Exhibit 4.7
STANDARD TRUST AGREEMENT TERMS
WITH RESPECT TO
HARTFORD LIFE GLOBAL FUNDING
SECURED MEDIUM-TERM NOTES AND INCOME NOTES
DATED AS OF DECEMBER 2, 2005
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions 1
Section 1.02 Usage of Terms 5
Section 1.03 Section References 6
ARTICLE 2
CREATION OF TRUST
Section 2.01 Name of the Trust 6
Section 2.02 Office of the Delaware Trustee; Principal Place of Business 6
Section 2.03 Statutory Trust 6
Section 2.04 Trust Beneficial Interest 6
Section 2.05 Issuance of the Notes 6
Section 2.06 Acquisition of Funding Agreement 6
Section 2.07 Security Interest in the Collateral 7
Section 2.08 Purposes of the Trust 7
Section 2.09 Title to Collateral 7
Section 2.10 Payment of Trust Expenses 7
Section 2.11 Liability 7
Section 2.12 Income Tax Treatment; Tax Returns and Reports 7
Section 2.13 Situs of Trust 8
ARTICLE 3
PAYMENT ACCOUNT
Section 3.01 Payment Account 8
ARTICLE 4
TRUST SECURITIES
Section 4.01 Initial Ownership 9
Section 4.02 Notes 9
Section 4.03 Registration of Transfer of Trust Beneficial Interest 9
Section 4.04 Persons Deemed Holders of Trust Securities 9
Section 4.05 Maintenance of Office 9
Section 4.06 Ownership of the Trust Beneficial Interest 10
i
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01
Delaware Trustee 10
Section 5.02 Trust Beneficial Owner 11
ARTICLE 6
DELAWARE TRUSTEE
Section 6.01 General Authority 11
Section 6.02 General Duties 16
Section 6.03 Specific Duties 16
Section 6.04 Acceptance of Trust and Duties; Limitation on Liability 17
Section 6.05 Reliance; Advice of Counsel 20
Section 6.06 Delegation of Authorities and Duties 21
Section 6.07 Compensation; Indemnities 21
ARTICLE 7
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 7.01 Dissolution Upon the Last Expiration Date 21
Section 7.02 Termination of Agreement 21
Section 7.03 Liquidation 22
ARTICLE 8
SUCCESSOR AND ADDITIONAL
DELAWARE TRUSTEES
Section 8.01 Eligibility Requirements for the
Delaware Trustee 22
Section 8.02 Resignation or Removal of the
Delaware Trustee 22
Section 8.03 Successor
Delaware Trustee 23
Section 8.04 Merger or Consolidation of
Delaware Trustee 24
Section 8.05 Appointment of Co-
Delaware Trustee or Separate
Delaware Trustee 24
Section 8.06 Delaware Trustee May Own Notes 25
ARTICLE 9
VOTING; ACTS OF SECURITYHOLDERS; MEETINGS
Section 9.01 Limitations on Voting Rights 25
Section 9.02 Meetings of the Trust Beneficial Owner 25
ii
ARTICLE 10
MISCELLANEOUS PROVISIONS
Section 10.01 Limitation on Rights of Securityholders 26
Section 10.02 Amendment 26
Section 10.03 Notice 27
Section 10.04 No Recourse 28
Section 10.05 No Petition 28
Section 10.06 Governing Law 28
Section 10.07 Severability 29
Section 10.08 Trust Securities Nonassessable and Fully Paid 29
Section 10.09 Third-Party Beneficiaries 29
iii
STANDARD
TRUST AGREEMENT TERMS
This document constitutes the Standard
Trust Agreement Terms, dated as
of December 2, 2005, that may be incorporated by reference in one or more
Trust
Agreements (included in the Omnibus Instrument, as defined below) by and
between the Delaware Trustee and the Administrator and the Trust Beneficial
Owner.
These Standard
Trust 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, a
Trust Agreement.
The following terms and provisions shall govern the activities of each
Delaware statutory trust created under the Program (as defined below) subject to
contrary terms and provisions expressly adopted in any
Trust Agreement which
contrary terms shall be controlling.
ARTICLE 1
DEFINITIONS
Section 1.01 DEFINITIONS. The following terms have the meanings set forth
below:
"ADMINISTRATIVE SERVICES AGREEMENT" means that certain Administrative
Services Agreement by and between the Delaware Trustee on behalf of the Trust
and other trusts formed under the Program (as acknowledged and agreed to by
the Trust pursuant to the Coordination Agreement contained in the Omnibus
Instrument) and the Administrator, as the same may be amended, modified or
supplemented from time to time.
"ADMINISTRATOR" means the party named as such in the preamble to the
Agreement, in its capacity as the sole administrator of the Trust pursuant to
the Administrative Services Agreement, and shall also include its permitted
successors and assigns.
"AFFILIATE" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with, that Person
and, in the case of an individual, any spouse or other member of that
individual's immediate family. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGREEMENT" means the
Trust Agreement, included in the Omnibus Instrument,
by and among the Delaware Trustee, the Administrator and the Trust Beneficial
Owner, as amended or supplemented from time to time which incorporates by
reference these Standard
Trust Agreement Terms.
"BUSINESS DAY" has the meaning specified in the Indenture.
"CALCULATION AGENT" has the meaning set forth in the Indenture.
"CERTIFICATE OF TRUST" means the Certificate of Trust of the Trust as filed
with the Secretary of State of the State of Delaware.
"CODE" means the Internal Revenue Code of 1986, as amended, including any
successor or amendatory statutes and any applicable rules, regulations, notices
or orders promulgated thereunder.
"COLLATERAL" means, with respect to the Notes, the right, title and
interest of the Trust in and to (a) the Funding Agreement held in the Trust, (b)
all proceeds of the Funding Agreement and all amounts and instruments on deposit
from time to time in the Collection Account, (c) all books and records
pertaining to the Funding Agreement, and (d) all rights of the Trust pertaining
to the foregoing.
"COLLECTION ACCOUNT" has the meaning set forth in the Indenture.
"COMMISSION" means the Securities and Exchange Commission or any successor
body performing such duties of the Commission.
"CONTINGENT OBLIGATION" has the meaning set forth in the Indenture.
"CORPORATE TRUST OFFICE" means the principal office of the Delaware Trustee
located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000.
"DELAWARE STATUTORY TRUST ACT" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. (Section ) 3801, ET SEQ., as amended from time to time.
"DELAWARE TRUSTEE" means the party named as such in the preamble to the
Agreement and shall also include its permitted successors and assigns, or any
successor Delaware Trustee appointed as herein provided, acting not in its
individual capacity but solely as Delaware Trustee under the Agreement. If there
shall be at any time more than one Delaware Trustee hereunder, "Delaware
Trustee" shall mean each such Delaware Trustee.
"DISTRIBUTION AGREEMENT" means, with respect to the Notes, that certain
Distribution Agreement, included in the Omnibus Instrument, by and among the
Trust, Hartford Life and the agents named therein relating to the issuance and
sale of the Notes under the Program, as the same may be amended, modified or
supplemented.
"DTC" means The Depository Trust Company and its successors and assigns.
"EXPENSE AND INDEMNITY AGREEMENTS" means those certain Expense and
Indemnity Agreements by and between Hartford Life and each of the Delaware
Trustee, on behalf of the Trust and other trusts formed under the Program, the
Indenture Trustee, and the Administrator and any other expense and indemnity
agreements by and between Hartford Life and any service provider that may
become a party to such agreement from time to time, as the same may be
amended, modified or supplemented from time to time.
"FUNDING AGREEMENT" means that certain funding agreement identified in the
Pricing Supplement by number, entered into by and between Hartford Life and the
Trust and
2
subsequently pledged and collaterally assigned to the Indenture Trustee for the
benefit of the Holders of the Notes, as it may be modified, restated, replaced,
supplemented or otherwise amended from time to time in accordance with the terms
thereof.
"FUNDING AGREEMENT EVENT OF DEFAULT" means an "EVENT OF DEFAULT" as defined
in the Funding Agreement.
"HARTFORD LIFE" means
Hartford Life Insurance Company, a life insurance
company organized and licensed under the laws of the State of Connecticut, or
any successor thereto.
"HOLDER" has the meaning set forth in the Indenture.
"INDEBTEDNESS" has the meaning set forth in the Indenture.
"INDENTURE" means that certain Indenture, included in the Omnibus
Instrument, dated as of the date of the Agreement, between the Trust and the
Indenture Trustee, as the same may at any time be amended, modified or
supplemented from time to time.
"INDENTURE TRUSTEE" means the party named as such in the preamble to the
Indenture and, subject to the provisions of Article 7 of the Indenture, shall
also include its successors and assigns as Indenture Trustee thereunder.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended, as it may be amended or supplemented from time to time, and any
successor statute thereto, and the rules, regulations and published
interpretations of the Commission promulgated thereunder from time to time.
"ISSUANCE DATE" has the meaning specified in the Pricing Supplement.
"ISSUANCE DOCUMENTS" means each Note, the Indenture, the Agreement, the
Administrative Services Agreement, the License Agreement, the Expense and
Indemnity Agreements, the Distribution Agreement, the Funding Agreement and any
other documents or instruments entered into by, or with respect to, or on behalf
of, the Trust.
"LICENSE AGREEMENT" means that certain License Agreement between the
Trust and other trusts formed under the Program, and Hartford Fire Insurance
Company, as the same may be amended, modified or supplemented from time to
time.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including without limitation any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the UCC or comparable law of any jurisdiction).
"NOTES" means the secured notes of the Trust issued pursuant to the
Indenture.
3
"OMNIBUS INSTRUMENT" means the omnibus instrument pursuant to which certain
Issuance Documents are executed.
"PAYING AGENT" has the meaning set forth in the Indenture.
"PAYMENT ACCOUNT" means each segregated non-interest-bearing corporate
trust account for the Trust maintained by the Delaware Trustee in its trust
department in which all amounts paid to the Delaware Trustee in respect of the
Collateral will be held and from which the Delaware Trustee shall make payments
pursuant to SECTION 3.01(b) and ARTICLE 7 hereof, to the extent such amounts are
paid to the Delaware Trustee and deposited in the Payment Account.
"PERSON" means any natural person, corporation, limited partnership,
general partnership, joint stock company, joint venture, association, company,
limited liability company, trust (including any beneficiary thereof), bank,
trust company, land trust, business trust, statutory trust or other
organization, whether or not a legal entity, and governments and agencies and
political subdivisions thereof.
"PRICING SUPPLEMENT" means, the pricing supplement attached to the Omnibus
Instrument, which is prepared by the Trust, in consultation with Hartford Life,
in connection with the issuance by the Trust of its Notes and agreed to by
Hartford Life, the Trust and the agents under the Distribution Agreement, as
such Pricing Supplement may be amended, modified, supplemented or replaced from
time to time.
"PROGRAM" has the meaning set forth in the Indenture.
"RATINGS AGENCIES" means Xxxxx'x Investors Services, Inc., Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., and any
other rating agency which provides a rating for any Notes issued by the Trust.
"REGISTRAR" has the meaning specified in SECTION 4.03.
"REGISTER" has the meaning set forth in the Indenture.
"RESPONSIBLE OFFICER" has the meaning set forth in the Indenture insofar
as such term is defined therein in respect of the Delaware Trustee.
"SEC DOCUMENTS" means (a) any registration statement, including any
preliminary prospectus or prospectus supplement thereto and the exhibits
included therein, any pre-effective or post-effective amendments thereto and any
registration statements filed thereafter under the Securities Act, relating to
the registration under the Securities Act of the Notes and the Funding
Agreement, (b) any Pricing Supplement relating to the Notes and (c) any
documents, filings or forms required to be filed by the Trust under the
Securities Exchange Act of 1934, as amended, or the Trust Indenture Act, or any
securities laws, rules or regulations of any state or any rules or regulations
of any national securities exchange or market quotation dealer system or the
National Association of Securities Dealers, Inc.
"SECRETARY OF STATE" means the Secretary of State of the State of Delaware.
4
"SECURITIES ACT" means the Securities Act of 1933, as it may be amended or
supplemented from time to time, and any successor statute thereto, and the
rules, regulations and published interpretations of the Commission promulgated
thereunder from time to time.
"SECURITIES REGISTER" has the meaning specified in SECTION 4.03.
"SECURITYHOLDER" means each Person in whose name any Trust Security is
registered in the Securities Register or Register.
"STANDARD
TRUST AGREEMENT TERMS" means this document, the Standard Trust
Agreement Terms.
"STANDING ORDER" has the meaning set forth in SECTION 3.01(d).
"TRANSFER AGENT" has the meaning specified in the Indenture.
"TRUST" means the Hartford Life Global Funding Trust specified in the
Agreement, together with its permitted successors and assigns.
"TRUST BENEFICIAL INTEREST" means the undivided beneficial interest in the
assets held in the Trust, having such rights as provided for herein.
"TRUST BENEFICIAL OWNER" means the Person identified as the "Trust
Beneficial Owner" in the preamble to the Agreement, in its capacity as the sole
beneficial owner of the Trust.
"TRUST EXPENSES" means any liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to the Trust.
"TRUST EXPIRATION DATE" means the later of the date specified as such in
the Pricing Supplement or such other date as all of the outstanding Notes are
redeemed in full by the Trust, which in any event shall be a date no later than
forty (40) years after the Issuance Date.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as it may be
amended or supplemented from time to time, and any successor statute thereto,
and the rules, regulations and published interpretations of the Commission
promulgated thereunder from time to time.
"TRUST SECURITY" means a Note or the Trust Beneficial Interest.
"UCC" means the Uniform Commercial Code, as from time to time in effect in
the State of New York; PROVIDED THAT, with respect to the perfection, effect of
perfection or non-perfection, or priority of any security interest in the
Collateral, "UCC" shall mean the applicable jurisdiction whose law governs such
perfection, non-perfection or priority.
Section 1.02 USAGE OF TERMS. With respect to all terms used in the
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography, facsimile, electronic transmissions and other
means of reproducing words in a visible form; references to agreements and other
contractual instruments include all subsequent amendments hereto or changes
herein
5
entered into in accordance with their respective terms and not prohibited by the
Agreement; references to Persons include their permitted successors and assigns;
and the terms "include" or "including" mean "include without limitation" or
"including without limitation."
Section 1.03 SECTION REFERENCES. All references to Articles, sections,
paragraphs, subsections, exhibits and schedules shall be to such portions of
these Standard Trust Agreement Terms unless otherwise specified.
ARTICLE 2
CREATION OF TRUST
Section 2.01 NAME OF THE TRUST. The Trust created under the Agreement
shall have the name specified in the Agreement. The Trust's activities shall be
conducted under the name of the Trust.
Section 2.02 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.
The principal office of the Trust shall be in care of the Delaware Trustee at
the Corporate Trust Office, or such other address in the State of Delaware as
the Delaware Trustee may designate by written notice to the Trust Beneficial
Owner, the Indenture Trustee, the Administrator and the Ratings Agencies.
Section 2.03 STATUTORY TRUST. It is the intention of the parties hereto
that the Trust constitute a statutory trust organized under the Delaware
Statutory Trust Act and that the Agreement constitute the governing instrument
of the Trust. Pursuant to Section 3810 of the Delaware Statutory Trust Act, the
Delaware Trustee shall file a Certificate of Trust with the Delaware Secretary
of State to form the Trust. The parties hereto hereby appoint the Delaware
Trustee as trustee of the Trust, to have all rights, powers and duties set forth
herein and in accordance with the applicable law with respect to accomplishing
the purposes of the Trust.
Section 2.04 TRUST BENEFICIAL INTEREST. Contemporaneously with the
execution and delivery of the Agreement, the Delaware Trustee, on behalf of the
Trust, shall cause the Trust Beneficial Owner to be recorded as the registered
owner of the Trust Beneficial Interest on the Trust's Securities Register,
against payment of $15 by the Trust Beneficial Owner to, or to an account at the
direction of, the Delaware Trustee.
Section 2.05 ISSUANCE OF THE NOTES. Contemporaneously with the execution
and delivery of the Agreement, the Trust shall enter into the Indenture and, in
accordance with the Indenture, issue and deliver or cause to be issued and
delivered the aggregate principal amount of the Notes, specified in the related
Pricing Supplement or supplement to the Indenture against payment therefor. The
Holders of the Notes shall only have a right to receive payments from the
Collateral as described in the Indenture and shall have no right to receive
payments under the assets held in any other trust organized under the Program.
Section 2.06 ACQUISITION OF FUNDING AGREEMENT. Contemporaneously with the
issuance and delivery of the Notes, the Trust shall acquire the Funding
Agreement.
6
Section 2.07 SECURITY INTEREST IN THE COLLATERAL. Contemporaneously with
the issuance and delivery of the Notes, pursuant to the Indenture, the Trust
shall collaterally assign and grant to the Indenture Trustee, for the benefit of
the Holders of such Notes, a first priority perfected security interest in and
to the Collateral, including, without limitation, the Funding Agreement
purchased by the Trust.
Section 2.08 PURPOSES OF THE TRUST. The exclusive purposes and functions
of the Trust are (a) to issue and sell the Notes and the Trust Beneficial
Interest, (b) to use the proceeds of the sale of the Notes and the Trust
Beneficial Interest to acquire the Funding Agreement, (c) to pay amounts due in
respect of the Notes and the Trust Beneficial Interest, (d) to enter into the
agreements and to take such actions as the Delaware Trustee has the power and
authority to take pursuant to SECTION 6.01, as applicable, and (e) to engage in
those activities necessary, advisable or incidental thereto (such as registering
the transfer of the Trust Securities).
Section 2.09 TITLE TO COLLATERAL. Legal title to the Collateral shall be
vested at all times in the Trust as a separate legal entity and shall be held
and administered by the Delaware Trustee for the benefit of the Trust and the
Trust Beneficial Owner, subject to the rights and interests of the Indenture
Trustee, on behalf of the Holders of Notes, under the Indenture.
Section 2.10 PAYMENT OF TRUST EXPENSES. Any costs and expenses of the
Trust shall be paid by Hartford Life pursuant to the Expense and Indemnity
Agreements to the extent provided therein.
Section 2.11 LIABILITY. The Delaware Trustee and the Holders of the Notes
shall have no personal liability for any liability or obligation of the Trust.
The Trust Beneficial Owner shall be entitled to the same limitations of personal
liability extended to beneficial owners under the Delaware Statutory Trust Act.
Section 2.12 INCOME TAX TREATMENT; TAX RETURNS AND REPORTS.
(a) The Trust and the Trust Beneficial Owner agree, and by acceptance of
a beneficial interest in a Note each holder of a beneficial interest in a Note
agrees, for United States federal, state and local income and franchise tax
purposes, to (i) disregard the Trust, and (ii) to treat the Notes and Trust
Beneficial Interest of the Trust as debt of Hartford Life. The Trust 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 the Trust cannot be disregarded for United States
federal, state or local income or franchise tax purposes, the Trust and the
Trust Beneficial Owner agree, and by acceptance of a beneficial interest in a
Note each holder of a beneficial interest in a Note 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 of the Trust and the Trust Beneficial Owner and (ii) the Funding
Agreement as debt of Hartford Life.
(b) The Administrator shall, pursuant to the Administrative Services
Agreement, prepare and file or cause to be prepared and filed, consistent with
the treatment of the Trust described in SECTION 2.12(a), all 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,
7
state or local tax statute or any rule or regulation under any of them. At the
request of the Administrator, the Delaware Trustee shall sign any federal, state
or local income tax and information returns and reports prepared by, or at the
direction of, the Administrator pursuant to this SECTION 2.12. The Delaware
Trustee shall keep copies or cause copies to be kept of any such tax and
information returns (including Internal Revenue Service Form 1041) and reports
prepared and filed and provided to it by the Administrator.
Section 2.13 SITUS OF TRUST. The Trust shall be located in the State of
Delaware and administered in the State of Delaware subject to the activities of
the Administrator in the State of North Carolina. All bank accounts maintained
by the Delaware Trustee on behalf of the Trust shall be located in the State of
Delaware except that those accounts established under the Indenture shall be
maintained with the Indenture Trustee in accordance with the Indenture. The
Trust shall not have any employees in any state other than in the State of
Delaware. Except as set forth in the Issuance Documents, payments will be
received by the Trust only in the State of Delaware and payments will be made by
the Trust only from the State of Delaware.
ARTICLE 3
PAYMENT ACCOUNT
Section 3.01 PAYMENT ACCOUNT.
(a) Subject to SECTION 3.01(d) herein, on the Issuance Date, the Delaware
Trustee shall establish a Payment Account. The Delaware Trustee and any agent of
the Delaware Trustee shall have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with the Agreement and the
Indenture. Subject to the Indenture and subject to SECTION 3.01(d), all monies
or other property received by the Delaware Trustee on behalf of the Trust in
respect of the Collateral will be deposited in the Payment Account. All monies
and other property deposited or held from time to time in the Payment Account
shall be held by the Delaware Trustee in the Payment Account for the exclusive
benefit of the Trust Beneficial Owner, subject to the security interest in the
Collateral in favor of the Indenture Trustee on behalf of the Holders of the
Notes, and for distribution by the Delaware Trustee as herein provided,
including (and subject to) any priority of payments provided for herein.
(b) Except for payments made on the Trust Expiration Date or otherwise
pursuant to SECTION 7.03 of the Agreement and subject to SECTION 3.01(a) of the
Agreement, all monies and other property deposited into the Payment Account
shall be distributed by the Trust as follows:
FIRST, to the Indenture Trustee for the payment of all amounts then due and
unpaid upon the Notes, if any, in accordance with the Indenture; and
SECOND, to the Trust Beneficial Owner all of the amounts that would be
payable under clause first of Section 5.02 of the Indenture to the Trust
Beneficial Owner if the Trust Beneficial Owner held a Note with an original
principal amount of $15. Any remaining monies and other property deposited into
the Payment Account shall be distributed ratably in proportion to their original
principal amounts to the Holders last noted in the Register as the Holders of
the Notes
8
and the Trust Beneficial Owner (as if the Trust Beneficial Owner held a Note
with an original principal amount of $15).
(c) The Delaware Trustee shall deposit in the Payment Account, promptly
upon receipt, any payments received with respect to the Collateral. Amounts held
in the Payment Account shall not be invested by the Delaware Trustee pending the
distribution of such amounts to cover the Trust's obligations on the Notes or
the Trust Beneficial Interest.
(d) Notwithstanding anything herein to the contrary, the Delaware
Trustee, on behalf of the Trust, shall issue a standing order (the "Standing
Order") to the Indenture Trustee pursuant to which the Indenture Trustee shall
distribute all amounts due and unpaid under clause second of SECTION 3.01(b)
herein; PROVIDED, HOWEVER, that all payments to be made by the Trust to the
Trust Beneficial Owner on the Trust Expiration Date or otherwise pursuant to
SECTION 7.03 herein shall be made by the Delaware Trustee on behalf of the
Trust.
ARTICLE 4
TRUST SECURITIES
Section 4.01 INITIAL OWNERSHIP. Upon the creation of the Trust, the Trust
Beneficial Owner shall be the sole beneficial owner of such Trust.
Section 4.02 NOTES.
The Notes will be issued pursuant to and be governed by the Indenture.
Section 4.03 REGISTRATION OF TRANSFER OF TRUST BENEFICIAL INTEREST.
(a) The Delaware Trustee or its agent (in this capacity, the "REGISTRAR")
shall maintain a register or registers for the Trust for the purpose of
registering the transfer of the Trust Beneficial Interest (a "SECURITIES
REGISTER").
(b) The Registrar shall not be required to register the transfer of the
Trust Beneficial Interest in any manner inconsistent with the terms of the
Agreement or the Indenture.
Section 4.04 PERSONS DEEMED HOLDERS OF TRUST SECURITIES. The Delaware
Trustee, Administrator and the Registrar shall treat the Person in whose name
any Trust Beneficial Interest is registered as the owner of such Trust
Beneficial Interest for all purposes whatsoever, and none of the Delaware
Trustee, Administrator and the Registrar shall be bound by any notice to the
contrary. The Delaware Trustee and the Administrator shall treat the Person
determined in accordance with Section 2.11 of the Indenture as the owner of the
Note(s) for all purposes whatsoever, and neither the Delaware Trustee nor the
Administrator shall be bound by any notice to the contrary.
Section 4.05 MAINTENANCE OF OFFICE. Subject to the provisions of the
Indenture, the Delaware Trustee shall maintain an office or offices where
notices and demands to or upon the Delaware Trustee in respect of the Trust
Securities may be served. The Delaware Trustee initially designates its
Corporate Trust Office as the office for such purposes. The Delaware
9
Trustee shall give prompt written notice to the Trust Beneficial Owner and the
Indenture Trustee of any change in the location of the register or any office or
agency.
Section 4.06 OWNERSHIP OF THE TRUST BENEFICIAL INTEREST. On the Issuance
Date of the Trust, the Trust Beneficial Owner shall acquire and retain
beneficial and record ownership of the Trust Beneficial Interest. To the fullest
extent permitted by law, any attempted transfer of the Trust Beneficial Interest
shall be void.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01 DELAWARE TRUSTEE. The Delaware Trustee represents and
warrants for the benefit of the Securityholders as follows:
(a) it is a banking corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and it is a "bank" within
the meaning of Section 581 of the Code;
(b) it is a "United States person" within the meaning of Section
7701(a)(30) of the Code;
(c) it has full corporate or other power, authority and legal right to
execute, deliver and perform its obligations under the Agreement and has taken
all necessary action to authorize the execution, delivery and performance by it
of the Agreement;
(d) the Agreement has been duly authorized, executed and delivered by it
and constitutes the valid and legally binding agreement of it enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity;
(e) neither the execution or delivery by it of the Agreement, nor the
performance by it of its obligations hereunder or thereunder, will (i) violate
its organizational documents, (ii) violate any provision of, or constitute, with
or without notice or lapse of time, a default under, or result in the creation
or imposition of any Lien on any properties or assets held in the Trust pursuant
to the provisions of, any indenture, mortgage, credit agreement, license or
other agreement or instrument to which it is a party or by which it is bound, or
(iii) violate any law, governmental rule or regulation of the State of Delaware
or the United States governing the banking, trust or general powers of it or any
order, judgment or decree applicable to it;
(f) the authorization, execution or delivery by it of the Agreement and
the consummation of any of the transactions by it contemplated hereby or thereby
do not require the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency (other than the filing of the Certificate of
Trust with the Secretary of State); and
10
(g) there are no proceedings pending or, to the best of its knowledge,
threatened against or affecting it in any court or before any governmental
authority, agency or arbitration board or tribunal which, individually or in the
aggregate, would materially and adversely affect the Trust or would question the
right, power and authority of it to enter into or perform its obligations under
the Agreement.
Section 5.02 TRUST BENEFICIAL OWNER. The Trust Beneficial Owner hereby
represents and warrants that, to the fullest extent permitted by law, it has
irrevocably waived any right or interest it may have under the Agreement, by
operation of law or equity, to direct or otherwise require the Delaware Trustee
to initiate or consent to any bankruptcy, insolvency or receivership
proceedings.
ARTICLE 6
DELAWARE TRUSTEE
Section 6.01 GENERAL AUTHORITY.
(a) The Delaware Trustee shall conduct the affairs of the Trust in
accordance with the terms of the Agreement. In addition to any other duties
under the Agreement, the Delaware Trustee shall be the trustee of the Trust for
the purpose of fulfilling the requirements of Section 3807 of the Delaware
Statutory Trust Act. Subject to the limitations set forth in SECTION 6.01(b)
hereof, the Delaware Trustee shall have the power and authority to act on behalf
of the Trust, with respect to the following matters:
(i) to execute and deliver the Notes and Trust Beneficial
Interest in accordance with the Agreement and the Indenture;
(ii) to cause the Trust to perform the Agreement and to enter
into, and to execute, deliver and perform on behalf of itself, the
Indenture, the Distribution Agreement, the Trust Securities, the License
Agreement, the Expense and Indemnity Agreements, the Administrative
Services Agreement, the Funding Agreement and such other certificates,
other documents or agreements as may be necessary, contemplated by or
desirable in connection with the purposes and function of the Trust or any
of the above-referenced agreements;
(iii) subject to the Indenture, to purchase, receive and maintain
custody of the Funding Agreement and to exercise all of the rights, powers
and privileges of an owner or policyholder of the Funding Agreement;
(iv) to grant to the Indenture Trustee a first priority perfected
security interest in the Collateral for the Notes and to collaterally
assign the rights, title and interest of the Trust in such Collateral to
the Indenture Trustee for the benefit of the Holders of the Notes and to
seek release of such security interest upon payment in full of all amounts
required to be paid with respect to the Notes pursuant to the terms and
conditions of the Notes or the Indenture;
(v) to establish the Payment Account and issue the Standing
Order;
11
(vi) to cause any transfer of the Trust Beneficial Interest to be
registered in accordance with the Agreement;
(vii) to send notices regarding the Trust Securities and the
Funding Agreement to Hartford Life, the Indenture Trustee, the Ratings
Agencies, the Trust Beneficial Owner and the agents appointed under the
Distribution Agreement in accordance with the Funding Agreement and the
Agreement;
(viii) subject to the Administrative Services Agreement, to take
all actions necessary or appropriate (based solely upon the advice of
counsel or direction from the Administrator) to enable the Trust to comply
with SECTION 2.12 hereof regarding income tax treatment, tax returns and
information reporting;
(ix) after the occurrence of a Funding Agreement Event of Default
actually known to a Responsible Officer of the Delaware Trustee, subject to
the Indenture, to take any action as it may from time to time determine
(based solely upon the advice of counsel or direction from the
Administrator) is necessary or advisable to give effect to the terms of the
Agreement and to protect and conserve the Collateral for the benefit of
each Securityholder (without consideration of the effect of any such action
on any particular Securityholder) and, promptly, and in no event later than
five Business Days, after the occurrence of a Funding Agreement Event of
Default actually known to a Responsible Officer of the Delaware Trustee, to
give notice thereof to the Trust Beneficial Owner and the Indenture
Trustee;
(x) to the extent permitted by the Agreement, to participate in
the winding up of the affairs of and liquidation of the Trust and assist
with the preparation, execution and filing of a certificate of cancellation
with the Secretary of State;
(xi) subject to the Indenture, to take any action and to execute
any documents on behalf of the Trust, incidental to the foregoing as the
Delaware Trustee may from time to time determine (based on the advice of
counsel or direction from the Administrator) is necessary or advisable to
give effect to the terms of the Agreement for the benefit of each
Securityholder (without consideration of the effect of any such action on
any particular Securityholder);
(xii) to execute and deliver all supplements and amendments to
the Indenture and all such financing statements, continuation statements,
instruments of further assurance, and other instruments, and take such
other action as may be necessary or advisable to: (i) create, perfect or
maintain a perfected security interest in, grant, or make or maintain a
valid and effective assignment for collateral purposes of, all or any
portion of the Collateral (including without limitation the Funding
Agreement included therein); (ii) maintain or preserve any Lien of the
Indenture or the Funding Agreement or carry out more effectively the
purposes thereof; (iii) perfect, publish notice of, or protect the
validity of, any security interest or assignment for collateral purposes
made pursuant to the Indenture or the Funding Agreement; (iv) enforce any
portion, or obtain the full benefits, of the Collateral (including
without limitation the Funding Agreement included therein); and
(v) preserve
12
and defend title to the Collateral and the rights of the Indenture Trustee
and of the Holders in the Collateral held for the benefit and security of
the Holders or other instrument against the claims of all Persons;
(xiii) to pay or cause to be paid all taxes and fees incidental
to any filing, registration and recording pursuant to subsection (xii),
above, and all expenses incidental to the preparation, execution and
acknowledgment of any instrument of further assurance, and all Federal or
state or jurisdiction of organization of the Trust stamp taxes or other
similar taxes, duties and charges arising out of or in connection with
the execution and delivery of such instruments; PROVIDED, HOWEVER, that
the Delaware Trustee shall not be required to pay or discharge or cause
to be paid or discharged any Lien affecting the Collateral to the extent
such Lien is being contested in good faith by appropriate proceedings;
(xiv) to do or cause to be done all things necessary to preserve
and keep in full force and effect the Trust's existence, rights (charter
and statutory) and franchises as a Delaware statutory trust;
(xv) to send, promptly after any amendment or modification of
the Agreement, copies thereof to the Indenture Trustee and the Ratings
Agencies;
(xvi) to execute and file documents with the Secretary of State;
and
(xvii) to accept service of process on behalf of the Trust in the
State of Delaware.
It is expressly understood and agreed that the Delaware Trustee shall be
entitled to engage outside counsel, independent accountants, the Administrator
and other experts appointed with due care to assist the Delaware Trustee in
connection with the performance of its duties and powers set forth in this
SECTION 6.01(a), including, without limitation, the preparation of all tax
reports and returns, securities law filings, certificates, reports, opinions,
notices or any other documents. The Delaware Trustee shall be entitled to rely
conclusively on the advice of such counsel, accountants, the Administrator and
other experts in the performance of all its duties hereunder and shall have no
liability for any documents prepared by such counsel, accountants, the
Administrator or experts or any action or inaction taken pursuant to the advice
of such counsel, accountants or experts. Any expenses of such counsel,
accountants, the Administrator and experts shall be paid by Hartford Life in
accordance with the Expense and Indemnity Agreements to the extent provided
therein. In furtherance of the foregoing, pursuant to the Administrative
Services Agreement, the Trust shall have appointed the Administrator to perform
certain duties on behalf of the Trust.
(b) So long as the Agreement remains in effect, the Trust (and the
Delaware Trustee and the Administrator acting on behalf of the Trust) shall not
undertake any business, activity or transaction except as expressly provided for
or contemplated by the Agreement, or the Indenture. In particular, the Trust
shall not, except as otherwise permitted by the Indenture:
13
(i) sell, transfer, exchange, assign, lease, convey or otherwise
dispose of any assets held in the Trust (as of the date of the Agreement or
thereafter acquired), including, without limitation, any portion of the
Collateral;
(ii) engage in any business or activity other than in connection
with, or relating to, the performance of the Agreement and any transactions
contemplated hereby and the execution, delivery and performance of any
documents, including the Issuance Documents (other than the Agreement as
set forth above), relating to any Notes issued under the Indenture and the
transactions contemplated thereby, and the issuance of the Notes pursuant
to the Indenture;
(iii) incur or otherwise become liable, directly or indirectly,
for any Indebtedness or Contingent Obligation except for the Notes;
(iv) (a) permit the validity or effectiveness of the Indenture or
any security interest in or assignment for collateral purposes of the
Collateral to be impaired, or permit a Lien arising under the Indenture to
be amended, hypothecated, subordinated, terminated or discharged, or permit
any Person to be released from any covenants or obligations under the
Funding Agreement(s), except as may be expressly permitted under the
Indenture, (b) create, incur, assume or permit any Lien or other
encumbrance (other than a Lien created under the Indenture) on any of its
properties or assets owned or hereafter acquired, or any interest therein
or the proceeds thereof, or (c) permit a Lien created under the Indenture
not to constitute a valid first priority perfected security interest in the
Collateral;
(v) amend, modify or fail to comply with any material provision
of the Agreement, except for any amendment or modification of the Agreement
expressly permitted hereunder;
(vi) own any subsidiary or lend or advance any moneys to, or make
any investment in, any Person, except for an investment in the Funding
Agreement or the investment of any funds held by the Indenture Trustee, the
Paying Agent, the Delaware Trustee or the Administrator as provided in the
Indenture or the Agreement;
(vii) directly or indirectly make any distribution or other
payment on, or redeem or otherwise acquire or retire for value, the
interests of the Trust Beneficial Owner; PROVIDED, THAT it may declare or
pay a distribution to the Trust Beneficial Owner if all amount due to be
paid on the Notes to the next scheduled payment under the Funding
Agreement(s) have been paid;
(viii) exercise any rights to foreclose or realize on its security
interest in or assignment for collateral purposes of the Collateral except
at the direction of, or with the prior written approval of, the Indenture
Trustee;
(ix) cause or permit the sale or other transfer of, or the
creation, incidence, assumption or existence of any Lien on, all or a
portion of the Trust Beneficial Interest;
14
(x) become required to register as an "investment company" or
become under the "control" of an "investment company," as such terms are
defined in the Investment Company Act;
(xi) enter into any transaction of merger or consolidation or
liquidate or dissolve itself (or suffer any liquidation or dissolution), or
acquire by purchase or otherwise all or substantially all the business or
assets of, or any stock or other evidence of beneficial ownership of, any
Person;
(xii) have any employees other than the Delaware Trustee, the
Administrator and other persons necessary to conduct its business and enter
into transactions contemplated under the Issuance Documents;
(xiii) have an interest in any bank account other than (a) those
accounts required under the Issuance Documents, and (b) those accounts
expressly permitted by the Indenture Trustee; PROVIDED, THAT any such
further accounts or interest therein shall be charged or otherwise secured
in favor of the Indenture Trustee on terms acceptable to the Indenture
Trustee;
(xiv) take any action that would cause the Trust not to be
disregarded or treated as a grantor trust (assuming the Trust were not
disregarded) for United States federal income tax purposes;
(xv) permit any Affiliate, employee or officer of Hartford Life
or any underwriter of the Notes to be a trustee;
(xvi) issue any Notes under the Indenture unless (a) the Trust has
purchased or will simultaneously purchase the Funding Agreement from
Hartford Life to secure such Notes, (b) Hartford Life has affirmed in
writing to the Trust that it has made or simultaneously will make changes
to its books and records to reflect the granting of a security interest in,
and the making of an assignment for collateral purposes of, the Funding
Agreement by the Trust, to the Indenture Trustee and (c) the Trust has
taken such other steps as may be necessary to cause the grant of security
interest in, and assignment for collateral purposes of, the Collateral to
the Indenture Trustee to be perfected for purposes of the UCC or effective
against the Trust's creditors and subsequent purchasers of the Collateral
pursuant to insurance or other applicable law;
(xvii) commingle the assets held in the Trust with assets of any of
its Affiliates, or guarantee any obligation of any of its Affiliates; or
(xviii) maintain any joint account with any Person or become a
party, whether as co-obligor or otherwise, to any agreement to which any
Person is a party (other than in respect of the Issuance Documents), or
become liable as a guarantor or otherwise with respect to any Indebtedness
or contractual obligation of any Person.
(c) The Trust, Delaware Trustee and Administrator acting on behalf of the
Trust shall not, notwithstanding any other provision of the Agreement, take any
action that would cause the
15
Trust not to be disregarded or treated as a grantor trust (assuming the Trust
were not disregarded) for United States federal income tax purposes.
(d) The Delaware Trustee and the Administrator shall, based on the advice
of counsel, defend against all claims and demands of all Persons at any time
claiming any Lien on any of the assets of the Trust adverse to the interest of
the Trust or any Securityholder, other than the security interests in the
Collateral granted in favor of the Indenture Trustee for the benefit of each
Holder of the Notes pursuant to the Indenture.
(e) If and for so long as the Funding Agreement is held by the Delaware
Trustee for the benefit of the Trust, the Delaware Trustee shall not (i) waive
any default under the Funding Agreement or (ii) consent to any amendment,
modification or termination of the Funding Agreement, without, in each case,
obtaining the prior approval of the Indenture Trustee in accordance with the
Indenture and an opinion of counsel experienced in such matters to the effect
that any such action shall not cause the Trust not to be disregarded or treated
as a grantor trust (assuming such Trust were not disregarded) for United States
federal income tax purposes. The Delaware Trustee, upon a Responsible Officer
obtaining actual knowledge of the occurrence of a Funding Agreement Event of
Default, will notify the Indenture Trustee of any such Funding Agreement Event
of Default.
(f) Each of the Delaware Trustee and the Administrator is authorized and
directed to conduct the affairs of the Trust and to operate the Trust (i) so
that the Trust will not become required to register as an "investment company"
under the Investment Company Act, and (ii) so that the Trust will not fail to be
disregarded or treated as a grantor trust (assuming such Trust were not
disregarded) for United States federal income tax purposes. In connection with
the preceding sentence, neither the Delaware Trustee nor the Administrator shall
have any duty to determine whether any action it takes complies with the
preceding sentence and shall be entitled to rely conclusively on an opinion of
counsel with respect to any such matters.
Section 6.02 GENERAL DUTIES. It shall be the duty of the Delaware Trustee
to discharge, or cause to be discharged, all of its responsibilities pursuant to
the terms of the Agreement, or any other documents or instruments to which it is
a party, and to administer the Trust, in accordance with the provisions of the
Agreement and the other Issuance Documents and any other documents or
instruments to which the Trust is a party. Notwithstanding the foregoing, the
Delaware Trustee shall be deemed to have discharged its duties and
responsibilities under the Agreement and any other documents or instruments to
which it is a party to the extent (a) such duties and responsibilities shall
have been performed by the Administrator and (b) the Administrator is required
or permitted hereunder, under the Administrative Services Agreement or under any
other documents or instruments to which the Trust is a party to perform such act
or discharge such duty of the Delaware Trustee or the Trust; PROVIDED, HOWEVER,
that the Delaware Trustee shall not be held liable for the default or failure of
the Administrator to carry out its required obligations hereunder or thereunder.
Section 6.03 SPECIFIC DUTIES.
(a) The Delaware Trustee will manage the business and affairs of the
Trust in accordance with the terms of the Delaware Statutory Trust Act;
PROVIDED, HOWEVER, that the
16
Delaware Trustee undertakes to perform only such duties as are specifically set
forth in the Agreement and as it may be directed from time to time by the Trust
Beneficial Owner and the Indenture Trustee in accordance with the terms of the
Agreement and the Indenture.
(b) The Delaware Trustee agrees that it will not manage, control, use,
sell, dispose of or otherwise deal with the Collateral except as expressly
required or permitted by the terms of the Agreement and the Indenture.
Section 6.04 ACCEPTANCE OF TRUST AND DUTIES; LIMITATION ON LIABILITY. The
Delaware Trustee accepts the trust hereby created and agrees to perform its
duties hereunder with respect to the same, but only upon the terms of the
Agreement. No implied covenants or obligations shall be read into the Agreement.
The Delaware Trustee shall not be liable hereunder under any circumstances or
for any action or failure to act, except for (i) its own willful misconduct, bad
faith or gross negligence, (ii) its failure to use ordinary care to disburse
funds, or (iii) the inaccuracy of any representation or warranty contained
herein expressly made by it. In particular (but without limitation), subject to
the exceptions set forth in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment
made in good faith by any of its responsible officers, unless such error of
judgment constitutes gross negligence;
(b) the Delaware Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the written
instructions of the Trust Beneficial Owner, the Administrator or the Indenture
Trustee or pursuant to the advice of counsel, accountants or other experts
selected by it in good faith, so long as such action or omission is consistent
with the terms of the Agreement and the Indenture;
(c) no provision of the Agreement shall require the Delaware Trustee to
expend or risk personal funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder if the Delaware Trustee has
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the Delaware Trustee be liable for
indebtedness or other obligations evidenced by or arising under the Agreement,
the Funding Agreement or any related document, including the principal of and
interest on the Notes and payments on the Trust Beneficial Interests;
(e) the Delaware Trustee shall not be responsible for, or in respect of,
the validity or sufficiency of the Agreement or any related document or for the
due execution hereof or thereof by any party (except by the Delaware Trustee
itself) or for the form, character, genuineness, sufficiency, value or validity
of any of the Collateral, other than, in the case of the Delaware Trustee, the
execution of any certificate;
(f) the Delaware Trustee shall not be liable for any action, inaction,
default or misconduct of the Administrator, the Indenture Trustee or any Paying
Agent under the Indenture, the Administrative Services Agreement, the Notes or
any related documents or otherwise, and the Delaware Trustee shall not have any
obligation or liability to perform the obligations of the
17
Trust under the Agreement or any related document or under any federal, state,
foreign or local tax or securities law, in each case, that are required to be
performed by other Persons, including the Administrator hereunder or under the
Administrative Services Agreement or the Indenture Trustee under the Indenture;
(g) the Delaware Trustee shall not be liable for any action, inaction,
default or misconduct of Hartford Life, and the Delaware Trustee shall not have
any obligation or liability to perform the obligations of Hartford Life under
the Funding Agreement or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise
any of the rights or powers vested in it by the Agreement, or to institute,
conduct or defend any litigation under the Agreement or otherwise or in relation
to the Agreement or any related document, at the request, order or direction of
any Person unless such Person has offered to the Delaware Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Delaware Trustee. The right of the Delaware Trustee to
perform any discretionary act enumerated in the Agreement or in any related
document shall not be construed as a duty, and the Delaware Trustee shall not be
answerable for other than its gross negligence or willful misconduct in the
performance of any such act;
(i) except as expressly provided herein, in accepting the trusts hereby
created the Delaware Trustee acts solely as trustee hereunder and not in its
individual capacity, and all persons having any claim against the Delaware
Trustee by reason of the transactions contemplated by the Agreement shall look
only to the Trust's property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability
for or with respect to the genuineness, value, sufficiency or validity of any
Collateral, and the Delaware Trustee shall in no event assume or incur any
liability, duty or obligation to the Trust Beneficial Owner or any other Person
other than as expressly provided for herein;
(k) the Delaware Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note or other paper or document;
(l) every provision of the Agreement relating to the Delaware Trustee
shall be subject to the provisions of this ARTICLE 6;
(m) except in accordance with the written instructions furnished by the
Trust Beneficial Owner or as provided herein, the Delaware Trustee shall have no
duty (i) to see to any recording or filing of any document, (ii) to confirm or
verify any financial statements of the Trust Beneficial Owner or the Indenture
Trustee, (iii) to inspect the Trust Beneficial Owner's or the Indenture
Trustee's books and records at any time or (iv) to see to the payment or
discharge of any tax, assessment or other governmental charge or any lien or
encumbrance of any kind owing with respect to, assessed or levied against any
part of the Trust, except to the extent the Delaware Trustee has received funds,
on behalf of the Trust, pursuant to the Expense and Indemnity Agreements from
Hartford Life in satisfaction of any such tax, assessment or other
18
governmental charge or any lien or encumbrance of any kind and in accordance
with payment or transfer instructions provided by Hartford Life;
(n) the Delaware Trustee shall have no duty or obligation to manage,
control, use, sell, dispose of or otherwise deal with the Trust or to otherwise
take or refrain from taking any action under the Agreement, except as expressly
required by the terms hereof, or as expressly provided in written instructions
from the Trust Beneficial Owner, and in no event shall the Delaware Trustee have
any implied duties or obligations under the Agreement; the Delaware Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any liens on any part of the property of
the Trust which result from claims against the Delaware Trustee personally that
are not related to the ownership or the administration of the property of the
Trust or the transactions contemplated by the Issuance Documents;
(o) the Delaware Trustee shall not be required to take any action under
the Agreement unless the Delaware Trustee shall have been indemnified by
Hartford Life, in manner and form satisfactory to the Delaware Trustee, against
any liability, cost or expenses (including counsel fees and disbursements) which
may be incurred in connection therewith, and, if the Trust Beneficial Owner
shall have directed the Delaware Trustee to take any such action or refrain from
taking any action, the Trust Beneficial Owner agrees to furnish such indemnity
from Hartford Life as shall be required and, in addition, to cause Hartford Life
to pay the reasonable compensation of the Delaware Trustee for the services
performed or to be performed by it pursuant to such direction; PROVIDED, THAT
the Delaware Trustee may not be indemnified by Hartford Life, the Trust
Beneficial Owner or any other Person for the Delaware Trustee's willful
misconduct or gross negligence, its failure to use ordinary care to disburse
funds or the inaccuracy of its own representations or warranties, made in its
individual capacity, contained herein; PROVIDED, FURTHER, that any indemnity or
payment of compensation shall be made pursuant to the Expense and Indemnity
Agreements and shall be limited to the extent indicated therein;
(p) the Delaware Trustee shall not be required to take any action under
the Agreement if the Delaware Trustee shall reasonably determine or shall have
been advised by counsel that such action is contrary to the terms of the
Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability
in connection with calculations or instructions forwarded to the Delaware
Trustee by the Trust Beneficial Owner, the Administrator or the Indenture
Trustee, nor shall the Delaware Trustee have any obligation to furnish
information to any Trust Beneficial Owner or other Person if it has not received
such information as it may need from the Trust Beneficial Owner, the
Administrator or the Indenture Trustee or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or
omission in good faith in accordance with the advice or direction of the Trust
Beneficial Owner, the Administrator or Indenture Trustee. Whenever the Delaware
Trustee is unable to decide between alternative courses of action permitted or
required by the terms of the Agreement, or is unsure as to the application,
intent, interpretation or meaning of any provision hereof, the Delaware Trustee
may give notice (in such form as shall be appropriate under the circumstances)
to the
19
Trust Beneficial Owner requesting instructions as to the course of action to be
adopted, and, to the extent the Delaware Trustee acts in good faith in
accordance with any such instruction received, the Delaware Trustee shall not be
liable on account of such action to any Person. If the Delaware Trustee shall
not have received appropriate instructions within ten days of such notice (or
within such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances), it may, but shall be under no duty
to, take or refrain from taking such action which is consistent, in its view,
with the Agreement and as it shall deem to be in the best interest of the Trust
Beneficial Owner, and the Delaware Trustee shall have no liability to any Person
for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally
liable for any representation, warranty, covenant, agreement, indebtedness or
other obligation of the Trust;
(t) the Delaware Trustee shall incur no liability if, by reason of any
provision of any present or future law or regulation thereunder, or by any force
majeure event, including but not limited to natural disaster, war or other
circumstances beyond its control, the Delaware Trustee shall be prevented or
forbidden from doing or performing any act or thing which the terms of the
Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the
Delaware Trustee shall not be required to execute, deliver or certify on behalf
of the Trust any filings, certificates, affidavits or other instruments required
under the Xxxxxxxx-Xxxxx Act of 2002; and
(v) notwithstanding anything contained herein to the contrary, neither
Wilmington Trust Company nor the Delaware Trustee shall be required to take any
action in any jurisdiction other than in the State of Delaware if the taking of
such action will (i) require the consent or approval or authorization or order
of or the giving of notice to, or the registration with or the taking of any
other action in respect of, any state or other governmental authority or agency
of any jurisdiction other than the State of Delaware; (ii) result in any fee,
tax or other governmental charge under the laws of any jurisdiction or any
political subdivisions thereof in existence on the date hereof other than the
State of Delaware becoming payable by Wilmington Trust Company; or (iii) subject
Wilmington Trust Company to personal jurisdiction in any jurisdiction other than
the State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by Wilmington Trust Company or the Delaware
Trustee, as the case may be, contemplated hereby. The Delaware Trustee shall be
entitled to obtain advice of counsel (which advice shall be an expense of
Hartford Life) to determine whether any action required to be taken pursuant to
the Agreement results in the consequences described in clauses (i), (ii) and
(iii) of the preceding sentence. In the event that said counsel advises the
Delaware Trustee that such action will result in such consequences, the Delaware
Trustee will appoint an additional trustee pursuant to SECTION 8.05 hereof to
proceed with such action.
Section 6.05 RELIANCE; ADVICE OF COUNSEL.
(a) The Delaware Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper reasonably
believed by it in good faith to be genuine and signed by the proper party or
parties. The Delaware Trustee may accept a certified copy of a resolution of
20
the board of directors or other governing body of any corporate party as
conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or matter the manner
of ascertainment of which is not specifically prescribed herein, the Delaware
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or any assistant treasurer
or the secretary or any assistant secretary of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Delaware Trustee for any action taken or omitted to be taken by it in good faith
in reliance thereon.
(b) In the exercise or administration of the Trust, the Delaware Trustee
(i) may act directly or, at the expense of Hartford Life pursuant to the Expense
and Indemnity Agreements, through agents or attorneys pursuant to agreements
entered into with any of them, and the Delaware Trustee shall not be liable for
the action, inaction, default or misconduct of such agents or attorneys if such
agents or attorneys shall have been selected by the Delaware Trustee in good
faith and with reasonable care, and (ii) may, at the expense of Hartford Life
pursuant to the Expense and Indemnity Agreements, consult with counsel,
accountants and other skilled persons to be selected in good faith and with
reasonable care and employed by it, and it shall not be liable for anything
done, suffered or omitted to be done in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other skilled
persons.
Section 6.06 DELEGATION OF AUTHORITIES AND DUTIES. The Delaware Trustee
delegates to the Administrator all duties required to be performed by the
Administrator pursuant to the terms of the Agreement and the Administrative
Services Agreement. The Delaware Trustee undertakes no responsibility for the
performance, or non-performance, of any duties delegated to the Indenture
Trustee or the Administrator hereunder or thereunder.
Section 6.07 COMPENSATION; INDEMNITIES. Notwithstanding anything in the
Agreement to the contrary, the Delaware Trustee will be entitled to payment of
fees, reimbursement 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 Delaware Trustee will not be entitled to seek any
payment from the Trust with respect to its services hereunder.
ARTICLE 7
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 7.01 DISSOLUTION UPON THE LAST EXPIRATION DATE. Unless earlier
dissolved, the Trust shall automatically dissolve on the Trust Expiration Date.
Section 7.02 TERMINATION OF AGREEMENT. The Agreement shall terminate and
the Trust created and continued hereby shall be dissolved and terminate in
accordance with Section 3808 of the Delaware Statutory Trust Act upon the latest
to occur of the following: (a) a distribution by the Delaware Trustee to
Securityholders upon the liquidation of the Trust pursuant to SECTION 7.03 of
all amounts required to be distributed hereunder upon the final payment of the
Trust Securities; (b) the payment of, or reasonable provision for payment of,
all expenses and other liabilities owed by the Trust; and (c) the discharge of
all administrative duties of the Delaware
21
Trustee and Administrator including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Upon the last event to occur as described above, the Delaware Trustee shall
cause the Certificate of Trust to be canceled by filing a certificate of
cancellation with the Secretary of State. Upon the filing of such certificate of
cancellation, the Agreement shall be of no function, form or effect and the
Trust shall terminate.
Section 7.03 LIQUIDATION. Upon the Trust Expiration Date, the remaining
Collateral and any other assets held in the Trust shall be liquidated, and the
Trust shall be wound-up by the Administrator in accordance with Section 3808(d)
and (e) of the Delaware Statutory Trust Act. In such event, (i) the Trust shall
first pay all amounts due and unpaid on the Notes, if any, in accordance with
the Indenture, (ii) the Trust shall then pay any other claims, including
expenses relating to such liquidation to the extent not paid, or reasonably
provided for, pursuant to the Expense and Indemnity Agreements, and (iii) the
Trust shall then pay to the Trust Beneficial Owner all of the amounts that would
be payable under clause first of Section 5.02 of the Indenture to the Trust
Beneficial Owner if the Trust Beneficial Owner held a Note with an original
principal amount of $15. Any remaining monies and other property shall be paid
ratably in proportion to their original principal amounts to the Holders last
noted in the Register as the Holders of the Notes and the Trust Beneficial Owner
(as if the Trust Beneficial Owner held a Note with an original principal amount
of $15 and as if each such Holder continued to hold its Notes after all amounts
due on such Notes under the Indenture have been paid).
ARTICLE 8
SUCCESSOR AND ADDITIONAL DELAWARE TRUSTEES
Section 8.01 ELIGIBILITY REQUIREMENTS FOR THE DELAWARE TRUSTEE. The
Delaware Trustee shall at all times (a) be a Person satisfying the provisions of
Section 3807(a) of the Delaware Statutory Trust Act, (b) be authorized to
exercise corporate trust powers, (c) have a combined capital and surplus of at
least $50,000,000 and be subject to supervision or examination by Federal or
State authorities, (d) have (or have a parent which has) a rating of at least
Baa3 by Moody's or BBB- by Standard & Poor's, (e) be a "bank" within the meaning
of Section 581 of the Code and (f) be a "United States person" within the
meaning of Section 7701(a)(30) of the Code. In addition, the Delaware Trustee
shall be an entity with its Corporate Trust Office in the State of Delaware. If
the Delaware Trustee shall publish reports of condition at least annually,
pursuant to applicable law or to the requirements of the aforesaid supervising
or examining authority, then for the purpose of this SECTION 8.01, the combined
capital and surplus of the Delaware Trustee shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Delaware Trustee shall cease to be eligible in
accordance with the provisions of this SECTION 8.01, the Delaware Trustee shall
resign immediately in the manner and with the effect specified in SECTION 8.02.
Section 8.02 RESIGNATION OR REMOVAL OF THE DELAWARE TRUSTEE. The Delaware
Trustee may at any time resign and be discharged from its duties hereunder and
the Trust hereby created by giving written notice thereof to the Trust
Beneficial Owner and Indenture Trustee at least 60 days before the date
specified in such instrument. Upon receiving such notice of resignation, the
22
Trust Beneficial Owner shall promptly appoint a successor Delaware Trustee
meeting the qualifications set forth in SECTION 8.01 by written instrument, in
duplicate, one copy of which instrument shall be delivered to each of the
resigning Delaware Trustee, the successor Delaware Trustee, any remaining
Delaware Trustees, the Administrator, the Indenture Trustee and Hartford Life.
If no successor Delaware Trustee shall have been so appointed and have accepted
appointment within 90 days after the giving of such notice of resignation, the
resigning Delaware Trustee may petition any court of competent jurisdiction for
the appointment of a successor Delaware Trustee.
If at any time the Delaware Trustee shall cease to be eligible in
accordance with the provisions of SECTION 8.01 and shall fail to resign after
written request therefor by the Trust Beneficial Owner and Indenture Trustee, or
if at any time the Delaware Trustee shall be legally unable to act or shall be
adjudged bankrupt or insolvent, or a receiver of the Delaware Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Delaware Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Trust Beneficial Owner and
Indenture Trustee may remove such Delaware Trustee. If the Trust Beneficial
Owner and Indenture Trustee shall remove the Delaware Trustee under the
authority of the immediately preceding sentence, the Trust Beneficial Owner
shall promptly appoint a successor Delaware Trustee meeting the qualification
requirements of SECTION 8.01 by (i) the execution of a written instrument, one
copy of which instrument shall be delivered to each of the outgoing Delaware
Trustee so removed, the successor Delaware Trustee, the Administrator, the
Indenture Trustee and Hartford Life and (ii) the payment of all fees and
expenses owed to the outgoing Delaware Trustee.
Any resignation or removal of the Delaware Trustee and appointment of a
successor Delaware Trustee pursuant to any of the provisions of this SECTION
8.02 shall not become effective until all fees and expenses, including any
indemnity payments, due to the outgoing Delaware Trustee have been paid and
until acceptance of appointment by the successor Delaware Trustee pursuant to
SECTION 8.03.
Section 8.03 SUCCESSOR DELAWARE TRUSTEE. Any successor Delaware Trustee
appointed pursuant to SECTION 8.02 shall execute, acknowledge and deliver to the
Trust Beneficial Owner, the Administrator, the Indenture Trustee and the
predecessor Delaware Trustee an instrument accepting such appointment under the
Agreement, and thereupon the resignation or removal of the predecessor Delaware
Trustee shall become effective and such successor Delaware Trustee, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties, and obligations of its predecessor under the Agreement, with
like effect as if originally named as Delaware Trustee. The predecessor Delaware
Trustee shall deliver to the successor Delaware Trustee all documents and
statements and monies held by it under the Agreement; and the predecessor
Delaware Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Delaware Trustee all such rights, powers, duties and
obligations.
Any successor Delaware Trustee appointed hereunder shall promptly file an
amendment to the Certificate of Trust with the Secretary of State identifying
the name and principal place of business of such successor Delaware Trustee in
the State of Delaware.
23
No successor Delaware Trustee shall accept appointment as provided in this
SECTION 8.03 unless at the time of such acceptance such successor Delaware
Trustee shall be eligible pursuant to SECTION 8.01.
Section 8.04 MERGER OR CONSOLIDATION OF DELAWARE TRUSTEE. Any Person into
which the Delaware Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Delaware Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Delaware Trustee, shall, without the execution or filing of any instrument or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding, be the successor of the Delaware Trustee hereunder;
PROVIDED, such Person shall be eligible pursuant to SECTION 8.01.
Section 8.05 APPOINTMENT OF CO-DELAWARE TRUSTEE OR SEPARATE DELAWARE
TRUSTEE.
(a) Notwithstanding any other provisions of the Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of any Collateral may at the time be located, the Delaware Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons approved by the Delaware Trustee to act as co-trustee,
jointly with it, or as separate trustee or separate trustees, of all or any part
of any Collateral, and subject to SECTION 2.10 of the Agreement to vest in such
Person, in such capacity, such title to any Collateral, or any part thereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Delaware Trustee may consider necessary or
desirable. No co-trustee or separate trustee under the Agreement shall be
required to meet the terms of eligibility as a successor Delaware Trustee
pursuant to SECTION 8.03 and no notice of the appointment of any co-trustee or
separate trustee shall be required; PROVIDED, HOWEVER, that any co-trustee or
separate trustee must be a "United States person" within the meaning of Section
7701(a)(30) of the Code and a "bank" within the meaning of Section 581 of the
Code.
(b) Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or
imposed upon the Delaware Trustee shall be conferred upon and exercised or
performed by the Delaware Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without the Delaware Trustee joining in
such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the Delaware Trustee
shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding of
title to the Trust or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or co-trustee,
but solely at the discretion of the trustee;
(ii) the Administrator and the Delaware Trustee acting jointly
may at any time accept the resignation of or remove any separate trustee or
co-trustee; and
24
(iii) no trustee shall be personally liable by reason of the act
or omission of any other trustee hereunder.
(c) Any notice, request or other writing given to the Delaware Trustee
shall be deemed to have been given to each of the then separate trustee and
co-trustee, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this SECTION 8.05
and the conditions of this ARTICLE 8. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instruments of appointment, either jointly with the
Delaware Trustee or separately, as may be provided therein, subject to all the
provisions of the Agreement, specifically including every provision of the
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Delaware Trustee. Each such instrument shall be filed with
the Delaware Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the
Delaware Trustee as its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
the Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Delaware Trustee, to the extent permitted by law, without the
appointment of a new or successor Delaware Trustee.
Section 8.06 DELAWARE TRUSTEE MAY OWN NOTES. Except to the extent
prohibited under the terms of the Notes, the Delaware Trustee, in its individual
or any other capacity, may become the beneficial owner or pledgee of Notes, to
the extent that such ownership does not inhibit the Trust from relying on Rule
3a-7 promulgated under the Investment Company Act, with the same rights as it
would have if it were not the Delaware Trustee; PROVIDED, THAT any Notes so
owned or pledged shall not be entitled to participate in any decisions made or
instructions given to the Delaware Trustee or the Indenture Trustee by the
Holders as a group. The Delaware Trustee may deal with the Trust and the Trust
Beneficial Owner in banking and trustee transactions with the same rights as it
would have if it were not the Delaware Trustee.
ARTICLE 9
VOTING; ACTS OF SECURITYHOLDERS; MEETINGS
Section 9.01 LIMITATIONS ON VOTING RIGHTS. Except as provided in the
Agreement or in the Indenture or as otherwise required by law, no Holder of
Trust Securities shall have any right to vote or in any manner otherwise control
the administration, operation and management of the Trust or the obligations of
the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Trust Securities, be construed so as to constitute the
Securityholders from time to time as members of an association.
Section 9.02 MEETINGS OF THE TRUST BENEFICIAL OWNER. No annual or other
meeting of the Trust Beneficial Owner is required to be held.
25
ARTICLE 10
MISCELLANEOUS PROVISIONS
Section 10.01 LIMITATION ON RIGHTS OF SECURITYHOLDERS.
(a) The death, bankruptcy, termination, dissolution or incapacity of any
Person having an interest, beneficial or otherwise, in Trust Securities or the
Trust shall not operate to terminate the Agreement, nor to annul, dissolve or
terminate the Trust, nor to entitle the legal successors, representatives or
heirs of such Person or any Securityholder for such Person, to claim an
accounting, take any action or bring any proceeding in any court for a partition
or winding up of the arrangements contemplated hereby, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
(b) Except as provided in the Indenture, no Securityholder shall have any
right by virtue of any provision of the Agreement to institute any suit, action
or proceeding in equity or at law with respect to the Agreement, unless (i) the
Securityholders shall have made written request upon the Delaware Trustee to
institute such suit, action or proceeding in the name of the Trust and shall
have offered to the Delaware Trustee and the Trust such reasonable indemnity as
they may require against the costs, expenses and liabilities to be incurred
thereby and (ii) the Delaware Trustee, for 30 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such suit, action or proceeding. It is expressly understood and
covenanted by each Securityholder with every other Securityholder, the Trust and
the Delaware Trustee, that no one or more Securityholder shall have any right in
any manner whatever by availing itself or themselves of any provision of the
Agreement to affect, disturb or prejudice the rights of any other
Securityholder, or to obtain or seek to obtain priority over or preference to
any other such Securityholder, or to enforce any right under the Agreement,
except in the manner herein provided.
Section 10.02 AMENDMENT.
(a) At any time before the issuance of any Notes, this Trust Agreement
may be amended by, and only by, a written instrument executed by Delaware
Trustee and the Trust Beneficial Owner.
(b) At any time after the issuance of any Notes, the Agreement may be
amended from time to time by the Delaware Trustee and the Trust Beneficial
Owner, by, and only by, a written instrument executed by the Delaware Trustee
and the Trust Beneficial Owner, in any way that is not inconsistent with the
intent of the Agreement, including, without limitation, (i) to cure any
ambiguity, (ii) to correct, supplement or modify any provision in the Agreement
that is inconsistent with another provision herein or, (iii) to modify,
eliminate or add to any provisions of the Agreement to the extent necessary to
ensure that the Trust will be classified for United States federal income tax
purposes as disregarded or treated as a grantor trust (assuming such Trust were
not disregarded) at all times or to ensure that the Trust will not be required
to register as an investment company under the Investment Company Act and no
such amendment shall require the consent of any other Securityholder, except to
the extent specified in SECTIONS 10.02(c) and 10.02(d).
26
(c) At any time after the issuance of any Notes and for so long as any
Trust Securities remain outstanding, except as provided in SECTION 10.02(d), any
amendment to this Trust Agreement that would adversely affect, in any material
respect, the terms of any Notes, other then any amendment of the type
contemplated by clause (iii) of SECTION 10.02(b), shall require the prior
consent of the Holders of a majority of the outstanding principal amount of the
Notes.
(d) At any time after the issuance of any Notes and for so long as any
Notes remain outstanding, the Agreement may not be amended to (i) change the
amount or timing of any payment of any Notes or (ii) impair the right of any
Securityholder to institute suit for the enforcement of any right for principal
and interest or other distribution without the consent of each affected
Securityholder.
(e) The Delaware Trustee shall not be required to enter into any
amendment to the Agreement which affects its own rights, duties or immunities
under the Agreement.
(f) Prior to execution of any amendment to the Agreement, the Delaware
Trustee shall be entitled to an opinion of counsel as to whether such amendment
is permitted by the terms of the Agreement and whether all conditions precedent
to such amendment have been met.
(g) Promptly after the execution of any such amendment or consent, the
Administrator shall furnish a copy of such amendment or consent (including those
obtained or effected hereby) to the Indenture Trustee, the Trust Beneficial
Owner, Hartford Life, the agents under the Distribution Agreement and the Rating
Agencies;
(h) Contemporaneously with, or promptly after, the execution of any
amendment hereto requiring amendment to the Certificate of Trust, the Delaware
Trustee shall cause the filing of such amendment to the Certificate of Trust
with the Secretary of State of the State of Delaware.
(i) Notwithstanding any other provision of the Agreement, (i) no
amendment to the Agreement may be made if such amendment would cause the Trust
not to be disregarded or treated as a grantor trust (assuming such Trust were
not disregarded) for United States federal income tax purposes and (ii) no
amendment to the Agreement may be made without the prior consent of Hartford
Life.
Section 10.03 NOTICE. All demands, notices, instructions and other
communications shall be in writing (including telecopied or telegraphic
communications) and shall be personally delivered, mailed or transmitted by
telecopy or telegraph, respectively, addressed as set forth below:
If to the Delaware Trustee:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
27
If to the Administrator or Trust Beneficial Owner:
AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxx., 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
if to the Indenture Trustee, at
JPMorgan Chase Bank, N.A.
4 New York Plaza
15th Floor
New York, New York 10004
Attention: Worldwide Securities Services
Facsimile: (000) 000-0000
or at such other address as shall be designated by any such party in a written
notice to the other parties. Notwithstanding the foregoing, any notice required
or permitted to be mailed to the Trust Beneficial Owner shall be given by first
class mail, postage prepaid, at the address of the Trust Beneficial Owner as
shown in the Securities Register, and any notices mailed within the time
prescribed in the Agreement shall be conclusively presumed to have been duly
given, whether or not the Trust Beneficial Owner received such notice. Any
notice required or permitted to be mailed to any Holder of a Note shall be given
as specified in the Indenture.
Section 10.04 NO RECOURSE. The Trust Beneficial Owner acknowledges that
the Trust Beneficial Interest represents a beneficial interest in the Trust only
and does not represent an obligation of Hartford Life, the Delaware Trustee, the
Administrator, the Indenture Trustee or any Affiliate of any of the foregoing
and no recourse may be had against such parties or their assets, except as may
be expressly set forth or contemplated in the Agreement or the Indenture.
Section 10.05 NO PETITION. To the extent permitted by applicable law, each
of the Delaware Trustee and the Trust Beneficial Owner hereby covenants and
agrees that it will not institute against, or join with any other Person in
instituting against, the Trust any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under the laws of
any jurisdiction. This SECTION 10.05 shall survive termination of the Agreement.
Section 10.06 GOVERNING LAW. The Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the principles of conflicts of
28
laws thereof and the obligations, rights and remedies of the parties under the
Agreement shall be determined in accordance with such laws.
Section 10.07 SEVERABILITY. If any provision in the Agreement shall be
invalid, illegal or unenforceable, such provisions shall be deemed severable
from the remaining provisions of the Agreement and shall in no way affect the
validity or enforceability of such other provisions of the Agreement.
Section 10.08 TRUST SECURITIES NONASSESSABLE AND FULLY PAID.
Securityholders shall not be personally liable for the obligations of the Trust.
The fractional undivided beneficial interest in the assets held in the Trust
represented by the Trust Beneficial Interest shall, to the fullest extent
permitted by applicable law, be nonassessable for any losses or expenses related
to the Trust or for any reason whatsoever. The Notes, upon execution thereof by
the Delaware Trustee pursuant to the Indenture and upon receipt of payment
therefore, are and shall be deemed fully paid.
Section 10.09 THIRD-PARTY BENEFICIARIES. The Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. In addition, the Indenture Trustee and the
Securityholders are express third-party beneficiaries of the Agreement and are
entitled to the benefits of the Agreement. Except as otherwise provided in the
Agreement, no other Person shall have any right or obligation hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
29
