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