Exhibit 4.9
STANDARD ADMINISTRATIVE SERVICES AGREEMENT
TERMS
WITH RESPECT TO
HARTFORD LIFE GLOBAL FUNDING
SECURED MEDIUM-TERM NOTES AND INCOME NOTES
Dated as of -, 2004
TABLE OF CONTENTS
PAGE
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Section 1. Definitions. 1
Section 2. Administrative Services; Consultations with the Trust. 1
Section 3. Activities of the Trust; Employees; Offices. 4
Section 4. Compensation; Indemnities. 5
Section 5. Term. 5
Section 6. Obligation to Supply Information. 5
Section 7. The Administrator's Liability, Standard of Care. 5
Section 8. Limited Recourse to Trust. 6
Section 9. No Recourse. 6
Section 10. Reliance on Information Obtained from Third Parties. 6
Section 11. Tax Returns. 6
Section 12. Notices. 7
Section 13. Amendment. 8
Section 14. No Joint Venture. 8
Section 15. Assignment. 8
Section 16. GOVERNING LAW, CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. 8
Section 17. Trust Tax Characterization. 9
Section 18. Limitation of Delaware Trustee Liability. 9
Section 19. Section Headings. 10
Section 20. Nonpetition Covenant. 10
Section 21. Severability. 10
Section 22. Administrator to Provide Access to Books and Records. 10
Section 23. No Waiver. 10
Section 24. Remedies Cumulative. 11
Section 25. Third Party Beneficiaries. 11
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STANDARD ADMINISTRATIVE SERVICES AGREEMENT TERMS
This document constitutes the
Standard Administrative Services
Agreement Terms, dated as of [-], 2004, that may be incorporated by reference in
one or more Administrative Services Agreements (included in the Omnibus
Instrument, defined in the Indenture) by and between the Hartford Life Global
Funding Trust specified in the Administrative Services Agreement (the "TRUST")
and the party named as the Administrator in the preamble to the Administrative
Services Agreement (the "ADMINISTRATOR").
These
Standard Administrative Services Agreement Terms shall be of no
force and effect unless and until incorporated by reference in, and then only to
the extent not modified by, an Administrative Services Agreement.
The following terms and provisions shall govern the activities of the
Administrator subject to contrary terms and provisions expressly adopted in any
Administrative Services Agreement which contrary terms shall be controlling.
Section 1. DEFINITIONS.
All capitalized terms used herein and not otherwise defined will have
the meanings set forth in that certain Indenture, dated as of the date hereof by
and between the Trust and JPMorgan Chase Bank, as indenture trustee (the
"INDENTURE").
Section 2. ADMINISTRATIVE SERVICES; CONSULTATIONS WITH THE TRUST.
The Trust and the Delaware Trustee hereby authorize and empower the
Administrator, as their agent, to perform, and the Administrator hereby agrees
to perform, the following services:
(a) Subject to the timely receipt of all necessary information,
requests, notices or directions, as the case may be, providing, or causing to be
provided, all clerical, and bookkeeping services necessary and appropriate for
the Trust, including, without limitation, the following services as well as
those other services specified in the following subsections:
(1) maintenance of all books and records of the Trust
relating to the fees, costs and expenses of the Trust,
which books and records shall be maintained separately
from those of the Administrator and any other trust
established under the Program;
(2) maintenance of records of cash payments and
disbursements (excluding principal and interest on the
Funding Agreement) of the Trust in accordance with
generally accepted accounting principles, as determined
in consultation with the accountants for the Trust, and
preparation for audit of such periodic financial
statements as may be necessary or appropriate;
(3) upon request, preparation for execution by the Trust,
through a Responsible Officer, of amendments to and
waivers under the
Issuance Documents and any other documents or
instruments deliverable by the Trust thereunder or in
connection therewith (collectively, the "OPERATIVE
DOCUMENTS");
(4) holding, maintaining, and preserving executed copies of
the Operative Documents, which shall be maintained
separately from those of the Administrator and any
other trust established under the Program;
(5) upon receipt of notice, taking such action as may be
reasonably necessary to enforce the performance by the
parties other than the Trust to the Operative
Documents, and enforce the obligations of those parties
to the Trust under such agreements;
(6) upon request, preparing for a signature by a
Responsible Officer such notices, consents,
instructions and other communications that the Trust
may from time to time be required or permitted to give
under the Operative Documents;
(7) execute, on behalf of the Trust, subject to proper
direction and based upon the advice of counsel, the
Distribution Agreement presented to it in its final
form, or (i) any amendment or other modification of
such agreement or (ii) any notices, consents,
instructions, waivers or other instruments pertaining
to or ancillary to such agreements;
(8) execute, on behalf of the Trust, subject to proper
direction and based upon the advice of counsel, the
License Agreement presented to it in its final form,
subject to proper direction, or any amendment,
modification, notices, consents, waivers or other
instruments pertaining to or ancillary to such
agreement;
(9) obtaining services of outside counsel, accountants
and/or other service providers on behalf of the Trust;
(10) preparing for a signature by a Responsible Officer any
Trust Order for payment of any amounts due and owing by
the Trust under the Operative Documents; PROVIDED THAT
the foregoing shall not obligate the Administrator to
advance any of its own monies for such purpose, it
being understood that such amounts shall be payable
only to the extent assets of the Trust are available
therefor and at such times and in such amounts as shall
be permitted by the Operative Documents;
(11) preparing for a signature by a Responsible Officer any
Trust Order for payment of any amounts due and owing by
the Trust to the Indenture Trustee, the Paying Agent,
the Registrar and other agents on request for all
expenses, disbursements and advances to the
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extent not paid pursuant to the Expense and Indemnity
Agreements; PROVIDED THAT the foregoing shall not
obligate the Administrator to advance any of its own
monies for such purpose, it being understood that such
amounts shall be payable only to the extent assets of
the Trust are available therefor and at such times and
in such amounts as shall be permitted by the Issuance
Documents;
(12) taking such other actions as may be incidental or
reasonably necessary (i) to the accomplishment of the
actions of the Administrator authorized in this
subsection (a) or (ii) upon receipt of notice from a
Responsible Officer directing specifically the
Administrator to do so, to the accomplishment of the
duties and responsibilities, and compliance with the
obligations, of the Trust under the Operative Documents
to the extent not otherwise performed by the Indenture
Trustee, Delaware Trustee, Paying Agent, Transfer Agent
or Registrar, PROVIDED, THAT no such duties or
responsibilities shall materially enlarge the duties
and responsibilities of the Administrator which are set
forth specifically in this Administrative Services
Agreement; and
(13) performing the administrative review of any request,
from the Holder of a Note, for the early repayment of
such Note, in accordance with its terms.
(b) Upon the issuance of the Notes, directing the Indenture Trustee
(to the extent permitted in the Indenture) to pay the costs and expenses of the
Trust relating to the Notes to the extent not paid pursuant to the Expense and
Indemnity Agreements.
(c) Subject to the timely receipt of all necessary information or
notices from the Delaware Trustee, and based upon the advice of counsel, on
behalf of the Trust, (i) filing with the Commission and executing, in each case
solely on behalf of the Trust and not in the Administrator's individual
capacity, such documents, forms or filings as may be required by the Securities
Act, the Securities Exchange Act, the Trust Indenture Act, or other securities
laws in each case relating to the Notes; (ii) the preparation and filing of any
documents or forms required to be filed by any rules or regulations of any
securities exchange, including without limitation, the
New York Stock Exchange,
or market quotation dealer system or the National Association of Securities
Dealers, Inc. in connection with the listing of the Notes thereon; (iii) filing
and executing solely on behalf of the Trust and not in the Administrator's
individual capacity, such filings, applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as may be necessary or desirable to register, or establish
the exemption from registration of, the Notes under the securities or "Blue Sky"
laws of any relevant jurisdictions; and (iv) executing and delivering, solely on
behalf of the Trust and not in the Administrator's individual capacity, letters
or documents to, or instruments for filing with, a depositary relating to the
Notes; and
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(d) Undertaking such other administrative services as may be required
under the circumstances or reasonably requested by the Delaware Trustee,
including (i) causing the preparation by the Trust of any prospectus, prospectus
supplement, pricing supplement, registration statement, amendments, including
any exhibits and schedules thereto, any reports or other filings or documents,
including certifications, or supplements thereto or (ii) securing and
maintaining the listing of the Notes on any securities exchange or complying
with the securities or "Blue Sky" laws of any relevant jurisdictions, in
connection with the performance by the Trust of its obligations under the
Operative Documents or any other document executed thereunder or in connection
therewith.
(e) In connection with the establishment of the Trust, the
Administrator shall purchase from the Trust the Trust Beneficial Interest in the
Trust in accordance with the Trust Agreement and the Administrator shall be the
sole Trust Beneficial Owner in accordance with the Trust Agreement.
Any of the above services (other than those described in SECTIONS 2(c)
and 2(d)) may, if the Administrator or the Trust deems it necessary or
desirable, be subcontracted by the Administrator; PROVIDED THAT notice is given
to the Trust of such subcontract and, notwithstanding such subcontract, the
Administrator shall remain responsible for performance of the services set forth
above unless such services are subcontracted to accountants or legal counsel
selected with due care by the Administrator and reasonably satisfactory to the
Trust and in which case the Administrator shall not remain responsible for the
performance of such services and the Administrator shall not, in any event, be
responsible for the costs, fees or expenses in connection therewith.
Section 3. ACTIVITIES OF THE TRUST; EMPLOYEES; OFFICES.
The Administrator agrees to carry out and perform the administrative
activities (as set forth in SECTION 2 hereof) of the Trust in the name and on
behalf of the Trust as its agent.
All services to be furnished by the Administrator under this
Administrative Services Agreement may be furnished by an officer or employee of
the Administrator, an officer or employee of any affiliate of the Administrator,
or any other person or agent designated or retained by it; PROVIDED THAT the
Administrator shall remain ultimately responsible for the provision of such
services by an officer or employee of the Administrator or any of its affiliates
or any other person or agent designated or retained by it, unless selected with
due care and reasonably satisfactory to the Trust in accordance with the last
paragraph of SECTION 2. No director, officer or employee of the Administrator or
any affiliate of the Administrator shall receive from the Trust a salary or
other compensation.
The Administrator agrees to provide its own office space, together
with appropriate materials and any necessary support personnel, for the day to
day activities (as set forth in SECTION 2 hereof) of the Trust to be carried out
and performed by the Administrator, all for the compensation provided in SECTION
4 hereof. All services to be furnished by the Administrator under this
Administrative Services Agreement shall be performed only from the
Administrator's office in North Carolina.
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Section 4. COMPENSATION; INDEMNITIES.
The Administrator will be entitled to payment of fees, reimbursement
for, and indemnification with respect to, costs and expenses for services
rendered hereunder to the extent provided in the applicable Expense and
Indemnity Agreement and the Administrator will not be entitled to seek any
payment from the Trust with respect to its services hereunder.
Section 5. TERM.
The Administrator may terminate this Administrative Services Agreement
upon at least 30 days' written notice to the Trust and Hartford Life and the
Trust may terminate this Administrative Services Agreement upon at least 30
days' notice to the Administrator (copies of any notice of termination shall
also be sent to the Indenture Trustee). Such termination will not become
effective until (i) the Trust, as directed by Hartford Life, appoints a
successor Administrator, (ii) the successor Administrator accepts such
appointment, (iii) the Administrator or Hartford Life gives notice to the Trust
of the identity and necessary notice information of the successor Administrator,
and (iv) the Administrator has obtained the prior written confirmation of any
Rating Agency that such action will not result in a reduction or withdrawal of
its then current ratings, if any, of the Program and/or the Notes as applicable.
Upon such notice, (x) the Administrator, in its capacity as Trust Beneficial
Owner, shall arrange for the transfer of each Trust Beneficial Interest
purchased by it in accordance with the Trust Agreement to the successor
Administrator (or to such other Person as specified by the Trust) with such
transfer(s) to become effective upon the satisfaction of the conditions set
forth in clause (i), (ii), (iii) and (iv) of the immediately preceding sentence
and (y) the Administrator shall be paid all accrued and unpaid amounts owed to
the Administrator under its Expense and Indemnity Agreement with Hartford Life.
Section 6. OBLIGATION TO SUPPLY INFORMATION.
The Delaware Trustee shall forward to the Administrator such
information (which is in the possession of the Trust or the Delaware Trustee) in
connection with the Issuance Documents and this Administrative Services
Agreement as the Administrator may from time to time reasonably request in
connection with the performance of its obligations hereunder. The Administrator
will (i) hold and safely maintain all records, files, Issuance Documents and
other material of the Trust and (ii) permit the Trust, the Delaware Trustee, and
each of their respective officers, directors, agents and consultants on
reasonable notice at any time and from time to time during normal business hours
to inspect, audit, check and make abstracts from the accounts, records,
correspondence, documents and other materials of the Trust or relating to the
provision of services and facilities under this Administrative Services
Agreement.
Section 7. THE ADMINISTRATOR'S LIABILITY, STANDARD OF CARE.
The Administrator assumes no liability for anything other than the
services rendered by it pursuant to SECTIONS 2, 3 AND 11 hereof and neither the
Administrator nor any of its directors, officers, employees or affiliates shall
be responsible for any action, failure to act or omission of the Trust, the
Delaware Trustee or the officers or employees thereof taken outside the scope of
SECTIONS 2, 3 AND 11 hereof and without direction from the Administrator.
Without
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limiting the generality of the foregoing, it is agreed that the Administrator
assumes no liability with respect to any of the Trust's obligations under the
Operative Documents.
The Administrator shall not perform, endeavor to perform or agree to
perform any act on behalf of the Trust not specifically required or permitted
under the Operative Documents.
The Administrator shall perform its duties hereunder diligently, in
conformity with the Trust's obligations under the Operative Documents and
applicable laws and regulations and in accordance with the same standard of care
exercised by a prudent person in connection with the performance of the same or
similar duties and, in no event with less care than the Administrator exercises
or would exercise in connection with the same or similar obligations if those
obligations were the direct obligations of the Administrator.
Section 8. LIMITED RECOURSE TO TRUST.
Notwithstanding any provision to the contrary contained herein, all
obligations of the Trust hereunder shall be payable by the Trust only on a
payment date of the Notes and only to the extent of funds available therefor
under the Indenture and, to the extent such funds are not available or are
insufficient for the payment thereof, shall not constitute a claim against the
Trust to the extent of such unavailability or insufficiency until such time as
the Collateral held in the Trust has produced proceeds sufficient to pay such
prior deficiency. This SECTION 8 shall survive the termination of this
Administrative Services Agreement.
Section 9. NO RECOURSE.
The obligations of the Trust hereunder are solely the obligations of
the Trust and no recourse shall be had with respect to this Administrative
Services Agreement or any of the obligations of the Trust hereunder or for the
payment of any fee or other amount payable hereunder or for any claim based on,
arising out of or relating to any provision of this Administrative Services
Agreement against any trustee, employee, settlor, affiliate, agent or servant of
the Trust. This SECTION 9 shall survive the termination of this Administrative
Services Agreement.
Section 10. RELIANCE ON INFORMATION OBTAINED FROM THIRD PARTIES.
The Trust recognizes that the accuracy and completeness of the records
maintained and the information supplied by the Administrator hereunder is
dependent upon the accuracy and completeness of the information obtained by the
Administrator from the parties to the Issuance Documents and other sources and
the Administrator shall not be responsible for any inaccurate or incomplete
information so obtained or for any inaccurate or incomplete records maintained
by the Administrator hereunder that may result therefrom. The Administrator
shall have no duty to investigate the accuracy or completeness of any
information provided to it and shall be entitled to fully rely on all such
information provided to it.
Section 11. TAX RETURNS.
The Administrator shall, or shall cause accountants retained by it, to
prepare and file, consistent with the tax treatment of the Trust described in
SECTION 17, all United States
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federal, state and local income tax and information returns and reports required
to be filed with respect to the Trust and the Notes under any applicable
federal, state or local tax statute or any rule or regulation under any of them.
The Administrator shall keep copies of or cause copies to be kept of any such
tax information returns and reports prepared and filed and shall provide a copy
of each such return and report to the Delaware Trustee.
Section 12. NOTICES.
All notices, demands, instructions and other communications required
or permitted to be given to or made upon either party hereto shall be in writing
(including by facsimile transmission) and shall be personally delivered or sent
by guaranteed overnight delivery or by facsimile transmission (to be followed by
personal or guaranteed overnight delivery) and shall be deemed to be given for
purposes of this Administrative Services Agreement on the day that such writing
is received by the intended recipient thereof in accordance with the provisions
of this SECTION 12. Unless otherwise specified in a notice sent or delivered in
accordance with the foregoing provisions of this Section, notices, demands,
instructions and other communications in writing shall be given to or made upon
the respective parties thereto at their respective addresses (or their
respective telecopy numbers) indicated below:
The Trust:
Hartford Life Global Funding (followed by the number of the Trust)
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
The Administrator:
AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxxx Helpern Syracuse & Hirschtritt LLP
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
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Section 13. AMENDMENT.
No waiver, alteration, modification, amendment or supplement of the
terms of this Administrative Services Agreement shall be effective unless (i)
accomplished by written instrument signed by the parties hereto, (ii) at any
time after the issuance of any Trust Securities and for so long as any Trust
Securities remain outstanding, each Rating Agency has confirmed in writing that
such action will not result in reduction or withdrawal of its then current
ratings, if any, of the Program and/or the Notes, as applicable and (iii) if
such waiver, alteration, modification, amendment or supplement affects the
rights or duties of the Delaware Trustee hereunder, the Delaware Trustee has
given its consent to such waiver, alteration, modification, amendment or
supplement. The Trust shall provide each Rating Agency with a copy of each such
waiver, alteration, modification, amendment or supplement. Notwithstanding
anything in this SECTION 13 to the contrary, no waiver, alteration,
modification, amendment or supplement to the terms of this Administrative
Services Agreement shall be effective without the prior written consent of
Hartford Life.
Section 14. NO JOINT VENTURE.
Nothing contained in this Administrative Services Agreement shall
constitute the Trust and the Administrator as members of any partnership, joint
venture, association, syndicate or unincorporated business.
Section 15. ASSIGNMENT.
Except as set forth in this SECTION 15, and subject to the rights of
the Administrator to subcontract pursuant to SECTION 2 hereof, this
Administrative Services Agreement may not be assigned by either party without
(i) the prior written consent of the other party and (ii) the prior written
confirmation of each Rating Agency that such action will not result in a
reduction or withdrawal of its then current ratings, if any, of the Program
and/or the Notes, as applicable. Subject to the foregoing, this Administrative
Services Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Any party's transfer or
assignment in violation of this SECTION 15 shall be void as to the other party.
Section 16. GOVERNING LAW, CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL.
PURSUANT TO SECTION 5-1401 OF THE GENERAL OBLIGATION LAWS OF THE STATE
OF
NEW YORK, THIS ADMINISTRATIVE SERVICES AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. EACH PARTY
HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY
NEW YORK STATE
COURT SITTING IN
NEW YORK CITY FOR PURPOSES OF ALL LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS ADMINISTRATIVE SERVICES AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH
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IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO HEREBY
CONSENTS TO PROCESS BEING SERVED IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT
TO THIS ADMINISTRATIVE SERVICES AGREEMENT, OR ANY DOCUMENT DELIVERED PURSUANT
HERETO BY THE MAILING OF A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, RETURN RECEIPT REQUESTED, TO ITS RESPECTIVE ADDRESS SPECIFIED AT THE
TIME FOR NOTICES UNDER THIS ADMINISTRATIVE SERVICES AGREEMENT OR TO ANY OTHER
ADDRESS OF WHICH IT SHALL HAVE GIVEN WRITTEN NOTICE TO THE OTHER PARTIES. THE
FOREGOING SHALL NOT LIMIT THE ABILITY OF ANY PARTY HERETO TO BRING SUIT IN THE
COURTS OF ANY OTHER JURISDICTION.
EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A
TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS ADMINISTRATIVE SERVICES AGREEMENT OR ANY TRANSACTION.
Section 17. TRUST TAX CHARACTERIZATION.
The Administrator agrees, for United States federal, state and local
income and franchise tax purposes, to (i) disregard the Trust, and (ii) treat
the Notes and the Trust Beneficial Interest of the Trust as debt of Hartford
Life. The Administrator covenants that it shall take no action inconsistent with
such treatment (including under Treasury Regulations Sections 301.7701-2 or
301.7701-3, the "check-the-box" regulations). To the extent that it is
ultimately determined that the Trust cannot be disregarded for United States
federal, state or local income or franchise tax purposes, the Administrator
agrees to treat (i) the Trust as a "grantor trust" under Subpart E of Part I of
Subchapter J of the Code (or the state or local equivalent), owned by the
Holders of beneficial interests in the Notes and the Trust Beneficial Owner and
(ii) the Funding Agreement as debt of Hartford Life. The Administrator will not
take any action that it knows could cause the Trust not to be disregarded or
treated as a grantor trust (assuming the Trust were not disregarded) for United
States federal, state or local income or franchise tax purposes.
Section 18. LIMITATION OF DELAWARE TRUSTEE LIABILITY.
Notwithstanding any provision hereof to the contrary, it is expressly
understood and agreed by the parties that (a) this Administrative Services
Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally, but solely as Delaware Trustee, in the exercise of
the powers and authority conferred and vested in it, pursuant to the Trust
Agreement, (b) each of the representations, undertakings and agreements herein
made on the part of the Trust is made and intended not as personal
representations, undertakings and agreements by the Delaware Trustee but is made
and intended for the purpose of binding only the Trust, (c) nothing herein
contained shall be construed as creating any liability on the Delaware Trustee,
individually or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties hereto and by any person claiming by, through or under the parties
hereto, and (d) under no
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circumstances shall the Delaware Trustee be personally liable for the payment of
any indebtedness or expenses of the Trust or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Trust under this Administrative Services Agreement or any other related
documents.
Section 19. SECTION HEADINGS.
Section headings used in this Administrative Services Agreement are
for convenience only and shall not affect the construction of this
Administrative Services Agreement.
Section 20. NONPETITION COVENANT.
Notwithstanding any prior termination of this Administrative Services
Agreement, the Administrator as such shall not acquiesce, petition or otherwise,
directly or indirectly, invoke or cause the Trust to invoke the process of any
governmental authority for the purpose of commencing or sustaining a case
against the Trust under any Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust or any substantial part of
its property or ordering the winding up or liquidation of the affairs of the
Trust for one year and one day after the last obligation of the Trust has been
paid.
Section 21. SEVERABILITY.
In case one or more of the provisions contained in this Administrative
Services Agreement shall be or shall be deemed to be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. If any provision of this Administrative Services Agreement
shall be or shall be deemed to be illegal, invalid or unenforceable under the
applicable laws and regulations of one jurisdiction, such provision shall not
thereby be rendered illegal, invalid or unenforceable in any other jurisdiction.
Section 22. ADMINISTRATOR TO PROVIDE ACCESS TO BOOKS AND RECORDS.
The Administrator shall provide the Indenture Trustee with access to
the books and records of the Trust, without charge, but only (i) upon the
reasonable request of the Indenture Trustee (for which purpose one Business Day
shall be deemed reasonable during the occurrence and continuation of a Default
or an Event of Default), (ii) during normal business hours, (iii) subject to the
Administrator's normal security and confidentiality procedures and (iv) at
offices designated by the Administrator.
Section 23. NO WAIVER.
No failure on the part of the parties hereto to exercise, and no delay
in exercising, and no course of dealing with respect to, any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof or the exercise of any other right, power or privilege
operate as such a waiver.
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Section 24. REMEDIES CUMULATIVE.
No right, power or remedy of the parties hereunder shall be exclusive
of any other right, power or remedy, but shall be cumulative and in addition to
any other right, power or remedy thereunder or now or hereafter existing by law
or in equity.
Section 25. THIRD PARTY BENEFICIARIES.
The parties hereto acknowledge that the Delaware Trustee shall be an
express third party beneficiary of this Administrative Services Agreement with
respect only to obligations directly owing to it by the Trust, or the
Administrator, entitled in its own name and on its own behalf to enforce the
provisions hereof against the Trust and the Administrator, severally but not
jointly, with respect to obligations owed to the Delaware Trustee by either the
Trust or the Administrator; PROVIDED, HOWEVER, that such right shall be valid
only for so long as the Delaware Trustee has any outstanding obligations or
potential obligations under the Trust Agreement.
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