Exhibit 10.1
EXPENSE AND INDEMNITY AGREEMENT - WILMINGTON
April 15, 2005
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
The Hartford Life Global Funding program (the "Program") is a program for the
issuance to the public from time to time, of one or more series of notes (each a
Series of "Notes") by newly created statutory trusts organized under the laws of
the State of Delaware (each a "Trust"). A separate Trust will be formed for the
issuance of each series of Notes, pursuant to a trust agreement, between
Wilmington Trust Company, as Delaware trustee ("Wilmington") and Amacar Pacific
Corporation, as administrator and Beneficial Holder (the "Trust Agreement").
Each Trust shall enter into an indenture (an "Indenture") with JPMorgan Chase
Bank, N.A., as indenture trustee (the "Indenture Trustee"). Each series of Notes
are secured solely by assets held by the relevant Trust. The proceeds from the
sale of each series of Notes are to be used to purchase one or more Funding
Agreements issued to the relevant Trust by Hartford Life Insurance Company, a
Connecticut stock life insurance company ("Hartford Life"). Each Trust shall be
administered pursuant to an administrative services agreement between the Trust
and Amacar Pacific Corporation, as administrator (the "Administrator"), dated
April 15, 2005, whereby the Administrator has agreed to provide certain services
of each such Trust.
In consideration of Wilmington providing services to the Trusts in
connection with the Program and pursuant to the Issuance Documents under which
Wilmington has certain duties and obligations, Hartford Life hereby agrees to
the following compensation arrangements and terms of indemnity.
1. DEFINITIONS: The following terms, as used herein, have the following
meanings:
"EXCLUDED AMOUNTS" means (i) any obligation of a Trust to make any payment
to any Holder in accordance with the terms of an Indenture or the Notes, (ii)
any obligation or expense of the Trust to the extent that such obligation or
expense has actually been paid utilizing funds available to the Trust from
payments under a Funding Agreement, (iii) any cost, loss, damage, claim, action,
suit, expense, disbursement, tax, penalty or liability of any kind or nature
whatsoever resulting from or relating to any insurance regulatory or other
governmental authority asserting that: (a) the Notes are, or are deemed to be,
(1) participations in one or more Funding Agreements or (2) contracts of
insurance, or (b) the offer, purchase, sale and/or transfer of the Notes and/or
assignment of the Funding Agreements (1) constitute the conduct of the business
of insurance or reinsurance in any jurisdiction or (2) requires a Trust or any
Holder to be licensed as an insurer, insurance agent or broker in any
jurisdiction, (iv) any cost, loss, damage, claim, action, suit, expense,
disbursement, tax, penalty or liability of any kind or nature whatsoever imposed
on Wilmington or any Trust that results from the bad faith or gross negligence
of Wilmington, (v) any costs and expenses attributable solely to Wilmington's
administrative overhead, (vi) any tax imposed on fees paid to Wilmington, (vii)
any withholding taxes imposed on or with respect of payments made under any
Funding Agreement, an Indenture or any Note and (viii) any Additional Amounts
paid to any Holder; provided, however, with respect to Obligations due to
Wilmington, Excluded Amounts shall include only clauses (i), (ii), (iv), (v),
and (vi).
"FEES" mean the fees set forth in the fee schedule attached hereto as
EXHIBIT A or in any separate fee agreement between Hartford Life and Wilmington.
"INDEMNIFIED PERSON" means any person entitled to indemnity payments
pursuant to Section 5.
"OBLIGATION" means any and all Reasonable Costs and Expenses incurred, by
Wilmington or a Trust, relating to the offering, sale and issuance of the Notes
by a Trust, (i) including the reasonable fees and expenses of counsel and (ii)
costs, expenses and taxes of any Trust; provided that Obligations do not include
Excluded Amounts or Fees.
"REASONABLE COSTS AND EXPENSES" are limited to (i) all reasonable expenses
actually and reasonably incurred by Wilmington or a Trust that either do not
exceed the indicated amounts listed in EXHIBIT B or have been approved in
writing in advance by an officer of Hartford Life and (ii) any extraordinary
cost or expense actually incurred by Wilmington or a Trust that was not
reasonably anticipated by Wilmington or which was not reasonably avoidable;
provided that Wilmington will give Hartford Life prompt notice of any such
extraordinary cost or expense.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
2. FEES. Hartford Life hereby agrees to pay Wilmington its Fees. In the
event of a substantive change in the nature of Wilmington's duties, acceptable
to the parties, the parties mutually agree to negotiate an equitable adjustment
to Wilmington's Fees.
3. PARTIAL REFUND. If Wilmington's appointment as Delaware Trustee is
revoked under Section 9.02(c) of the Trust Agreement, Wilmington will repay to
Hartford Life such part of any fee paid to it as may be agreed between
Wilmington and Hartford Life.
4. PAYMENT OF OBLIGATIONS. If Wilmington or a Trust delivers written
notice and evidence, reasonably satisfactory to Hartford Life, of any Obligation
of Wilmington or the Trust, Hartford Life shall, upon receipt of such notice
promptly pay such Obligation. Notice of any Obligation (including any invoices)
should be sent to Hartford Life at its address set forth below, or at such other
address as Hartford Life shall hereafter furnish in writing:
IF BY OVERNIGHT DELIVERY: IF BY U.S. MAIL:
Hartford Life Insurance Company Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx P.O. Box 2999
Xxxxxxxx, Xxxxxxxxxxx 00000 Hartford, Connecticut 06104-2999
Attn: Institutional Investment Products Attn.: Institutional Investment Products
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Wilmington or a Trust, as appropriate, will (i) from time to time execute
all such instruments and other agreements and take all such other actions as may
be necessary or desirable, or that Hartford Life may reasonably request, to
protect any interest of Hartford Life with respect to any Obligation or to
enable Hartford Life to exercise or enforce any right, interest or remedy it may
have with respect to any such Obligation, and (ii) release to Hartford Life any
amount received from Hartford Life relating to any Obligation or any portion of
any Obligation, immediately after any such amount relating to such Obligation,
or any portion of any such Obligation, is otherwise received by Wilmington or
the Trust from a party other than Hartford Life.
Hartford Life, each Trust and Wilmington hereby agree that all payments due
under this agreement in respect of any Obligation shall be effected, and any
responsibility of Hartford Life to pay such Obligation pursuant to this
agreement shall be discharged, by the payment by Hartford Life to the account of
the person to whom such Obligation is owed.
5. INDEMNIFICATION. To the fullest extent permitted by law and
notwithstanding anything to the contrary, Hartford Life hereby agrees to assume
liability for and hereby indemnifies, protects, saves and keeps harmless each
Trust adopting this agreement, Wilmington, and its officers, directors,
successors, assigns, legal representatives, agents and servants (each an
"Indemnified Person"), from and against any and all liabilities, obligations,
losses, damages,
penalties, taxes, claims, suits, actions, investigations, proceedings, costs,
expenses or disbursements (including reasonable legal fees and expenses) of any
kind and nature whatsoever which may be imposed on, incurred by or asserted at
any time against an Indemnified Person in any way relating to or arising out of
the Trust Agreement or any other Issuance Document or the enforcement of any of
the terms thereof, the administration of a Trust and its property or the action
or inaction of Wilmington (in its capacity as Delaware Trustee) under the
applicable Trust Agreement. The preceding sentence does not apply to the extent
that any such liabilities, obligations, losses, damages, penalties, taxes,
claims, suits, actions, investigations, proceedings, costs, expenses and
disbursements (i) are the result of any of the matters described in clauses (i),
(ii), or (iii) of the third sentence of SECTION 6.04 of the Standard Trust
Agreement Terms or (ii) relate to (a) any costs and expenses attributable solely
to the Wilmington's administrative overhead or (b) any tax imposed on the Fees
paid to Wilmington. This paragraph applies whether or not any of the
transactions contemplated by a Trust Agreement will be consummated.
The indemnification provided for herein (i) supersedes in all respects any
indemnification provision contained in any other Issuance Document or any other
agreement relating to the Program to which a Trust and Wilmington are or become
parties and (ii) shall survive the resignation or removal of Wilmington as
Delaware Trustee and the termination of each Trust Agreement.
6. INDEMNIFICATION PROCEDURES. An Indemnified Person shall give prompt
written notice to Hartford Life of any action, suit or proceeding commenced or
threatened against the Indemnified Person. In case any such action, suit or
proceeding shall be brought involving an Indemnified Person, Hartford Life may,
in its sole discretion, elect to assume the defense of the Indemnified Person,
and if it so elects, Hartford Life shall, in consultation with such Indemnified
Person, select counsel, reasonably acceptable to the Indemnified Person, to
represent the Indemnified Person and pay the reasonable fees and expenses of
such counsel. In any such action, investigation or proceeding, the Indemnified
Person shall have the right to retain its own counsel but Hartford Life shall
not be obligated to pay the fees and disbursements of such counsel unless (i)
Hartford Life and the Indemnified Person shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such action,
investigation or proceeding (including any impleaded parties) include both
Hartford Life and the Indemnified Person and representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them or (iii) such action, investigation or proceeding
involves the imposition of criminal liability or sanctions. It is understood
that Hartford Life shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons who are affiliated with Wilmington.
7. ENFORCEABILITY OF INDEMNIFICATION. If the indemnification provided
for herein is invalid or unenforceable in accordance with its terms, then
Hartford Life shall contribute to the amount paid or payable by an Indemnified
Person as a result of such liability in such proportion as is appropriate to
reflect the relative benefits received by Hartford Life and a Trust (if the
Trust is not an Indemnified Person), on one hand, and Wilmington or a Trust (if
the Trust is an Indemnified Person) on the other hand, from the transactions
contemplated by the Issuance Documents. For this purpose, the benefits received
by Hartford Life or a Trust (if applicable) shall be the aggregate value of the
relevant Collateral, and the benefits received by Wilmington shall be the fees
it has been paid up to that point, less unreimbursed expenses incurred by it in
relation to such Collateral, and the benefits received by the Trust (if
applicable) shall be determined by the Administrator (unless the Administrator
is an Indemnified Party) and Hartford Life. If, however, the allocation provided
by the immediately preceding two sentences is not permitted by applicable law,
then Hartford Life shall contribute to such amount paid or payable by the
Indemnified Person in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of Hartford Life and the Trust (if
applicable), on the one hand, and Wilmington or the Trust (if applicable) on the
other hand, in connection with the actions or omissions which resulted in such
liability, as well as any other relevant equitable considerations.
8. OTHER INDEMNIFICATION TERMS. Hartford Life shall be subrogated to any
right of the Indemnified Person in respect of the matter as to which any
indemnity was paid hereunder. The Indemnified Person may not settle any action,
investigation or proceeding without the consent of Hartford Life, not to be
unreasonably withheld. The obligations of Hartford Life, as indemnitor under
this agreement to any Indemnified Person shall survive the termination of each
of the Issuance Documents.
9. SCOPE OF AGREEMENT. This agreement, with respect to Wilmington, both
in its individual capacity and as Delaware Trustee, applies to all Trusts formed
in connection with the Program. This agreement shall apply to each Trust upon
the adoption of this agreement by such Trust using a form substantially
equivalent to that in Annex I.
10. WAIVER. No waiver, modification or amendment of this agreement shall
be valid unless executed in writing by the parties hereto.
11. COUNTERPARTS. This agreement may be executed in counterparts
(including by facsimile transmission), each of which when so executed and
delivered shall be deemed an original, but all of such contracts shall together
constitute one and the same document.
12. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the
New York, without regard to conflicts of laws
principles.
If the foregoing correctly sets forth the understanding and agreement
between Hartford Life, the Trust and Wilmington please so indicate by signing in
the space provided for below.
Very truly yours,
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxx XxXxxxxx
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Name: Xxx XxXxxxxx
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Title: Assistant Vice President & Actuary
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AGREED AND ACCEPTED:
WILMINGTON TRUST COMPANY, IN ITS
INDIVIDUAL CAPACITY AND NOT AS TRUSTEE
OF EACH TRUST
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
-------------------------------------
Title: Assistant Vice President
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ANNEX I
ADOPTION OF
EXPENSE AND INDEMNITY AGREEMENT
By the signature of its trustee below, the Hartford Life Global Funding Trust
[200---] (the "Trust") hereby adopts and agrees to be bound by the
Expense and
Indemnity Agreement dated as of April 15, 2005 between
Hartford Life Insurance
Company and Wilmington Trust Company (the "Agreement"). By its signature below,
Hartford Life agrees to the Trust's adoption of the Agreement and agrees to
provide to the Trust the indemnities and other payments specified therein.
AGREED AND ACCEPTED:
HARTFORD LIFE GLOBAL FUNDING TRUST [200---]
HARTFORD LIFE INSURANCE COMPANY
BY: WILMINGTON TRUST COMPANY, NOT IN
ITS INDIVIDUAL CAPACITY, BUT SOLELY
AS DELAWARE TRUSTEE
By:
By: -------------------------------
----------------------------------- Name:
Name: -----------------------------
--------------------------------- Title:
Title: ----------------------------
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