Exhibit 10.3
FORM OF EXPENSE AND INDEMNITY AGREEMENT - AMACAR
-, 2005
Xx. Xxxxxxx X. Xxxxxxx
Amacar Pacific Corporation
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Xx. Xxxxxxx:
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 Corporation, as administrator ("Administrator") and Beneficial
Holder (the "Trust Agreement"). Each Trust shall enter into an indenture (the
"Indenture") with JPMorgan Chase Bank, N.A., as indenture trustee (the
"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 one or more Funding Agreements issued 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 Administrator and the Delaware Trustee, dated -, 2005,
whereby the Administrator has agreed to provide certain services of each such
Trust.
In consideration of the Administrator providing services to each Trust in
connection with the Program and pursuant to the Issuance Documents under which
the Administrator 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 the 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 resulting from or relating to any insurance regulatory or other
governmental authority asserting that: (a) the Notes are, or are deemed to be,
(1) participations in one or more Funding Agreements or (2) contracts of
insurance, or (b) the offer, purchase, sale and/or transfer of the Notes and/or
assignment of the Funding Agreements (1) constitute the conduct of the business
of insurance or reinsurance in any jurisdiction or (2) requires a Trust or any
Holder to be licensed as an insurer, insurance agent or broker in any
jurisdiction, (iv) any cost, loss, damage, claim, action, suit, expense,
disbursement, tax, penalty
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or liability of any kind or nature whatsoever imposed on the Administrator that
results from the bad faith or gross negligence of the Administrator, (v) any
costs and expenses attributable solely to the Administrator's administrative
overhead unrelated to the Program, (vi) any tax imposed on fees paid to the
Administrator, (vii) any withholding taxes imposed on or with respect of
payments made under any Funding Agreement, the Indenture or any Note and (viii)
any Additional Amounts paid to any Holder.
"FEES" mean the fees as set forth in the fee schedule attached hereto
as EXHIBIT A or in any separate fee agreement between Hartford Life and the
Administrator.
"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, including
(i) the reasonable fees and expenses of counsel and (ii) costs, expenses and
taxes of the Trust; provided that Obligations do not include Excluded Amounts or
Fees.
"REASONABLE COSTS AND EXPENSES" are limited to (i) all reasonable
Administration Expenses actually and reasonably incurred by the Administrator
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, (ii) any
extraordinary cost or expense actually incurred by the Administrator that was
not reasonably anticipated by the Administrator or which was not reasonably
avoidable; provided that the Administrator will give Hartford Life prompt notice
of any such extraordinary cost or expense and (iii) any other Program Expenses
that are scheduled obligations of a Trust or that the Administrator is directed
to pay.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
2. FEES. Hartford Life hereby agrees to pay the Administrator its
Fees. If there is a substantive change in the nature of the Administrator's
duties, acceptable to the parties, the parties mutually agree to negotiate an
equitable adjustment to the Administrator's Fees.
3. PARTIAL REFUND. If the Administrator resigns or its appointment
is revoked for cause pursuant to any of the Issuance Documents under which the
Administrator has duties or obligations, the Administrator will repay to
Hartford Life such unused part of any fee paid to it as may be agreed between
the Administrator and Hartford Life but no more than the prorated amount.
4. PAYMENT OF OBLIGATIONS. If the Administrator delivers written
notice and evidence, reasonably satisfactory to Hartford Life, of any Obligation
of the Administrator, 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 Hartford Life shall hereafter furnish in writing:
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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
Telecopier: (000) 000-0000
The Administrator, for itself and on behalf of each affected Trust,
will (i) from time to time execute all such instruments and other agreements and
take all such other actions as may be necessary or desirable, or that 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 the Administrator or a Trust from a party other than
Hartford Life.
Hartford Life and the Administrator 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. To the fullest extent permitted by law and
notwithstanding anything to the contrary, Hartford Life hereby agrees, whether
or not any of the transactions contemplated by a Trust Agreement will be
consummated, to assume liability for and hereby indemnifies, protects, saves and
keeps harmless the Administrator and its officers, directors, successors,
assigns, legal representatives, agents and servants, from and against any and
all liabilities, obligations, losses, damages, penalties, taxes, claims,
actions, investigations, proceedings, costs, expenses or disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
which may be imposed on, incurred by or asserted at any time against an
Indemnified Person in any way relating to or arising out of the Administrative
Services Agreement or a Trust Agreement or the enforcement of any of the terms
thereof, the administration of a Trust or the action or inaction of the
Administrator under the Administrative Services Agreement, except, in any such
case to the extent that any such liabilities, obligations, losses, damages,
penalties, taxes, claims, actions, investigations, proceedings, costs, expenses
and disbursements (i) results from the bad faith or negligence of an Indemnified
Person (or ordinary negligence in the handling or disbursement of funds) or (ii)
relate to (a) any costs and expenses attributable solely to the Administrator's
administrative overhead or (b) any tax imposed on the Fees or other amounts paid
to the Administrator.
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 the Administrator 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. In
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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, 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. 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 the Administrator.
7. ENFORCEABILITY OF INDEMNIFICATION. If the indemnification
provided for herein is invalid or unenforceable in accordance with its terms,
then Hartford Life shall contribute to the amount paid or payable by an
Indemnified Person as a result of such liability in such proportion as is
appropriate to reflect the relative benefits received by Hartford Life and a
Trust, (if the Trust is not an Indemnified Person), on one hand, and the
Administrator or a Trust (if the Trust is an Indemnified Person) on the other
hand, from the transactions contemplated by the Issuance Documents. For this
purpose, the benefits received by Hartford Life or a Trust (if applicable) shall
be the aggregate value of the relevant Collateral, and the benefits received by
the Administrator shall be the Fees it has been paid up to that point, less
costs and unreimbursed expenses incurred by the Administrator in relation to
such Collateral, and the benefits received by the Trust (if applicable) shall be
determined by the Administrator (unless the Administrator is an Indemnified
Party) and Hartford Life. If, however, the allocation provided by the
immediately preceding two sentences is not permitted by applicable law, then
Hartford Life shall contribute to such amount paid or payable by the Indemnified
Person in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of Hartford Life and the Trust (if
applicable), on the one hand, and the Administrator or the Trust (if applicable)
on the other hand, in connection with the actions or omissions which resulted in
such liability, as well as any other relevant equitable considerations.
8. 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. The obligations of Hartford Life, as indemnitor under
this agreement to any Indemnified Person shall survive the termination of each
of the Issuance Documents.
9. WAIVER. No waiver, modification or amendment of this agreement
shall be valid unless executed in writing by the parties hereto.
10. 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.
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11. GOVERNING LAW. This agreement shall be governed by and construed
in accordance with the laws of the
New York, without regard to conflicts of laws
principles.
If the foregoing correctly sets forth the understanding and agreement
between Hartford Life and the Administrator please so indicate by signing in the
space provided for below.
Very truly yours,
HARTFORD LIFE INSURANCE COMPANY
By:
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Name:
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Title:
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AGREED AND ACCEPTED:
AMACAR PACIFIC CORPORATION, AS
ADMINISTRATOR AND BENEFICIAL
OWNER OF EACH TRUST
ESTABLISHED UNDER THE PROGRAM
By:
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Name:
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Title:
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