Exhibit 10.2
FORM OF EXPENSE AND INDEMNITY AGREEMENT - JPMORGAN
-, 2004
Xx. Xxxxxx Xxxxxx, Vice President
JPMorgan Chase Bank
4 New York Plaza, 15th Floor
New York, New York 10004
Attention: Institutional Trust Services
Dear Xx. Xxxxxx:
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 and Beneficial Holder (the "Trust
Agreement"). Each Trust shall enter into a separate indenture (each an
"Indenture") with JPMorgan Chase Bank, ("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 Corporation, as administrator
(the "Administrator"), dated -, 2004, 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 Program 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 Program 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 Program 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 Program Documents or the performance or non-performance by
the Indemnified Person of its duties or fulfillment of its obligations under the
Program 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 Program 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, a compliance certificate completed
by JPMorgan in the form attached to this Agreement as Annex I and (ii) at
Hartford Life's expense, cause a firm of independent public accountants that is
a member of the American Institute of Certified Public Accountants to furnish to
the management of Hartford Life and to the Trustee a report (the "Auditor's
Report") in the form attached to this Agreement Terms as Annex II. The Auditor's
Report shall be filed as an exhibit to the Trust's 10-K(s).
9. SURVIVAL. The obligations of Hartford Life, under this agreement
shall survive the termination of each of the Program 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:
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Name:
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Title:
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AGREED:
JPMORGAN CHASE BANK, IN ITS CAPACITY AS
INDENTURE TRUSTEE, PAYING AGENT,
CALCULATION AGENT, TRANSFER AGENT AND
REGISTRAR FOR THE PROGRAM
By:
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Name:
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Title:
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ANNEX I
ANNUAL STATEMENT OF COMPLIANCE
I [identify the certifying individual], a duly elected and acting officer of XX
Xxxxxx Xxxxx Bank ("Indenture Trustee"), do hereby certify on behalf of the
Indenture Trustee, that:
1. I have reviewed and examined the performance by the Indenture Trustee of the
application of trust money collected by the Indenture Trustee pursuant to
Section - and, if applicable, Section 6.06 of the Indenture pursuant to which
the Trust's notes (the "Notes") were issued during the fiscal year ending
December 31, 200 - (the "Relevant Year"); and
2. Based upon my review and examination described in 1 above, and except as
provided in the Independent Auditor's Report on Applying Agreed Upon Procedures,
dated - , 200 -, prepared by the Trust's independent public accountants in
accordance with Section 8 of the
Expense and Indemnity Agreement dated -, 2003,
to the best of my knowledge, the application of trust money collected by the
Indenture Trustee pursuant to Section - and, if applicable, Section - of the
Indenture was performed in a satisfactory manner in all material respects
throughout the Relevant Year.
XX XXXXXX CHASE BANK, as Indenture Trustee
By:
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Name:
Title:
Date:
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ANNEX II
Independent Auditor's Report On Applying Agreed-Upon Procedures
To: Management of
Hartford Life Insurance Company ("Hartford Life") and
Wilmington Trust Company, as trustee (the "Trustee") of Hartford Life
Global Funding Trust [ - ] (the "Trust")
We have performed the procedures enumerated below, which were agreed to by the
Management of Hartford Life and the Trustee, solely to assist you in evaluating
the proper and prompt payments of amounts by XX Xxxxxx Xxxxx Bank, as indenture
trustee (the "Indenture Trustee"), of amounts payable under Hartford Life's
secured notes program (the "Program") for the [year] [period] ended December 31,
200-. Hartford Life's management is responsible for the proper and prompt
payments of amounts due under the funding agreements which support the payment
of amounts due on the secured notes (the "Notes") issued by the Trust. This
agreed-upon procedures engagement was conducted in accordance with attestation
standards established by the American Institute of Certified Public Accountants.
The sufficiency of these procedures is solely the responsibility of those
parties specified in this report. Consequently, we make no representation
regarding the sufficiency of the procedures described below either for the
purpose for which this report has been requested or for any other purpose. The
procedures and the associated findings are as follows:
1. We requested and obtained a copy of the Indenture Trustee's HISTORY
OF TRANSACTIONS LIST which details the payments received from Hartford
Life on the funding agreements that secured the Notes, for the [year]
[period] ended December 31, 200X. We reviewed the HISTORY OF
TRANSACTIONS LIST and noted that the Indenture Trustee properly
recorded the receipt of payments due from Hartford Life. We noted [no
exceptions] [the following exceptions] in our testing of amounts
received from Hartford Life by the Indenture Trustee.
2. We requested and obtained from the Indenture Trustee a copy of the
Transmission by Database Report, which details the components of the
bulk wire transfers to Cede & Co., the nominee of the Depository Trust
Company, and noted that the amounts due on the Notes were a component
of the bulk wire transfers as noted on the Transmission by Database
Report on the applicable dates tested. We noted [no exceptions] [the
following exceptions] in our testing of the components of the bulk wire
transfers to Cede & Co, the nominee of the Depository Trust Company, by
the Indenture Trustee on the applicable dates tested, as detailed by
the Transmission by Database Report.
3. We requested and obtained from the Indenture Trustee a copy of the
bulk wire transfer confirmation to Cede & Co, the nominee of the
Depository Trust Company, and noted that the amount wired agreed to the
Transmission by Database Report on the applicable dates tested. We
noted [no exceptions] [the following exceptions] in our testing of the
bulk wire transfers from the Indenture Trustee to Cede & Co, the
nominee of the Depository Trust Company, to the Transmission by
Database Report provided by the Indenture Trustee.
We were not engaged to and did not conduct an audit, the objective of which
would be the expression of an opinion on funding agreement liabilities.
Accordingly, we do not express such an opinion. Had we performed additional
procedures, other matters might have come to our attention that would have been
reported to you. This report is intended solely for the information and use of
the management of Hartford Life and the Trustee and is not intended to be and
should not be used by anyone other than these specified parties.
