Exhibit 10.2
EXPENSE AND INDEMNITY AGREEMENT - JPMORGAN
December 2, 2005
Xx. Xxxxxx Xxxx, Xx., Vice President
JPMorgan Chase Bank, N.A.
4 New York Plaza, 15th Floor
New York, New York 10004
Attention: Institutional Trust Services
Dear Mr. Mari:
The Hartford Life Global Funding program (the "Program") is a program for the
issuance to the public from time to time, of one or more series of notes (each a
Series of "Notes") by newly created statutory trusts organized under the laws of
the State of Delaware (each a "Trust"). A separate Trust will be formed for the
issuance of each series of Notes, pursuant to a trust agreement, between
Wilmington Trust Company, as Delaware trustee (the "Delaware Trustee") and
Amacar Pacific Corp., as administrator and Beneficial Holder (the "Trust
Agreement"). Each Trust shall enter into a separate indenture (each an
"Indenture") with JPMorgan Chase Bank, N.A. ("JPMorgan") as indenture trustee.
Each series of Notes are secured solely by assets held by the relevant Trust.
The proceeds from the sale of each series of Notes are to be used to purchase a
Funding Agreement issued to the relevant Trust by Hartford Life Insurance
Company, a Connecticut stock life insurance company ("Hartford Life"). Each
Trust shall be administered pursuant to an administrative services agreement
between the Delaware Trustee and Amacar Pacific Corp., as administrator (the
"Administrator"), dated April 15, 2005, whereby the Administrator has agreed to
provide certain services of the Trust.
In consideration of JPMorgan providing services in connection with the
Program and pursuant to the Issuance Documents under which JPMorgan has certain
duties and obligations, Hartford Life hereby agrees to the following
compensation arrangements and terms of indemnity.
1. DEFINITIONS. The following terms, as used herein, have the following
meanings:
"EXCLUDED AMOUNTS" means (i) any obligation of a Trust to make any
payment to any Holder in accordance with the terms of an Indenture or the Notes,
(ii) any obligation or expense of a Trust to the extent that such obligation or
expense has actually been paid utilizing funds available to such Trust from
payments under a Funding Agreement, (iii) any cost, loss, damage, claim, action,
suit, expense, disbursement, tax, penalty or liability of any kind or nature
whatsoever imposed on JPMorgan that results from the bad faith or negligence of
JPMorgan, (iv) any costs and expenses attributable solely to JPMorgan's
administrative overhead, (v) any tax imposed on fees paid to JPMorgan, (vi) any
withholding taxes imposed on or with respect of payments with respect to the
Notes made under any Funding Agreement, an Indenture or any Note and (vii) any
Additional Amounts paid to any Holder.
"FEES" means the fees as set forth in the fee schedule attached hereto
as EXHIBIT A, as revised from time to time in accordance herewith, or in any
separate fee agreement between Hartford Life and JPMorgan.
"INDEMNIFIED PERSON" means any person entitled to indemnity payments
pursuant to Section 5.
"OBLIGATION" means any and all Reasonable Costs and Expenses incurred,
relating to the offering, sale and issuance of the Notes by a Trust and the
administration of the Issuance Documents, including (i) the reasonable fees and
expenses of counsel, and (ii) costs and expenses of a Trust; provided that
Obligations do not include Excluded Amounts or Fees and further provided that
the parties acknowledge that JPMorgan is not obligated to pay the cost or
expenses of any Trust.
"REASONABLE COSTS AND EXPENSES" are limited to (i) all reasonable
expenses actually and reasonably incurred by JPMorgan that either do not exceed
the indicated amounts listed in EXHIBIT B or have been approved in writing in
advance by an officer of Hartford Life including the reasonable legal expenses
incurred in connection with proposed amendments to an Indenture, related
documents or the Program or in connection with series of Notes having features
not contemplated or provided for at the inception of the Program and (ii) any
extraordinary cost or expense actually incurred by JPMorgan that was not
reasonably anticipated by JPMorgan or which was not reasonably avoidable;
provided that JPMorgan will give Hartford Life prompt notice of any such
extraordinary cost or expense.
In the case of expenses approved in writing in advance pursuant to the
definition of "Reasonable Costs and Expenses," Hartford Life agrees, from time
to time, at the request of JPMorgan, to negotiate reasonably and in good faith
reasonable modifications in such expenses that, owing to the nature of the
transaction giving rise to such expenses, JPMorgan reasonably anticipates will
be incurred by it.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Indentures.
2. FEES. Hartford Life hereby agrees to pay JPMorgan its Fees promptly
after delivery of JPMorgan's invoice therefor. If there is a substantive change
in the nature of JPMorgan's duties acceptable to the parties, the parties
mutually agree to negotiate an equitable adjustment to JPMorgan's Fees and to
reflect such adjustment in a revised EXHIBIT A.
3. PARTIAL REFUND. If JPMorgan resigns or its appointment is revoked
pursuant to any of the Issuance Documents under which JPMorgan has duties or
obligations, JPMorgan will repay to Hartford Life such part of any annual Fee
paid to it as may be agreed between JPMorgan and Hartford Life.
4. PAYMENT OF OBLIGATIONS. If JPMorgan delivers written notice and
evidence, reasonably satisfactory to Hartford Life, of any Obligation of
JPMorgan, Hartford Life shall, upon receipt of such notice promptly pay such
Obligation. Notice of any Obligation (including any invoices) should be sent to
Hartford Life at its address set forth below, or at such other address as such
party shall hereafter furnish in writing:
If by overnight delivery: If by U.S. Mail:
Hartford Life Insurance Company Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx P.O. Box 2999
Xxxxxxxx, Xxxxxxxxxxx 00000 Hartford, Connecticut 06104-2999
Attn.: Institutional Investment Products Attn.: Institutional Investment Products
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
JPMorgan will (i) from time to time execute all such instruments and
other agreements in a form reasonably satisfactory to JPMorgan and take all such
other actions as Hartford Life may reasonably request, to protect any interest
of Hartford Life with respect to any Obligation or to enable Hartford Life to
exercise or enforce any right, interest or remedy it may have with respect to
any such Obligation, and (ii) release to Hartford Life any amount received from
Hartford Life relating to any Obligation or any portion of any Obligation,
immediately after any such amount relating to such Obligation, or any portion of
any such Obligation, is otherwise received by JPMorgan from a party other than
Hartford Life.
Hartford Life and JPMorgan hereby agree that all payments due under
this Agreement in respect of any Obligation shall be effected, and any
responsibility of Hartford Life to pay such Obligation pursuant to this
Agreement shall be discharged, by the payment by Hartford Life to the account of
the person to whom such Obligation is owed.
5. INDEMNIFICATION. Subject to Section 6 and 7, Hartford Life hereby
agrees to indemnify, and to hold harmless, to the full extent permitted by law,
JPMorgan, its officers, directors, successors, assigns, legal representatives,
agents and servants who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding relating to or
arising out of the acceptance or administration by JPMorgan of its trusts or
agencies under the Issuance Documents or the performance or non-performance by
the Indemnified Person of its duties or fulfillment of its obligations under the
Issuance Documents or any other agreement relating to the Program to which
JPMorgan becomes a party, whether civil, criminal administrative or
investigative, against losses, out-of-pocket costs and expenses (including,
without limitation, interest and reasonable attorneys' fees and expenses),
liabilities (including liabilities for penalties), judgments, damages and fines
incurred by such party in connection with the defense or settlement of such
action, suit or proceeding, except where any such claim for indemnification is
or relates to any Excluded Amount or is caused by the Indemnified Person's
negligence or willful misconduct.
The indemnification provided for herein supersedes in all respects any
indemnification provision contained in any other Issuance Document or any other
agreement relating to the Program to which JPMorgan is or becomes a party.
6. INDEMNIFICATION PROCEDURES. An Indemnified Person shall give prompt
written notice to Hartford Life of any action, suit or proceeding commenced or
threatened against the Indemnified Person. Failure to provide prompt notice
shall exclude Hartford Life from its obligation to provide indemnity to the
extent that its ability to defend any such action, suit or proceeding is
impaired by such failure. In case any such action, suit or proceeding shall be
brought involving an Indemnified Person, Hartford Life may, in its sole
discretion, elect to assume the defense of the Indemnified Person, and if it so
elects to assume such defense, Hartford Life shall, in consultation with such
Indemnified Person, select counsel, reasonably acceptable to the Indemnified
Person, to represent the Indemnified Person and pay the reasonable fees and
expenses of such counsel; provided, that if JPMorgan is the Indemnified Person,
such counsel shall be on its approved counsel list. In any such action,
investigation or proceeding, the Indemnified Person shall have the right to
retain its own counsel but Hartford Life shall not be obligated to pay the fees
and disbursements of such counsel unless (i) Hartford Life and the Indemnified
Person shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such action, investigation or proceeding (including any
impleaded parties) include both Hartford Life and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that
Hartford Life shall not, in connection with any proceeding or related proceeding
in the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified Persons who
are affiliated with JPMorgan.
7. OTHER INDEMNIFICATION TERMS. Hartford Life shall be subrogated to
any right of the Indemnified Person in respect of the matter as to which any
indemnity was paid hereunder. The Indemnified Person may not settle any action,
investigation or proceeding without the consent of Hartford Life, not to be
unreasonably withheld.
8. TRUST ANNUAL REPORTS. Hartford Life shall (i) file as an exhibit to
each Trust's Annual Reports on Form 10-K (each a "10-K"), filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), a compliance
certificate (the "Compliance Certificate") prepared by JPMorgan and complying
with Item 1123 of Regulation AB (17 CFR 229.1100-1123) ("Regulation AB"), with
such changes as it and JPMorgan may from time to time deem appropriate,
including pursuant to clause (iii) of this Section, (ii) at its expense, cause
an independent registered public accounting firm that is a member of the
American Institute of Certified Public Accountants to furnish to the management
of Hartford Life and to the Delaware Trustee a report (the "Auditor's Report")
complying with Item 1122(b) of Regulation AB, with such changes as it or such
accountants may from time to time deem appropriate, including pursuant to clause
(iii) of this Section and such changes as may be required in the case of an
Event of Default under the Indenture, which Auditor's Report shall be filed as
an exhibit to each Trust's 10-K(s), (iii) make such changes to the Compliance
Certificate (subject to the approval of JPMorgan) or Auditor's Report and file
or cause to be filed as exhibit(s) to each Trust's 10-K(s) such other
certifications and other documents as required under Regulation AB or such other
rules or regulations adopted by the Securities and Exchange Commission that may
be applicable to such Trusts' 10-K(s) at the time of the filing of such Trusts'
10-K(s) and (iv) cause the appropriate officer at Hartford Life to provide the
certification required to be filed as an exhibit to each Trust's 10-K(s)
pursuant to Rule 13a-14(d) or Rule 15d-14(d) of the Exchange Act, or such other
certification as may be required pursuant to the Exchange Act at the time of the
filing of such Trusts' 10-K(s). JPMorgan will provide Hartford Life with the
certifications required by Item 1122(a) and Item 1123 of Regulation AB. Hartford
Life also hereby undertakes that, in the event that JPMorgan, in connection with
any Indenture or any Trust, may be required to file or furnish any reports
(other than Compliance Certificates) pursuant to the Exchange Act (the
"Depositor Reports") and the Exchange Act authorizes the party serving as the
depositor, sponsor or issuer of the Program to file or furnish or cause to be
filed or furnished such Depositor Reports, then Hartford Life will, to the
extent permissible under applicable law, file or furnish or cause to be filed or
furnished such Depositor Reports pursuant to the Exchange Act at its own
expense.
9. SURVIVAL. The obligations of Hartford Life, under this agreement
shall survive the termination of each of the Issuance Documents.
10. WAIVER. No waiver, modification or amendment of this agreement
shall be valid unless executed in writing by the parties hereto.
11. COUNTERPARTS. This agreement may be executed in counterparts
(including by facsimile transmission), each of which when so executed and
delivered shall be deemed an original, but all of such contracts shall together
constitute one and the same document.
12. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles.
If the foregoing correctly sets forth the understanding and agreement
between Hartford Life and JPMorgan please so indicate by signing in the space
provided for below.
Very truly yours,
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Assistant Vice President
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AGREED:
JPMORGAN CHASE BANK, N.A., IN ITS CAPACITY AS
INDENTURE TRUSTEE, PAYING
AGENT, CALCULATION AGENT, TRANSFER
AGENT AND REGISTRAR FOR THE PROGRAM
By: /s/ Xxxxxx X. Xxxx, Xx.
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Name: Xxxxxx X. Xxxx, Xx.
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Title: Vice President
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