Exhibit 1.1
STANDARD DISTRIBUTION AGREEMENT TERMS
WITH RESPECT TO
HARTFORD LIFE GLOBAL FUNDING
SECURED MEDIUM-TERM NOTES AND INCOME NOTES
DATED AS OF -, 2004
STANDARD DISTRIBUTION AGREEMENT TERMS
This document constitutes Standard Distribution Agreement Terms which are
incorporated by reference in the Distribution Agreement (included in the omnibus
instrument through which certain of the documents related to the issuance of the
Notes are executed) (the "Omnibus Instrument"), dated as of the date set forth
therein (the "DISTRIBUTION AGREEMENT"), by and among the Trust, the Company, and
each Agent specified in the Distribution Agreement.
These Standard Distribution Agreement Terms shall be of no force and effect
unless and until incorporated by reference into, and then only to the extent not
modified by, the Distribution Agreement.
The following terms and provisions shall govern the terms of the
distribution of the Notes issued by the Trust, subject to such other terms and
provisions expressly adopted in the Distribution Agreement.
Capitalized terms not otherwise defined in these Standard Distribution
Agreement Terms shall have their respective meanings ascribed to them in the
Distribution Agreement.
In connection with the Hartford Life Global Funding Program (the "PROGRAM")
arranged by Bear Xxxxxxx & Co. Inc., as arranger, the Company has authorized the
issuance and sale of a funding agreement to the Trust in order to secure the
Notes issued to the Agent(s) pursuant to the terms of this Distribution
Agreement.
The Notes are to be issued pursuant to the Indenture. The Trust shall issue
only the Notes. The Trust will use the net proceeds from the sale of the Notes
to purchase a funding agreement (the "FUNDING AGREEMENT") from the Company. The
Notes will be secured by the Funding Agreement which will be assigned by the
Trust to the Indenture Trustee on behalf of the holders of the Notes pursuant to
the Indenture. In connection with the sale of the Notes, the Trust will prepare
a Pricing Supplement (the "PRICING SUPPLEMENT") including or incorporating by
reference a description of the terms of the Notes, the terms of the offering and
a description of the Trust.
Subject to the terms and conditions contained in this Distribution
Agreement, the Company and the Trust hereby (1) appoint only Bear, Xxxxxxx & Co.
Inc. as purchasing agent (the "PURCHASING AGENT"); and (2) appoint the
Purchasing Agent and/or such other parties specified in the Pricing Supplement
(the Purchasing Agent and each such party, an "AGENT") for the purpose of
purchasing and selling the Notes. For purposes of this Distribution Agreement,
all references to any Agent shall be deemed to include the Purchasing Agent.
This Distribution Agreement specifies terms and conditions on which the
Notes may be sold by the Trust to the Agent(s) as principal for resale to
investors.
The Company has made the requisite filings with the Securities and Exchange
Commission (the "COMMISSION") pursuant to the Securities Exchange Act of 1934,
as amended (the "1934 ACT") and the rules and regulations of the Commission
under the 1934 Act (the "1934 ACT REGULATIONS"). The Company has filed with the
Commission a registration statement on Form S-3 (No. TBD) [AND PRE-EFFECTIVE
AMENDMENT[S] NO[S]. ___ THERETO] for the registration
of funding agreements by the Company and notes under the Securities Act of 1933,
as amended (the "1933 ACT"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 ACT REGULATIONS"). Such registration statement has been
declared effective by the Commission and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 ACT") and the rules
and regulations of the Commission under the 1939 Act (the "1939 ACT
REGULATIONS"), and the Company has filed such post-effective amendments thereto
as may be required prior to the Trust's acceptance of any offer for the purchase
of Notes and each such post-effective amendment has been declared effective by
the Commission. Such registration statement (as so amended, if applicable) is
referred to herein as the "REGISTRATION STATEMENT"; and the final prospectus and
all applicable amendments or supplements thereto (including the final prospectus
supplements and Pricing Supplement relating to the offering of the Notes), in
the form first furnished to the Agent(s) for use in confirming sales of the
Notes, are collectively referred to herein as the "PROSPECTUS"; PROVIDED,
HOWEVER, that all references to the "Registration Statement", and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the 1934 Act, prior to any acceptance by the Trust of
an offer for the purchase of Notes; PROVIDED, FURTHER, that if the Company files
a registration statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "RULE 462(b) REGISTRATION STATEMENT"), then, after such
filing, all references to the "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement. A "PRELIMINARY PROSPECTUS" shall
be deemed to refer to any prospectus and any prospectus supplement used before
the Registration Statement became effective and any prospectus and any
prospectus supplement furnished by the Company or the Trust after the
Registration Statement became effective and before any acceptance by the Trust
of an offer for the purchase of Notes which omitted information to be included
upon pricing in a form of prospectus and prospectus supplement filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations. For purposes of
this Distribution Agreement, all references to the Registration Statement,
Prospectus or preliminary prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Distribution Agreement to financial statements
and schedules and other information which is "disclosed", "contained",
"included" or "stated" (or other references of like import) in the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in this
Distribution Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to include the
filing of any document under the 1934 Act which is incorporated by reference in
the Registration Statement, Prospectus or preliminary prospectus, as the case
may be.
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SECTION 1.
REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE COMPANY
1.1 REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE COMPANY.
Each of the Trust and the Company jointly and severally represent and warrant to
each Agent as of the date hereof, as of the date of each acceptance by the Trust
of an offer for the purchase of Notes, as of the date the Notes are delivered in
exchange for payment (the "SETTLEMENT DATE") and as of any time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the notes offered pursuant to the Registration Statement,
including the establishment of or a change in the interest rates, maturity or
price of notes offered pursuant to the Registration Statement or similar
changes) (each of the times referenced above being referred to herein as a
"REPRESENTATION DATE") as follows:
1.1.1 NO FILINGS OR REGULATORY APPROVALS. Other than as set
forth or contemplated in the Prospectus, no filing with, or approval,
authorization, consent, license, registration, qualification, order or
decree of, any court or governmental authority or agency, is necessary or
required for the issuance and sale of the Notes by the Trust, except such
as have been previously made, obtained or rendered, as applicable, and
except such consents, approvals, authorizations, registrations,
qualifications, orders or decrees as may be required under the 1933 Act or
the 1939 Act or under state or foreign securities or blue sky laws or any
rules or regulations of any securities exchange.
1.1.2 INVESTMENT COMPANY ACT. The Trust is not, and upon the
issuance and sale of the Notes as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be,
required to register as an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 ACT").
1.1.3 RATINGS. The Program under which the Notes are issued,
as well as the Notes, as applicable, are rated [Aa3] by Xxxxx'x Investors
Service, Inc. or its successor ("MOODY'S") and [AA-] by Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. or its
successor ("S&P") (Moody's and S&P are referred to herein as the "RATINGS
AGENCIES" and each a "RATINGS AGENCY"), or such other rating as to which
the Company or the Trust shall have most recently notified the Agent(s)
pursuant to SECTION 2.3.5 hereof and set forth in the Omnibus Instrument.
Except as otherwise disclosed to the Agent(s) no public announcement has
been made by a Ratings Agency that it has under surveillance or review,
with possible negative implications, its rating of the Program, the Notes
or any notes issued pursuant to the Registration Statement, as applicable,
or has withdrawn its rating of the Program, the Notes or any notes issued
pursuant to the Registration Statement, as applicable.
1.1.4 LISTING. If specified in the Pricing Supplement, the
Notes described in such Pricing Supplement shall be listed on the
securities exchange designated in the Pricing Supplement.
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1.2 REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust
represents and warrants to each Agent as of each Representation Date as follows:
1.2.1 DUE FORMATION AND GOOD STANDING OF THE TRUST. The Trust
is a statutory trust, duly formed under Delaware law pursuant to the Trust
Agreement (the "TRUST AGREEMENT") between Wilmington Trust Company, as
Trustee (the "DELAWARE TRUSTEE") and AMACAR Pacific Corporation, as
administrator and trust beneficial holder and the filing of a certificate
of trust with the Delaware Secretary of State, which is validly existing
and in good standing as a statutory trust under the laws of the State of
Delaware.
1.2.2 NO MATERIAL CHANGES. Since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no event
or occurrence that would reasonably be expected to have a material adverse
effect on the condition (financial or otherwise) of the Trust or on the
power or ability of the Trust to perform its obligations under this
Distribution Agreement, the Indenture, the Notes, the Trust Agreement, the
Funding Agreement, the Administrative Services Agreement (the
"ADMINISTRATION AGREEMENT"), between the Delaware Trustee, on behalf of the
Trust, and AMACAR Pacific Corporation, as administrator (the
"ADMINISTRATOR") or the License Agreement (the "LICENSE AGREEMENT") between
the Trust and Hartford Fire Insurance Company, or to consummate the
transactions to be performed by it as contemplated in the Prospectus (a
"TRUST MATERIAL ADVERSE EFFECT") and (B) there have been no transactions
entered into by the Trust, other than those related to the Program or in
the ordinary course of business, which are material with respect to the
Trust.
1.2.3 AUTHORIZATION OF AGREEMENTS. This Distribution
Agreement, the Indenture, the Notes the Administration Agreement and the
License Agreement have been or will be duly authorized, executed and
delivered by the Trust. Assuming that each party to this Distribution
Agreement, the Indenture, the Administration Agreement, the License
Agreement and the Trust Agreement, other than the Trust, has duly
authorized, executed and delivered each such agreement, then this
Distribution Agreement, the Indenture, the Administration Agreement, the
License Agreement and the Trust Agreement will each be a valid and legally
binding agreement of the Trust enforceable against the Trust in accordance
with its terms, except (A) as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (B) except as enforcement thereof may
be limited by requirements that a claim with respect to any Notes issued
under the Indenture that are payable in a foreign or composite currency (or
a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States.
The Notes have been duly authorized by the Trust for offer, sale, issuance
and delivery pursuant to this Distribution Agreement and when issued,
authenticated and delivered in the manner provided for in the Indenture and
delivered against payment of the consideration therefor, will constitute
valid and legally
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binding obligations of the Trust, enforceable against the Trust in
accordance with their terms, except (1) as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (2) except as
enforcement thereof may be limited by requirements that a claim with
respect to any Notes issued under the Indenture that are payable in a
foreign or composite currency (or a foreign or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. Subject to the exceptions set forth in the
preceding sentence, the Notes when executed by the Trust and issued
authenticated and delivered in the manner provided for in the Indenture and
delivered against payment of the consideration therefor, will be entitled
to the benefits of the Indenture.
1.2.4 ABSENCE OF DEFAULTS AND CONFLICTS. (A) The execution,
delivery and performance of this Distribution Agreement, the Indenture, the
Notes, the Funding Agreement, the Administration Agreement, the License
Agreement and any other agreement or instrument entered into or issued or
to be entered into or issued by the Trust in connection with the issuance
of the Notes and the transactions contemplated thereby, (B) the performance
of the Trust Agreement (all agreements and instruments referenced in
clauses (A) and (B) above are referred to herein as the "ISSUANCE
DOCUMENTS"), (C) the consummation of the transactions contemplated in the
Prospectus (including the issuance and sale of the Notes and the use of
proceeds therefrom as described in the Prospectus) and (D) the compliance
by the Trust with its obligations under the Issuance Documents, do not and
will not constitute a breach, violation or default which (1) gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Trust, or (2) results in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Trust pursuant
to, any contract, indenture, mortgage, loan or credit agreement, note,
lease or other agreement or instrument to which the Trust is a party or by
which it may be bound or to which any of the property or assets of the
Trust is subject, nor will such action result in any violation of the
Trust's Certificate of Trust or the Trust Agreement and the Trust is not in
default in the performance or observance of any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Trust or any of its assets, properties or operations;
PROVIDED, that no representation or warranty is made with respect to
compliance with law of the Funding Agreement to the extent that the source
of the funds used by the Trust to purchase such Funding Agreement renders
such funds, or any property or investment acquired with such funds, subject
to governmental seizure or other penalty under the USA Patriot Act of 2001,
as amended (the "USA PATRIOT ACT"); PROVIDED, FURTHER that in the case of
clause (1) of this SECTION 1.2.4, this representation and warranty shall
not extend to such repurchase, redemption or repayment that would not
result in a Trust Material Adverse Effect and in the case of clause (2) of
this SECTION 1.2.4, this representation and warranty
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shall not extend to such lien, charges or encumbrances or any violations or
defaults that would not result in a Trust Material Adverse Effect.
1.2.5 BENEFICIAL INTEREST. The beneficial interest of the
Trust when issued will be duly authorized and, when registered in the
Securities Register (as defined in the Trust Agreement) in accordance with
the provisions of the Trust Agreement, will be a valid and legally binding
obligation of the Trust, enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, conservatorship, receivership or similar laws affecting
creditors' rights generally or by general equitable principles (regardless
of whether enforcement is considered in a proceeding in equity or at law).
1.2.6 NO PROCEEDINGS. There is no action, suit, proceeding or
investigation pending of which the Trust has received notice or service of
process, or before or brought by any court or governmental agency or body,
or to the knowledge of the Trust threatened, against the Trust or its
assets which is required to be disclosed in the Registration Statement and
the Prospectus (other than as disclosed therein).
1.3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Agent as of each Representation Date as follows:
1.3.1 DUE INCORPORATION, GOOD STANDING AND DUE QUALIFICATION
OF THE COMPANY AND SIGNIFICANT SUBSIDIARIES. The Company, and each
significant subsidiary (as such term is defined in Rule 1-02 of Regulation
S-X promulgated under the 0000 Xxx) that is an operating company, if any
(each, a "SIGNIFICANT SUBSIDIARY"), is duly incorporated and validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation with corporate power and authority to own
its properties and to conduct its business as described in the Prospectus;
each of the Company and each Significant Subsidiary is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where the
failure to so qualify would result in a Company Material Adverse Effect
(defined below). Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
stated therein, there has been no event or occurrence that would reasonably
be expected to have a material adverse effect on the condition (financial
or otherwise) of the Company and its subsidiaries considered as one
enterprise or on the power or ability of the Company to perform its
obligations under any of the Issuance Documents or to consummate the
transactions to be performed by it as contemplated in the Prospectus (a
"COMPANY MATERIAL ADVERSE EFFECT").
1.3.2 REGISTRATION STATEMENT AND PROSPECTUS. The Company meets
the requirements for use of Form S-3 under the 1933 Act. The Registration
Statement, filed with the Commission pursuant to the 1933 Act, as of its
effective date, did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Each Prospectus, if any, filed
pursuant to Rule 424 of the 1933 Act Regulations, complied when so filed in
all material respects with the 1933 Act and the 1933 Act Regulations.
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The Registration Statement and each Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
1933 Act and the 1933 Act Regulations. The Registration Statement and each
Prospectus do not and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Trust and
Company make no representations or warranties as to (A) that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the 1939 Act of the Indenture Trustee or
(B) any statements in or omissions from the Registration Statement or any
Prospectus made in reliance on and in conformity with written information
provided by the Agent(s) to the Trust or to the Company expressly for use
in the Registration Statement or Prospectus or any amendment or supplement
thereto.
1.3.3 COMPANY FINANCIAL STATEMENTS. The consolidated financial
statements (including the related notes but excluding the supporting
schedules) included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects the
consolidated financial position, results of operations and cash flows of
the entities purported to be shown thereby, at the dates and for the
periods indicated and have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated and conform in all material respects with
the 1933 Act, except as otherwise noted therein; and the supporting
schedules, selected financial data and the summary financial data included
or incorporated by reference in the Registration Statement when considered
in relation to such financial statements taken as a whole, present fairly
in all material respects the information required to be stated therein.
1.3.4 AUTHORIZATION OF THIS DISTRIBUTION AGREEMENT AND THE
FUNDING AGREEMENT. This Distribution Agreement has been, and the Funding
Agreement when issued will be, duly authorized, executed and delivered by
the Company and, assuming that each party to this Distribution Agreement
and the Funding Agreement, other than the Company, has duly authorized
executed and delivered such agreement, then this Distribution Agreement and
the Funding Agreement will each be a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except (A) as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), (B) that no representation or warranty is made with respect to
the enforceability of the indemnification provided for in SECTION 6 hereof
and (C) that no representation or warranty is made with respect to the
enforceability of the Funding Agreement to the extent that the source of
the funds used by the Trust to purchase such Funding Agreement renders such
funds, or any property or investment acquired with such funds, subject to
governmental seizure or other penalty under the USA Patriot Act.
1.3.5 NO PROCEEDINGS. There is no action, suit, proceeding or
investigation pending of which the Company has received notice or service
of process, or
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before or brought by any court or governmental agency or body, or to the
knowledge of the Company threatened, against the Company which is required
to be disclosed in the Registration Statement and the Prospectus (other
than as disclosed therein).
1.3.6 ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any of its Significant Subsidiaries is in violation of the provisions
of its charter or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any of
its Significant Subsidiaries is subject (collectively, "COMPANY AGREEMENTS
AND INSTRUMENTS"), except for such defaults that would not result in a
Company Material Adverse Effect; the execution, delivery and performance of
this Distribution Agreement, the Funding Agreement and any other agreement
or instrument entered into or issued or to be entered into or issued by the
Company in connection with the transactions contemplated in the Prospectus,
the consummation of the transactions contemplated in the Prospectus and the
compliance by the Company with its obligations thereunder have been duly
authorized by all necessary corporate action and do not and will not
constitute a breach, violation or default (A) which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of
its Significant Subsidiaries, or (B) of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its properties, except for such breaches,
violations or defaults under subsections (A) or (B) immediately above that
would not result in a Company Material Adverse Effect; PROVIDED, that no
representation or warranty is made with respect to compliance with law of
the Funding Agreement to the extent that the source of the funds used by
the Trust to purchase such Funding Agreement renders such funds, or any
property or investment acquired with such funds, subject to governmental
seizure or other penalty under the USA Patriot Act.
1.3.7 LICENSES AND PERMITS. Each of the Company and the
Significant Subsidiaries has all necessary consents, licenses,
authorizations, approvals, exemptions, orders, certificates and permits
(collectively, the "COMPANY GOVERNMENTAL LICENSES") of and from, and has
made all filings and declarations (collectively, the "COMPANY GOVERNMENTAL
FILINGS") with, all Federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, necessary to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the
Prospectus, except where the failure to have such Company Governmental
Licenses or to make such Company Governmental Filings would not,
individually or in the aggregate, result in a Company Material Adverse
Effect. All such Company Governmental Licenses and Company Governmental
Filings are in full force and effect, except to the extent that any such
failure to be in full force and effect would not result, singly or in the
aggregate, in a Company Material Adverse Effect. The Company and the
Significant Subsidiaries are in compliance with such Company Governmental
Licenses and neither the Company nor any of the Significant Subsidiaries
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has received any notice of any inquiry, investigation or proceeding that
would reasonably be expected to result in the suspension, revocation or
limitation of any such Company Governmental Licenses or otherwise impose
any limitation on the conduct of the business of the Company or any of the
Significant Subsidiaries, except as set forth in the Prospectus or to the
extent that any such failure to be in compliance, suspension, revocation or
limitation would not, singly or in the aggregate, result in a Company
Material Adverse Effect.
1.3.8 FILINGS AND REGULATORY APPROVALS. Other than as set
forth or contemplated in the Prospectus, no filing with or approval,
authorization, consent, license, registration, qualification, order or
decree of any governmental authority or agency, is necessary or required
for the issuance and sale of the Funding Agreement by the Company, except
such as have been previously made, obtained or rendered, as applicable, and
except such consents, approvals, authorizations, registrations,
qualifications, orders or decrees as may be required under the 1933 Act or
the 1939 Act or under state or foreign securities or blue sky laws or any
rules or regulations of any securities exchange.
1.3.9 INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Notes as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be,
required to register as an "investment company" within the meaning of the
1940 Act.
1.3.10 RATINGS. The Company's financial strength rating is
[Aa3] by Moody's and [AA-] by S&P, or such other rating as to which the
Company shall have most recently notified the Agent(s) pursuant to
SECTION 2.3.5 hereof and set forth in the Omnibus Instrument. Except as
otherwise disclosed to the Agent(s) no public announcement has been made by
a Ratings Agency that it has under surveillance or review, with possible
negative implications, its rating of the financial strength of the Company
or has withdrawn its rating of the financial strength of the Company.
1.3.11 ABSENCE OF DEFAULT UNDER THE FUNDING AGREEMENT. To the
Company's knowledge there exists no event or circumstance which does or may
(with the passing of time, the giving of notice, the making of any
determination or any combination thereof) be reasonably expected to
constitute an event of default under any outstanding funding agreement
issued in connection with the Registration Statement.
1.3.12 INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act and the 1934
Act Regulations.
1.3.13 INDEPENDENT ACCOUNTANTS. The accountants who certified
the financial statements and any supporting schedules thereto included in
the Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
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1.3.14 CONFORMITY OF ISSUANCE DOCUMENTS. The statements
relating to the Issuance Documents contained in the Prospectus conform and
will conform in all material respects to the Issuance Documents and the
Issuance Documents are substantially in the form filed or incorporated by
reference, as the case may be, as exhibits to the Registration Statement.
1.3 Any certificate signed by the Administrator or any authorized
officer of the Delaware Trustee and delivered to the Agent(s) or Sidley Xxxxxx
Xxxxx & Xxxx LLP, as legal counsel to the Agent(s), or any other legal counsel
selected by the Agent(s) (or the bookrunning lead manager(s), in the case of a
syndicated issue) to replace such previous legal counsel (the "AGENT APPROVED
COUNSEL") in connection with the sale of Notes to the Agent(s) shall be deemed a
representation and warranty by the Trust to such Agent(s) as to the matters
covered thereby on the date of such certificate. Any certificate signed by any
authorized officer of the Company and delivered to the Agent(s) or the Agent
Approved Counsel in connection with the sale of Notes to the Agent(s) shall be
deemed a representation and warranty by the Company to such Agent(s) as to the
matters covered thereby on the date of such certificate.
SECTION 2.
COVENANTS OF THE TRUST AND THE COMPANY
2.1 COVENANTS OF THE TRUST AND THE COMPANY. In further consideration
of the Agent's agreements herein contained, the Trust and the Company jointly
and severally covenant and agree with each Agent as follows:
2.1.1 PREPARATION OF PRICING SUPPLEMENTS. The Trust and the
Company will prepare a Pricing Supplement with respect to the Notes sold to
the Agent(s) in a form previously agreed to by the Agent(s). The Trust and
the Company will use their reasonable best efforts to deliver such Pricing
Supplement no later than 11:00 a.m., New York City time, on the business
day following the date of the Trust's acceptance of the offer for the
purchase of such Notes and will file such Pricing Supplement pursuant to
the applicable subparagraph of Rule 424(b) of the 1933 Act Regulations.
2.1.2 BLUE SKY QUALIFICATIONS. Subject to SECTION 3.10, below,
the Trust and the Company shall take reasonable efforts to establish and
maintain the qualification of the Notes for offer and sale under the
securities blue sky laws of such jurisdictions as the Agent(s) (or the
bookrunning lead manager(s), in the case of a syndicated issue) shall
reasonably request; PROVIDED, HOWEVER, that if either the Trust or the
Company, in its reasonable judgment, determines that such qualification in
a particular jurisdiction would cause an undue burden, its sole obligation
is to so advise the Agent(s) (or the bookrunning lead manager(s), in the
case of a syndicated issue); and PROVIDED FURTHER, HOWEVER, that the Trust
and the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject.
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2.1.3 LISTING. The Trust and the Company, with the assistance
of the Agent(s) (or the bookrunning lead manager(s), in the case of a
syndicated issue), shall use reasonable efforts to obtain and maintain
approval for the listing of at least the notes of one trust issued pursuant
to the Registration Statement on a national securities exchange as defined
in Section 18(a)(3)(B) of the 1933 Act until such time as none of the notes
issued pursuant to the Registration Statement are outstanding.
2.1.4 DEPOSITORY TRUST COMPANY. The Trust and the Company
shall assist the Agent(s) in arranging to cause the Notes to be eligible
for settlement through the facilities of The Depository Trust Company.
2.1.5 SECURITY INTEREST. As required by the Indenture, the
Trust pursuant to the Indenture, will create, in favor of the Indenture
Trustee, for the benefit of the holders of Notes, a first priority
perfected security interest in the Collateral (as defined in the
Indenture), under New York law or the law of such other applicable
jurisdiction whose law governs such perfection, non-perfection or priority.
2.2 COVENANTS OF THE TRUST. In further consideration of the Agent's
agreements herein contained, the Trust covenants and agrees with each Agent as
follows:
2.2.1 NOTICE OF AMENDMENT TO THE INDENTURE OR THE TRUST
AGREEMENT. The Trust will give the Agent(s) at least seven (7) days' prior
notice in writing of any proposed amendment to the Indenture or the Trust
Agreement and, except in accordance with the applicable provisions of the
Indenture or the Trust Agreement, not make or permit to become effective
any amendment to the Indenture or the Trust Agreement which may adversely
affect the interests of the Agent(s) or any holder of any outstanding Notes
(as determined by the Agent(s) (or the bookrunning lead manager(s), in the
case of a syndicated issue)) without the consent of the affected party.
2.2.2 AUTHORIZATION TO ACT ON BEHALF OF THE TRUST. The Trust
will, from time to time, after receiving a written request from an Agent,
deliver to the Agent(s) a certificate as to the names and signatures of
those persons authorized to act on behalf of the Trust in relation to the
Program if such information has changed.
2.2.3 USE OF PROCEEDS. The Trust will use the net proceeds
received by it from the issuance and sale of the Notes in the manner
specified in the Prospectus.
2.2.4 NOTICE OF MEETINGS. The Trust will furnish to the
Agent(s), at the same time as it is dispatched, a copy of notice of any
meeting of the holders of Notes which is called to consider any matter
which is material in the context of the Trust.
2.3 COVENANTS OF THE COMPANY. In further consideration of the
Agent's agreements herein contained, the Company covenants and agrees with each
Agent as follows:
2.3.1 FILING OR USE OF AMENDMENTS. The Company will give the
Agent(s) advance notice of their intention to file or prepare any
additional registration statement with respect to the registration of
additional notes to be issued pursuant to the Registration Statement, any
amendment or supplement to the Registration Statement or
11
any amendment or supplement to the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus (other than
an amendment or supplement thereto providing solely for the determination
of the variable terms of the notes to be issued pursuant to the
Registration Statement), whether pursuant to the 1933 Act the 1934 Act, or
otherwise, will furnish to the Agent(s) copies of any such document a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will afford the Agent Approved Counsel a reasonable opportunity
to comment on any such proposed filing prior to such proposed filing.
2.3.2 DELIVERY OF THE REGISTRATION STATEMENT. The Company will
furnish to the Agent(s) and Agent Approved Counsel, without charge, one
conformed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and copies of all consents and
certificates of experts. The Registration Statement and each amendment
thereto furnished to an Agent will be identical in all material respects to
any electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
2.3.3 DELIVERY OF THE PROSPECTUS. The Company will deliver to
each Agent, without charge, as many copies of each preliminary prospectus
as such Agent may reasonably request, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The Company
will furnish to each Agent, without charge, such number of copies of the
Prospectus (as amended or supplemented) as such Agent may reasonably
request. The Prospectus and any amendments or supplements thereto furnished
to such Agent will be identical in all material respects to any
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
2.3.4 REVISIONS OF PROSPECTUS; MATERIAL CHANGES. If at any
time when the delivery of the Prospectus shall be required by law in
connection with the sale of the Notes, in the opinion of Agent Approved
Counsel, counsel for the Company or counsel for the Trust, either (A) any
event shall have occurred as a result of which the Registration Statement
or Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact, or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (B) for any other reason it
shall be necessary to amend or supplement the Registration Statement or
Prospectus, as then amended or supplemented, in order to comply with the
1933 Act or the 1933 Act Regulations, as applicable, the Company will (1)
notify the Agent(s) to suspend the solicitation of offers to purchase Notes
and if notified by the Company, the Agent(s) shall forthwith suspend such
solicitation and cease using the Prospectus as then amended or supplemented
and (2) promptly prepare and file with the Commission such amendment or
supplement to the Registration Statement or the Prospectus which will
correct such statement or omission or effect such compliance and will
provide to the Agent(s) without charge a reasonable number of copies
thereof, which the Agent(s) shall use thereafter.
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2.3.5 NOTICE OF CERTAIN EVENTS. The Company will notify the
Agent(s) promptly (but in no event later than one business day), and
confirm such notice in writing, as applicable, of (A) with respect to its
filings with the Commission under the 1934 Act, (i) the effectiveness of
any post-effective amendment to the Registration Statement or the filing of
any amendment or supplement to the Prospectus (other than any amendment or
supplement thereto providing solely for the determination of the variable
terms of notes offered pursuant to the Registration Statement), (ii) the
receipt of any comments from the Commission during the period commencing on
and including the date of the agreement of the Agent(s) to purchase Notes
as principal and continuing to and including the Settlement Date, with
respect to the Registration Statement and the Prospectus, (iii) any request
by the Commission for any amendments to such filings or for additional
information or (iv) the issuance by the Commission or any state of any stop
order or trading suspension which suspends the effectiveness of such
filings, or of the initiation of any proceedings for that purpose or (B)
any change in the rating assigned by any Ratings Agency to any debt
securities or financial strength of the Company, the Program, the Notes or
any notes offered pursuant to the Registration Statement or the withdrawal
by any Ratings Agency of its rating of any debt securities or the financial
strength of the Company, the Program, the Notes or any notes offered
pursuant to the Registration Statement. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof unless, in the
reasonable judgment of the Company, such effort is not warranted.
2.3.6 OUTSTANDING AGGREGATE PRINCIPAL AMOUNT OF NOTES. The
Company will promptly (but in no event later than one business day), upon
request by an Agent, notify such Agent of the aggregate principal amount of
notes issued pursuant to the Registration Statement from time to time
outstanding under the Program in their currency of denomination and (if so
requested) expressed in United States dollars. For the purpose of
determining the aggregate principal amount of such notes outstanding (A)
the principal amount of notes issued pursuant to the Registration
Statement, denominated in a currency other than United States dollars shall
be converted into United States dollars using the spot rate of exchange for
the purchase of the relevant currency against payment of United States
dollars being quoted by the Paying Agent (as defined in the Indenture) on
the date on which the relevant notes issued pursuant to the Registration
Statement were initially offered, (B) any notes issued pursuant to the
Registration Statement which provide for an amount less than the principal
amount thereof to be due and payable upon redemption following an Event of
Default as defined in the Indenture in respect of such notes, shall have a
principal amount equal to their redemption amount, (C) any zero coupon (and
any other notes issued pursuant to the Registration Statement issued at a
discount or premium) shall have a principal amount equal to their price to
the public and (D) the currency in which any notes issued pursuant to the
Registration Statement are payable, if different from the currency of their
denomination, shall be disregarded.
2.3.7 EARNINGS STATEMENT. The Company will timely file such
reports pursuant to the 1934 Act and the 1934 Act Regulations, as are
necessary in order to make generally available to its security holders as
soon as practicable earning statements for the purposes of, and to provide
the benefits contemplated by the last paragraph of Section 11(a) of the
1933 Act.
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2.3.8 REPORTING REQUIREMENTS. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods prescribed by the 1934 Act
and the 1934 Act Regulations.
2.3.9 AUTHORIZATION TO ACT ON BEHALF OF THE COMPANY. The
Company will, from time to time, after receiving a written request from an
Agent, deliver to the Agent(s) a certificate as to the names and signatures
of those persons authorized to act on behalf of the Company in relation to
the Program if such information has changed.
2.3.10 USE OF PROCEEDS. The Company will use the net proceeds
received by it from the issuance and sale of the Funding Agreement in the
manner specified in the Prospectus.
2.3.11 RESTRICTIONS ON ISSUANCE OF FUNDING AGREEMENTS. The
Company shall not issue or agree to issue, during the period commencing on
the date of this Distribution Agreement and continuing to and including the
Settlement Date with respect to the Notes, any funding agreement or similar
agreement for the purpose of supporting the issuance by a special purpose
entity of securities denominated in the same currency or substantially
similar to the Notes, in each case, without the prior written consent of
the Agent(s).
2.4 SUSPENSION OF CERTAIN OBLIGATIONS. After the completion of the
distribution of Notes by the Agent(s), the Company and the Trust, as applicable,
shall not be required to comply with the provisions of SECTION 2.3.3,
SECTION 2.3.4 or SECTION 2.3.5.
SECTION 3.
APPOINTMENT OF AGENTS; PURCHASES OF NOTES
3.1 APPOINTMENT. Subject to the terms and conditions stated herein,
the Trust and Company hereby agree that the Notes will be sold to the Agent(s)
as principal pursuant to the terms of this Distribution Agreement. The Trust and
the Company agree that, other than the Purchasing Agent pursuant to SECTION 3.4
hereof, each will not appoint any other agents, dealers or underwriters in
connection with the placement of the Notes.
3.2 RETAIL NOTES. In connection with the issuance of notes described
in the prospectus supplement for the Hartford Life Global Funding Income Notes
program (the "RETAIL NOTES") as amended and supplemented and included in the
Registration Statement, such Retail Notes shall be issued and sold only to the
Purchasing Agent, as principal. All issuances and sales of Retail Notes to the
Purchasing Agent shall be subject to the terms of this Distribution Agreement,
unless the Trust, the Company and the Purchasing Agent otherwise agree in
writing.
3.3 INSTITUTIONAL NOTES. In connection with the issuance of notes
described in the prospectus supplement for the Hartford Life Global Funding
Secured Medium-Term Note program (the "INSTITUTIONAL NOTES"), as amended and
supplemented and included in the Registration Statement, nothing in this
Distribution Agreement shall be construed to limit or restrict the ability of
the Trust to issue and sell Institutional Notes directly to any Agent or to any
14
other underwriter pursuant to a distribution agreement other than this
Distribution Agreement; PROVIDED, that the terms of such other distribution
agreement shall be no more favorable to such underwriter than this Distribution
Agreement.
3.4 PURCHASES AS PRINCIPAL. The sale of the Notes to an Agent shall
be made in accordance with the terms of this Distribution Agreement. The
agreement of the Agent(s) to purchase Notes shall be deemed to have been made on
the basis of the representations, warranties, covenants and agreements of the
Trust and the Company herein contained and shall be subject to the terms and
conditions herein set forth. In connection with the resale of the Notes
purchased, without the consent of the Trust and Company, Agents are not
authorized to appoint sub-agents or to engage the service of any other broker or
dealer; PROVIDED, HOWEVER, that in connection with the resale of the Retail
Notes, the Purchasing Agent may appoint any sub-agent or engage the service of
any other broker or dealer without the consent of the Trust or the Company, so
long as any such broker or dealer engaged has entered into a Master Selected
Dealer Agreement substantially in the form attached hereto as EXHIBIT A.
3.5 PURCHASES AT DISCOUNT. Unless otherwise specified in the
Distribution Agreement, each purchase of Retail Notes by the Purchasing Agent
shall be at a discount from the principal amount of each such Retail Note
equivalent to the applicable percentage set forth in SCHEDULE 1 hereto. Unless
otherwise specified in the Distribution Agreement, each purchase of
Institutional Notes by any Agent shall be at a discount from the principal
amount of each such Institutional Note equivalent to the applicable percentage
set forth in SCHEDULE 2 hereto.
3.6 ADMINISTRATIVE PROCEDURES. Administrative procedural details
relating to the issuance and delivery of the Notes are set forth in the
Administrative Procedures attached hereto as EXHIBIT B, as amended from time to
time (the "ADMINISTRATIVE PROCEDURES"). The provisions of the Administrative
Procedures shall apply to all transactions contemplated hereunder. The Agent(s),
the Trust and the Company each agree, and the Trust agrees to cause the
Indenture Trustee, to perform the respective duties and obligations specifically
provided to be performed by each such party under the Administrative Procedures.
The Administrative Procedures may only be amended by written agreement of the
Trust, the Company and the Agent(s).
3.7 PROSPECTUS DELIVERY; MARKETING MATERIALS. Each Agent shall, as
required by applicable law, furnish to each person to whom such Agent sells
Notes a copy of the Prospectus (as then amended or supplemented) or, if delivery
of the Prospectus is not required by applicable law, inform each such person
that a copy thereof (as then amended or supplemented) will be made available
upon request. No Agent is authorized to give any information or to make any
representation not contained in the Prospectus or the documents incorporated by
reference or specifically referred to therein in connection with the offer and
sale of the Notes. Agents will not use any marketing materials, other than the
Prospectus, in connection with any offer or sale of the Notes except for
marketing materials prepared by the Agent(s) or the Company, if any, for which
prior written authorization has been given by the Company to the Agent(s) (or
the bookrunning lead manager(s), in the case of a syndicated issue) to use the
same hereunder.
3.8 ACTION BY TRUST OR COMPANY. The Agent(s) are aware that other
than registering the Notes under the 1933 Act, the filing of required reports
under the 1934 Act and
15
the actions required pursuant to SECTION 2.1.3, no action has been or will be
taken by the Trust or the Company that would permit the offer or sale of the
Notes or the possession or distribution of the Prospectus or any other offering
material relating to the Notes in any jurisdiction where action for that purpose
is required.
3.9 AGGREGATE OFFERING LIMITATION. The Company shall not issue
funding agreements to trusts organized under the Program to support the issuance
of notes with an aggregate initial offering price in excess of the aggregate
initial offering price of notes registered pursuant to the Registration
Statement. The Agent(s) shall have no responsibility for maintaining records
with respect to the aggregate initial offering price of notes sold, and of
otherwise monitoring the availability of notes for sale, under the Registration
Statement.
3.10 ACKNOWLEDGEMENT. The Company, the Trust and each Agent
acknowledge that they understand that (A) the form of the Funding Agreement has
only been filed and approved by the Insurance Departments in the State of
Connecticut and the State of Delaware, (B) the Notes have not been registered as
securities under any state's securities laws, in reliance on the exemption set
forth in Section 18 of the 1933 Act, and if the Trust, the Company or any Agent
learns of any action by any state's insurance or securities regulatory body (or
of any change in state insurance laws or regulations) which creates a material
risk that the sale of Notes in such state may violate the insurance or
securities laws of such state, the Trust or the Company shall advise Agents of
such risks and may direct the Agent(s) to cease all sales of Notes in the
affected states and, absent such direction, any Agent may elect to cease sales
of Notes in any or all affected states, PROVIDED, that such Agent shall notify
the Company and the Trust of such election, and (C) the Company and the Trust
instruct the Agent(s) to solicit offers to purchase Notes only as permitted or
contemplated in the Prospectus or in this Distribution Agreement and as
permitted by the 1933 Act and the applicable securities laws or regulations of
any jurisdiction.
3.11 MISCELLANEOUS. For purposes of this Distribution Agreement
(other than SECTION 3.2 and SECTION 3.3), all references to Notes shall be
deemed to include the Retail Notes and the Institutional Notes.
SECTION 4.
CONDITIONS OF AGENT'S OBLIGATIONS
Each Agent's obligations hereunder are subject to the following
conditions:
4.1 OPINIONS. On the Settlement Date for the first notes issued
under the Program (the "INITIAL SETTLEMENT DATE") and, if applicable, on each
date preceding the Settlement Date of the Notes that is the anniversary of the
Initial Settlement Date, except as otherwise indicated in this Distribution
Agreement or otherwise agreed among the Company, the Trust and the Agent(s), the
Company and the Trust shall have made available to the Agent(s) or the Agent(s)
shall have received the following legal opinions, dated as of the date of
thereof and in form and substance satisfactory to the Agent(s) (which shall be
the bookrunning lead manager(s) in the case of a syndicated issue):
16
4.1.1 OPINION OF INTERNAL COUNSEL FOR THE COMPANY. The opinion
of Internal Counsel for the Company to the effect set forth in EXHIBIT C
hereto and to such further effect as the Agent(s) may reasonably request;
4.1.2 OPINION OF COUNSEL FOR THE COMPANY CONCERNING CERTAIN
CONNECTICUT INSOLVENCY MATTERS. The opinion of Xxxxxxxx & Xxxx LLP,
Connecticut counsel for the Company or other external counsel reasonably
satisfactory to the Agent(s) (or the bookrunning lead manager(s), in the
case of a syndicated issue) to the effect set forth in EXHIBIT D hereto and
to such further effect as the Agent(s) may reasonably request;
4.1.3 OPINION OF AGENT APPROVED COUNSEL CONCERNING CERTAIN
FEDERAL SECURITIES MATTERS. The opinion of Agent Approved Counsel to the
effect set forth in EXHIBIT E hereto and to such further effect as the
Agent(s) may reasonably request;
4.1.4 OPINION OF AGENT APPROVED COUNSEL CONCERNING CERTAIN NEW
YORK LAW MATTERS. The opinion of Agent Approved Counsel to the effect set
forth in EXHIBIT F hereto and to such further effect as the Agent(s) may
reasonably request;
4.1.5 OPINION OF AGENT APPROVED COUNSEL CONCERNING CERTAIN NEW
YORK SECURITY INTEREST MATTERS. The opinion of Agent Approved Counsel to
the effect set forth in EXHIBIT G hereto and to such further effect as the
Agent(s) may reasonably request;
4.1.6 OPINION OF AGENT APPROVED COUNSEL CONCERNING CERTAIN TAX
MATTERS. The opinion of Agent Approved Counsel to the effect set forth in
EXHIBIT H hereto and to such further effect as the Agent(s) may reasonably
request;
4.1.7 MEMORANDUM OF AGENT APPROVED COUNSEL CONCERNING CERTAIN
INSURANCE MATTERS. The memorandum of Agent Approved Counsel to the effect
set forth in EXHIBIT I hereto and to such further effect as the Agent(s)
may reasonably request; PROVIDED, that this memorandum shall only be issued
upon the Initial Settlement Date;
4.1.8 OPINION OF AGENT APPROVED COUNSEL CONCERNING CERTAIN
INSURANCE MATTERS. The opinion of Agent Approved Counsel to the effect set
forth in EXHIBIT J hereto and to such further effect as the Agent(s) may
reasonably request; PROVIDED, that this opinion shall only be issued upon
the Initial Settlement Date;
4.1.9 OPINION OF COUNSEL FOR THE TRUST. The opinion of
Xxxxxxxx, Xxxxxx & Finger P.A. or other external counsel reasonably
satisfactory to the Agent(s) (or the bookrunning lead manager(s), in the
case of a syndicated issue), as counsel for the Trust, to the effect set
forth in EXHIBIT K hereto and to such further effect as the Agent(s) may
reasonably request;
4.1.10 OPINION OF COUNSEL FOR THE DELAWARE TRUSTEE. The opinion
of Xxxxxxxx, Xxxxxx & Finger P.A. or other external counsel reasonably
satisfactory to the Agent(s) (or the bookrunning lead manager(s), in the
case of a syndicated issue), as
17
counsel for the Delaware Trustee, to the effect set forth in EXHIBIT L
hereto and to such further effect as the Agent(s) may reasonably request;
4.1.11 OPINION OF COUNSEL FOR THE TRUST CONCERNING DELAWARE
SECURITY INTEREST MATTERS. The opinion of Xxxxxxxx, Xxxxxx & Finger P.A. or
other external counsel reasonably satisfactory to the Agent(s) (or the
bookrunning lead manager(s), in the case of a syndicated issue), as counsel
for the Delaware Trustee, to the effect set forth in EXHIBIT M hereto and
to such further effect as the Agent(s) may reasonably request;
4.1.12 OPINION OF COUNSEL FOR THE ADMINISTRATOR. The opinion of
Xxxxxxxxxx Xxxxxxx Syracuse & Hirschtritt LLP or other external counsel
reasonably satisfactory to the Agent(s) (or the bookrunning lead
manager(s), in the case of a syndicated issue), as counsel for the
Administrator, to the effect set forth in EXHIBIT N hereto and to such
further effect as the Agent(s) may reasonably request;
4.1.13 OPINION OF COUNSEL FOR THE INDENTURE TRUSTEE. The
opinion of Xxxxxxx Xxxxxx & Xxxxx LLP or other external counsel reasonably
satisfactory to the Agent(s) (or the bookrunning lead manager(s), in the
case of a syndicated issue), as counsel for the Indenture Trustee, to the
effect set forth in EXHIBIT O hereto and to such further effect as the
Agent(s) may reasonably request.
4.2 NEGATIVE ASSURANCES. On the Initial Settlement Date, on each
date preceding the Settlement Date specified in SECTION 5.3 hereof, if
applicable, or, in the case of an issuance of Institutional Notes, upon the
request of the Agent(s) (which shall be the bookrunning lead manager(s) in the
case of a syndicated issue) on the Settlement Date, unless otherwise agreed, the
Agent(s) shall have received the following negative assurances, dated as of the
date thereof and in form and substance satisfactory to the Agent(s) (which shall
be the bookrunning lead manager(s) in the case of a syndicated issue and the
Purchasing Agent in the case of an issue of Retail Notes):
4.2.1 NEGATIVE ASSURANCE OF COMPANY APPROVED COUNSEL. The
negative assurance letter of Company Approved Counsel (as defined below) to
the effect set forth in EXHIBIT P hereto; and
4.2.2 NEGATIVE ASSURANCE OF AGENT APPROVED COUNSEL. The
negative assurance letter of Agent Approved Counsel to the effect set forth
in EXHIBIT Q hereto.
4.3 COMPANY CERTIFICATE. Unless otherwise agreed, on the Settlement
Date the Agent(s) shall have received a certificate of a vice president of the
Company with responsibility for the funding agreement business dated as of the
date thereof to the effect that (A) there has been no material adverse change in
the condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, (B) the representations and warranties of the Company herein contained
are true and correct with the same force and effect as though expressly made at
and as of the date of such certificate, (C) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the date of such certificate and (D) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
18
for that purpose have been instituted, are pending or, to the best of such
person's knowledge, are threatened by the Commission.
4.4 TRUST CERTIFICATE. Unless otherwise agreed, on the Settlement
Date the Agent(s) shall have received a certificate of an officer of the
Administrator dated as of the date thereof to the effect that (A) there has been
no material adverse change in the condition, financial or otherwise, of the
Trust, whether or not arising in the ordinary course of business, (B) the
representations and warranties of the Trust herein contained are true and
correct with the same force and effect as though expressly made at and as of the
date of such certificate, (C) the Trust has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date of such certificate and (D) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted, are pending or, to the best of such person's
knowledge, are threatened by the Commission.
4.5 COMFORT LETTER. On the Initial Settlement Date, on each date
preceding the Settlement Date specified in SECTION 5.4 hereof, if applicable,
or, in the case of an issuance of Institutional Notes, upon the request of the
Agent(s) (or the bookrunning lead manager(s), in the case of a syndicated issue)
on the Settlement Date, unless otherwise agreed, the Agent(s) shall have
received a letter from Deloitte & Touche or its successor, as accountants to the
Company (the "ACCOUNTANTS"), dated as of the date thereof and in form and
substance satisfactory to the Agent(s) (or the bookrunning lead manager(s), in
the case of a syndicated issue) to the effect set forth in EXHIBIT R hereto.
4.6 CONDITIONS TO PURCHASE. The obligations of the Agent(s) to
purchase Notes as principal under this Distribution Agreement are further
subject to the conditions (A) of the accuracy of the representations and
warranties, as of the date on which such representations and warranties were
made or deemed to be made pursuant to SECTION 1 on the part of the Company and
Trust, herein contained or contained in any certificate of an officer or trustee
of the Company or Trust, respectively, delivered pursuant to the provisions
hereof and the performance and observance by each of the Trust and the Company
of its covenants and other obligations hereunder and (B) that the Registration
Statement has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act or by any state, and no proceedings for such purpose shall have been
instituted or shall be pending or, to the knowledge of the Company or the Trust,
threatened by the Commission or any state and any request on the part of the
Commission or any state for additional information shall have been complied with
to the reasonable satisfaction of counsel to the Agent(s).
4.7 NECESSARY DOCUMENTS. Each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a pricing supplement)
by the filing of a post-effective amendment with the Commission, including the
filing by the Company of a Form 10-K or Form 10-Q under the Exchange Act, or, if
so agreed in this Distribution Agreement, the Company shall furnish Agent
Approved Counsel with such documents and opinions as may reasonably be required
for the purpose of enabling such Agent Approved Counsel to pass upon the
issuance and sale of Notes as herein contemplated, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or the
19
fulfillment of any of the conditions, contained herein; and all proceedings
taken by the Company and the Trust in connection with the issuance and sale of
Notes as herein contemplated shall be reasonably satisfactory in form and
substance to the Agent(s) and Agent Approved Counsel.
4.8 FAILURE TO SATISFY CONDITIONS. If any condition specified in
this SECTION 4 shall not have been fulfilled when and as required to be
fulfilled, this Distribution Agreement may be terminated by any Agent (as to
itself only) by notice to the Company and the Trust at any time and any such
termination shall be without liability of any party to any other party except as
provided in SECTION 11 hereof and except that SECTION 6, SECTION 7.2, SECTION 9
and SECTION 10 hereof shall survive any such termination and remain in full
force and effect.
SECTION 5.
REGISTRATION STATEMENT AMENDMENTS; COMPANY PERIODIC REPORTS
5.1 AFFIRMATION OF REPRESENTATIONS AND WARRANTIES. The execution of
this Distribution Agreement and the delivery of Notes to an Agent shall be
deemed to be an affirmation that the representations and warranties of the Trust
and the Company made to the Agent(s) and in any certificate theretofore
delivered pursuant hereto are true and correct at the time of such acceptance or
sale, as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the Agent(s) of
the Notes relating to such acceptance or sale as though made at and as of each
such time (and it is understood that such representations and warranties shall
relate to the Registration Statement and Prospectus as amended and supplemented
to each such time).
5.2 SUBSEQUENT DELIVERY OF COMPANY CERTIFICATE AND TRUST
CERTIFICATE. In the event that:
5.2.1 the Registration Statement or Prospectus has been
amended or supplemented (other than (a) by an amendment or supplement
providing solely for the determination of the variable terms of the notes
issued pursuant to the Registration Statement or (b) in connection with the
filing of any report under Section 13 or 15(d) of the 0000 Xxx) (each, a
"REGISTRATION STATEMENT AMENDMENT"), or
5.2.2 the Company has filed, pursuant to the 1934 Act, its
quarterly report on Form 10-Q or annual report on Form 10-K, as the case
may be (each, a "COMPANY PERIODIC REPORT"),
then each of the Company and the Trust shall furnish or cause to be
furnished to the Agent(s) promptly upon such Registration Statement
Amendment or Company Periodic Report, as applicable, a certificate dated
the date of filing or effectiveness of the Registration Statement
Amendment, as applicable, or the date of the Company Periodic Report, as
the case may be, in a form reasonably satisfactory to the Agent(s) to the
effect that the statements contained in the certificates respectively
referred to in SECTION 4.2 and SECTION 4.3 hereof which were last furnished
to the Agent(s) are true and correct in all material respects at the date
of filing or effectiveness of the Registration Statement Amendment, as
applicable, or the date of the Company Periodic Report, as the case may
20
be, as though made at and as of such date or, in lieu of such certificate,
a certificate of substantially the same tenor as the certificates referred
to in SECTION 4.2 and SECTION 4.3 hereof, modified as necessary to relate
to the Registration Statement Amendment or Company Periodic Report to the
date of delivery of such certificate.
5.3 SUBSEQUENT DELIVERY OF NEGATIVE ASSURANCES. In the event of:
5.3.1 a Registration Statement Amendment, or
5.3.2 a Company Periodic Report,
then the Company and the Trust shall furnish or cause to be furnished to
the Agent(s), promptly upon such Registration Statement Amendment or
Company Periodic Report, as the case may be, the negative assurance of
external counsel selected by the Company and reasonably satisfactory to the
Agent(s) or internal legal counsel to the Company which shall be at least a
Associate Counsel to the Company (in either case, the "COMPANY APPROVED
COUNSEL") and the negative assurance of Agent Approved Counsel, each dated
the date of filing or effectiveness of such Registration Statement
Amendment, as applicable, or the date of the Company Periodic Report, as
the case may be, in form and substance satisfactory to the Agent(s), of
substantially the same tenor as the negative assurances referred to in
SECTION 4.2.1 and SECTION 4.2.2 hereof, respectively, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such negative assurance
or, in lieu of such negative assurance, counsel last furnishing such
negative assurance to the Agent(s) shall furnish such Agent(s) with a
letter substantially to the effect that the Agent(s) may rely on such last
negative assurance to the same extent as though it was dated the date of
such letter authorizing reliance (except that statements in such last
negative assurance shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of
such letter authorizing reliance).
5.4 SUBSEQUENT DELIVERY OF COMFORT LETTER. In the event of:
5.4.1 a Registration Statement Amendment, or
5.4.2 a Company Periodic Report,
then the Company shall cause the Accountants forthwith to furnish to the
Agent(s), promptly upon such Registration Statement Amendment or Company
Periodic Report, as the case may be, a letter, dated the date of filing or
effectiveness of such Registration Statement Amendment, as applicable, or
the date of the Company Periodic Report, as the case may be, in form
reasonably satisfactory to the Agent(s), of substantially the same tenor as
the letter referred to in SECTION 4.5 hereof but modified to relate to the
Registration Statement and Prospectus as amended and supplemented to the
date of such letter; PROVIDED HOWEVER, that if the Registration Statement
or Prospectus is amended or supplemented solely to include unaudited
financial information as of and for a fiscal quarter, the Accountants may
limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement.
21
SECTION 6.
INDEMNIFICATION AND CONTRIBUTION.
6.1 The Company agrees to indemnify and hold harmless each Agent,
its officers and directors and each person, if any, who controls such Agent
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, arising out of an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading, or arising out of an untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that this
indemnity does not apply to (i) any loss, liability, claim, damage or expense to
the extent arising out of an untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company or Trust by such Agent expressly for use in
the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), (ii) any
loss, liability, claim, damage or expense arising out of any statements in or
omissions from that part of the Registration Statement which constitutes the
Statements of Eligibility and Qualification (Form T-1) under the 1939 Act of the
Indenture Trustee or (iii) with respect to any preliminary prospectus to the
extent that any such loss, liability, claim, damage or expense of such Agent
results from the fact that such Agent sold Notes to a person as to whom it shall
be established by the Company and the Trust that there was not sent or given, at
or prior to the delivery of written confirmation of such sale, a copy of the
Prospectus (as amended or supplemented) in any case where such delivery is
required by the 1933 Act if the Company and the Trust have previously furnished
copies thereof in sufficient quantities to such Agent and the loss, liability.
claim, damage or expense of such Agent results from an untrue statement or
omission of a material fact contained in the preliminary prospectus that was
corrected in the Prospectus.
6.2 Each Agent agrees, severally but not jointly, to indemnify and
hold harmless the Company, the Trust and each of their respective directors,
officers and trustees (if applicable) that signed the Registration Statement and
each person, if any, who controls the Company or Trust within the meaning of
Section 15 of the 1933 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in SECTION 6.1 hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company or the Trust by such Agent expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
6.3 Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not
22
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to SECTION 6.1
hereof, counsel to the indemnified parties shall be selected by the Company and,
in the case of parties indemnified pursuant to SECTION 6.2 hereof, counsel to
the indemnified parties shall be selected by the Agent(s). Counsel to the
indemnifying party may, with the consent of the indemnified party, which consent
shall not be unreasonably withheld, also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, which consent shall not be unreasonably withheld, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this SECTION 6 (whether or
not the indemnified parties are actual or potential parties thereto); unless
such settlement, compromise or consent (i) is for monetary damages only, (ii)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (iii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
6.4 If the indemnification provided for in SECTION 6 hereof is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein (other than as provided therein), then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on one hand, and the Agent(s), on the other hand, from the offering of
the Notes (including the sale of the Funding Agreement, as the case may be, that
were the subject of the claim for indemnification or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and Trust, on one hand, and
the Agent(s), on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company and the Trust, on the one
hand, and the Agent(s), on the other hand, in connection with the offering of
the Notes, as the case may be, that were the subject of the claim for
indemnification shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Notes (before deducting expenses)
received by the Trust and the total discount received by the Agent(s), as the
case may be, bears to the aggregate initial offering price of such Notes.
The relative fault of the Company and the Trust, on one hand, and the
Agent(s), on the other hand, shall be determined by reference to, among other
things, whether any untrue or
23
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Trust, on one hand, or by the Agent(s), on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties agree that it would not be just and equitable if contribution
pursuant to this SECTION 6.4 were determined by pro rata allocation (even if the
Agent(s) were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this SECTION 6.4. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this SECTION 6.4 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any applicable untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this SECTION 6.4, (i) no Agent shall be
required to contribute any amount in excess of the amount by which the total
price, at which the Notes underwritten by such Agent and distributed to the
public, were offered to the public exceeds the amount of any damages which such
Agent has otherwise been required to pay by reason of any applicable untrue or
alleged untrue statement or omission or alleged omission and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. In addition, in connection with an
offering of Notes purchased from the Trust by two or more Agent(s) as principal,
the respective obligations of such Agent(s) to contribute pursuant to this
SECTION 6.4 are several, and not joint, in proportion to the aggregate principal
amount of Notes that each such Agent has agreed to purchase from the Trust.
For purposes of this SECTION 6.4, each person, if any, who controls an
Agent within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Agent, and each director, officer and trustee (if
applicable) of the Company or Trust, as applicable, and each person, if any, who
controls the Company or Trust within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as the Company or Trust, as
applicable.
SECTION 7.
TERMINATION
7.1 TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The
Agent(s) (or the bookrunning lead manager(s), in the case of a syndicated issue)
may terminate any agreement by such Agent(s) (and any other Agent(s), in the
case of a syndicated issue) to purchase Notes immediately upon written notice to
the Trust and the Company, at any time on or prior to the Settlement Date
relating thereto, if (i) there has been, since the time of such agreement or
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, of (1) the
Company and its subsidiaries considered as one enterprise, or (2) the Trust, in
each case, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the
24
financial markets in the United States or any outbreak of hostilities or major
escalation of existing hostilities or other calamity or crisis or any similar
major change or event (including, without limitation, an act of terrorism)
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the reasonable judgement of the Agent(s) (or the bookrunning lead manager(s),
in the case of a syndicated issue) after consultation with the Company,
impracticable to market such Notes or enforce contracts for the sale of such
Notes, (iii) trading in any securities of The Hartford Financial Services Group,
Inc. (the "CORPORATION"), the Company, or Trust has been suspended or materially
limited by the Commission or The New York Stock Exchange, or if trading
generally on The New York Stock Exchange or the American Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, in each
case the effect of which is such as to make it, in the reasonable judgment of
the Agent(s) (or bookrunning lead manager(s), in the case of a syndicated issue)
after consultation with the Company, impracticable to market such Notes or
enforce contracts for the sale of such Notes, (iv) a banking moratorium has been
declared by either Federal or New York authorities or a material disruption has
occurred in commercial banking or securities settlement or clearance services in
the United States, in each case the effect of which is such as to make it, in
the reasonable judgment of the Agent(s) (or bookrunning lead manager(s), in the
case of a syndicated issue) after consultation with the Company, impracticable
to market such Notes or enforce contracts for the sale of such Notes or (v) the
rating assigned by any nationally recognized statistical rating organization to
the Program, any notes issued pursuant to the Registration Statement or any debt
securities (including the Notes) of the Trust or any securities or the financial
strength of the Company as of the date of such agreement shall have been lowered
or withdrawn since that date or if any such rating organization shall have
publicly announced that it has under surveillance or review its rating of the
Program, any notes issued pursuant to the Registration Statement or any such
debt securities (including the Notes) of the Trust or any securities or the
financial strength of the Company.
7.2 GENERAL. In the event of any termination under SECTION 7.1
above, neither party will have any liability to the other party hereto, except
that the covenant set forth in SECTION 2.3.7 hereof, the indemnity and
contribution agreements set forth in SECTION 6 hereof, the provisions of
SECTION 9 and SECTION 10 hereof and the provisions of SECTION 11 hereof shall
remain in effect.
SECTION 8.
NOTICES
Except as otherwise specifically provided herein, all statements,
requests, notices and advices hereunder shall be in writing, or if by telephone,
promptly confirmed in writing, and if to an Agent shall be sufficient in all
respects if delivered in person or sent by facsimile transmission (confirmed in
writing), or registered mail to such Agent at its address or facsimile number
set forth in this Distribution Agreement and if to the Company or the Trust
shall be sufficient in all respects if delivered or sent by facsimile
transmission (confirmed in writing) or registered mail to the Company or the
Trust at the applicable address specified below. All such notices shall be
effective on receipt.
25
IF TO THE COMPANY:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Or, if by U.S. Mail, to:
XX Xxx 0000
Xxxxxxxx Xxxxxxxxxxx, 00000
Attn: Xxx X. XxXxxxxx,
Vice President and Actuary
Telephone: 000-000-0000
Facsimile: 000-000-0000
WITH A COPY TO:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Or, if by U.S. Mail, to:
XX Xxx 0000
Xxxxxxxx Xxxxxxxxxxx, 00000
Attn: Xxxxxxxxx X. Xxxxxx,
General Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
IF TO THE TRUST:
Hartford Life Global Funding (followed by the
number of the Trust designated in the Distribution Agreement)
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Corporate Trust Administration
Telephone: (000) 000-0000
26
AND:
Hartford Life Global Funding (followed by the
number of the Trust designated in the Distribution Agreement)
c/o AMACAR Pacific Corporation
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx, President
Telephone: 000-000-0000
Facsimile: 000-000-0000
IF TO THE PURCHASING AGENT:
Bear Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx "Chip" Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO:
Bear Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IF TO THE AGENTS:
To each Agent at the address specified in ANNEX I or as otherwise indicated in
the Distribution Agreement
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this SECTION 8.
SECTION 9.
PARTIES
This Distribution Agreement shall be binding upon the Agent(s), the
Trust and the Company, and inure solely to the benefit of the Agent(s), the
Trust and the Company and any other person expressly entitled to indemnification
hereunder and the respective personal representatives, successors and assigns of
each, and no other person shall acquire or have any rights under or by virtue of
this Distribution Agreement.
27
SECTION 10.
GOVERNING LAW
PURSUANT TO SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK, THIS DISTRIBUTION AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF
THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
SECTION 11.
FEES AND EXPENSES
11.1 COMPANY LIABILITY FOR PROGRAM EXPENSES. The Company will pay the
expenses of the Program, either directly, pursuant to this Distribution
Agreement (including through the performance of the obligations of the Company
and the Trust), or through one or more Expense and Indemnity Agreements (as
defined in the Indenture), including the following:
(i) the preparation, filing, printing and delivery of the
Registration Statement and any amendments and supplements
thereto;
(ii) fees and expenses relating to the issuance of Notes and
the cost of obtaining CUSIP or other identification numbers for
the Notes;
(iii) the fees and certain other disbursements of the Delaware
Trustee, the Administrator, the Indenture Trustee and other
Trust service providers;
(iv) the fees charged by the nationally recognized statistical
rating organizations selected for the rating of the Program and
the Notes; and
(v) the fees and expenses incurred in connection with any
listing of Notes on a securities exchange.
11.2 EXPENSES OF AGENTS. The Company shall agree to pay or reimburse
an Agent for certain expenses such Agent may incur in connection with the
Program. Such expenses shall be paid or reimbursed only to the extent described
in this Distribution Agreement or other written agreement between the Company
and such Agent. Each Agent agrees that, except as provided in this Distribution
Agreement or other written agreement, each Agent is responsible for its own
expenses.
11.3 OBLIGATIONS OF TRUST LIMITED. The Trust shall have no obligation
to pay or reimburse any Agent for any expenses such Agent incurs in connection
with this Distribution Agreement or the Program.
11.4 REIMBURSEMENT AFTER TERMINATION. In the event that the proposed
offering of Notes is not completed pursuant to SECTION 7.1, the Company will
reimburse the Agent(s) for the expenses set forth in this Distribution Agreement
and any other written agreement between the Company and such Agent(s).
28
SECTION 12.
MISCELLANEOUS
12.1 POWER OF ATTORNEY. If this Distribution Agreement is executed by
or on behalf of any party, such person hereby states that at the time of the
execution of this Distribution Agreement such person has no notice of revocation
of the power of attorney by which he has executed this Distribution Agreement as
such attorney.
12.2 COUNTERPARTS. This Distribution Agreement may be executed by
each of the parties hereto in any number of counterparts, and by each of the
parties hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Facsimile signatures shall be deemed original signatures.
12.3 AMENDMENT. This Distribution Agreement may be amended or
supplemented if, but only if, such amendment or supplement is in writing and is
signed by the Company, the Trust, and the Agent(s).
12.4 LIMITATION OF DELAWARE TRUSTEE LIABILITY. Notwithstanding any
provision hereof to the contrary, it is expressly understood and agreed by the
parties that (a) this Distribution 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 Trust Agreement, (b) each of the representations, undertakings
and agreements herein made on the part of the Trust is made and intended not as
personal representations, undertakings and agreements by the Delaware Trustee
but is made and intended for the purpose of binding only the 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 the Trust or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Trust under this Distribution Agreement or
any other related documents.
29
LIST OF EXHIBITS, SCHEDULES AND ANNEX
EXHIBITS
Exhibit A Form of Master Selected Dealer Agreement
Exhibit B Administrative Procedures
Exhibit C Opinion of Internal Counsel for the Company
Exhibit D Opinion of Counsel for the Company Concerning Connecticut Insolvency Law
Exhibit E Opinion of Agent Approved Counsel Concerning Federal Securities Law
Exhibit F Opinion of Agent Approved Counsel Concerning New York Law
Exhibit G Opinion of Agent Approved Counsel Concerning New York Security Interests
Exhibit H Opinion of Agent Approved Counsel Concerning Tax
Exhibit I Memorandum of Agent Approved Counsel Concerning Insurance
Exhibit J Opinion of Agent Approved Counsel Concerning Insurance
Exhibit K Opinion of Counsel for the Trust
Exhibit L Opinion of Counsel for the Delaware Trustee
Exhibit M Opinion of Counsel for the Trust Concerning Delaware Security Interests
Exhibit N Opinion of Counsel for the Administrator
Exhibit O Opinion of Counsel for the Indenture Trustee
Exhibit P Negative Assurance of Company Approved Counsel
Exhibit Q Negative Assurance of Agent Approved Counsel
Exhibit R Comfort Letter from Accountants to the Company
SCHEDULES
Schedule 1 Discount Determination for Purchasing Agent (Retail Notes)
Schedule 2 Discount Determination for Agents (Institutional Notes)
ANNEX
Annex I Notice Information of Agents
