Exhibit 1.1
STANDARD DISTRIBUTION AGREEMENT TERMS
WITH RESPECT TO
HARTFORD LIFE GLOBAL FUNDING
SECURED MEDIUM-TERM NOTES AND INCOME NOTES(SM)
DATED AS OF DECEMBER 2, 2005
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,
Hartford Life Insurance Company (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 ▇▇▇▇▇▇▇ & 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 the
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 the Distribution
Agreement, the Company and the Trust hereby (1) appoint only Bear, ▇▇▇▇▇▇▇ & 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 the Distribution Agreement,
all references to any Agent shall be deemed to include the Purchasing Agent.
The 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 relating to the
registration of the Notes of the Trust and the Funding Agreement under the
Securities Act of 1933, as amended (the "1933 ACT"). 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 applicable
final prospectus supplement 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 the Time of Pricing (defined
below); PROVIDED, FURTHER, that if the Company files a post-effective amendment
to the Registration Statement with the Commission pursuant to Rule 462(b) of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") (the "RULE 462(b) REGISTRATION STATEMENT") or files a registration
statement containing a combined prospectus pursuant to Rule 429 of the 1933 Act
Regulations (the "RULE 429 REGISTRATION STATEMENT"), then, after such filing,
all references
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to the "Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement or the Rule 429 Registration Statement, as applicable. 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 the Time of
Pricing with respect to the Notes which, pursuant to Rule 430B, 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 the 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 ("▇▇▇▇▇").
All references in the 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 the
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.
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 represents and warrants
(i) to each Agent (a) as of the date hereof, (b) as of the date that the
Registration Statement became effective (the "INITIAL EFFECTIVE DATE") and (c)
as of any time that the Registration Statement or the Prospectus shall be
amended or supplemented (with respect to the Registration Statement, a
"SUBSEQUENT EFFECTIVE DATE") and (ii) to each applicable Agent, (a) as of the
Time of Pricing, (b) as of the date the Notes are delivered in exchange for
payment (the "SETTLEMENT DATE") and (c) as of the new effective date as
determined pursuant to Rule 430B(f)(2) of the 1933 Act Regulations with respect
to the Notes (the "NOTE EFFECTIVE DATE" and together with the Initial Effective
Date and any Subsequent Effective Date, the "REGISTRATION STATEMENT EFFECTIVE
DATE") (each of the times referenced above being referred to herein as a
"REPRESENTATION DATE") as follows:
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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 ▇▇▇▇▇'▇
Investors Service, Inc. or its successor ("MOODY'S") and AA- by
Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
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.
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.
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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 the 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. The 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 the
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
the 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), (B) that no representation or warranty is made with
respect to the enforceability of the idemnification and contribution
provided for in Section 6 hereof and (C) 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 the
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
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
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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 the 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
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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 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 ▇▇▇▇ ▇▇▇) 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
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consummate the transactions to be performed by it as contemplated in
the Prospectus (a "COMPANY MATERIAL ADVERSE EFFECT").
1.3.2 REGISTRATION STATEMENT; PROSPECTUS; FREE WRITING
PROSPECTUS. The Company meets the requirements for use of Form S-3
under the ▇▇▇▇ ▇▇▇. The Company is not an "ineligible issuer" as that
term is defined in Rule 405 of the 1933 Act Regulations (i) during any
period beginning with the first BONA FIDE offer of the Notes and ending
on the Settlement Date (the "OFFERING PERIOD"), and (ii) at any time
other than during the Offering Period, at the time of the use of a
Permitted Free Writing Prospectus (as defined below), if any. The
Registration Statement, filed with the Commission pursuant to the 1933
Act, as of the Initial Effective Date, did not and, as of any Note
Effective Date or Subsequent Effective Date, will 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. 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. As of the Time of Pricing
(defined below), the Prospectus as supplemented by any Permitted Free
Writing Prospectus (defined below), 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 Company makes no
representations or warranties as to (A) that part of the Registration
Statement which shall constitute the Statement of Eligibility (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. "TIME OF PRICING" means 9:00 a.m. (New York time) on the date
of acceptance by the Company of an offer for the purchase of the Notes.
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
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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 THE DISTRIBUTION AGREEMENT AND THE
FUNDING AGREEMENT. The 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 the Distribution
Agreement and the Funding Agreement, other than the Company, has duly
authorized executed and delivered such agreement, then the 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 and contribution 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 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 the 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
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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 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.
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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 ▇▇▇▇▇'▇ 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.
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
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substantially in the form filed or incorporated by reference, as the
case may be, as exhibits to the Registration Statement, to the extent
so filed or incorporated by reference.
1.3 Any certificate signed by the Administrator or any authorized
officer of the Delaware Trustee and delivered to the Agent(s) or Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ 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 Time of Pricing 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 3.9,
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
12
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.
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 the Notes of at least 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 the 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.
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 any 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.
13
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 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 ▇▇▇▇▇, 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 any 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. It is hereby acknowledged that the
Company intends to rely on the provisions of Rule 172 of the 1933 Act
Regulations with respect to delivery of the Prospectus. 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 ▇▇▇▇▇, 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
14
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.
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 Time of Pricing 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 use reasonable best efforts 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
15
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 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 an earning statement within the meaning of Rule
158 under the 1933 Act Regulations for the purposes of, and to provide
the benefits contemplated by the last paragraph of Section 11(a) of the
1933 Act.
2.3.8 1933 ACT AND 1934 ACT REPORTING REQUIREMENTS. The
Company, during the Offering Period, will file all documents required
to be filed with the Commission pursuant to the 1933 Act and the 1934
Act within the time periods prescribed by the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations,
respectively.
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.
16
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 the 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 the Distribution Agreement. The
Trust and the Company agree that, other than the Purchasing Agent pursuant to
Section 3.5 hereof, each will not appoint any other agents, dealers or
underwriters in connection with the placement of the Notes.
3.2 ARM'S-LENGTH TRANSACTION. Each of the Company and the Trust
acknowledge and agree that (i) the purchase and sale of Notes pursuant to the
Distribution Agreement, including the determination of the public offering price
of the Notes and any related discounts and commissions, is an arm's-length
commercial transaction between each of the Company and the Trust, on the one
hand, and the Purchasing Agent and/or Agent(s), on the other hand, (ii) in
connection with the offering contemplated hereby and the process leading to such
transaction the Purchasing Agent and each Agent is and has been acting solely as
a principal and is not the agent or fiduciary of the Company, the Trust or any
of their repective employees, (iii) neither the Purchasing Agent, nor any Agent
has assumed or will assume an advisory or fiduciary responsibility in favor of
the Company or the Trust with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Purchasing Agent or Agent
has advised or is currently advising the Company or the Trust on other matters)
and neither the Purchasing Agent nor any Agent has any obligation to the Company
or the Trust with respect to any offering contemplated hereby except the
obligations expressly set forth in the Distribution Agreement or the Omnibus
Instrument, (iv) the Purchasing Agent, the Agent(s) and their respective
affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company and the Trust, and (v) the
Purchasing Agent and the Agent(s) have not provided any legal, accounting,
regulatory or tax advice with respect to any offering contemplated hereby and
the Company and the
17
Trust have consulted their own legal, accounting, regulatory and tax advisors to
the extent they deemed appropriate.
3.3 RETAIL NOTES. In connection with the issuance of notes
described in the prospectus supplement for the Hartford Life Global Funding
IncomeNotesSM 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 the
Distribution Agreement, unless the Trust, the Company and the Purchasing Agent
otherwise agree in writing.
3.4 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 the
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
other underwriter pursuant to a distribution agreement other than the
Distribution Agreement; PROVIDED, that the terms of such other distribution
agreement shall be no more favorable to such underwriter than the Distribution
Agreement.
3.5 PURCHASES AS PRINCIPAL. The sale of the Notes to an Agent
shall be made in accordance with the terms of the 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.
3.6 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.
3.7 MARKETING MATERIALS. (a) Except as provided in this Section
3.7(a), 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
18
in connection with the offer and sale of the Notes. The Company and the 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 (i) 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 or (ii)
previously filed by the Company with the Commission pursuant to Rule 433 of the
1933 Act Regulations. Any such marketing material (other than the Prospectus)
will be deemed to be an "issuer free writing prospectus" for the purposes of
Rule 433 of the 1933 Act Regulations (each, a "PERMITTED FREE WRITING
PROSPECTUS").
(b) The Company represents, warrants and covenants that each
Permitted Free Writing Prospectus, as of its date and, to the extent used after
its date in connection with the offer and sale of the Notes, as amended or
supplemented, as of the date of such amendment or supplement, will not, include
any information that conflicts with the information contained in the
Registration Statement, including the Prospectus; PROVIDED, HOWEVER, that no
representation, warranty or covenant is made with respect to statements or
omissions from such Permitted Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by the applicable
Agent(s) specifically for use therein. If at any time following the issuance of
a Permitted Free Writing Prospectus, there occurs an event or development as a
result of which such Permitted Free Writing Prospectus includes an untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, the Company will notify the Agent(s)
promptly so that such Permitted Free Writing Prospectus may be amended or
supplemented or may cease to be used in connection with the offer and sale of
the Notes. In the event that a Permitted Free Writing Prospectus includes an
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, based upon and in conformity with written
information furnished to the Company by the applicable Agent(s) specifically for
use therein, the applicable Agent(s) shall use reasonable best efforts to assist
the Company in updating such previously furnished written information.
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 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
19
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 the Distribution Agreement and as
permitted by the 1933 Act and the applicable securities laws or regulations of
any jurisdiction.
3.11 ADMINISTRATIVE PROCEDURES. Administrative procedural details
relating to the issuance and delivery of the Notes, and related matters, may be
set forth in written administrative procedures (the "ADMINISTRATIVE PROCEDURES")
agreed to and accepted by the parties to the Issuance Documents. If previously
so agreed to and accepted, such Administrative Procedures shall apply to the
transactions contemplated hereunder and shall serve to define the administrative
agreements of the parties. Notwithstanding the foregoing, if the terms of the
Administrative Procedures conflict in any manner with the terms of any Issuance
Document, as to such conflicting term, the relevant Issuance Document shall
govern.
3.12 MISCELLANEOUS. For purposes of the 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:
20
4.1 OPINIONS. On the Settlement Date for the first notes issued
under the Program (the "Initial Settlement Date") and, if applicable, on the
first Settlement Date following each anniversary of the Initial Settlement Date,
except as otherwise indicated in the 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 such Settlement Date 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):
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 B 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇ 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 C 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 D 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 E 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 F 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 G 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 H hereto and to such further effect as
the Agent(s) may
21
reasonably request; PROVIDED, that this memorandum shall only be issued
on September 9, 2004;
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 I hereto and to such further effect as the
Agent(s) may reasonably request; PROVIDED, that this opinion shall only
be issued prior to the Initial Settlement Date;
4.1.9 OPINION OF COUNSEL FOR THE TRUST. The opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 J 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 K 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 L 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 M 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ 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 N 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,
22
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 O 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 P 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) to the best of such vice
president's knowledge, 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 (except to the extent that such
non-compliance has no material effect on the Company's ability to perform the
transactions contemplated by the Distribution Agreement and the Prospectus) 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.
4.4 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) to the best of
such officer's knowledge, 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 (except to
the extent that such non-compliance has no material effect on the Trust's
ability to perform the transactions contemplated by the Distribution Agreement
and the Prospectus) 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.
23
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 Q hereto.
4.6 CONDITIONS TO PURCHASE. The obligations of the Agent(s) to
purchase Notes as principal under the 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 the 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 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, the 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,
24
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 the Distribution Agreement and the delivery of the 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 ▇▇▇▇ ▇▇▇) (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 be, as though made at and as
of such date or, in lieu of such certificate, a certificate of
25
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 an 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
26
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.
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 any Permitted Free Writing Prospectus, 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 information furnished to the Company or Trust in
writing 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) or any Permitted Free Writing Prospectus, or
(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 (Form T-1) under the 1939 Act of the Indenture
Trustee.
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 Permitted Free Writing Prospectus or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with information furnished to the Company or the
Trust in writing by such Agent expressly for use in the Registration Statement
(or any amendment thereto) or
27
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or any such Permitted Free Writing Prospectus.
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 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, 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, 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
28
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, 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 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 ▇▇▇▇ ▇▇▇) 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 director and officer of an agent
and each person, if any, who "controls," within the meaning of Section 15 of the
1933 Act, an
29
Agent, 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," within the meaning of
Section 15 of the 1933 Act, the Company or Trust, 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 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
judgment 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
30
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 the 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.
If to the Company:
Hartford Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Or, if by U.S. Mail, to:
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Vice President and Actuary
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
31
Hartford Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Or, if by U.S. Mail, to:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇,
Deputy General Counsel
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and:
Hartford Life Global Funding (followed by the
number of the Trust designated in the Distribution Agreement)
c/o AMACAR Pacific Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to the Purchasing Agent:
Bear ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ "Chip" ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
32
With a copy to:
Bear ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: HG Capital Markets
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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
The 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
the Distribution Agreement.
SECTION 10.
GOVERNING LAW
PURSUANT TO SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK, THE 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.
33
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 the 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;
(v) the fees and disbursements of the Company's
accountants, counsel and other advisors or agents;
(vi) the qualification of the Notes under securities laws
in accordance with the provisions of Section 2.1.2 hereof, including
filing fees and the fees and disbursements of counsel for the Agents
incurred in connection with the preparation and delivery any blue sky
memorandum to be delivered subsequent to the Initial Settlement Date as
reasonably requested by the applicable Agent;
(vii) the filing fees incident to the review of the
program, if any, by the National Association of Securities Dealers,
Inc.; and
(viii) 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 the Distribution Agreement or other written agreement between the
Company and such Agent. Each Agent agrees that, except as provided in the
Distribution Agreement or other written agreement, each Agent is responsible for
its own expenses.
34
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 the 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 the Distribution
Agreement and any other written agreement between the Company and such Agent(s).
SECTION 12.
MISCELLANEOUS
12.1 POWER OF ATTORNEY. If the Distribution Agreement is executed
by or on behalf of any party, such person hereby states that at the time of the
execution of the Distribution Agreement such person has no notice of revocation
of the power of attorney by which he has executed the Distribution Agreement as
such attorney.
12.2 COUNTERPARTS. The 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. The 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) the 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 the Distribution Agreement or
any other related documents.
35
LIST OF EXHIBITS, SCHEDULES AND ANNEX
EXHIBITS
Exhibit A Form of Master Selected Dealer Agreement
Exhibit B Opinion of Internal Counsel for the Company
Exhibit C Opinion of Counsel for the Company Concerning Connecticut
Insolvency Law
Exhibit D Opinion of Agent Approved Counsel Concerning Federal Securities
Law
Exhibit E Opinion of Agent Approved Counsel Concerning New York Law
Exhibit F Opinion of Agent Approved Counsel Concerning New York Security
Interests
Exhibit G Opinion of Agent Approved Counsel Concerning Tax
Exhibit H Memorandum of Agent Approved Counsel Concerning Insurance
Exhibit I Opinion of Agent Approved Counsel Concerning Insurance
Exhibit J Opinion of Counsel for the Trust
Exhibit K Opinion of Counsel for the Delaware Trustee
Exhibit L Opinion of Counsel for the Trust Concerning Delaware Security
Interests
Exhibit M Opinion of Counsel for the Administrator
Exhibit N Opinion of Counsel for the Indenture Trustee
Exhibit O Negative Assurance of Company Approved Counsel
Exhibit P Negative Assurance of Agent Approved Counsel
Exhibit Q Comfort Letter from Accountants to the Company
SCHEDULES
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Schedule 1 Discount Determination for Purchasing Agent (Retail Notes)
Schedule 2 Discount Determination for Agents (Institutional Notes)
ANNEX
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Annex I Notice Information of Agents