRST QUARTER ENDED
MARCH 31,
---------------------
1998 1997
---- ----
<S> <C> <C>
ANNUITY $ 61 $ 43
INDIVIDUAL LIFE INSURANCE 13 11
EMPLOYEE BENEFITS 19 18
GUARANTEED INVESTMENT CONTRACTS -- --
CORPORATE OPERATION (9) (9)
---- ----
NET INCOME $ 84 $ 63
==== ====
</TABLE>
10
<PAGE> 11
The sections that follow analyze each segment's results. Specific topics such as
investment results are discussed separately following the segment overviews.
ANNUITY
<TABLE>
<CAPTION>
FIRST QUARTER ENDED
MARCH 31,
-------------------------
1998 1997
---- ----
<S> <C> <C>
REVENUES $382 $282
EXPENSES 321 239
---- ----
NET INCOME $ 61 $ 43
==== ====
</TABLE>
Revenues increased $100, or 35%, to $382 as of March 31, 1998 from $282 as of
March 31, 1997. Individual Annuity revenues increased $89, or 49%, over the
first quarter of 1997 primarily due to higher fee income earned on growth in
individual variable annuity account values. Average individual variable annuity
account values grew $16.9 billion, or 51%, to $50.2 billion as of March 31, 1998
from $33.3 billion as of March 31, 1997. This growth was the result of
significant market appreciation as well as strong sales of $2.4 billion in the
first quarter of 1998. Also, Group Annuity revenues increased $11, or 11%, as of
March 31, 1998 as compared to March 31, 1997 due to higher net investment income
resulting from growth in assets under management. Group Annuity average account
values grew $2.0 billion, or 22%, to $11.1 billion as March 31, 1998 from $9.1
billion as of March 31, 1997 due to market appreciation and new deposits.
Expenses increased $82, or 34%, to $321 as of March 31, 1998 from $239 as of
March 31, 1997. Benefits, claims and claim adjustment expenses increased $13
primarily due to increased interest credited on Individual Annuity general
account values, which increased $1.3 billion, or 43%, to $4.2 billion at March
31, 1998 from $2.9 billion at March 31, 1997. Amortization of DPAC increased $20
as prior and current year sales remained strong. Also, other business expenses
increased $39 as a result of the growth in this segment. However, operating
expenses as a percentage of average account value declined from 1997 levels.
Annuity net income increased $18, or 42%, to $61 as of March 31, 1998 from $43
as of March 31, 1997 as a result of growing average account values discussed
above and operating expense efficiencies.
INDIVIDUAL LIFE INSURANCE
<TABLE>
<CAPTION>
FIRST QUARTER ENDED
MARCH 31,
-------------------------
1998 1997
---- ----
<S> <C> <C>
REVENUES $134 $118
EXPENSES 121 107
---- ----
NET INCOME $ 13 $ 11
==== ====
</TABLE>
Revenues increased $16, or 14%, to $134 as of March 31, 1998 from $118 as of
March 31, 1997. This increase was primarily due to higher cost of insurance
charges and other fee income earned on the Company's growing block of variable
life insurance. Variable life average account values increased $540, or 84%, to
$1.2 billion as of March 31, 1998 from $640 as of March 31, 1997 due to market
appreciation and strong sales. Variable life product sales constituted 75%, or
$24, of total Individual Life Insurance new sales in the first quarter of 1998,
an increase of $9, or 60%, compared to the same period in 1997.
Expenses increased $14, or 13%, to $121 as of March 31, 1998 from $107 as of
March 31, 1997. This increase was primarily the result of higher benefits,
claims, and claim adjustment expenses of $19 due to the growth in this segment
as well as increased mortality experience in the first quarter of 1998. Net
income increased $2, or 18%, to $13 as of March 31, 1998 from $11 as of March
31, 1997.
11
<PAGE> 12
EMPLOYEE BENEFITS
<TABLE>
<CAPTION>
FIRST QUARTER ENDED
MARCH 31,
-------------------------
1998 1997
---- ----
<S> <C> <C>
REVENUES $831 $578
EXPENSES 812 560
---- ----
NET INCOME $ 19 $ 18
==== ====
</TABLE>
Revenues increased $253, or 44%, to $831 as of March 31, 1998 from $578 as of
March 31, 1997. Specialty Insurance revenues increased $163, or 91%, for the
first quarter of 1998 as compared to the same period in 1997. This increase was
due to $80 of renewal premium on leveraged COLI as well as increased fee income
of $78 related to new sales of variable COLI. Group Insurance revenues increased
$90, or 23%, for the first quarter of 1998 as compared to the first quarter of
1997. This increase was due to strong sales of $166, an increase of $28, or 20%,
over comparable 1997 levels. This growth in new sales was driven by group
disability and group life business whose sales grew 26% and 9%, respectively,
over the comparable prior period.
Expenses increased $252, or 45%, to $812 as of March 31, 1998 from $560 as of
March 31, 1997. Specialty Insurance expenses increased $166 primarily due to
higher expenses associated with the first quarter ended March 31,1998 increased
variable COLI sales and leveraged COLI renewal premium in the first quarter
ended March 31, 1998. Group Insurance expenses increased $86 primarily due to
higher benefits, claims, and claim adjustment expenses associated with this
growing block of business.
Net income increased $1, or 6%, to $19 as of March 31, 1998 from $18 as of March
31, 1997. Group Insurance net income increased $4, or 36%, for the first quarter
of 1998 as compared to the first quarter of 1997. Specialty Insurance had net
income of $4 and $7 for the first quarter of 1998 and 1997, respectively. The
1998 results were impacted by a first quarter operating loss of $2 relating to
the company's international operations while COLI earnings were consistent with
the prior year.
GUARANTEED INVESTMENT CONTRACTS
<TABLE>
<CAPTION>
FIRST QUARTER ENDED
MARCH 31,
-------------------
1998 1997
---- ----
<S> <C> <C>
REVENUES $ 52 $ 72
EXPENSES 52 72
---- ----
NET INCOME $ -- $ --
==== ====
</TABLE>
This segment reported no net income for the first quarter of 1998 and 1997
consistent with management's expectations that net income from Closed Book GRC
in the years subsequent to 1996 will be immaterial based on the Company's
current projections for the performance of the assets and liabilities associated
with Closed Book GRC. However, no assurance can be given that, under certain
unanticipated economic circumstances which result in the Company's assumptions
being proven inaccurate, further losses in respect of Closed Book GRC will not
occur in the future.
INVESTMENTS
Invested assets, excluding separate accounts, totaled $21.7 billion at March 31,
1998 and were comprised of $17.4 billion of fixed maturities, $3.8 billion of
policy loans, and other investments of $562. Policy loans, which had a
weighted-average interest rate of 11.1% as of March 31, 1998, are secured by the
cash value of the life policy. These loans do not mature in a conventional
sense, but expire in conjunction with the related policy liabilities.
12
<PAGE> 13
FIXED MATURITIES BY TYPE
<TABLE>
<CAPTION>
MARCH 31, 1998 DECEMBER 31, 1997
--------------------- ---------------------
TYPE FAIR VALUE PERCENT FAIR VALUE PERCENT
------- ------- ------- -------
<S> <C> <C> <C> <C>
Corporate $ 7,927 45.6% $ 7,970 47.3%
ABS 3,224 18.6% 3,199 19.0%
Commercial MBS 1,776 10.2% 1,606 9.5%
CMO 937 5.4% 978 5.8%
Gov't/Gov't agencies - For 619 3.6% 502 3.0%
MBS - agency 484 2.8% 514 3.1%
Municipal - tax-exempt 400 2.3% 171 1.0%
Municipal - taxable 263 1.5% 267 1.6%
Gov't/Gov't agencies - U.S. 142 0.8% 241 1.4%
Short-term 1,607 9.2% 1,395 8.3%
Redeemable preferred stock 5 -- 5 --
------- ------- ------- -------
TOTAL FIXED MATURITIES $17,384 100.0% $16,848 100.0%
======= ======= ======= =======
</TABLE>
The Company continued its objective of managing exposure to securities that
"underperform" in a falling interest rate environment. The Company reduced
exposure to the collateralized mortgage obligations ("CMO") asset sector, and
allocated funds into various other sectors. At March 31, 1998, holdings in CMO
securities were $937, or 5%, of total invested assets excluding policy loans
compared to $978, or 6%, at December 31, 1997.
INVESTMENT RESULTS
The table below summarizes the Hartford Life's investment results.
<TABLE>
<CAPTION>
FIRST QUARTER
ENDED MARCH 31,
----------------------
(before-tax) 1998 1997
------ ------
<S> <C> <C>
Net investment income $ 400 $ 375
Yield on average
invested assets [1] 7.6% 7.6%
Net realized capital gains -- $ 1
------ ------
</TABLE>
[1] Represents annualized three months net investment income (excluding net
realized capital gains) divided by average invested assets at cost
(fixed maturities at amortized cost).
For the quarter ended March 31, 1998, before-tax net investment income totaled
$400, compared to $375 in 1997, an increase of 7% as a result of higher average
invested assets. Before-tax yields on average invested assets remained at 7.6%.
There were no net realized capital gains for the quarter ended March 31, 1998.
CAPITAL MARKETS RISK MANAGEMENT
Hartford Life has a disciplined approach to managing risks associated with its
capital markets and asset/liability management activities. Investment portfolio
management is organized to focus investment management expertise on specific
classes of investments while asset/liability management is the responsibility of
separate and distinct risk management units supporting the Company's operations.
Derivative instruments are utilized in accordance with established Company
policy and are monitored internally and reviewed by senior management.
The Company is exposed to two primary sources of investment and asset/liability
management risk: credit risk, relating to the uncertainty associated with the
ability of an obligor or counterparty to make timely payments of principal
and/or interest, and market risk, relating to the market price and/or cash flow
variability associated with changes in interest rates, securities prices, market
indices, yield curves or currency exchange rates. The Company does not hold any
financial instruments entered into for trading purposes.
Please refer to Hartford Life's 1997 Form 10-K Annual Report for a description
of the Company's objectives, policies and strategies.
CREDIT RISK
The Company invests primarily in investment grade securities and has established
exposure limits, diversification standards and review procedures for all credit
risks whether borrower, issuer or counterparty. Creditworthiness of specific
obligors is determined by an internal credit evaluation supplemented by
consideration of external determinants of creditworthiness, typically ratings
assigned by nationally recognized ratings agencies. Obligor, geographic, asset
sector and industry concentrations are subject to established limits and
monitored on a regular interval. Hartford Life is not exposed to any significant
credit concentration risk of a single issuer.
13
<PAGE> 14
The following table identifies fixed maturity securities for the general account
and guaranteed separate accounts, by credit quality. The ratings referenced in
the table are based on the ratings of a nationally recognized rating
organization or, if not rated, assigned based on the Company's internal analysis
of such securities.
As of March 31, 1998, over 98% of the fixed maturity portfolio was invested in
investment-grade securities.
FIXED MATURITIES BY CREDIT QUALITY
<TABLE>
<CAPTION>
MARCH 31, 1998 DECEMBER 31, 1997
--------------------- ---------------------
FAIR VALUE PERCENT FAIR VALUE PERCENT
------- ------- ------- -------
<S> <C> <C> <C> <C>
U.S. Gov't/Gov't agencies $ 2,827 10.2% $ 2,907 10.7%
AAA 3,872 14.0% 3,974 14.6%
AA 2,599 9.4% 2,967 10.9%
A 8,873 32.0% 9,351 34.3%
BBB 7,069 25.5% 5,966 21.9%
BB & below 346 1.3% 205 0.7%
Short-term 2,105 7.6% 1,869 6.9%
------- ------- ------- -------
TOTAL FIXED MATURITIES $27,691 100.0% $27,239 100.0%
------- ------- ------- -------
</TABLE>
MARKET RISK
Hartford Life has material exposure to both interest rate and equity market
risk. The Company analyzes interest rate risk using various models including
multi-scenario cash flow projection models that forecast cash flows of the
liabilities and their supporting investments, including derivative instruments.
There have been no material changes in market risk exposures from December 31,
1997.
DERIVATIVE INSTRUMENTS
Hartford Life utilizes a variety of derivative instruments, including swaps,
caps, floors, forwards and exchange traded futures and options, in accordance
with Company policy and in order to achieve one of three Company approved
objectives: to hedge risk arising from interest rate, price or currency exchange
rate volatility; to manage liquidity; or to control transaction costs. The
Company does not make a market or trade derivatives for the express purpose of
earning trading profits.
The Company uses derivative instruments in its management of market risk
consistent with four risk management strategies: hedging anticipated
transactions, hedging liability instruments, hedging invested assets and hedging
portfolios of assets and/or liabilities.
Derivative activities are monitored by an internal compliance unit, reviewed
frequently by senior management and reported to the Company's Finance Committee.
The notional amounts of derivative contracts represent the basis upon which pay
or receive amounts are calculated and are not reflective of credit risk.
Notional amounts pertaining to derivative instruments for both general and
guaranteed separate accounts totaled $9.5 billion and $10.9 billion at March 31,
1998 and December 31, 1997, respectively.
For a further discussion of market risk exposure including derivative
instruments please refer to Hartford Life's 1997 Form 10-K Annual Report.
CAPITAL RESOURCES AND LIQUIDITY
Capital resources and liquidity represent the overall financial strength of the
Company and its ability to generate strong cash flows from each of the business
segments and borrow funds at competitive rates to meet operating and growth
needs. The Company maintained cash and short-term investments totaling $1.7
billion and $1.5 billion as of March 31, 1998 and December 31, 1997,
respectively, and believes that its investment policies combined with the terms
of its life insurance and annuity contracts are adequate to support its
liquidity needs. The capital structure of the Company consists of debt and
equity, summarized as follows:
<TABLE>
<CAPTION>
MARCH 31, 1998 DECEMBER 31, 1997
-------------- -----------------
<S> <C> <C>
Short-term debt $ 50 $ 50
Long-term debt 650 650
------ ------
TOTAL DEBT $ 700 $ 700
====== ======
Equity excluding net unrealized capital gains on securities, net of tax $1,978 $1,907
Net unrealized capital gains on securities, net of tax 238 237
------ ------
TOTAL STOCKHOLDERS' EQUITY $2,216 $2,144
====== ======
TOTAL CAPITALIZATION EXCLUDING NET UNREALIZED CAPITAL GAINS ON SECURITIES, NET OF TAX $2,678 $2,607
------ ------
Debt to equity excluding net unrealized capital gains on securities, net of tax 35% 37%
Debt to capitalization excluding net unrealized capital gains on securities, net of tax 26% 27%
------ ------
</TABLE>
14
<PAGE> 15
CAPITALIZATION
The Company's total capitalization, excluding net unrealized capital gains on
securities, net of tax, increased by $71, or 3%, as of March 31, 1998, as
compared to December 31, 1997. This change was primarily due to $84 of net
income partially offset by dividends of $12. As a result, both the debt to
equity and debt to capitalization ratios decreased to 35% and 26% as of March
31, 1998, respectively, from 37% and 27% as of December 31, 1997, respectively.
The Company's commercial paper and senior debt are rated by independent rating
agencies and the Company continues to maintain debt to capital ratios consistent
with these ratings.
HLI INITIAL PUBLIC OFFERING
On February 10, 1997, the Company filed a registration statement, as amended,
with the Securities and Exchange Commission relating to an IPO of the Company's
Class A Common Stock. Pursuant to the IPO on May 22, 1997, the Company sold to
the public 26 million shares at $28.25 per share and received net proceeds of
$687. Of the proceeds, $527 was used to retire debt related to the Company's
promissory notes outstanding and the line of credit with the remaining $160
contributed to the Company's insurance subsidiaries to support growth in its
core businesses.
DEBT
On February 7, 1997, the Company declared a dividend of $1,184 payable to its
direct parent, HA&I. As a result, the Company borrowed $1,084 on February 18,
1997, pursuant to a $1,300 line of credit, with interest payable at the
two-month Eurodollar rate plus 15 basis points, which, together with a
promissory note in the amount of $100, was paid as a dividend to HA&I on
February 20, 1997. Of the $1,184 dividend, $893 constituted a repayment of the
portion of the Company's third party indebtedness internally allocated, for
financial reporting purposes, to the Company's life insurance subsidiaries (the
"Allocated Advances"). In addition, on April 4, 1997 the Company declared and
paid a dividend of $25 to its parent in the form of a promissory note.
Subsequently, $12 of this note was forgiven in the form of a capital
contribution from HA&I.
On February 14, 1997, the Company filed a shelf registration statement for the
issuance and sale of up to $1.0 billion in the aggregate of senior debt
securities, subordinated debt securities and preferred stock. On June 12, 1997,
the Company issued $650 of unsecured redeemable long-term debt in the form of
notes and debentures. Of this amount, $200 was in the form 6.90% notes due June
15, 2004, $200 of 7.10% notes due June 15, 2007, and $250 of 7.65% debentures
due June 15, 2027. Interest on each of the notes and debentures is payable
semi-annually on June 15 and December 15, of each year, commencing December 15,
1997. The Company also issued $50 of short-term debt in the form of commercial
paper. Of the proceeds from this issuance, $670 was used to retire the remaining
balance on the $1,300 line of credit with the remainder being used for working
capital and other general corporate purposes. Subsequently, the Company reduced
the capacity of the line of credit from $1,300 to $250, which will be primarily
used to support the commercial paper program.
DIVIDENDS
Hartford Life paid $12 in dividends in the first quarter of 1998 to holders of
Class A and Class B Common Stock . See "Debt" discussion above for 1997 dividend
payments made prior to the IPO.
The Company received dividends from its regulated life insurance subsidiaries of
$13 through March 31, 1998.
TREASURY STOCK
In the first quarter of 1998, to make shares available to employees pursuant to
stock-based benefit plans, the Company repurchased 70,000 shares of its common
stock in the open market at a total cost of $3. Shares repurchased in the open
market are carried at cost and are reflected as a reduction to stockholders'
equity. Treasury shares subsequently reissued are reduced from treasury stock on
a weighted average cost basis. In the first quarter of 1998, the Company
reissued 65,912 shares of treasury stock at a cost of $2. The Company currently
intends to purchase shares of its common stock to make shares available for its
various employee stock-based benefit plans.
CASH FLOWS
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
-------------------
1998 1997
----- -----
<S> <C> <C>
Cash provided by operating activities $ 149 $ 233
Cash (used for) provided by investing activities (394) 194
Cash provided by (used for) financing activities 207 (417)
Cash - beginning of period 88 72
----- -----
Cash - end of period $ 50 $ 82
----- -----
</TABLE>
15
<PAGE> 16
During the first quarter of 1998, cash provided by operating activities
decreased $84 from the prior period. The change in cash used for or provided by
investing activities primarily reflects the investment of cash from operating
and financing activities. The change in cash provided by or used for financing
activities between periods was primarily due to declines in reinsurance
recoverables related to investment-type contracts. Operating cash flows in both
periods have been more than adequate to meet liquidity requirements.
REGULATORY INITIATIVES
NAIC PROPOSALS
The National Association of Insurance Commissioners ("NAIC") adopted the
Codification of Statutory Accounting Principles ("SAP") in March, 1998. The
proposed effective date for the statutory accounting guidance is January 1,
2001. It is expected that each of Hartford Life's domiciliary states will adopt
SAP and the Company will make the necessary changes required for implementation.
These changes are not anticipated to have a material impact on the statutory
financial statements of Hartford Life.
ACCOUNTING STANDARDS
For a discussion of accounting standards, see Note 1 of Notes to Condensed
Consolidated Financial Statements.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is involved in pending and threatened litigation in the normal
course of its business in which claims for monetary and punitive damages have
been asserted. Although there can be no assurances, management, at the present
time, does not anticipate that the ultimate liability arising from such pending
or threatened litigation will have a material effect on the financial condition
or operating results of the Company.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits - See Exhibits Index
(b) Reports on Form 8-K - None
16
<PAGE> 17
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Hartford Life, Inc.
(Registrant)
/s/ Gregory A. Boyko
-----------------------------------
Gregory A. Boyko
Senior Vice President, Chief Financial Officer
and Treasurer
MAY 14, 1998
17
<PAGE> 18
HARTFORD LIFE, INC. AND SUBSIDIARIES
FORM 10-Q
EXHIBITS INDEX
EXHIBIT # DESCRIPTION
10.1 Amended and restated Credit Agreement dated as of February 9, 1998
among Hartford Life, Inc., the lenders named therein and Citibank, N.A.
as administrative agent is filed herewith.
27 Financial Data Schedule is filed herewith.
18
<PAGE> 1
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 9, 1998
Hartford Life, Inc., a Delaware corporation (the "Borrower"),
the banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, and Citibank, N.A. ("Citibank"),
as the swing line bank (in such capacity, the "Swing Line Bank"), and Citibank,
as administrative agent (the "Administrative Agent") for the Lenders (as
hereinafter defined), agree to amend and restate the Existing Credit Agreement
(as defined below) in its entirety as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Administrative Agent" has the meaning given such term in the
recital of parties to this Agreement.
"Administrative Agent's Account" means (a) in the case of
Advances denominated in U.S. Dollars, the account of the Administrative
Agent maintained by the Administrative Agent at Citibank with its
office at 1 Court Square, 7th Floor, Zone 1, Long Island City, New York
11120, Account No. 36852248, Attention: John Mann and (b) in the case
of Advances denominated in any Primary Currency, the account of the
Administrative Agent designated in writing from time to time by the
Administrative Agent to the Borrower and the Lenders for such purpose.
"Advance" means a Revolving Credit Advance, a Swing Line
Advance or a Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Applicable Insurance Regulatory Authority" shall mean, with
respect to any Insurance Subsidiary, the insurance commissioner or
department or similar Governmental Authority located in the state in
which such Insurance Subsidiary is domiciled and any Federal insurance
Governmental Authority.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurocurrency Lending Office in the case
of a Eurocurrency Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the
Administrative Agent as its Applicable Lending Office with respect to
such Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
<PAGE> 2
2
<TABLE>
<CAPTION>
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Moody's Base Rate Advances Eurocurrency Rate
Advances
=========================== =============================== ===============================
<S> <C> <C>
Level 1
AA-/Aa3 or above 0% .115%
Level 2
A+/A1 or A/A2 0% .130%
Level 3
A-/A3 0% .170%
Level 4
BBB+/Baa1 0% .205%
Level 5
BBB/Baa2 0% .225%
Level 6
BBB-/Baa3 or below 0% .250%
=========================== =============================== ===============================
</TABLE>
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
<TABLE>
<CAPTION>
Public Debt Rating Applicable
S&P/Moody's Percentage
=============================== ===============================
<S> <C>
Level 1
AA-/Aa3 or above .060%
Level 2
A+/A1 or A/A2 .070%
Level 3
A-/A3 .080%
Level 4
BBB+/Baa1 .095%
Level 5
BBB/Baa2 .125%
Level 6 .150%
BBB-/Baa3 or below
=============================== ===============================
</TABLE>
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"AVR" shall mean, with respect to the Insurance Subsidiaries
of the Borrower at any time, the amount set forth on line 24.1 on page
3 of the Liabilities, Surplus and Other Funds Statement in the annual
statement
<PAGE> 3
3
or the quarterly statement of Hartford Life and Accident Insurance
Company most recently delivered to the Administrative Agent and the
Lenders pursuant to Section 5.01(i) or, if such statement shall be
modified, the equivalent item on any applicable successor form.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means an Advance (other than a Competitive
Bid Advance) that bears interest as provided in Section 2.06(a)(i).
"Borrower" has the meaning given such term in the recital of
parties to this Agreement.
"Borrowing" means a Revolving Credit Borrowing, a Swing Line
Borrowing or a Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances, on
which dealings are carried on in the London interbank market.
"Capitalized Lease-Back Obligation" shall mean with respect to
any property or asset, at any date as of which the same is to be
determined, the total net rental obligations of the Borrower or any of
its Subsidiaries under a lease of such property or asset, entered into
as part of an arrangement to which the provisions of Section 5.02(f)
are applicable (or would have been applicable had such Subsidiary been
a Subsidiary at the time it entered into such lease), discounted to the
date of computation at the rate of interest per annum implicit in the
lease (determined in accordance with GAAP). The amount of the net
rental obligation for any calendar year under any lease shall be the
sum of the rental and other payments required to be paid in such
calendar year by the lessee thereunder, not including, however, any
amounts required to be paid by such lessee (whether or not
<PAGE> 4
4
therein designated as rental or additional rental) on account of
maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges.
"Citibank" has the meaning given such term in the recital of
parties to this Agreement.
"Commitment" has the meaning specified in Section 2.01(a).
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance (each of which may only be in
US Dollars).
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders to the
Borrower whose offer to make one or more Competitive Bid Advances as
part of such borrowing has been accepted under the competitive bidding
procedure described in Section 2.03
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of any Lender in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender.
"Confidential Information" means information that the Borrower
furnishes to the Administrative Agent or any Lender in a writing
designated as confidential, but does not include any such information
that is or becomes generally available to the public or that is or
becomes available to the Administrative Agent or such Lender from a
source other than the Borrower and such source, to the best knowledge
of the Administrative Agent or such Lender, is not subject to or bound
by any confidentiality agreement with the Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP or SAP, as applicable.
"Consolidated Net Tangible Assets" shall mean the total of all
assets appearing on a Consolidated balance sheet of the Borrower and
its Subsidiaries, prepared in accordance with GAAP (and as of a date
not more than 90 days prior to the date as of which Consolidated Net
Tangible Assets are to be determined), less the sum of the following
items as shown on such Consolidated balance sheet:
(i) the book amount of all segregated intangible
assets, including such items as goodwill, trademarks,
trademark rights, trade names, trade name rights, copyrights,
patents, patent rights and licenses and unamortized debt
discount and expenses less unamortized debt premium;
(ii) all depreciation, valuation and other reserves;
(iii) current liabilities;
(iv) any minority interest in the shares of stock
(other than Preferred Stock) and surplus of the Subsidiaries
of the Borrower;
(v) the total indebtedness of the Borrower and its
Subsidiaries incurred in any manner to finance or recover the
cost to the Borrower or any Subsidiary of the Borrower of any
physical property, real or personal, which prior to or
simultaneously with the creation of such indebtedness shall
have been leased by the Borrower or such Subsidiary to the
United States of America or a department or agency thereof at
an aggregate rental, payable during that portion of the
initial term of such Lease (without giving effect to any
options of renewal or extension) which shall be unexpired at
the date of the creation of such indebtedness, sufficient
(taken together with any amounts required to be paid by
<PAGE> 5
5
the lessee to the lessor upon any termination of such lease)
to pay in full at the stated maturity date or dates thereof
the principal of and the interest on such indebtedness;
(vi) deferred income and deferred liabilities; and
(vii) other items deductible under GAAP.
"Consolidated Statutory Surplus" shall mean, with respect to
the Insurance Subsidiaries of the Borrower at any time, the amount set
forth on line 37 on page 3 of the Liabilities, Surplus and Other Funds
Statement in the annual Statement or the Quarterly Statement of
Hartford Life and Accident Insurance Company most recently delivered to
the Administrative Agent and the Lenders pursuant to Section 5.01(i)
or, if such statement shall be modified, the equivalent item on any
applicable successor form.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances (other than Competitive Bid Advances) of one
Type into Advances (other than Competitive Bid Advances) of the other
Type pursuant to Section 2.08 or 2.09.
"D&P" means Duff & Phelps Credit Rating Co.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of such Person's business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all
net payment obligations of such Person in respect of Hedge Agreements,
(h) all Debt of others referred to in clauses (a) through (g) above or
clause (i) below guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement (1) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (2)
to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Debt or to assure the holder of such
Debt against loss, (3) to supply funds to or in any other manner invest
in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered) or (4) otherwise to assure a creditor against loss, and (i)
all Debt referred to in clauses (a) through (h) above secured by (or
for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of
such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Bidder" means (a) an Eligible Assignee or (b) a
special purpose corporation that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial
paper rated at least "Prime-1" (or the then equivalent grade) by
Moody's or "A-1" (or the then equivalent grade) by S&P that, in the
case of either clause (a) or (b), (i) is organized under the laws of
the United States or any state thereof, (ii) shall have become a party
hereto pursuant to Section 8.07(d), (e) and (f) and (iii) is not
otherwise a Lender.
<PAGE> 6
6
"Designation Agreement" means a designation agreement entered
into by a Lender (other than a Designated Bidder) and a Designated
Bidder, and accepted by the Administrative Agent, in substantially the
form of Exhibit D hereto.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"EBITDA" means, for any period, net income (or net loss) plus
the sum of (a) interest expense, (b) income tax expense, (c)
depreciation expense and (d) amortization expense, in each case
determined in accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$500,000,000; (iv) a commercial bank organized under the laws of any
other country that is a member of the Organization for Economic
Cooperation and Development or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, and having total assets in excess of $500,000,000, so long as
such bank is acting through a branch or agency located in the United
States; and (v) any other Person approved by the Administrative Agent
and, unless an Event of Default has occurred and is continuing at the
time any assignment is effected in accordance with Section 8.07, the
Borrower, such approval not to be unreasonably withheld or delayed;
provided, however, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equivalent" means (a) in US Dollars of any Primary Currency
on any date of determination, the equivalent in US Dollars of such
Primary Currency determined by using the quoted spot rate at which
Citibank's principal office in New York City, New York, offers to
exchange US Dollars for such Primary Currency in New York City, New
York, at the open of business on such date and (b) in any Primary
Currency of US Dollars on any date of determination, the equivalent in
such Primary Currency of US Dollars by using the quoted spot rate at
which Citibank's principal office in New York City, New York offers to
exchange such Primary Currency for US Dollars in New York City, New
York at the open of business on such date.
<PAGE> 7
7
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to
a Plan; (c) the provision by the administrator of any Plan of a notice
of intent to terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Borrower or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by the Borrower or any ERISA Affiliate from a Multiple Employer Plan
during a plan year for which it was a substantial employer, as defined
in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition
of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section
307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence
of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurocurrency
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time
specify to the Borrower and the Administrative Agent.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
(i) Eurocurrency Rate Advance denominated in US Dollars comprising part
of the same Borrowing (other than a Competitive Bid Borrowing), an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in US Dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurocurrency Rate
Advance comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage
for such Interest Period and (ii) Eurocurrency Rate Advance denominated
in a Primary Currency comprising part of the same Borrowing (other than
a Competitive Bid Borrowing), an interest rate per annum obtained by
dividing (a) the rate (rounded upward to the nearest whole multiple of
1/16 of 1% per annum) at which deposits in the applicable Primary
Currency appear on Page 3740 or 3750 of the Dow Jones Telerate Screen
at or about 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period and for a period equal to such Interest
Period by (b) a percentage equal to 100% minus the Eurocurrency Rate
Reserve Percentage for such Interest Period. The Eurocurrency Rate for
any Interest Period for each Eurocurrency Rate Advance denominated in
US Dollars comprising part of the same Borrowing (other than a
<PAGE> 8
8
Competitive Bid Borrowing) shall be determined by the Administrative
Agent on the basis of applicable rates furnished to and received by
Administrative Agent from the Reference Banks two Business Days before
the first day of such Interest Period, subject, however, to the
provisions of Section 2.07. If, in respect of any Eurocurrency Rate
Advance denominated in a Primary Currency, the rate set forth in clause
(ii)(a) above is not available, such rate for such Eurocurrency Rate
Advance shall mean, for each Interest Period, the rate (rounded upwards
to the nearest whole multiple of 1/16 of 1% per annum) appearing on the
appropriate Reuters Screen as the London interbank offered rate for
deposits in the applicable Primary Currency at approximately 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on such Reuters Screen, the
applicable rate shall be the arithmetic mean of all such rates.
"Eurocurrency Rate Advance" means an Advance (other than a
Competitive Bid Advance) denominated in US Dollars or in Primary
Currency) that bears interest as provided in Section 2.06(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period
for all Eurocurrency Rate Advances comprising part of the same
Borrowing means the reserve percentage applicable two Business Days
before the first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurocurrency Rate Advances is determined)
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreement" means the Credit Agreement dated
as of February 10, 1997, as heretofore amended, modified or otherwise
supplemented, among the Borrower, the banks and other financial
institutions party thereto and Citibank as administrative agent.
"Facility" means the Revolving Credit Facility or the Swing
Line Facility.
"Fair Value" means, with respect to any asset or property, the
fair value of such asset or property as determined in good faith by the
Board of Directors of the Borrower.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i), which Advances shall be denominated in US Dollars.
"Funded Debt" of any Person means Debt of such Person that by
its terms matures more than one year after the date of determination or
matures within one year from such date but is renewable or extendible,
at the option of such Person, to a date more than one year after such
date or arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period of
more than one year after such date, including, without limitation, all
amounts of Funded Debt of such Person required to be paid or prepaid
within one year after the date of determination.
<PAGE> 9
9
"GAAP" means generally accepted accounting principles, applied
on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Information Memorandum" means the information memorandum
dated January 24, 1997 used by the Agent in connection with the
syndication of the Commitments.
"Initial Lenders" has the meaning given such term in the
recital of parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities as defined in Section
4001(a)(18) of ERISA.
"Insurance Subsidiaries" means the Hartford Life and Accident
Insurance Company and all of its insurance Subsidiaries.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Borrowing (other than a Competitive Bid
Borrowing) and each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing, the period commencing on the date of such
Eurocurrency Rate Advance or LIBO Rate Advance or the date of the
Conversion of any Base Rate Advance into such Eurocurrency Rate Advance
and ending on the last day of the period selected by the Borrower
pursuant to the provisions below and, thereafter, with respect to
Eurocurrency Rate Advances, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the
last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same
Borrowing (other than a Competitive Bid Borrowing) or for LIBO
Rate Advances comprising part of the same Competitive Bid
Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
<PAGE> 10
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"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock,
warrants, rights, options, obligations or other securities or all or
substantially all of the assets of such Person, any capital
contribution to such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clauses (h) and (i) of
the definition of "Debt" in respect of such Person.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07(a), (b) and (c) and,
except when used in reference to a Borrowing (other than a Competitive
Bid Borrowing, a Note (other than a Competitive Bid Note), a Commitment
or a related term, each Designated Bidder.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in US Dollars are offered by the
principal office of each of the Reference Banks in London, England, to
prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to the amount that would be the Reference
Bank's respective ratable shares of such Borrowing if such Borrowing
were to be a Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage
for such Interest Period. The LIBO Rate for any Interest Period for
each LIBO Rate Advance comprising part of the same Competitive Bid
Borrowing shall be determined by the Administrative Agent on the basis
of applicable rates furnished to and received by the Administrative
Agent from the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions of Section
2.07.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance or properties of the Borrower or the Borrower and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance or properties of the Borrower or the Borrower and its
Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or any Lender under this Agreement or any Note or
(c) the ability of the Borrower to perform its obligations under this
Agreement or any Note.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than
<PAGE> 11
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the Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan
has been or were to be terminated.
"Note" means a Revolving Credit Note or a Competitive Bid
Note.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a)(i).
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 30
days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; and (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Preferred Stock" shall mean any capital stock entitled by its
terms to a preference (a) as to dividends or (b) upon a distribution of
assets.
"Primary Currencies" means, in connection with any Revolving
Credit Borrowing, any lawful currency other than US Dollars which the
Lenders agree shall be a Primary Currency for such Revolving Credit
Borrowing.
"Pro Rata Share" of any amount means, with respect to any
Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time and the denominator of which is the Revolving
Credit Facility at such time.
"Public Debt Rating" means, as of any date, the rating that
has been most recently announced by D&P, S&P or Moody's, as the case
may be, for any class of non-credit enhanced long-term senior unsecured
debt issued by the Borrower. For purposes of the foregoing, (a) if no
Public Debt Rating exists, the Applicable Margin and the Applicable
Percentage will be set in accordance with Level 2 under the definition
of "Applicable Margin" or "Applicable Percentage", as the case may be;
(b) if the Public Debt Ratings fall within different levels, the
Applicable Margin and the Applicable Percentage shall be based upon the
level in which the largest number of Public Debt Ratings falls,
provided that if there shall be no such level, one Public Debt Rating
shall be excluded from each of the highest and lowest levels in which
Public Debt Ratings shall fall and the Applicable Margin and the
Applicable Percentage shall be based upon the remaining Public Debt
Rating; (c) if only two Public Debt Ratings exist, the Applicable
Margin and the Applicable Rating shall be based upon the lower of
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12
the available Public Debt Ratings; (d) if only a single Public Debt
Rating exists, the Applicable Percentage shall be based on the category
corresponding to such single Public Debt Rating; (e) if any rating
established by D&P, S&P or Moody's shall be changed, such change shall
be effective as of the date on which such change is first announced or
established by the rating agency making such change; and (f) if D&P,
S&P or Moody's shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by D&P, S&P Moody's,
as the case may be, shall refer to the then equivalent rating by D&P,
S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, Bank of America Illinois,
Morgan Guaranty Trust Company of New York, Mellon Bank, N.A. and
NationsBank, N.A.
"Register" has the meaning specified in Section 8.07(c).
"Required Lenders" means at any time Lenders owed at least
66-2/3% of the then aggregate unpaid principal amount of the Advances
(other than Competitive Bid Advances) owing to Lenders, or, if no such
principal amount is then outstanding, Lenders having at least 66-2/3%
of the Revolving Credit Commitments. For purposes of this definition,
the aggregate principal amount of Swing Line Advances owing to the
Swing Line Bank shall be considered to be owed to the Lenders ratably
in accordance with their respective Revolving Credit Commitments.
"Revolving Credit Advance" has the meaning specified in
Section 2.01(a).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01(a).
"Revolving Credit Commitment" means, with respect to any
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Revolving Credit Commitment" or,
if such Lender has entered into one or more Assignments and
Acceptances, set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 8.07(c) as such Lender's
Revolving Credit Commitment".
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Lender, in substantially the form
of Exhibit A-1 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit Advances
made by such Lender to the Borrower.
"Risk-Based Capital" shall mean, with respect to the Insurance
Subsidiaries at any time, the Company Action Level Risk-Based Capital
(as defined by the NAIC at such time and as computed in accordance with
SAP) of the Insurance Subsidiaries (determined and Consolidated in
accordance with SAP) at such time.
"SAP" shall mean, with respect to any Insurance Subsidiary,
the statutory accounting principles and procedures prescribed or
permitted by the Applicable Insurance Regulatory Authority applied on a
basis consistent with those that are indicated in Section 1.03.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any ERISA
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Affiliate could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Swing Line Advance" means an advance which shall be
denominated in US Dollars made by (a) the Swing Line Bank pursuant to
Section 2.01(b) or (b) any Lender pursuant to Section 2.02(b).
"Swing Line Bank" has the meaning specified in the recital of
parties of this Agreement.
"Swing Line Borrowing" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section
2.01(b).
"Termination Date" means the earlier of February 9, 2003 and
the date of termination in whole of the Commitments pursuant to Section
6.01.
"Total Adjusted Capital" shall mean, with respect to the
Insurance Subsidiaries at any time, the Total Adjusted Capital (as
defined by NAIC at such time and as determined and Consolidated in
accordance with SAP) of the Insurance Subsidiaries (taken together) at
such time.
"Type" refers to the distinction between Advances (other than
the Competitive Bid Advances) bearing interest at the Base Rate and
Advances bearing interest at the Eurocurrency Rate.
"Unused Revolving Credit Commitment" means, with respect to
any Lender at any time, (a) such Lender's Revolving Credit Commitment
at such time minus (b) the sum of (i) the aggregate principal amount of
all Revolving Credit Advances and Swing Line Advances made by such
Lender (in its capacity as a Lender) and outstanding at such time plus
(ii) such Lender's Pro Rata Share of (A) the aggregate principal amount
of all Swing Line Advances made by the Swing Line Bank pursuant to
Section 2.01(b) and outstanding at such time and (B) the aggregated
principal amount of all Competitive Bid Advances outstanding at such
time.
"US Dollars" and the "$" sign each mean the lawful money of
the United States of America.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
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SECTION 1.03. Accounting Terms. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP or, to the extent such terms apply to an
Insurance Subsidiary, SAP, in each case as in effect from time to time;
provided, however, that for purposes of determining compliance with any covenant
set forth in this Article V, such terms shall be construed in accordance with
GAAP or SAP, as applicable, as in effect on the date hereof applied on a basis
consistent with the application used in preparing the financial statements
referred to in Section 4.01(e).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) The Revolving Credit Advances.
Each Lender severally agrees, on the terms and conditions hereinafter set forth,
to make advances (each a "Revolving Credit Advance") to the Borrower from time
to time on any Business Day during the period from the Effective Date until the
Termination Date in an amount for each such Revolving Credit Advance (determined
in the case of any Revolving Credit Advance denominated in a Primary Currency by
reference to the Equivalent thereof in US Dollars on such Business Day) not to
exceed such Lender's Unused Revolving Credit Commitment at such time; provided,
however, that, after giving effect to such Revolving Credit Borrowing, the
aggregate principal amount of all Advances made hereunder and outstanding on
such Business Day shall not exceed the Revolving Credit Facility on such
Business Day; provided further that, after giving effect to any such Revolving
Credit Borrowing denominated in a Primary Currency, the sum of the Equivalent on
such Business Day of the aggregate principal amount on such Business Day of the
outstanding Revolving Credit Advances denominated in any Primary Currency shall
not exceed $[50,000,000]. Each Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof (or the
Equivalent thereof in the Primary Currency in which such Revolving Credit
Borrowing is denominated) (other than a Borrowing the proceeds of which shall be
used solely to repay or prepay in full outstanding Swing Line Advances) and
shall consist of Revolving Credit Advances of the same Type and in the same
currency made on the same day by the Lenders ratably according to their
respective Revolving Credit Commitments. Within the limits of each Lender's
Revolving Credit Commitment, the Borrower may borrow under this Section 2.01(a),
prepay pursuant to Section 2.09 and reborrow under this Section 2.01(a).
(b) The Swing Line Advances. The Borrower may request the
Swing Line Bank to make, and the Swing Line Bank shall make, on the terms and
conditions hereinafter set forth, Swing Line Advances to the Borrower from time
to time on any Business Day during the period from the date hereof until the
Termination Date (i) in an aggregate amount not to exceed at any time
outstanding $[25,000,000] (the "Swing Line Facility") and (ii) in an amount for
each such Swing Line Borrowing not to exceed the aggregate of the Unused
Revolving Credit Commitments of the Lenders at such time. No Swing Line Advance
shall be used for the purpose of funding the payment of principal of any other
Swing Line Advance. Each Swing Line Borrowing shall be in an amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and shall be
made as a Base Rate Advance. Within the limits of the Swing Line Facility and
within the limits referred to in clause (ii) above, the Borrower may borrow
under this Section 2.01(b), repay pursuant to Section 2.05(b) or prepay pursuant
to Section 2.09 and reborrow under this Section 2.01(b).
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b) or 2.03, each borrowing shall be made on notice,
given not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Eurocurrency Rate Advances, or on the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
Borrower to the Administrative Agent, which shall give to each Lender prompt
notice thereof by telecopier or telex. Each such notice of a Borrowing (a
"Notice of Borrowing") shall be by telephone, confirmed immediately in writing,
or telecopier or telex, in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type of
Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing,
and (iv) in the case of a Borrowing consisting of Eurocurrency Rate Advances,
initial Interest Period for each such Advance. Each Lender shall, before 11:00
A.M. (New York City time) on the date of such Borrowing, make available for the
account of its Applicable
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15
Lending Office to the Administrative Agent at the Administrative Agent's
Account, in same day funds, such Lender's ratable portion of such Borrowing.
After the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the Borrower at the Administrative Agent's
address referred to in Section 8.02.
(b) Each Swing Line Borrowing shall be made on notice, given
not later than [12:00 Noon] (New York City time) on the date of the proposed
Swing Line Borrowing, by the Borrower to the Swing Line Bank and the
Administrative Agent. Each such notice of a Swing Line Borrowing (a "Notice of
Swing Line Borrowing") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (i) date of such
Borrowing, and (ii) amount of such Borrowing and (iii) maturity of such
Borrowing (which maturity shall be no later than the seventh day after the
requested date of such Borrowing. The Swing Line Bank will make the amount
thereof available to the Administrative Agent at the Administrative Agent's
Account, in same day funds. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower at
the Administrative Agent's address referred to in Section 8.02. Upon written
demand by the Swing Line Bank, with a copy of such demand to the Administrative
Agent, each other Lender shall purchase from the Swing Line Bank, and the Swing
Line Bank shall sell and assign to each such other Lender, such other Lender's
Pro Rata Share of such outstanding Swing Line Advance as of the date of such
demand, by making available for the account of its Applicable Lending Office to
the Administrative Agent for the account of the Swing Line Bank, by deposit to
the Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Swing Line Advance to be
purchased by such Lender. The Borrower hereby agrees to each such sale and
assignment. Effective upon each such sale and assignment, each Swing Line
Advance purchased by a Lender shall be, for all purposes under this Agreement, a
Revolving Credit Advance (which shall be a Base Rate Advance). Upon any such
assignment by the Swing Line Bank to any other Lender of a portion of a Swing
Line Advance, the Swing Line Bank represents and warrants to such other Lender
that the Swing Line Bank is the legal and beneficial owner of such interest
being assigned by it, free and clear of any liens, but makes no other
representation or warranty and assumes no responsibility with respect to such
Swing Line Advance, this Agreement or the Borrower. If and to the extent that
any Lender shall not have so made the amount of such Swing Line Advance
available to the Administrative Agent, such Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Swing Line Bank until the
date such amount is paid to the Administrative Agent, at the Federal Funds Rate.
If such Lender shall pay to the Administrative Agent such amount for the account
of the Swing Line Bank on any Business Day, such amount so paid in respect of
principal shall constitute a Swing Line Advance made by such Lender on such
Business Day for purposes of this Agreement, and the outstanding principal
amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by
such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurocurrency Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than $4,000,000
or if the obligation of the Lenders to make Eurocurrency Rate Advances shall
then be suspended pursuant to Section 2.07 or 2.11 and (ii) the Eurocurrency
Rate Advances may not be outstanding as part of more than 10 separate
Borrowings.
(d) Each Notice of Borrowing and each Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower. In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurocurrency Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for such
Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part of
such Borrowing when such Advance, as a result of such failure, is not made on
such date.
(e) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of
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such Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such Borrowing
in accordance with subsection (a) of this Section 2.02 and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Administrative Agent,
such Lender and the Borrower severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Administrative Agent, at
(i) in the case of the Borrower, the interest rate applicable at the time to
Advances comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this Agreement.
(f) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, (x) the aggregate amount of the Competitive Bid
Advances then outstanding shall not exceed $50,000,000, (y) the aggregate
principal amount of the Advances then outstanding shall not exceed the aggregate
amount of the Revolving Credit Commitments of the Lenders and (2) the aggregate
amount of the Competitive Bid Advances of any one Lender then outstanding shall
not exceed $10,000,000.
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Administrative Agent, by
telecopier or telex, a notice of a Competitive Bid Borrowing (a "Notice
of Competitive Bid Borrowing"), in substantially the form of Exhibit
B-2 hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, the Interest Period for and
the maturity date of such LIBO Rate Advance, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances, maturity
date for repayment of each Fixed Rate Advance to be made as part of
such Competitive Bid Borrowing (which maturity date may not be earlier
than the date occurring 7 days after the date of such Competitive Bid
Borrowing or later than the earlier of (I) 180 days after the date of
such Competitive Bid Borrowing and (II) the Termination Date), (y)
interest payment date or dates relating thereto, and (z) other terms
(if any) to be applicable to such Competitive Bid Borrowing, not later
than 10:00 A.M. (New York City time) (A) at least one Business Day
prior to the date of the proposed Competitive Bid Borrowing, if the
Borrower shall specify in the Notice of Competitive Bid Borrowing that
the rates of interest to be offered by the Lenders shall be fixed rates
per annum (the Advances comprising any such Competitive Bid Borrowing
being referred to herein as "Fixed Rate Advances") and (B) at least
five Business Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall instead specify in the Notice of
Competitive Bid Borrowing that the rates of interest be offered by the
Lenders are to be based on the LIBO Rate (the Advances comprising such
Competitive Bid Borrowing being referred to herein as "LIBO Rate
Advances"). Each Notice of Competitive Bid Borrowing shall be
irrevocable and binding on the Borrower with respect only to the
payment of the non-refundable fee pursuant to the terms of Section
2.03(g). The Administrative Agent shall in turn promptly notify each
Lender of each request for a Competitive Bid Borrowing received by it
from the Borrower by sending such Lender a copy of the related Notice
of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Administrative Agent (which shall give
prompt notice thereof to the Borrower), before 9:30 A.M. (New York City
time) on the date
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of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances and before
10:00 A.M. (New York City time) three Business Days before the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances, of the minimum amount
and maximum amount of each Competitive Bid Advance which such Lender
would be willing to make as part of such proposed Competitive Bid
Borrowing (which amounts may, subject to the proviso to the first
sentence of this Section 2.03(a), exceed such Lender's Commitment, if
any), the rate or rates of interest therefor and such Lender's
Applicable Lending Office with respect to such Competitive Bid Advance;
provided that if the Administrative Agent in its capacity as a Lender
shall, in its sole discretion, elect to make any such offer, it shall
notify the Borrower of such offer at least 30 minutes before the time
and on the date on which notice of such election is to be given to the
Administrative Agent by the other Lenders. If any Lender shall elect
not to make such an offer, such Lender shall so notify the
Administrative Agent, before 10:00 A.M. (New York City time) on the
date on which notice of such election is to be given to the
Administrative Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any Competitive Bid Advance as part
of such Competitive Bid Borrowing; provided that the failure by any
Lender to give such notice shall not cause such Lender to be obligated
to make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 11:00 A.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
either:
(x) cancel such Competitive Bid Borrowing by giving
the Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Administrative Agent
of the amount of each Competitive Bid Advance (which amount
shall be equal to or greater than the minimum amount, and
equal to or less than the maximum amount, notified to the
Borrower by the Administrative Agent on behalf of such Lender
for such Competitive Bid Advance pursuant to paragraph (ii)
above) to be made by each Lender as part of such Competitive
Bid Borrowing, and reject any remaining offers made by Lenders
pursuant to paragraph (ii) above by giving the Administrative
Agent notice to that effect. The Borrower shall accept the
offers made by any Lender or Lenders to make Competitive Bid
Advances in order of the lowest to the highest rates of
interest offered by such Lenders. If two or more Lenders have
offered the same interest rate, the amount to be borrowed at
such interest rate will be allocated among such Lenders in
proportion to the amount that each such Lender offered at such
interest rate.
(iv) If the Borrower notifies the Administrative Agent that
such Competitive Bid Borrowing is cancelled pursuant to paragraph
(iii)(x) above, the Administrative Agent shall give prompt notice
thereof to the Lenders and such Competitive Bid Borrowing shall not be
made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the
Administrative Agent shall in turn promptly notify (A) each Lender that
has made an offer as described in paragraph (ii) above, of the date and
aggregate amount of such Competitive Bid Borrowing and whether or not
any offer or offers made by such Lender pursuant to paragraph (ii)
above have been accepted by the Borrower, (B) each Lender that is to
make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, of the amount of each Competitive Bid Advance to be made by
such Lender as part of such Competitive Bid Borrowing, and (C) each
Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, upon receipt, that the Administrative Agent
has received forms of documents
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appearing to fulfill the applicable conditions set forth in Article
III. Each Lender that is to make a Competitive Bid Advance as part of
such Competitive Bid Borrowing shall, before 1:00 P.M. (New York City
time) on the date of such Competitive Bid Borrowing specified in the
notice received from the Administrative Agent pursuant to clause (A) of
the preceding sentence or any later time when such Lender shall have
received notice from the Administrative Agent pursuant to clause (C) of
the preceding sentence, make available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's
portion of such Competitive Bid Borrowing. Upon fulfillment of the
applicable conditions set forth in Article III and after receipt by the
Administrative Agent of such funds, the Administrative Agent will make
such funds available to the Borrower at the Administrative Agent's
address referred to in Section 8.02. Promptly after each Competitive
Bid Borrowing the Administrative Agent will notify each Lender of the
amount of the Competitive Bid Borrowing and the Unused Revolving Credit
Commitments of the Lenders after giving effect to such Competitive Bid
Borrowing.
(vi) If the Borrower notifies the Administrative Agent that it
accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, such notice of acceptance shall
be irrevocable and binding on the Borrower. The Borrower shall
indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date
specified in the related Notice of Competitive Bid Borrowing for such
Competitive Bid Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing when such Competitive Bid
Advance, as a result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrowers and
each Lender shall be in compliance with the limitations set forth in the proviso
to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Administrative Agent for
the account of each Lender that has made a Competitive Bid Advance, on the
maturity date of each Competitive Bid Advance (such maturity date being that
specified by the Borrower for repayment of such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and provided in the Competitive Bid Note evidencing such
Competitive Bid Advance), the then unpaid principal amount of such Competitive
Bid Advance. The Borrower shall have no right to prepay any principal amount of
any Competitive Bid Advance unless, and then only on the terms, specified by the
Borrower for such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to subsection (a)(i) above and set forth in the
Competitive Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full in accordance with the terms of the Competitive Bid Note
evidencing such Competitive Bid Advance. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive Bid Advance owing
to a Lender, payable in arrears on the date or dates interest is payable
thereon, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Competitive Bid Advance under the terms of
the Competitive Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such Competitive Bid Note.
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(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance shall be evidenced by a separate Competitive Bid Note of
the Borrower payable to the order of the Lender making such Competitive Bid
Advance.
(g) Upon delivery of each Notice of Competitive Bid Borrowing,
the Borrower shall pay a non-refundable fee of $1000 to the Administrative Agent
for its own account.
SECTION 2.04. Fees. (a) Revolving Credit Facility Fee. The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a facility fee on the aggregate amount of such Lender's Revolving Credit
Commitment from the date hereof in the case of each Initial Lender and from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at a
rate per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and
December, commencing March 31, 1998, and on the Termination Date.
(b) Administration Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
SECTION 2.05. Repayment. (a) Revolving Credit Advances. The
Borrower shall repay to the Administrative Agent for the ratable account of the
Lenders on the Termination Date the aggregate principal amount of the Revolving
Credit Advances then outstanding.
(b) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Lender that has made a Swing Line Advance the outstanding principal amount of
each Swing Line Advance made by each of them on the earlier of the maturity date
specified in the applicable Notice of Swing Line Borrowing (which maturity shall
be no later than the seventh day after the requested date of such Borrowing) and
the Termination Date.
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance (other than
Competitive Bid Advances) owing to each Lender from the date of such Advance
until such principal amount shall be paid in full, at the following rates per
annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(x) the Base Rate in effect from time to time plus (y) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December, during such
periods and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x)
the Eurocurrency Rate for such Interest Period for such Advance plus
(y) the Applicable Margin in effect from time to time, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurocurrency Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on (i) the
unpaid principal amount of each Advance (other than a Competitive Bid Advance)
owing to each Lender, payable in arrears on the dates referred to in clause
(a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Advance pursuant to clause
(a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the
amount of any interest, fee or other amount payable hereunder that is not paid
when due, from the date such amount shall be due until such amount shall be paid
in full, payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on Base Rate Advances pursuant to clause (a)(i)
above.
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SECTION 2.07. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Administrative Agent timely information for the
purpose of determining each Eurocurrency Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Administrative
Agent for the purpose of determining any such interest rate, the Administrative
Agent shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks. The Administrative Agent shall give
prompt notice to the Borrower and the Lenders of the applicable interest rate
determined by the Administrative Agent for purposes of Section 2.06(a)(i) or
(ii), and the rate, if any, furnished by each Reference Bank for the purpose of
determining the interest rate under Section 2.06(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurocurrency Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurocurrency Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon (i) each
Eurocurrency Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, (A) if such Eurocurrency Rate Advances are
denominated into US Dollars, Convert into a Base Rate Advance and (B) if such
Eurocurrency Rate Advances are denominated in a Primary Currency, be exchanged
for an Equivalent amount of US Dollars and be converted into Base Rate Advances,
and (ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurocurrency Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will promptly notify the Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing Interest
Period therefor, (i) if such Eurocurrency Rate Advances are denominated in US
Dollars, Convert into Base Rate Advances and (ii) if such Eurocurrency Rate
Advances are denominated in a Primary Currency, be exchanged for an Equivalent
amount of US Dollars and be Converted into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount
of Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $4,000,000, such Advances shall
automatically (i) if such Eurocurrency Rate Advances are denominated in US
Dollars,Convert into Base Rate Advances and (ii) if such Eurocurrency Rate
Advances are denominated in a Primary Currency, be exchanged for an Equivalent
amount of US Dollars and be Converted into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurocurrency Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, (A) if such Eurocurrency
Rate Advances are denominated into US Dollars, Convert into a Base Rate Advance
and (B) if such Eurocurrency Rate Advances are denominated in a Primary
Currency, be exchanged for an Equivalent amount of US Dollars and be converted
into Base Rate Advances, and (ii) the obligation of the Lenders to make, or to
Convert Advances into, Eurocurrency Rate Advances shall be suspended.
(f) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurocurrency Rate or
LIBO Rate for any Eurocurrency Rate Advances or LIBO Rate Advances, as the case
may be,
(i) the Administrative Agent shall immediately notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Eurocurrency Rate Advances or LIBO Rate Advances, as the case
may be, and which of the Reference Banks has failed to furnish the
information necessary to determine the Eurocurrency Rate or LIBO Rate,
as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, (i) if such Eurocurrency Rate Advances are
denominated
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21
in US Dollars, Convert into a Base Rate Advance (or if such Advance is
then a Base Rate Advance, will continue as a Base Rate Advance) and
(ii) if such Eurocurrency Rate Advances are denominated in a Primary
Currency, be exchanged for an Equivalent amount of US Dollars and be
Converted into Base Rate Advances, and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
into Eurocurrency Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.08. Optional Conversion of Advances. The Borrower
may on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.07 and
2.11, Convert all Advances (other than Competitive Bid Advances) of one Type
comprising the same Borrowing into Advances (other than Competitive Bid
Advances) of the other Type; provided, however, that (w) no Eurocurrency Rate
Advances of one currency shall be Converted into Eurocurrency Rate Advances of
another currency, (x) any Conversion of Eurocurrency Rate Advances into Base
Rate Advances shall be made only on the last day of an Interest Period for such
Eurocurrency Rate Advances, (y) any Conversion of Base Rate Advances into
Eurocurrency Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(c) and (z) no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(c). Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted, and
(iii) if such Conversion is into Eurocurrency Rate Advances, the currency of and
the duration of the initial Interest Period for each such Advance. Each notice
of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.09. Prepayments. (a) Optional. The Borrower may give
notice of its intent to prepay, upon at least one Business Day's notice, in the
case of Base Rate Advances, and at least three Business Days' notice, in the
case of Eurocurrency Rate Advances, in each case to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall prepay the outstanding principal
amount of the Advances comprising part of the same Borrowing in whole or ratably
in part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof (or the Equivalent thereof in the Primary
Currency in which such Revolving Credit Borrowing is denominated, determined on
the date the related notice of prepayment is given) and (y) in the event of any
such prepayment of a Eurocurrency Rate Advance, the Borrower shall be obligated
to reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
(b) Mandatory. (i) The Borrower shall, on each Business Day,
prepay an aggregate principal amount of the Revolving Credit Advances comprising
the same Borrowings and the Swing Line Advances equal to the amount by which (A)
the sum of the (w) aggregate principal amount of the Revolving Credit Advances
denominated in US Dollars, plus (x) the Equivalent on such day of the aggregate
principal amount of the Revolving Credit Advances denominated in Primary
Currencies, plus (y) the aggregate principal amount of the Swing Line Advances
then outstanding plus (z) the aggregate principal amount of the Competitive Bid
Advances then outstanding exceeds (B) the Revolving Credit Facility.
(ii) Prepayments of the Revolving Credit Facility pursuant to
clause (i) above shall be first applied to prepay Swing Line Advances then
outstanding until such Advances are paid in full and second applied to prepay
Revolving Credit Advances then outstanding comprising part of the same
Borrowings until such Advances are paid in full.
(iii) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
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SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurocurrency Rate Advances (excluding for
purposes of this Section 2.10 any such increased costs resulting from (i) Taxes
or Other Taxes (as to which Section 2.13 shall govern) and (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrower shall from time to time, upon demand by
such Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost; provided, however,
that before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such increased
cost and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender; provided further that the Borrower shall have no
obligation under this Section 2.10(a) to any Lender if such Lender shall not
have made such demand to the Borrower within 90 days following the later of (i)
the date of the occurrence of the event which forms the basis for such demand
and (ii) the date on which such Lender shall have become aware of the occurrence
of such event. A certificate as to the amount of such increased cost, submitted
to the Borrower and the Administrative Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to the Administrative Agent for the account of such Lender, from time
to time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender's commitment to lend hereunder;
provided, however, that the Borrower shall have no obligation under this Section
2.10(b) to any Lender if such Lender shall not have made such demand to the
Borrower within 90 days following the later of (i) the date of the occurrence of
the event which forms the basis for such demand and (ii) the date on which such
Lender shall have become aware of the occurrence of such event. A certificate as
to such amounts submitted to the Borrower and the Administrative Agent by such
Lender shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate
Advances or LIBO Rate Advances or to fund or maintain Eurocurrency Rate Advances
or LIBO Rate Advances hereunder, (i) each Eurocurrency Rate Advance or LIBO Rate
Advance, as the case may be, will automatically, upon such demand, be exchanged,
if appropriate, for an Equivalent amount of US Dollars and be Converted into a
Base Rate Advance and (ii) the obligation of the Lenders to make Eurocurrency
Rate Advances or LIBO Rate Advances or to Convert Base Rate Advances into
Eurocurrency Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist; provided, however, that before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurocurrency Lending Office if the making of such a designation would allow such
Lender or its Eurocurrency Lending Office to continue to perform its obligations
to make Eurocurrency Rate Advances or LIBO Rate Advances, as the case may be, or
to continue to fund or maintain Eurocurrency Rate Advances or LIBO Rate
Advances, as the case may be, and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
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SECTION 2.12. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Administrative
Agent at the Administrative Agent's Account in same day funds. The
Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or facility fees ratably (other
than amounts payable pursuant to Section 2.10, 2.13 or 8.04(c)) to the Lenders
for the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such Lender
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(d), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall make
all payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurocurrency
Rate or the Federal Funds Rate and of facility fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances
to be made in the next following calendar month, such payment shall be made on
the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which such
Lender or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under
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any Note to any Lender or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.13) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, performing under, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender and the
Administrative Agent for and hold it harmless against the full amount of Taxes
or Other Taxes (including, without limitation, taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.13) imposed on or paid by
such Lender or the Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United States or by or
on behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as requested in writing by
the Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service forms 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If the form
provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form 1001 or 4224, that the Lender reasonably considers to be
confidential, the Lender shall give notice thereof to the Borrower and shall not
be obligated to include in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law occurring subsequent
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to the date on which a form originally was required to be provided, or if such
form otherwise is not required under subsection (e) above), such Lender shall
not be entitled to indemnification under Section 2.13(a) or (c) with respect to
Taxes imposed by the United States by reason of such failure; provided, however,
that should a Lender become subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Taxes.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances owing to it (other
than pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of its ratable share
of payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely for general corporate purposes of the Borrower and its Subsidiaries.
SECTION 2.16. Removal of Lender. In the event that any Lender
demands payment of costs or additional amounts pursuant to Section 2.10 or
Section 2.13 or asserts pursuant to Section 2.11 that it is unlawful for such
Lender to make Eurocurrency Rate Advances or LIBO Rate Advances, then (subject
to such Lender's right to rescind such demand or assertion within 10 days after
the notice from the Borrower referred to below) the Borrower may, upon 5 days'
prior written notice to such Lender and the Administrative Agent, elect to cause
such Lender to assign its Advances and Commitments in full to an assignee
institution selected by the Borrower that meets the criteria of an Eligible
Assignee and is reasonably satisfactory to the Administrative Agent, so long as
such Lender receives payment in full of the outstanding principal amount of all
Advances made by it and all accrued and unpaid interest thereon and all other
amounts due and payable to such Lender as of the date of such assignment
(including without limitation amounts owing pursuant to Section 2.10 or 2.13),
and in such case such Lender agrees to make such assignment, and such assignee
shall agree to accept such assignment and assume all obligations of such Lender
hereunder, in accordance with Section 8.07.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied:
(a) There shall have occurred no Material Adverse Change
(other than as publicly disclosed prior to January 22, 1997) since (i)
in the case of the Borrower, the date of its creation and (ii) in the
case of the Borrower and its Subsidiaries taken as a whole, December
31, 1996.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) could
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26
be reasonably likely to have a Material Adverse Effect or (ii) purports
to affect the legality, validity or enforceability of this Agreement or
any Note or the consummation of the transactions contemplated hereby.
(c) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders) and shall remain in effect, and no law
or regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(d) The Borrower shall have notified each Lender and the
Administrative Agent in writing as to the proposed Effective Date.
(e) The Borrower shall have paid all accrued fees and expenses
of the Administrative Agent and the Lenders (including the accrued fees
and expenses of counsel to the Administrative Agent).
(f) On the Effective Date, the following statements shall be
true and the Administrative Agent shall have received for the account
of each Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(g) The Administrative Agent shall have received on or before
the Effective Date the following, each dated such day, in form and
substance satisfactory to the Administrative Agent and (except for the
Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders,
respectively.
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower approving this Agreement and the
Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder.
(iv) A favorable opinion of Lynda Godkin, General
Counsel for the Borrower, substantially in the form of Exhibit
D hereto and as to such other matters as any Lender through
the Administrative Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, addressed to the Lenders
and in form and substance satisfactory to the Administrative
Agent.
SECTION 3.02. Conditions Precedent to Each Borrowing (Other
Than a Competitive Bid Borrowing). The obligation of each Lender to make an
Advance (other than a Competitive Bid Advance and a Swing Line Advance made by a
Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing (other
than a Competitive Bid Borrowing ) and the right of the Borrower to request a
Swing Line Borrowing shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such Borrowing (a) the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing or Notice of Swing Line Borrowing and the acceptance by
<PAGE> 27
27
the Borrower of the proceeds of such Borrowing shall constitute a representation
and warranty by the Borrower that on the date of such Borrowing such statements
are true):
(i) the representations and warranties contained in Section
4.01 are correct on and as of the date of such Borrowing, before and
after giving effect to such Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or
would result from such Borrowing or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Administrative Agent shall have received the
written confirmatory Notice of Competitive Bid Borrowing with respect thereto,
(ii) on or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Administrative Agent shall have received a
Competitive Bid Note payable to the order of such Lender for each of the one or
more Competitive Bid Advances to be made by such Lender as part of such
Competitive Bid Borrowing, in a principal amount equal to the principal amount
of the Competitive Bid Advance to be evidenced thereby and otherwise on such
terms as were agreed to for such Competitive Bid Advance in accordance with
Section 2.03, and (iii) on the date of such Competitive Bid Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Competitive Bid Borrowing and the acceptance by the Borrower of the
proceeds of such Competitive Bid Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Competitive Bid Borrowing such
statements are true):
(a) the representations and warranties contained in Section
4.01 are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, and
(b) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
SECTION 3.04. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the date
that the Borrower, by notice to the Lenders, designates as the proposed
Effective Date, specifying its objection thereto. The Administrative Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
<PAGE> 28
28
(a) The Borrower and each of its Subsidiaries (i) is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, (ii) is duly
qualified and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except
where the failure to so qualify or be licensed would not have a
Material Adverse Effect and (iii) has all requisite corporate power and
authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) any law or any
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Borrower of this Agreement or the Notes, except
for those authorizations, approvals, actions, notices and filings
listed on Schedule 4.01(c) hereto, all of which have been duly
obtained, taken, given or made and are in full force and effect.
(d) This Agreement has been, and each of the Notes when
delivered hereunder will have been, duly executed and delivered by the
Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their
respective terms.
(e) (i) The Consolidated balance sheet of Hartford Life and
Accident Insurance Company and its Subsidiaries as at December 31,
1996, and the related Consolidated statements of income and cash flows
of Hartford Life and Accident Insurance Company and its Subsidiaries
for the fiscal year then ended, as filed with the Applicable Insurance
Regulatory Authority for Hartford Life and Accident Insurance Company,
and the Consolidated balance sheet of Hartford Life and Accident
Insurance Company and its Subsidiaries as at September 30, 1997, and
the related Consolidated statements of income and cash flows of
Hartford Life and Accident Insurance Company and its Subsidiaries for
the nine months then ended, as filed with the Applicable Insurance
Regulatory Authority for Hartford Life and Accident Insurance Company,
copies of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheet as at September 30, 1997,
and said statements of income and cash flows for the nine months then
ended, to year-end audit adjustments, the Consolidated financial
condition of Hartford Life and Accident Insurance Company and its
Subsidiaries as at such dates and the Consolidated results of the
operations of Hartford Life and Accident Insurance Company and its
Subsidiaries for the periods ended on such dates, all in accordance
with SAP, consistently applied.
(ii) The Consolidated balance sheet of Hartford Life Insurance
Company and its Subsidiaries as at December 31, 1996, and the related
Consolidated statements of income and cash flows of Hartford Life
Insurance Company and its Subsidiaries for the fiscal year then ended,
as filed with the Applicable Insurance Regulatory Authority for
Hartford Life Insurance Company, and the Consolidated balance sheet of
Hartford Life Insurance Company and its Subsidiaries as at September
30, 1997, and the related Consolidated statements of income and cash
flows of Hartford Life Insurance Company and its Subsidiaries for the
nine months then ended, as filed with the Applicable Insurance
Regulatory Authority for Hartford Life Insurance Company, copies of
which have been furnished each Lender, fairly present, subject in the
case of said balance sheet as at September 30, 1997, and said
statements of income and cash flows for the nine months then ended, to
year-end audit adjustments, the Consolidated financial position of
Hartford Life Insurance Company and its Subsidiaries as at such dates
and the Consolidated results of operations of Hartford Life Insurance
Company and its Subsidiaries for the periods ended on such dates, all
in accordance with SAP, consistently applied.
<PAGE> 29
29
(iii) As of September 30, 1997, there has been no Material
Adverse Change (other than as publicly disclosed prior to January 22,
1997) since (i) in the case of the Borrower, the date of its creation
and (ii) in the case of the Borrower and its Subsidiaries taken as a
whole, December 31, 1996.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without limitation,
any Environmental Action, affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator that
(i) could be reasonably likely to have a Material Adverse Effect (other
than as publicly disclosed prior to January 22, 1997) or (ii) purports
to affect the legality, validity or enforceability of this Agreement or
any Note or the consummation of the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock.
(h) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(i) The present aggregate value of accumulated benefit
obligations of all unfunded and underfunded Plans of the Borrower and
its ERISA Affiliates (based on those assumptions used for disclosure in
corporate financial statements in accordance with GAAP or SAP, as
applicable) did not, as of December 31, 1996, exceed by more than
$70,000,000 the value of the assets of all such Plans. In such cases,
the Borrower has recorded book reserves to meet such obligations.
(j) Except as set forth in Schedule 4.01(j), the Borrower is
not an "investment company", or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company", as
such terms are defined in the Investment Company Act of 1940, as
amended. Neither the making of any Advances nor the application of the
proceeds or repayment thereof by the Borrower, nor the consummation of
the other transactions contemplated hereby, will violate any provision
of such Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder.
(k) Neither the Information Memorandum nor any other
information, exhibit or report furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with
the negotiation of this Agreement or pursuant to the terms of this
Agreement contained any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements made therein
not misleading.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and Environmental Laws as
provided in Section 5.01(j).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to
<PAGE> 30
30
pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates (it being understood that the
Borrower and its Subsidiaries may self-insure to the extent customary
with companies similarly situated and in the same or similar
businesses).
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(b)
and provided further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right or franchise if
the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Borrower or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time, permit the Administrative Agent or any of the Lenders or any
agents or representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates (i) on terms substantially
similar to past practice or (ii) on terms that are fair and reasonable
and no less favorable to the Borrower or such Subsidiary than it would
obtain in a comparable arm's-length transaction with a Person not an
Affiliate.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 90
days after the end of each of the first three quarters of each
fiscal year of the Borrower, the Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such
quarter and Consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end
of such quarter, duly certified (subject to year-end audit
adjustments) by the principal financial officer of the
Borrower as having been prepared in accordance with GAAP and
certificates of the chief financial officer of the Borrower as
to compliance with the terms of this Agreement and setting
forth in reasonable detail the calculations necessary to
demonstrate compliance with Section 5.03;
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31
(ii) as soon as available and in any event within 120
days after the end of each fiscal year of the Borrower, a copy
of the audited annual report for such year for the Borrower
and its Subsidiaries, containing the Consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of
such fiscal year and Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for such
fiscal year, in each case accompanied by an opinion acceptable
to the Required Lenders by Arthur Andersen LLP or other
independent public accountants acceptable to the Required
Lenders;
(iii) as soon as possible and in any event within
five days after the occurrence of each Default continuing on
the date of such statement, a statement of the principal
financial officer of the Borrower setting forth details of
such Default and the action that the Borrower has taken and
proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports and financial statements that any
Insurance Subsidiary files with its Applicable Insurance
Regulatory Authority or other Governmental Authority;
(v) promptly after the sending or filing thereof,
copies of all reports that the Borrower sends to any of its
securityholders, and copies of all reports and registration
statements that the Borrower or any Subsidiary files with the
Securities and Exchange Commission or any national securities
exchange;
(vi) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Borrower or any of its
Subsidiaries of the type described in Section 4.01(f);
(vii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower, (x)
the Statement of Actuarial Opinion of each of the Insurance
Subsidiaries of the Borrower for such fiscal year and as filed
with the Applicable Insurance Regulatory Authority and (y) the
Annual Statement of each of the Insurance Subsidiaries of the
Borrower for such fiscal year and as filed with the Applicable
Insurance Regulatory Authority, together with, in the case of
the statements delivered pursuant to clause (y) above, a
certificate of a financial officer of such Insurance
Subsidiary to the effect that such statements present fairly
the statutory assets, liabilities, capital and surplus,
results of operations and cash flows of such Insurance
Subsidiary in accordance with SAP;
(viii) (x) promptly and in any event within 10 days
after the Borrower or any ERISA Affiliate knows or has reason
to know that any ERISA Event has occurred, a statement of the
chief financial officer of the Borrower describing such ERISA
Event and the action, if any, that the Borrower or such ERISA
Affiliate has taken or proposes to take with respect thereto
and (y) on the date any records, documents or other
information must be furnished to the PBGC with respect to any
Plan pursuant to Section 4010 of ERISA, a copy of such
records, documents and information; and
(ix) such other information respecting the Borrower
or any of its Subsidiaries as any Lender through the
Administrative Agent may from time to time reasonably request.
(j) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and
renew and cause each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any
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of its properties, in accordance with the requirements of Environmental
Laws; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real
property or equipment acquired or held by the Borrower or any
Subsidiary in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing the acquisition
of such property or equipment, or Liens existing on such
property or equipment at the time of its acquisition (other
than any such Liens created in contemplation of such
acquisition that were not incurred to finance the acquisition
of such property) or extensions, renewals or replacements of
any of the foregoing for the same or a lesser amount;
provided, however, that no such Lien shall extend to or cover
any properties of any character other than the real property
or equipment being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not
theretofore subject to the Lien being extended, renewed or
replaced, provided further that the sum of the aggregate
principal amount of the indebtedness secured by the Liens
referred to in this clause (ii) plus the aggregate principal
amount of the Debt secured by the Liens referred to in clause
(v) below plus the aggregate principal amount of the
indebtedness secured by the Liens referred to in clause (vi)
below shall not exceed an amount equal to 10% of Consolidated
Net Tangible Assets of the Borrower and its Consolidated
Subsidiaries,
(iii) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the
Borrower or any Subsidiary of the Borrower or becomes a
Subsidiary of the Borrower; provided that such Liens were not
created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those
of the Person so merged into or consolidated with the Borrower
or such Subsidiary or acquired by the Borrower or such
Subsidiary,
(v) other Liens securing Debt in an aggregate
principal amount such that the sum of such aggregate principal
amount of Debt plus the aggregate principal amount of
indebtedness secured by the Liens referred to in clause (ii)
above plus the aggregate principal amount of the indebtedness
secured by the Liens referred to in clause (vi) below shall
not exceed an amount equal to 10% of Consolidated Net Tangible
Assets of the Borrower and its Consolidated Subsidiaries,
(vi) Liens arising in connection with Capitalized
Lease-Back Obligations; provided that (A) the sum of the
aggregate principal amount of the indebtedness secured by the
Liens referred to in this clause (vi) plus the aggregate
principal amount of indebtedness secured by the Liens referred
to in clause (ii) above plus the aggregate principal amount of
the Debt Secured by the Liens referred to in clause (v) above
shall not exceed an amount equal to 10% of Consolidated Net
Tangible Assets of the Borrower and its Consolidated
Subsidiaries and (B) no such Lien shall extend to or cover any
assets other than the assets subject to such Capitalized
Lease-Back Obligations;
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(vii) any Lien on property in favor of the United
States of America, or of any agency, department or other
instrumentality thereof, to secure partial, progress or
advance payments pursuant to the provisions of any contract,
(viii) any Lien securing Debt of a Subsidiary to the
Borrower or a wholly-owned Subsidiary of the Borrower,
provided that in the case of any sale or other disposition of
such Debt by the Borrower or such Subsidiary, such sale or
other disposition shall be deemed to constitute the creation
of another Lien not permitted by this clause (viii),
(ix) any Lien affecting property of the Borrower or
any Subsidiary of the Borrower securing Debt of the United
States of America or a state thereof (or any instrumentality
or agency of either thereof) issued in connection with a
pollution control or abatement program required in the opinion
of the Borrower to meet environmental criteria with respect to
operations of the Borrower or any Subsidiary of the Borrower
and the proceeds of which Debt have financed the cost of the
acquisition of such program,
(x) any Lien necessary to secure a stay of any legal
or equitable process in a proceeding to enforce a liability or
obligation contested in good faith by the Borrower or any of
its Subsidiaries or required in connection with the
institution by the Borrower or any of its Subsidiaries of any
legal or equitable proceeding to enforce a right or to obtain
a remedy claimed in good faith by the Borrower or any of its
Subsidiaries, or required in connection with any order or
decree in any such proceeding; or the making of any deposit
with or the giving of any form of security to any governmental
agency or any body created or approved by law or governmental
regulation in order to entitle the Borrower or any of its
Subsidiaries to maintain self-insurance or to participate in
any fund in connection with workers' compensation,
unemployment insurance, old age pensions or other social
security or to share in any provisions or other benefits
provided for companies participating in any such arrangement
or for liability on insurance of credits or other risks, and
(xi) the replacement, extension or renewal of any
Lien permitted by clause (iii), (iv), (vii), (viii), (ix) or
(x) above upon or in the same property theretofore subject
thereto or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent
obligor) of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) (x) all or substantially
all of its assets (whether now owned or hereafter acquired) or (y) all
or any portion of the capital stock of any of its Subsidiaries to, any
Person, or permit any of its Subsidiaries to do so, except that any
Subsidiary of the Borrower may merge or consolidate with or into, or
dispose of assets to, any other Subsidiary of the Borrower, and except
that any Subsidiary of the Borrower may merge into or dispose of assets
to the Borrower, provided, in each case, that no Default shall have
occurred and be continuing at the time of such proposed transaction or
would result therefrom.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
(d) Lease Obligations. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any obligations as lessee for the rental or hire of
real or personal property of any kind under leases or agreements to
lease having an original term of one year or more that would cause the
direct and contingent liabilities of the Borrower and its Subsidiaries,
on a Consolidated basis, in respect of all such obligations to exceed
$50,000,000 payable in any period of 12 consecutive months.
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(e) Limitations on Sale and Leaseback Transactions. Enter
into, or permit any of its Subsidiaries to enter into, any arrangement
with any Person providing for the leasing by the Borrower or any such
Subsidiary of any property or asset (except for temporary leases for a
term of not more than three years and except for leases between the
Borrower and one of its Subsidiaries or between Subsidiaries of the
Borrower), which property has been or its to be sold or transferred by
the Borrower or such Subsidiary to such Person more than 120 days after
the acquisition thereof or the completion of construction and
commencement of full operation thereof, unless either (a) the Borrower
shall apply an amount equal to the greater of the Fair Value of such
property or the net proceeds of such sale, within 120 days of the
effective date of any such arrangement, to the retirement (other than
any mandatory retirement or by way of payment at maturity) of Debt or
to the acquisition, construction, development or improvement of
properties, facilities or equipment used for operating purposes or (b)
at the time of entering into such arrangement, such property or asset
could have been subjected to a Lien permitted pursuant to Section
5.02(a)(vi).
(f) Dividends, Etc. Declare or make any dividend payment or
other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of capital stock of
the Borrower, or purchase, redeem or otherwise acquire for value (or
permit any of its Subsidiaries to do so) any shares of any class of
capital stock of the Borrower or any warrants, rights or options to
acquire any such shares, now or hereafter outstanding, except that, so
long as no Default shall have occurred and be continuing at the time of
any action described below or would result therefrom, the Borrower may
(i) declare and make any dividend payment or other distribution payable
in common stock of the Borrower, (ii) purchase, redeem or otherwise
acquire shares of its common stock or warrants, rights or options to
acquire any such shares with the proceeds received from the
substantially concurrent issue of new shares of its common stock, (iii)
declare and make any cash dividend payments or other distributions to
its stockholders in an aggregate amount not to exceed $250,000,000
solely from proceeds of the Advances or proceeds from the issuance of
unsecured Debt maturing within one year from the date incurred and
evidenced by commercial paper, and (iv) declare or pay cash dividends
to its stockholders and purchase, redeem or otherwise acquire shares of
its capital stock or warrants, rights or options to acquire any such
shares for cash solely out of the aggregate amount of cash dividends
and distributions received by the Borrower after the date hereof from
its Insurance Subsidiaries.
(g) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
as carried on at the date hereof.
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Minimum Consolidated Statutory Surplus. Cause its
Insurance Subsidiaries to maintain at the end of each fiscal quarter of
the Borrower and its Subsidiaries the sum of (i) Consolidated Statutory
Surplus at the end of such fiscal quarter plus (ii) AVR at the end of
such fiscal quarter of not less than $1,200,000,000.
(b) Risk Based Capital Ratio. Cause its Insurance Subsidiaries
to maintain at the end of each fiscal year of the Borrower and its
Subsidiaries a ratio of Total Adjusted Capital to Risk-Based Capital
(after covariance) of not less than 1.5 to 1.00.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or the Borrower shall
fail to pay any interest on any Advance or make any other payment of
fees or other amounts payable under this Agreement or any Note within
ten days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(d), (e), (h) or
(i), 5.02 or 5.03, or (ii) the Borrower shall fail to perform or
observe any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if such failure shall
remain unremedied for 30 days after written notice thereof shall have
been given to the Borrower by the Administrative Agent or any Lender;
or
(d) The Borrower or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that is outstanding
in a principal or notional amount of at least $10,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of the Borrower or
such Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The Borrower or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, conservatorship or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for any substantial part of its property
and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian,
conservator or other similar official for, it or for any substantial
part of its property) shall occur; or the Borrower or any of its
Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess
of $30,000,000 shall be rendered against the Borrower or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
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commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Subsidiaries that could be
reasonably expected to have a Material Adverse Effect, and there shall
be any period of 10 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) (i) Any Person or two or more Persons (other than The
Hartford Financial Services Group, Inc. or any of its Subsidiaries)
acting in concert shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Borrower (or other securities convertible into such Voting
Stock) representing 20% or more of the combined voting power of all
Voting Stock of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors
of the Borrower shall cease for any reason to constitute a majority of
the board of directors of the Borrower; or (iii) any Person or two or
more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that,
upon consummation, will result in its or their acquisition of the power
to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(i) The Borrower or any of its ERISA Affiliates shall incur,
or, in the reasonable opinion of the Required Lenders, shall be
reasonably likely to incur liability in excess of $10,000,000 in the
aggregate as a result of one or more of the following: (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal
of the Borrower or any of its ERISA Affiliates from a Multiemployer
Plan; or (iii) the reorganization or termination of a Multiemployer
Plan;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all
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Lenders and all holders of Notes; provided, however, that the Administrative
Agent shall not be required to take any action that exposes the Administrative
Agent to personal liability or that is contrary to this Agreement or applicable
law. The Administrative Agent agrees to give to each Lender prompt notice of
each notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other instrument
or document furnished pursuant hereto; and (vi) shall incur no liability under
or in respect of this Agreement by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if
Citibank were not the Administrative Agent and without any duty to account
therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify
the Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Notes then held by each of
them (or if no Notes are at the time outstanding or if any Notes are held by
Persons that are not Lenders, ratably according to the respective amounts of
their Commitments), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Administrative Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the
Administrative Agent under this Agreement (collectively, the "Indemnified
Costs"), provided that no Lender shall be liable for any portion of the
Indemnified Costs resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender (other than
the Designated Bidders) agrees to reimburse the Administrative Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees) incurred by the Administrative Agent in connection with the
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preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Administrative Agent is not reimbursed for such expenses
by the Borrower. In the case of any investigation, litigation or proceeding
giving rise to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by the Administrative Agent,
any Lender or a third party.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower and may be removed at any time with or without
cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders (other than the Designated
Bidders), do any of the following: (a) waive any of the conditions specified in
Section 3.01, (b) increase the Commitments of the Lenders or subject the Lenders
to any additional obligations, (c) reduce the principal of, or interest on, the
Notes (other than Competitive Bid Notes) or any fees or other amounts payable
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the Notes (other than Competitive Bid Notes) or any fees or other
amounts payable hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Notes (other than Competitive Bid
Notes), or the number of Lenders, that shall be required for the Lenders or any
of them to take any action hereunder or (f) amend this Section 8.01; provided
further that no amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition to the Lenders required above to take
such action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note; provided further that no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Bank in addition to the
Lenders required above to take such action, affect the rights or obligations of
the Swing Line Bank under this Agreement.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and telecopied, telegraphed or telexed, if
to the Borrower, at its address at c/o The Hartford Insurance Group, Hartford
Plaza, Hartford, CT 06115, Attention: J. Richard Garrett; if to any Initial
Lender, at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Administrative Agent, at its address at 399 Park Avenue, 12th Floor, Zone 8, New
York, New York 10043, Attention: Scott Engle, Global Insurance Department; or,
as to the Borrower or the Administrative Agent,
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at such other address as shall be designated by such party in a written notice
to the other parties and, as to each other party, at such other address as shall
be designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when
telecopied, telegraphed or telexed, be effective when telecopied, delivered to
the telegraph company or confirmed by telex answerback, respectively, except
that notices and communications to the Administrative Agent pursuant to Article
II, III or VII shall not be effective until received by the Administrative
Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all costs and expenses of the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification and
amendment of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, (A) all due diligence, syndication
(including printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Administrative Agent with respect thereto
and with respect to advising the Administrative Agent as to its rights and
responsibilities under this Agreement. The Borrower further agrees to pay on
demand all costs and expenses of the Administrative Agent and the Lenders, if
any (including, without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation, reasonable fees and expenses
of counsel for the Administrative Agent and each Lender in connection with the
enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (i) the
Notes, this Agreement, any of the transactions contemplated herein or the actual
or proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 8.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance or LIBO Rate Advance is made by the Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to Section 2.07(d)
or (e), 2.09 or 2.11, acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason or by an Eligible Assignee to a Lender
other than on the last day of the Interest Period for such Advance upon an
assignment of rights and obligations under this Agreement pursuant to Section
8.07 as a result of a demand by the Borrower pursuant to Section 2.16, the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or
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expenses that it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.10, 2.13 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, whether or not such Lender shall have made any
demand under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial Lender that
such Initial Lender has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and each Lender
and their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender
(other than the Designated Bidders) may (subject to the Borrower's consent which
will not be unreasonably withheld) and, if demanded by the Borrower pursuant to
Section 2.16, will assign to one or more Persons all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances (other than Competitive Bid Advances)
owing to it and the Note or Notes (other than any Competitive Bid Note) held by
it); provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this Agreement
(other than any right to make Competitive Bid Advances, Competitive Bid Advances
owing to it and Competitive Bid Notes), (ii) except in the case of an assignment
to a Person that, immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, the
amount of the Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each such assignment
shall be to an Eligible Assignee, (iv) each such assignment made as a result of
a demand by the Borrower pursuant to Section 2.16 shall be arranged by the
Borrower after consultation with the Administrative Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the right and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Borrower pursuant to Section 2.16 unless and until
such Lender shall have received one or more payments from either the Borrower or
one or more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances owing to such Lender,
together with accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement, and
(vi) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note subject to such assignment and
a processing and recordation fee
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of $3,000. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance and each
Designated Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders, and, with respect to
Lenders other than Designated Bidders, the Commitment of, and principal amount
of the Advances owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note a new Note to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, a new Note to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto.
<PAGE> 42
42
(e) Each Lender (other than the Designated Bidders) may
designate one or more banks or other entities to have a right to make
Competitive Bid Advances as a Lender pursuant to Section 2.03; provided,
however, that (i) no such Lender shall be entitled to make more than one such
designation in respect of any Competitive Bid Borrowing, (ii) each such Lender
making one or more of such designations shall retain the right to make
Competitive Bid Advances as a Lender pursuant to Section 2.03, (iii) each such
designation shall be to a Designated Bidder and (iv) the parties to each such
designation shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, a Designation Agreement. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Designation Agreement, the designee thereunder shall be a
party hereto with a right to make Competitive Bid Advances as a Lender pursuant
to Section 2.03 and the obligations related thereto.
(f) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm and
agree with each other and the other parties hereto as follows: (i) such Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or any other instrument or document furnished pursuant hereto or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Loan Party or the performance or observance by the Borrowers or any other
Loan Party of any of their respective obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such designee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Designation Agreement; (iv) such designee will,
independently and without reliance upon the Administrative Agent, such
designating Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
designee confirms that it is a Designated Bidder; (vi) such designee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
designee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(g) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Administrative Agent shall, if such Designation Agreement has been completed
and is substantially in the form of Exhibit D hereto, (i) accept such
Designation Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(h) Each Lender may sell participations to one or more banks
or other entities (other than the Borrower or any of its Affiliates) in all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
<PAGE> 43
43
(i) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Confidentiality. Neither the Administrative
Agent nor any Lender shall disclose any Confidential Information to any other
Person without the consent of the Borrower, other than (a) to the Administrative
Agent's or such Lender's Affiliates and their officers, directors, employees,
agents and advisors and, as contemplated by Section 8.07(f), to actual or
prospective assignees and participants, and then only on a confidential basis,
(b) as required by any law, rule or regulation or judicial process and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 8.12. Judgment. (a) Rate of Exchange. If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum due
hereunder (including, without limitation, under Section 8.01) or under any Note
or Notes in another currency into US Dollars or into a Primary Currency, as the
case may be, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which, in
accordance with normal banking procedures, a Lender could purchase such other
currency with US Dollars or with a Primary Currency, as the case may be, in New
York City, New York at the close of business on the Business Day immediately
<PAGE> 44
44
preceding the day on which final judgment is given, together with any premiums
and costs of exchange payable in connection with such purchase.
(b) Indemnity. The obligation of the Borrower in respect of
any sum due from it to the Administrative Agent or any Lender hereunder or under
any Note or Notes shall, notwithstanding any judgment in a currency other than
US Dollars or a Primary Currency, as the case may be, be discharged only to the
extent that on the Business Day next succeeding receipt by the Administrative
Agent or such Lender of any sum adjudged to be so due in such other currency,
the Administrative Agent or such Lender may, in accordance with normal banking
procedures, purchase US Dollars or such Primary Currency, as the case may be,
with such other currency. If the US Dollars or such Primary Currency so
purchased are less than the sum originally due to the Administrative Agent or
such Lender in US Dollars or in such Primary Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or such Lender against such loss, and if the US Dollars or
such Primary Currency so purchased exceed the sum originally due to the
Administrative Agent or any Lender in US Dollars or in such Primary Currency, as
the case may be, the Administrative Agent or such Lender agrees to remit to such
Borrower such excess.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
<PAGE> 45
45
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
HARTFORD LIFE INC.
By____________________________________
Title:
CITIBANK, N.A.,
as Administrative Agent
By____________________________________
Title:
Initial Lenders
Commitment
- ----------
$60,000,000 CITIBANK, N.A.
By____________________________________
Title:
$47,500,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By____________________________________
Title:
$47,500,000 MELLON BANK, N.A.
By____________________________________
Title:
<PAGE> 46
46
$47,500,000 MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By____________________________________
Title:
$47,500,000 NATIONSBANK, N.A.
By____________________________________
Title:
$250,000,000 Total of the Commitments
<PAGE> 47
46
SCHEDULE I
Hartford Life, Inc.
APPLICABLE LENDING OFFICES
<TABLE>
<CAPTION>
Name of Initial Lender Domestic Lending Office Eurocurrency Lending Office
- ---------------------- ----------------------- ---------------------------
<S> <C> <C>
Citibank, N.A. 399 Park Avenue, 12-8 Same.
New York, New York 10043
Attention: Scott Engle
Tel: (212) 559-3639
Fax: (212) 925-4285
Bank of America National Account Administration 200/9 Same.
Trust and Savings Association 231 S. LaSalle Street
Chicago, IL 60697
Attention: Diane Sanders
Tel: (312) 828-3866
Fax: (312) 974-9626
Mellon Bank, N.A. One Mellon Bank Center Same.
Suite 370
Pittsburgh, PA 15258
Attention: Robert Brandenstein
Tel: (412) 234-1158
Fax: (412) 234-5049
Morgan Guaranty Trust Morgan Christiana Center Same.
Company of New York 500 Stanton Christiana Road
Newark, DE 19713-2107
Attention: Robert Kearns
Tel: (302) 634-4203
Fax: (302) 734-1092
NationsBank of Texas 901 Main Street Same.
Dallas, TX 75202-3748
Attention: Pat Brocket
(214) 508-0619
</TABLE>
<PAGE> 48
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT NOTE
US $_______________ Dated: February __, 1998
FOR VALUE RECEIVED, the undersigned, HARTFORD LIFE, INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of US $_____ or, if less, the aggregate
principal amount of the Revolving Credit Advances made by the Lender to the
Borrower pursuant to the Amended and Restated Credit Agreement dated as of
February 9, 1998 among the Borrower, the Lender and certain other lenders
parties thereto, and Citibank, N.A., as Administrative Agent for the Lender and
such other lenders (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A. as Administrative Agent, at
_________________________, New York, New York, in same day funds. Each Revolving
Credit Advance owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of Revolving Credit Advances by the
Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the US Dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Revolving Credit Advance
being evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
HARTFORD LIFE, INC.
By___________________________________
Title:
<PAGE> 49
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
---- ------- ---------- ------- -------
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
======================================================================================
</TABLE>
<PAGE> 50
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
US $ ______________ Dated: __________, ____
FOR VALUE RECEIVED, the undersigned, HARTFORD LIFE, INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
______________________ (the "Lender") for the account of its Applicable Lending
Office (as defined in the Amended and Restated Credit Agreement dated as of
February 9, 1998 among the Borrower, the Lender and certain other lenders party
thereto, and Citibank, N.A., as Administrative Agent for the Lender and such
other lenders (as amended or modified from time to time, the "Credit Agreement";
the terms defined therein being used herein as therein defined)), on
_______________, 199_, the principal amount of US $ _____________.
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: ____% per annum (calculated on the basis of a year of ____
days for the actual number of days elapsed).
Interest Payment Date: ____ and ____.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Administrative Agent, for the
account of the Lender at the office of Citibank, N.A., at ___________________,
New York, New York in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
HARTFORD LIFE, INC.
By ___________________________
Title:
<PAGE> 51
EXHIBIT B-1 - FORM OF
NOTICE OF BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
399 Park Avenue [Date]
New York, New York 10043
Attention: Scott Engle/Global Insurance Department
Ladies and Gentlemen:
The undersigned, Hartford Life, Inc., refers to the Amended and
Restated Credit Agreement, dated as of February 9, 1998 (as amended or modified
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, certain Lenders parties
thereto and Citibank, N.A., as Administrative Agent for said Lenders, and hereby
gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement
that the undersigned hereby requests a Borrowing under the Credit Agreement, and
in that connection sets forth below the information relating to such Borrowing
(the "Proposed Borrowing") as required by Section 2.02(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is _______________,
199_.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
[(iv) The initial Interest Period for each Eurocurrency Rate Advance
made as part of the Proposed Borrowing is __________ month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Credit Agreement are correct, before and after giving effect to the
Proposed Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds therefrom,
that constitutes a Default.
Very truly yours,
Hartford Life, Inc.
By____________________________________
Title:
<PAGE> 52
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: Scott Engle/Global Insurance Department
Ladies and Gentlemen:
The undersigned, Hartford Life, Inc., refers to the Amended and
Restated Credit Agreement, dated as of February 9, 1998 (as amended or modified
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, certain Lenders party thereto
and Citibank, N.A., as Administrative Agent for said Lenders, and hereby gives
you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that
the undersigned hereby requests a Competitive Bid Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such Competitive
Bid Borrowing (the "Proposed Competitive Bid Borrowing") is requested to be
made:
(A) Date of Competitive Bid Borrowing________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Interest Payment Date(s) ________________________
(F) ___________________ ________________________
(G) ___________________ ________________________
(H) ___________________ ________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in Section 4.01 of
the Credit Agreement are correct, before and after giving effect to the
Proposed Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result from
the Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default; and
(c) the aggregate amount of the Proposed Competitive Bid Borrowing
and all Revolving Credit Borrowings and Swing Line Borrowings to be made
on the same day under the Credit Agreement is within the aggregate amount
of the Unused Revolving Credit Commitments of the Lenders.
<PAGE> 53
2
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(v) of
the Credit Agreement.
Very truly yours,
HARTFORD LIFE, INC.
By____________________________________
Title:
<PAGE> 54
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement dated
as of February 9, 1998 (as amended or modified from time to time, the "Credit
Agreement") among Hartford Life, Inc., a Delaware corporation (the "Borrower"),
the Lenders (as defined in the Credit Agreement) and Citibank, N.A. as
administrative agent for the Lenders (the "Administrative Agent"). Terms defined
in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in
and to the Assignor's rights and obligations under the Credit Agreement as
of the date hereof equal to the percentage interest specified on Schedule
1 hereto of all outstanding rights and obligations under the Credit
Agreement. After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Advances owing to the Assignee will be as
set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with the Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement
or any other instrument or document furnished pursuant thereto; (iii)
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the Credit
Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note held by the Assignor and requests that the
Administrative Agent exchange such Note for a new Note payable to the
order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto or new Notes payable to the order of the Assignee
in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal to the Commitment retained by
the Assignor under the Credit Agreement, respectively, as specified on
Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Administrative
Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints
and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to the Administrative Agent by the terms
thereof, together with such powers and discretion as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with
their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service forms required under Section
2.13 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance and recording
by the Administrative Agent. The effective date for this Assignment and
Acceptance (the "Effective Date") shall be the date of acceptance hereof
by the Administrative Agent, unless otherwise specified on Schedule 1
hereto.
5. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the
Credit Agreement.
<PAGE> 55
2
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Notes in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest and facility fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement and the Notes for periods prior to
the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assignment and
Acceptance by telecopier shall be effective as delivery of a manually
executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
<PAGE> 56
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $_______________
Aggregate outstanding principal amount of Advances assigned:$_____________
Principal amount of Note payable to Assignee: $_______________
Principal amount of Note payable to Assignor: $_______________
Effective Date*_______________, 199_
[NAME OF ASSIGNOR], as Assignor
By____________________________________
Title:
Dated: _______________, 199_
[NAME OF ASSIGNEE], as Assignee
By____________________________________
Title:
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
Accepted [and Approved]** this
__________ day of _______________, 199_
CITIBANK, N.A., as Administrative Agent
By_____________________________________
Title:
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (viii) of the definition of "Eligible Assignee".
<PAGE> 57
2
[Approved this __________ day
of _______________, 199_
Hartford Life, Inc.
By__________________________________]*
Title:
________
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (viii) of the definition of "Eligible Assignee".
<PAGE> 58
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
Dated _______________, 199_
Reference is made to the Amended and Restated Credit Agreement dated
as of February 9, 1998 (as amended or modified from time to time, the "Credit
Agreement") among Hartford Life, Inc., a Delaware corporation ("Borrower"), the
Lenders (as defined in the Credit Agreement) and Citibank, N.A., as
administrative agent for the Lenders (the "Administrative Agent"). Terms defined
in the Credit Agreement are used herein with the same meaning.
____________________ (the "Designor") and _________________________
(the "Designee") agree as follows:
1. The Designor hereby designates the Designee, and the Designee
hereby accepts such designation, to have a right to make Competitive Bid
Advances pursuant to Section 2.03 of the Credit Agreement.
2. The Designor makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Loan Documents or any other instrument or
document provided pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, the Loan Documents or any other instrument or
document furnished pursuant thereto and (ii) the financial condition of any Loan
Party or the performance or observance by any Loan Party of any of its
obligations under the Loan Documents or any other instrument or document
furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 or delivered pursuant to Section 5.01(i) thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Designation Agreement; (ii) agrees that
it will, independently and without reliance upon the Administrative Agent, the
Designor or any other Lender Party and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement; (iii)
confirms that it is a Designated Bidder; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (v) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Credit Agreement are required to be performed by it as a Designated
Bidder.
4. Following the execution of this Designation Agreement by the
Designor and its Designee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent. The effective date for
this Designation Agreement (the "Effective Date") shall be the date of
acceptance hereof by the Administrative Agent, unless otherwise specified on the
signature page hereto.
5. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, the Designee shall be a party to the Credit Agreement
with a right to make Competitive Bid Advances as a Designated Bidder pursuant to
Section 2.03 of the Credit Agreement and the rights and obligations of a Lender
related thereto.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
7. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by telecopier
shall be effective as delivery of a manually executed counterpart of this
Designation Agreement.
<PAGE> 59
2
IN WITNESS WHEREOF, the Designor and the Designee have caused this
Designation Agreement to be executed by their officers thereunto duly authorized
as of the date first above written.
Effective Date*: _______________, 199__
[NAME OF DESIGNOR],
as Designor
By____________________________________
Title:
[NAME OF DESIGNEE],
as Designee
By____________________________________
Title:
Applicable Lending Office (and address
for notices):
[Address]
Accepted this ____ day
of _______________, 199_
CITIBANK, N.A., as Administrative Agent
By______________________________________
Title:
_________
* This date should be no earlier than five Business Days after the delivery
of this Designation Agreement to the Administrative Agent.
<PAGE> 60
EXHIBIT E - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
[Effective Date]
To each of the Lenders parties
to the Amended and Restated
Credit Agreement dated as of
February 9_, 1998 among
Hartford Life, Inc.,
said Lenders and Citibank, N.A.,
as Administrative Agent for said Lenders, and
to Citibank, N.A., as Administrative Agent
Hartford Life, Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(iv) of
the Amended and Restated Credit Agreement, dated as of February 9, 1998 (the
"Credit Agreement"), among Hartford Life, Inc. (the "Borrower"), the Lenders
parties thereto and Citibank, N.A. as Administrative Agent for said Lenders.
Terms defined in the Credit Agreement are used herein as therein defined.
We have acted as counsel for the Borrower in connection with the
preparation, execution and delivery of the Credit Agreement.
In that connection, we have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Borrower pursuant to Article III
of the Credit Agreement.
(3) The Certificate of Incorporation of the Borrower and all
amendments thereto (the "Charter").
(4) The by-laws of the Borrower and all amendments thereto (the
"By-laws").
(5) A certificate of the Secretary of State of the State of
Delaware, dated _______________, 1998, attesting to the continued
corporate existence and good standing of the Borrower in that State.
We have also examined the originals, or copies certified to our satisfaction, of
the documents listed in a certificate of the chief financial officer of the
Borrower, dated the date hereof (the "Certificate"), certifying that the
documents listed in such certificate are all of the indentures, loan or credit
agreements, leases, guarantees, mortgages, security agreements, bonds, notes and
other agreements or instruments, and all of the orders, writs, judgments,
awards, injunctions and decrees, that affect or purport to affect the Borrower's
right to borrow money or the Borrower's obligations under the Credit Agreement
or the Notes. In addition, we have examined the originals, or copies certified
to our satisfaction, of such other corporate records of the Borrower,
certificates of public officials and of officers of the Borrower, and
agreements, instruments and other documents, as we have deemed necessary as a
basis for the opinions expressed below. As to questions of fact material to such
opinions, we have, when relevant facts were not independently established by us,
relied upon certificates of the Borrower or its officers or of public officials.
We have assumed the due execution and delivery, pursuant to due authorization,
of the Credit Agreement by the Initial Lenders and the Administrative Agent.
<PAGE> 61
2
Our opinions expressed below are limited to the law of the State of
New York, the General Corporation Law of the State of Delaware and the Federal
law of the United States.
Based upon the foregoing and upon such investigation as we have
deemed necessary, we are of the following opinion:
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Charter or the By-laws or (ii) any law, rule or
regulation applicable to the Borrower (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System) or
(iii) any contractual or legal restriction contained in any document
listed in the Certificate or, to the best of our knowledge, contained in
any other similar document. The Credit Agreement and the Notes have been
duly executed and delivered on behalf of the Borrower.
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Borrower of the Credit Agreement and the Notes, except for the
authorizations, approvals, actions, notices and filings listed on Schedule
4.01(c) to the Credit Agreement, all of which have been duly obtained,
taken, given or made and are in full force and effect.
4. The Credit Agreement is, and after giving effect to the initial
Borrowing, the Notes will be, legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their
respective terms.
5. To the best of our knowledge, there are no pending or overtly
threatened actions or proceedings against the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator that
purport to affect the legality, validity, binding effect or enforceability
of the Credit Agreement or any of the Notes or the consummation of the
transactions contemplated thereby or that are likely to have a materially
adverse effect upon the financial condition or operations of the Borrower
or any of its Subsidiaries.
The opinions set forth above are subject to the following
qualifications:
(a) Our opinion in paragraph 4 above as to enforceability is subject
to the effect of any applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar law affecting creditors' rights generally.
(b) Our opinion in paragraph 4 above as to enforceability is subject
to the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law).
(c) We express no opinion as to (i) Section 2.14 of the Credit
Agreement insofar as it provides that any Lender purchasing a
participation from another Lender pursuant thereto may exercise set-off or
similar rights with respect to such participation, and (ii) the effect of
the law of any jurisdiction other than the State of New York wherein any
Lender may be located or wherein enforcement of the Credit Agreement or
the Notes may be sought that limits the rates of interest legally
chargeable or collectible.
Very truly yours,
<PAGE> 62
3
<PAGE> 63
U.S. $250,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 9, 1998
Among
HARTFORD LIFE, INC.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Administrative Agent
<PAGE> 64
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms ..................................... 1
SECTION 1.02. Computation of Time Periods ............................... 14
SECTION 1.03. Accounting Terms .......................................... 14
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances .............................................. 14
SECTION 2.02. Making the Advances ....................................... 15
SECTION 2.03. The Competitive Bid Advances .............................. 17
SECTION 2.04. Fees ...................................................... 20
SECTION 2.05. Repayment ................................................. 20
SECTION 2.06. Interest .................................................. 20
SECTION 2.07. Interest Rate Determination ............................... 21
SECTION 2.08. Optional Conversion of Advances ........................... 22
SECTION 2.09. Prepayments ............................................... 22
SECTION 2.10. Increased Costs ........................................... 23
SECTION 2.11. Illegality ................................................ 24
SECTION 2.12. Payments and Computations ................................. 24
SECTION 2.13. Taxes ..................................................... 25
SECTION 2.14. Sharing of Payments, Etc .................................. 26
SECTION 2.15. Use of Proceeds ........................................... 27
SECTION 2.16. Removal of Lender ......................................... 27
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 ..... 27
SECTION 3.02. Conditions Precedent to Each Borrowing (Other Than a
Competitive Bid Borrowing) .............................. 28
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing .... 29
SECTION 3.04. Determinations Under Section 3.01 ......................... 29
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower ............ 29
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants ..................................... 31
SECTION 5.02. Negative Covenants ........................................ 34
SECTION 5.03. Financial Covenants ....................................... 37
ARTICLE VI
</TABLE>
<PAGE> 65
ii
<TABLE>
<CAPTION>
PAGE
<S> <C>
EVENTS OF DEFAULT
SECTION 6.01. Events of Default ......................................... 37
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action .................................. 39
SECTION 7.02. Administrative Agent's Reliance, Etc ...................... 39
SECTION 7.03. Citibank and Affiliates ................................... 39
SECTION 7.04. Lender Credit Decision .................................... 40
SECTION 7.05. Indemnification ........................................... 40
SECTION 7.06. Successor Administrative Agent ............................ 40
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc ........................................... 41
SECTION 8.02. Notices, Etc .............................................. 41
SECTION 8.03. No Waiver; Remedies ....................................... 41
SECTION 8.04. Costs and Expenses ........................................ 41
SECTION 8.05. Right of Set-off .......................................... 42
SECTION 8.06. Binding Effect ............................................ 43
SECTION 8.07. Assignments and Participations ............................ 43
SECTION 8.08. Confidentiality ........................................... 46
SECTION 8.09. Governing Law ............................................. 46
SECTION 8.10. Execution in Counterparts ................................. 46
SECTION 8.11. Jurisdiction, Etc ......................................... 46
SECTION 8.12. Judgment .................................................. 46
SECTION 8.13. Waiver of Jury Trial ...................................... 47
</TABLE>
<PAGE> 66
iii
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 4.01(c) - Required Authorizations and Approvals
Schedule 4.01(j) - Investment Company Exceptions
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of Counsel for the Borrower
<TABLE> <S> <C>
<ARTICLE> 7
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> MAR-31-1998
<DEBT-HELD-FOR-SALE> 17,834
<DEBT-CARRYING-VALUE> 0
<DEBT-MARKET-VALUE> 0
<EQUITIES> 188
<MORTGAGE> 202
<REAL-ESTATE> 0
<TOTAL-INVEST> 21,710
<CASH> 50
<RECOVER-REINSURE> 5,498
<DEFERRED-ACQUISITION> 3,482
<TOTAL-ASSETS> 110,034
<POLICY-LOSSES> 5,090
<UNEARNED-PREMIUMS> 49
<POLICY-OTHER> 21,095
<POLICY-HOLDER-FUNDS> 77,783
<NOTES-PAYABLE> 700
0
0
<COMMON> 1
<OTHER-SE> 2,215
<TOTAL-LIABILITY-AND-EQUITY> 110,034
1,004
<INVESTMENT-INCOME> 400
<INVESTMENT-GAINS> 0
<OTHER-INCOME> 0
<BENEFITS> 771
<UNDERWRITING-AMORTIZATION> 97
<UNDERWRITING-OTHER> 386
<INCOME-PRETAX> 129
<INCOME-TAX> 45
<INCOME-CONTINUING> 84
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 84
<EPS-PRIMARY> 0.60
<EPS-DILUTED> 0.60
<RESERVE-OPEN> 0
<PROVISION-CURRENT> 0
<PROVISION-PRIOR> 0
<PAYMENTS-CURRENT> 0
<PAYMENTS-PRIOR> 0
<RESERVE-CLOSE> 0
<CUMULATIVE-DEFICIENCY> 0
</TABLE>
