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THE Hartford Financial Services Group / Hartford Financial Services Group - Amended And Restated Five-year Competitive Advance And Revolving Credit Facility Agreement
EXHIBIT 10.1 EXECUTION VERSION [Published CUSIP Number: ]AMENDED AND RESTATED FIVE-YEAR COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENTDated as of August 9, 2007amongTHE HARTFORD FINANCIAL SERVICES GROUP, INC.,THE BORROWING SUBSIDIARIES FROM TIME TO TIME PARTY HERETO,THE LENDERS NAMED HEREIN,BANK OF AMERICA, N.A,
as Administrative Agent,JPMORGAN CHASE BANK, N.A.
and
CITIBANK, N.A.,
as Syndication AgentsandWachovia Bank, N.A.,
as Documentation Agent BANC OF AMERICA SECURITIES LLC,
J.P. MORGAN SECURITIES INC. and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Joint Bookrunners [CS&M Ref. No. 6701-199]
Table of Contents Page ARTICLE I Definitions SECTION 1.01. Defined Terms 1 SECTION 1.02. Terms Generally 21 ARTICLE II The Credits SECTION 2.01. Commitments 21 SECTION 2.02. Loans 22 SECTION 2.03. Competitive Bid Procedure 24 SECTION 2.04. Standby and Local Currency Borrowing Procedure 26 SECTION 2.05. Conversion and Continuation of Standby Loans 27 SECTION 2.06. Letters of Credit 28 SECTION 2.07. Fees 36 SECTION 2.08. Repayment of Loans; Evidence of Debt 38 SECTION 2.09. Interest on Loans 38 SECTION 2.10. Default Interest 39 SECTION 2.11. Alternate Rate of Interest 39 SECTION 2.12. Termination and Reduction of Commitments 40 SECTION 2.13. Prepayment 40 SECTION 2.14. Reserve Requirements; Change in Circumstances 41 SECTION 2.15. Change in Legality 42 SECTION 2.16. Indemnity 43 SECTION 2.17. Pro Rata Treatment 44 SECTION 2.18. Sharing of Setoffs 44 SECTION 2.19. Payments 45 SECTION 2.20. Taxes 46 SECTION 2.21. Duty to Mitigate; Assignment of Commitments Under Certain Circumstances 49 SECTION 2.22. Terms of Local Currency Facilities 50 SECTION 2.23. Currency Fluctuations, etc 51 SECTION 2.24. Increase in Total Commitment 53 SECTION 2.25. Maturity Date Extension 55
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Page ARTICLE III Representations and Warranties SECTION 3.01. Organization; Powers 56 SECTION 3.02. Authorization 56 SECTION 3.03. Enforceability 56 SECTION 3.04. Governmental Approvals 56 SECTION 3.05. Financial Statements 57 SECTION 3.06. Litigation; Compliance with Laws 57 SECTION 3.07. Federal Reserve Regulations 57 SECTION 3.08. Investment Company Act 58 SECTION 3.09. Use of Proceeds 58 SECTION 3.10. Full Disclosure; No Material Misstatements 58 SECTION 3.11. Taxes 58 SECTION 3.12. Employee Pension Benefit Plans 58 ARTICLE IV Conditions of Lending SECTION 4.01. All Credit Events 59 SECTION 4.02. Restatement Effective Date 59 SECTION 4.03. First Borrowing by Each Borrowing Subsidiary 60 ARTICLE V Covenants SECTION 5.01. Existence 60 SECTION 5.02. Business and Properties 61 SECTION 5.03. Financial Statements, Reports, etc 61 SECTION 5.04. Insurance 62 SECTION 5.05. Obligations and Taxes 63 SECTION 5.06. Notices 63 SECTION 5.07. Maintaining Records; Access to Properties and Inspections 63 SECTION 5.08. Employee Benefits 63 SECTION 5.09. Use of Proceeds 63 SECTION 5.10. Consolidations, Mergers, and Sales of Assets 64 SECTION 5.11. Limitations on Liens 64 SECTION 5.12. Limitations on Sale and Leaseback Transactions 66 SECTION 5.13. Consolidated Total Debt to Consolidated Total Capitalization 66 SECTION 5.14. Minimum Consolidated Net Worth 66 SECTION 5.15. Limitation on Issuance of Consumer Notes 66
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Page ARTICLE VI Events of Default ARTICLE VII Guarantee ARTICLE VIII The Administrative Agent SECTION 8.01. Appointment and Authority 72 SECTION 8.02. Rights as a Lender 72 SECTION 8.03. Exculpatory Provisions 72 SECTION 8.04. Reliance by Administrative Agent 73 SECTION 8.05. Delegation of Duties 74 SECTION 8.06. Resignation of Administrative Agent 74 SECTION 8.07. Non-Reliance on Administrative Agent and Other Lenders 75 SECTION 8.08. No Other Duties, Etc 75 ARTICLE IX Miscellaneous SECTION 9.01. Notices 75 SECTION 9.02. Survival of Agreement 76 SECTION 9.03. Binding Effect 76 SECTION 9.04. Successors and Assigns 77 SECTION 9.05. Expenses; Indemnity 79 SECTION 9.06. APPLICABLE LAW 80 SECTION 9.07. Waivers; Amendment 80 SECTION 9.08. Entire Agreement 81 SECTION 9.09. Severability 81 SECTION 9.10. Counterparts 81 SECTION 9.11. Headings 81 SECTION 9.12. Right of Setoff 81 SECTION 9.13. Jurisdiction; Consent to Service of Process 82 SECTION 9.14. Waiver of Jury Trial 82 SECTION 9.15. Addition of Borrowing Subsidiaries 82 SECTION 9.16. Conversion of Currencies 83 SECTION 9.17. Confidentiality 83 SECTION 9.18. USA Patriot Act 84 SECTION 9.19. No Fiduciary Duty 84
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Exhibits and Schedules Exhibit A-1 Form of Competitive Bid RequestExhibit A-2 Form of Notice of Competitive Bid RequestExhibit A-3 Form of Competitive BidExhibit A-4 Form of Competitive Bid Accept/RejectExhibit A-5 Form of Standby Borrowing RequestExhibit B Form of Assignment and AssumptionExhibit C Form of Opinion of Counsel for The Hartford Financial Services Group, Inc.Exhibit D Form of Borrowing Subsidiary AgreementExhibit E Form of Local Currency AddendumExhibit F Form of Secured Letter of Credit Agreement Schedule 1.01 Insurance SubsidiariesSchedule 2.01 CommitmentsSchedule 3.06 Litigation and Compliance with Laws
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AMENDED AND RESTATED FIVE-YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT (as it may be amended, supplemented or otherwise modified, the " Agreement" ) dated as of August 9, 2007, among THE HARTFORD FINANCIAL SERVICES GROUP, INC., a Delaware corporation (the " Company" ); each Borrowing Subsidiary party hereto; the lenders listed in Schedule 2.01 (together with their permitted assignees, the " Lenders" ); and BANK OF AMERICA, N.A., as administrative agent for the Lenders (in such capacity, the " Administrative Agent" ). Reference is made to the Amended and Restated Five-Year Competitive Advance and Revolving Credit Facility Agreement dated as of December 19, 2006, among the Company, the Borrowing Subsidiaries, the Lenders party thereto and Bank of America, N.A., as Administrative Agent (the " Existing Credit Agreement" ). The Company has requested that the Lenders (such term and each other capitalized term used but not otherwise defined herein having the meaning assigned to it in Article I) amend and restate the Existing Credit Agreement in the form of this Agreement. The Company has requested that (i) the Lenders extend credit on a standby revolving credit basis at any time and from time to time prior to the Maturity Date in an aggregate principal amount not in excess of $2,000,000,000 at any time outstanding, subject to increase as provided herein, (ii) make up to $100,000,000 of such credit facility available in the form of Letters of Credit and (iii) provide a procedure pursuant to which the Borrowers may invite the Lenders to bid on an uncommitted basis on short-term borrowings by the Borrowers. The proceeds of borrowings hereunder are to be used for working capital and other general corporate purposes, including the repayment of maturing commercial paper. The Lenders are willing to extend credit to the Borrowers on the terms and subject to the conditions herein set forth. Accordingly, the parties hereto agree as follows:ARTICLE I Definitions SECTION 1.01. Defined Terms . As used in this Agreement, the following terms shall have the meanings specified below: " Administrative Fees" shall have the meaning assigned to such term in Section 2.07(d). " Administrative Questionnaire" shall mean an Administrative Questionnaire in the form distributed to the Lenders by the Administrative Agent.
" Affiliate" shall mean, when used with respect to a specified person, another person that directly or indirectly controls or is controlled by or is under common control with the person specified. " Agreement Currency" shall have the meaning assigned to such term in Section 9.16(b). " Annual Statement" shall mean, with respect to the Restricted Subsidiaries, the Annual Statement of such Restricted Subsidiary required to be filed with the Applicable Insurance Regulatory Authority in accordance with state law, including any exhibits, schedules, certificates or actuarial opinions filed or delivered therewith. " Applicable Insurance Regulatory Authority" shall mean, with respect to any Insurance Subsidiary, the insurance commission or similar Governmental Authority located in the state in which such Insurance Subsidiary is domiciled and any Federal insurance Governmental Authority. " Applicable Percentage" shall mean on any date, with respect to Eurocurrency Standby Loans, with respect to the Facility Fee, with respect to the Usage Fee or with respect to the LC Participation Fee, as the case may be, the applicable per annum percentage set forth below under the caption " Facility Fee Percentage" , " Eurocurrency Spread" , " Usage Fee Percentage" , " Standard Letter of Credit Participation Fee" or " Secured Letter of Credit Participation Fee" , as the case may be, based upon the Ratings in effect on such date; provided that at any time when the Collateral Value of the Collateral on deposit in an LC Security Account in respect of any Secured Letter of Credit shall be less than the 110% of the portion of the LC Exposure attributable to such Secured Letter of Credit, the Applicable Percentage used to determine the LC Participation Fees payable in respect of such Secured Letter of Credit shall be the applicable percentage set forth below under the caption " Standard Letter of Credit Participation Fee" :
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Standard Secured Letter of Letter of Credit Credit Facility Fee Eurocurrency Usage Fee Participation Participation Percentage Spread Percentage Fee Fee Category 1 Aa3 or higher by Moody' s AA- or higher by S&P 0.040% 0.085% 0.050% 0.085% 0.085% Category 2 A1 by Moody' s A+ by S&P 0.045% 0.105% 0.050% 0.105% 0.105% Category 3 A2 by Moody' s A by S&P 0.050% 0.150% 0.050% 0.150% 0.150% Category 4 A3 by Moody' s A- by S&P 0.060% 0.190% 0.050% 0.190% 0.165% Category 5 Baa1 by Moody' s BBB+ by S&P 0.080% 0.270% 0.050% 0.270% 0.145% Category 6 Baa2 or lower or unrated by Moody' s BBB or lower or unrated by S&P 0.100% 0.350% 0.050% 0.350% 0.125% For purposes of the foregoing, (i) if either Moody' s or S&P shall not have in effect a Rating (other than by reason of the circumstances referred to in the last sentence of this definition), then such Rating Agency shall be deemed to have established a Rating in Category 5; (ii) if the Ratings established or deemed to have been established by Moody' s and S&P shall fall within different Categories, the Applicable Percentage shall be based on the higher of the two Ratings unless the Ratings differ by two or more Categories, in which case the Applicable Percentage will be based upon the Category one level above the Category corresponding to the lower Rating; and (iii) if the Ratings established or deemed to have been established by Moody' s and S&P shall be changed (other than as a result of a change in the rating system of Moody' s or S&P), such change shall be effective as of the date on which it is first announced by the applicable Rating Agency. Each change in the Applicable Percentage shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moody' s or S&P shall change, or if either such Rating Agency shall cease to be in the business of rating corporate debt obligations, the Company and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of Ratings from such Rating Agency and, pending the effectiveness of any such amendment, the Applicable Percentage shall be determined by reference to the Rating most recently in effect prior to such change or cessation.
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" Assignment and Assumption" shall mean an assignment and assumption entered into by a Lender and an assignee in the form of Exhibit B hereto. " Augmenting Lender" shall have the meaning assigned to such term in Section 2.24(a). " Auto-Extension Letter of Credit" shall have the meaning assigned to such term in Section 2.06(c). " Available Commitment" shall mean, as to any Lender at any time, an amount equal to such Lender' s Commitment at such time minus such Lender' s LC Exposure at such time and the aggregate of all such Lender' s Local Currency Loans (Dollar Equivalent) outstanding at such time. " Base Rate" shall mean, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% per annum. For purposes hereof, " Prime Rate" shall mean the rate of interest per annum publicly announced from time to time by Bank of America, N.A. as its prime rate. The Prime Rate is a rate set by Bank of America, N.A. based upon various factors including Bank of America, N.A.' s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Each change in the Prime Rate shall be effective at the opening of business on the date such change is publicly announced as effective. " Federal Funds Effective Rate" shall mean, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as released on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so released for any day which is a Business Day, the arithmetic average (rounded upwards to the next 1/100th of 1%), as determined by the Administrative Agent, of the quotations for the day of such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it. If for any reason the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms thereof, the Base Rate shall be determined without regard to clause (b) of the first sentence of this definition until the circumstances giving rise to such inability no longer exist. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively. " Base Rate Borrowing" shall mean a Borrowing comprised of Base Rate Loans. " Base Rate Loan" shall mean any Base Rate Standby Loan.
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" Base Rate Standby Loan" shall mean any Standby Loan bearing interest at a rate determined by reference to the Base Rate in accordance with the provisions of Article II. " Board" shall mean the Board of Governors of the Federal Reserve System of the United States. " Board of Directors" shall mean the Board of Directors of a Borrower or any duly authorized committee thereof. " Borrowers" shall mean the Company and the Borrowing Subsidiaries. " Borrowing" shall mean a group of Loans of a single Type made by the Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders whose Competitive Bids have been accepted pursuant to Section 2.03) on a single date and as to which a single Interest Period is in effect. " Borrowing Date" shall mean any date on which a Borrowing is made hereunder. " Borrowing Subsidiary" shall mean any Subsidiary which shall have executed and delivered to the Administrative Agent a Borrowing Subsidiary Agreement; provided, however , that no Subsidiary shall become a Borrowing Subsidiary if it shall be unlawful for (a) such Subsidiary to become a Borrower hereunder or (b) any Lender that would be required to make Loans or otherwise extend credit to such Subsidiary to make such Loans or extend such credit; provided further , that, in the case of clause (b) above, the Company shall have the right, upon notice to such Lender and the Administrative Agent, to require such Lender to transfer and assign without recourse (in accordance with and subject to the restrictions contained in Section 9.04) all interests, rights and obligations contained hereunder to another financial institution which shall assume such obligations; provided that (i) no such assignment shall conflict with any law, rule or regulation or order of any Governmental Authority and (ii) the assignee or the Borrowers, as the case may be, shall pay to the affected Lender in immediately available funds on the date of such assignment the principal of and interest accrued to the date of payment on the Loans made, and participations in LC Disbursements acquired, by it hereunder and all other amounts accrued for its account or owed to it hereunder. " Borrowing Subsidiary Agreement" shall mean an agreement, in the form of Exhibit D hereto, duly executed by the Company and a Subsidiary. " Business Day" shall mean any day (other than a day which is a Saturday, Sunday or legal holiday in the State of New York) on which banks are open for business in New York City; provided , however , that, when used in connection with a Eurocurrency Loan, the term " Business Day" shall also exclude any day on which banks are not open for dealings in deposits in the applicable currency in the London interbank market, and, when used in connection with determining any date on which any amount is to be paid or made available in Local Currency, the term " Business Day" shall also exclude any day on
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which commercial banks and foreign exchange markets are not open for business in the principal financial center in the country of such Local Currency. " Calculation Date" shall mean the last Business Day of each calendar week. " Capitalized Lease-Back Obligation" shall mean with respect to any property or asset, at any date as of which the same is to be determined, the total net rental obligations of the Company or a Subsidiary under a lease of such property or asset, entered into as part of an arrangement to which the provisions of Section 5.12 are applicable (or would have been applicable had such Subsidiary been a Subsidiary at the time it entered into such lease), discounted to the date of computation at the rate of interest per annum implicit in the lease (determined in accordance with GAAP). The amount of the net rental obligation for any calendar year under any lease shall be the sum of the rental and other payments required to be paid in such calendar year by the lessee thereunder, not including, however, any amounts required to be paid by such lessee (whether or not therein designated as rental or additional rental) on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges. A " Change in Control" shall be deemed to have occurred if (a) any person or group of persons shall have acquired beneficial ownership of more than 30% of the outstanding Voting Shares of the Company (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations thereunder) or (b) during any period of 12 consecutive months, commencing after the Restatement Effective Date, individuals who on the first day of such period were directors of the Company (together with any replacement or additional directors who were nominated or elected by a majority of directors then in office) cease to constitute a majority of the Board of Directors of the Company. " Code" shall mean the Internal Revenue Code of 1986, as the same may be amended from time to time. " Collateral" shall mean (a) cash, (b) readily marketable commercial paper issued by issuers with ratings of at least P-1 from Moody' s or A-1 from S&P and having a remaining maturity not in excess of 180 days, (c) readily marketable negotiable debt instruments constituting obligations backed by the full faith and credit of the United States of America, (d) readily marketable municipal bonds with ratings of at least Baa2 from Moody' s or BBB from S&P and (e) readily marketable corporate bonds with ratings of at least Baa2 from Moody' s or BBB from S&P and having remaining maturities not in excess of ten years. " Collateral Custodian" shall mean a commercial banking institution with an office in the State of New York and approved by the Company and the Administrative Agent. " Collateral Value" shall mean, at any time (a) in the case of Collateral referred to in clause (a) of the definition of such term, the amount thereof, and (b) in the
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case of any other Collateral, the then-current market value thereof, as determined by reference to publicly quoted prices for such Collateral or, in the absence of such publicly quoted prices, by the Administrative Agent through other reasonable means. " Commitment" shall mean, with respect to each Lender, the commitment of such Lender hereunder as set forth on Schedule 2.01 under the heading " Commitment" or in an Assignment and Assumption delivered by such Lender under Section 9.04 as such Lender' s Commitment may be (i) permanently terminated or reduced from time to time pursuant to Section 2.12 or pursuant to one or more assignments under Section 9.04 or (ii) increased from time to time pursuant to Section 2.24. The Commitment of each Lender shall automatically and permanently terminate on the Maturity Date if not terminated earlier pursuant to the terms hereof. " Commitment Increase" shall have the meaning assigned to such term in Section 2.24(b). " Competitive Bid" shall mean an offer by a Lender to make a Competitive Loan pursuant to Section 2.03. " Competitive Bid Accept/Reject Letter" shall mean a notification made by a Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4 hereto. " Competitive Bid Rate" shall mean, as to any Competitive Bid, (i) in the case of a Eurocurrency Competitive Loan, the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of interest offered by the Lender making such Competitive Bid. " Competitive Bid Request" shall mean a request made pursuant to Section 2.03(a) in the form of Exhibit A-1 hereto. " Competitive Borrowing" shall mean a Borrowing consisting of a Competitive Loan or concurrent Competitive Loans from the Lender or Lenders whose Competitive Bids for such Borrowing have been accepted under the bidding procedure described in Section 2.03. " Competitive Loan" shall mean a Loan made pursuant to the bidding procedure described in Section 2.03. Each Competitive Loan shall be in Dollars and shall be a Eurocurrency Competitive Loan or a Fixed Rate Loan. " Competitive Loan Exposure" shall mean, with respect to any Lender at any time, the sum of the aggregate principal amount of all outstanding Competitive Loans made by such Lender. " Consenting Lender" shall have the meaning assigned to such term in Section 2.25. " Consolidated Net Tangible Assets" shall mean the total of all assets appearing on a consolidated balance sheet of the Company and its Restricted Subsidiaries, prepared in accordance with GAAP (and as of a date not more than 90 days
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prior to the date as of which Consolidated Net Tangible Assets are to be determined), less the sum of the following items as shown on said consolidated balance sheet: (i) the book amount of all segregated intangible assets, including such items as good will, trademarks, trademark rights, trade names, trade name rights, copyrights, patents, patent rights and licenses and unamortized debt discount and expense less unamortized debt premium; (ii) all depreciation, valuation and other reserves; (iii) current liabilities; (iv) any minority interest in the shares of stock (other than Preferred Stock) and surplus of Restricted Subsidiaries of the Company; (v) the investment of the Company and its Restricted Subsidiaries in any Subsidiary of the Company that is not a Restricted Subsidiary; (vi) the total indebtedness of the Company and its Restricted Subsidiaries incurred in any manner to finance or recover the cost to the Company or any Restricted Subsidiary of any physical property, real or personal, which prior to or simultaneously with the creation of such indebtedness shall have been leased by the Company or a Restricted Subsidiary to the United States of America or a department or agency thereof at an aggregate rental, payable during that portion of the initial term of such lease (without giving effect to any options of renewal or extension) which shall be unexpired at the date of the creation of such indebtedness, sufficient (taken together with any amounts required to be paid by the lessee to the lessor upon any termination of such lease) to pay in full at the stated maturity date or dates thereof the principal of and the interest on such indebtedness; (vii) deferred income and deferred liabilities; and (viii) other items deductible under GAAP. " Consolidated Net Worth" shall mean, as at any date of determination, without duplication, the consolidated stockholders' equity of the Company and its Subsidiaries (including perpetual preferred stock of the Company and excluding accumulated other comprehensive income), as determined on a consolidated basis in accordance with GAAP, plus minority interests in Subsidiaries, as determined in accordance with GAAP, plus Special Securities; provided that Consolidated Net Worth shall not include Special Securities to the extent that they would account for greater than 15% of Consolidated Total Capitalization. " Consolidated Total Capitalization" shall mean, as at any date of determination, the sum of Consolidated Total Debt and Consolidated Net Worth.
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" Consolidated Total Debt" shall mean, as at any date of determination, without duplication, (i) all Indebtedness of the Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP, plus (ii) preferred securities that are mandatorily redeemable, or redeemable at the option of the holder, within 10 years of such date of determination, plus (iii) Special Securities to the extent that Special Securities exceed 15% of Consolidated Total Capitalization. Consolidated Total Debt shall exclude the aggregate principal amount of all Consumer Notes outstanding at any time that S&P does not classify the Consumer Notes as financial leverage of the Company or a Subsidiary. " Consumer Notes" means fixed, floating and index notes issued by Hartford Life Insurance Company to retail investors whereby the terms of such notes require that the net proceeds to Hartford Life Insurance Company be utilized to purchase a like amount of assets to be held by Hartford Life Insurance Company, and whereby the instrument issued is a registered security (and not an insurance contract of any type). Each set of Consumer Notes issued on the same date and which have common terms and a common maturity date is referred to as a tranche of Consumer Notes. " Credit Event" shall have the meaning assigned to such term in Section 4.01. " Debtor Relief Laws" shall mean the Bankruptcy Code of the United States and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally. " Declining Lender" shall have the meaning assigned to such term in Section 2.25. " Default" shall mean any event or condition which upon notice, lapse of time or both would constitute an Event of Default. " Dollars" or " $" shall mean lawful money of the United States of America. " Dollar Borrowing" shall mean a Borrowing comprised of Dollar Loans. " Dollar Equivalent" shall mean, on any date of determination, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount in any Local Currency, the equivalent in Dollars of such amount, determined by the Administrative Agent using the Exchange Rate with respect to such Local Currency then in effect as determined pursuant to Section 2.23(a). " Dollar Facility Excess" shall have the meaning assigned to such term in Section 2.23(d).
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" Dollar Facility Overage" shall mean an amount equal to the excess of (a) the Total Commitment over (b) the aggregate amount of all Local Currency Facility Maximum Borrowing Amounts (determined, if applicable, after giving effect to any reduction therein made pursuant to Section 2.23(c)). " Dollar Loan" shall mean any Loan denominated in Dollars. " Dollar Standby Credit Excess" shall have the meaning assigned to such term in Section 2.23(c). " Dollar Standby Credit Overage" shall mean, with respect to any Lender, an amount equal to the excess, if any, of (a) such Lender' s Commitment over (b) the aggregate Local Currency Lender Maximum Borrowing Amounts of such Lender with respect to all Local Currency Addenda to which such Lender or any of its Affiliates is a party. " Dollar Standby Extensions of Credit" shall mean, with respect to any Lender at any time, the sum of (a) the aggregate principal amount of all Standby Loans made by such Lender then outstanding and (b) the LC Exposure of such Lender at such time. " ERISA" shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time. " ERISA Affiliate" shall mean any trade or business (whether or not incorporated) that, together with the Company, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code. " ERISA Event" shall mean (a) any " reportable event" , as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan; (b) prior to the effectiveness of the applicable provisions of the Pension Act, the adoption of any amendment to a Plan that would require the provision of security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (c) prior to the effectiveness of the applicable provisions of the Pension Act, the existence with respect to any Plan of an " accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA) or, on and after the effectiveness of the applicable provisions of the Pension Act, any failure by any Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in each case whether or not waived; (d) prior to the effectiveness of the applicable provisions of the Pension Act, the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA or, on and after the effectiveness of the applicable provisions of the Pension Act, Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver of the minimum funding standard with respect to any Plan; (e) on and after the effectiveness of the applicable provisions of the Pension Act, a determination that any Plan is in " at-risk" status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code), (f) the incurrence of any liability under Title IV
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of ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal of the Company or any of its ERISA Affiliates from any Plan or Multiemployer Plan; (g) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (h) the receipt by the Company or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA or, during the effectiveness of the applicable provisions of the Pension Act, in endangered or critical status, within the meaning of Section 305 of ERISA; and (i) the occurrence of a " prohibited transaction" with respect to which the Company or any of its Subsidiaries is a " disqualified person" (within the meaning of Section 4975) of the Code, or with respect to which the Company or any such Subsidiary could otherwise be liable. " Eurocurrency Borrowing" shall mean a Borrowing comprised of Eurocurrency Loans. " Eurocurrency Competitive Loan" shall mean any Competitive Loan bearing interest at a rate determined by reference to the LIBO Rate in accordance with the provisions of Article II. " Eurocurrency Loan" shall mean any Eurocurrency Competitive Loan, Eurocurrency Standby Loan or Eurocurrency Local Currency Loan. " Eurocurrency Local Currency Loan" shall mean any Local Currency Loan bearing interest at a rate determined by reference to the LIBO Rate in accordance with the provisions of Article II. " Eurocurrency Standby Borrowing" shall mean a Borrowing comprised of Eurocurrency Standby Loans. " Eurocurrency Standby Loan" shall mean any Standby Loan bearing interest at a rate determined by reference to the LIBO Rate in accordance with the provisions of Article II. " Event of Default" shall have the meaning assigned to such term in Article VI. " Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. " Exchange Rate" shall mean, with respect to any Local Currency on a particular date, the rate at which such Local Currency may be exchanged into Dollars, as set forth on such date on the Reuters currency page more particularly described in the Local Currency Addendum for Loans to be made in such Local Currency. In the event that such rate does not appear on any Reuters currency page, the Exchange Rate with respect to such Local Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the
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Administrative Agent and the Company or, in the absence of such agreement, such Exchange Rate shall instead be the Administrative Agent' s spot rate of exchange in the London interbank market where its foreign currency exchange operations in respect of such Local Currency are then being conducted, at or about 10:00 a.m., local time, at such date for the purchase of Dollars with such Local Currency, for delivery two Business Days later; provided, however , that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent may use any reasonable method it deems applicable to determine such rate, and such determination shall be conclusive absent manifest error. " Existing Credit Agreement" shall have the meaning assigned to such term in the recitals hereto. " Existing Maturity Date" shall have the meaning assigned to such term in Section 2.25. " Facility Fee" shall have the meaning assigned to such term in Section 2.07(a). " Fair Value" , when used with respect to property, shall mean the fair value as determined in good faith by the Board of Directors of the Company. " Fees" shall mean the Facility Fee, the Usage Fee, the LC Participation Fees and the Administrative Fees. " Financial Officer" of any corporation shall mean the chief financial officer, principal accounting officer, treasurer, associate or assistant treasurer or director of treasury services of such corporation. " Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed Rate Loans. " Fixed Rate Loan" shall mean any Competitive Loan bearing interest at a fixed percentage rate per annum (the " Fixed Rate" ) (expressed in the form of a decimal to no more than four decimal places) specified by the Lender making such Loan in its Competitive Bid. " GAAP" shall mean generally accepted accounting principles in the United States, applied on a consistent basis. " Governmental Authority" shall mean any Federal, state, local or foreign court or governmental a