Exhibit 1.1
STANDARD DISTRIBUTION AGREEMENT TERMS
WITH RESPECT TO
HARTFORD LIFE GLOBAL FUNDING
SECURED MEDIUM-TERM NOTES AND INCOMENOTES(SM)
DATED AS OF MARCH 30, 2006
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) 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"), (b) the related prospectus
dated [____], 2006 covering all the Notes to be offered under the Program (the
"BASE PROSPECTUS"), (c) the prospectus supplement to the Base Prospectus dated
[____], 2006 covering the notes offered under the Institutional Program (the
"INSTITUTIONAL PROSPECTUS SUPPLEMENT" and, together with the Base Prospectus,
the "INSTITUTIONAL PROSPECTUS") and (d) the prospectus supplement to the Base
Prospectus dated [____], 2006 covering the Notes offered under the IncomeNotessm
Program (the "INCOMENOTESSM PROSPECTUS SUPPLEMENT" and, together with the Base
Prospectus, the "INCOMENOTESSM PROSPECTUS"). 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
2
documents incorporated therein by reference pursuant to the 1934 Act; 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 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 Sale (as defined below) 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.
The term "FREE WRITING PROSPECTUS" has the meaning set forth in Rule 405
of the 1933 Act Regulations. The term "TIME OF SALE PROSPECTUS" means (1) with
respect to the offer and sale of any series of notes under the Institutional
Program, the Institutional Prospectus and (2) with respect to the offer and sale
of any series of notes under the IncomeNotessm Program, the IncomeNotessm
Prospectus, in each case, as amended or supplemented from time to time prior to
the Time of Sale and together with the most recent Preliminary Prospectus or
preliminary pricing supplement relating to the offer and sale of such series of
Notes immediately prior to the Time of Sale, any Pricing Supplement relating to
the offer and sale of such Series of Notes filed or used prior to the Time of
Sale, any Final Term Sheet (as defined in Section 4.1 hereof) relating to the
offer and sale of such Notes and each Free Writing Prospectus in the form,
furnished to the Agent(s) by the Company or approved by the Company for use
prior to the Time of Sale. "TIME OF SALE" means the time or date set forth in
the applicable Distribution Agreement. For purposes of the Distribution
Agreement, all references to the Registration Statement, Prospectus, Time of
Sale Prospectus, Free Writing Prospectus, Pricing Supplement 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, Time of Sale Prospectus, Free Writing Prospectus, Pricing Supplement
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, Time of Sale Prospectus,
Free Writing Prospectus, Pricing Supplement or Preliminary Prospectus, as the
case may be; and all references in the Distribution Agreement to amendments or
3
supplements to the Registration Statement, Prospectus, Time of Sale Prospectus,
Free Writing Prospectus, Pricing Supplement 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, Time of
Sale Prospectus, Free Writing Prospectus, Pricing Supplement 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 Sale,
(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:
1.1.1 NO FILINGS OR REGULATORY APPROVALS. Other than as set forth or
contemplated in the Time of Sale 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 Time of Sale 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
4
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.
1.2.2 NO MATERIAL CHANGES. Since the respective dates as of which
information is given in the Registration Statement and the Time of Sale
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 Time of Sale
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.
5
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 indemnification and contribution provided for in
Section 7 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 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
6
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 Time of Sale
Prospectus (including the issuance and sale of the Notes and the use of
proceeds therefrom as described in the Time of Sale Prospectus) and (D)
the compliance by the Trust with its obligations under the Issuance
Documents, do not and will not constitute a breach, violation or default
which (1) gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Trust, or (2) results in the creation or
imposition of any lien, charge or encumbrance upon any assets, properties
or operations of the Trust pursuant to, any contract, indenture, mortgage,
loan or credit agreement, note, lease or other agreement or instrument to
which the Trust is a party or by which it may be bound or to which any of
the property or assets of the Trust is subject, nor will such action
result in any violation of the Trust's Certificate of Trust or the Trust
Agreement and the Trust is not in default in the performance or observance
of any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Trust or any of its assets,
properties or operations; PROVIDED, that no representation or warranty is
made with respect to compliance with law of the Funding Agreement to the
extent that the source of the funds used by the Trust to purchase such
Funding Agreement renders such funds, or any property or investment
acquired with such funds, subject to governmental seizure or other penalty
under the USA Patriot Act of 2001, as amended (the "USA PATRIOT ACT");
PROVIDED, FURTHER that in the case of clause (1) of this Section 1.2.4,
this representation and warranty shall not extend to such repurchase,
redemption or repayment that would not result in a Trust Material Adverse
Effect and in the case of clause (2) of this Section 1.2.4, this
representation and warranty 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).
7
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 Time of Sale 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 Time of
Sale 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 Time of
Sale Prospectus, except as otherwise stated therein, there has been no
event or occurrence that would reasonably be expected to have a material
adverse effect on the condition (financial or otherwise) of the Company
and its subsidiaries considered as one enterprise or on the power or
ability of the Company to perform its obligations under any of the
Issuance Documents or to consummate the transactions to be performed by it
as contemplated in the Time of Sale Prospectus (a "COMPANY MATERIAL
ADVERSE EFFECT").
1.3.2 REGISTRATION STATEMENT; PROSPECTUS; TIME OF SALE 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 the
time of the use of a Free Writing Prospectus, 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 filed with the Commission pursuant to the 1933 Act and the 1933
Act Regulations, complied
8
when so filed in all material respects with the 1933 Act and the 1933 Act
Regulations. The Registration Statement, each Prospectus and each Time of
Sale 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 Sale, the Time of Sale Prospectus, 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 the
light of the circumstances under which they were made, not misleading. As
of the Settlement Date, the Prospectus, 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 the 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, any Prospectus or any Time of
Sale 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, any Prospectus, any Time
of Sale Prospectus or any amendment or supplement thereto.
1.3.3 COMPANY FINANCIAL STATEMENTS. The consolidated financial
statements (including the related notes but excluding the supporting
schedules) included or incorporated by reference in the Registration
Statement, the Prospectus and the Time of Sale Prospectus present fairly
in all material respects the consolidated financial position, results of
operations and cash flows of the entities purported to be shown thereby,
at the dates and for the periods indicated and have been prepared in
accordance with United States generally accepted accounting principles
applied on a consistent basis throughout the periods indicated and conform
in all material respects with the 1933 Act, except as otherwise noted
therein; and the supporting schedules, selected financial data and the
summary financial data included or incorporated by reference in the
Registration Statement when considered in relation to such financial
statements taken as a whole, present fairly in all material respects the
information required to be stated therein.
1.3.4 AUTHORIZATION OF 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
9
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 7 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 or the
Time of Sale 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 Time of Sale Prospectus, the consummation of the transactions
contemplated in the Time of Sale 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
10
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 Time of Sale
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 Time of Sale
Prospectus or to the extent that any such failure to be in compliance,
suspension, revocation or limitation would not, singly or in the
aggregate, result in a Company Material Adverse Effect.
1.3.8 FILINGS AND REGULATORY APPROVALS. Other than as set forth or
contemplated in the Time of Sale 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 Time of Sale Prospectus
will not be,
11
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 Time of Sale 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 Time of Sale 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 Time of Sale Prospectus conform
and will conform in all material respects to the Issuance Documents and
the Issuance Documents are substantially in the form filed or incorporated
by reference, as the case may be, as exhibits to the Registration
Statement, 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 Austin 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
12
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 Sale 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 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.
13
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 Time of Sale 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.
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
14
Statement or any amendment or supplement to the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus or the Time of Sale 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 AND THE TIME OF SALE 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 Time of Sale 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 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 to meet its obligations under the 1933 Act
and the 1933 Act Regulations. 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 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 the
Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact, or omit to
15
state any material fact necessary in order to make the statements therein,
in the 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 the 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 date of the agreement of the Agent(s) to purchase
Notes as principal and continuing to and including the Settlement Date,
with respect to the Registration Statement, the Prospectus or the Time of
Sale Prospectus, (iii) any request by the Commission for any amendments to
such filings or for additional information, (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 (v) any action whereby the Company becomes
the subject of a proceeding under Section 8A of the 1933 Act or any
proceeding in connection with the offering of the Notes 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
16
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 Time of Sale Prospectus.
17
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).
2.3.12 REVISIONS OF TIME OF SALE PROSPECTUS. If any event shall
occur or condition shall exist as a result of which it is necessary, in
the opinion of Agent Approved Counsel, counsel for the Company or counsel
for the Trust, to amend or supplement the Time of Sale Prospectus being
used to solicit offers to buy Notes in writing in order that such Time of
Sale Prospectus will not include an untrue statement of a material fact or
omit 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, or if it shall be necessary, in the opinion of such counsel,
to amend or supplement such Time of Sale Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company shall give immediate notice, confirmed in writing, to each of the
applicable Agents, and the Company will promptly prepare and, if
applicable, file with the Commission, subject to Section 2.3.1 hereof,
such amendment or supplement as may be necessary to correct such statement
or omission or to make such Time of Sale Prospectus comply with such
requirements and the Company will furnish to the applicable Agents,
without charge, such number of copies of such amendment or supplement as
the applicable Agents may reasonably request.
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
18
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 respective
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 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
19
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 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.
3.8 AGGREGATE OFFERING LIMITATION. The Company shall not issue funding
agreements to trusts organized under the Program to support the issuance of
notes with an aggregate initial offering price in excess of the aggregate
initial offering price of notes registered pursuant to the Registration
Statement. The Agent(s) shall have no responsibility for maintaining records
with respect to the aggregate initial offering price of notes sold, and of
otherwise monitoring the availability of notes for sale, under the Registration
Statement.
3.9 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
20
as permitted by the 1933 Act and the applicable securities laws or regulations
of any jurisdiction.
3.10 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.
3.11 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.
FREE WRITING PROSPECTUSES
4.1 FINAL TERM SHEET. (A) The Company covenants and agrees to (1) review
and (subject to such changes deemed appropriate by the Company and the Agent(s))
approve, at the reasonable request of the Agent(s) in connection with the offer
and sale of Institutional Notes, a final term sheet prepared by the Agent(s) (as
so approved, the "FINAL TERM SHEET") reflecting the final terms of such Notes,
and (2) file such Final Term Sheet pursuant to Rule 433 of the 1933 Act
Regulations and (B) if the Notes are Institutional Notes, the Agent(s) covenant
and agree to convey the final terms, including the final pricing terms, of such
Institutional Notes to the purchasers of such Institutional Notes prior to the
Time of Sale.
4.2 DELIVERY AND USE OF FREE WRITING PROSPECTUSES BY AGENTS. In connection
with the offer and sale of the Notes, each Agent covenants and agrees that,
except as otherwise provided in the Distribution Agreement, it will furnish the
Company with each proposed Free Writing Prospectus, other than a Free Writing
Prospectus including only information set forth in a Final Term Sheet filed
pursuant to Rule 433 of the 1933 Act Regulations, that (i) is required to be
filed pursuant to Rule 433(d) of the 1933 Act Regulations or (ii) is or will be
a part of the Time of Sale Prospectus relating to or to be used in connection
with the offer and sale of the Notes to be prepared by or on behalf of such
Agent before its first use and will not use any such Free Writing Prospectus to
which the Company objects. It is understood that an Agent's obligation to
furnish any such form shall be deemed satisfied if another Agent has so
furnished such form. Each Agent covenants and agrees that it will use a Free
Writing Prospectus prepared by or on
21
behalf of such Agent only if such Free Writing Prospectus complies with the
requirements of the 1933 Act and the 1933 Act Regulations.
4.3 FREE WRITING PROSPECTUSES OF THE COMPANY AND THE TRUST. In connection
with the offer and sale of the Notes, each of the Company and the Trust
represents, warrants, covenants and agrees that, without the prior consent of
the Agent(s), it has not made and will not make any offer relating to the Notes
or the related Funding Agreement that would constitute a Free Writing Prospectus
required to be filed pursuant to Rule 433 of the 1933 Act Regulations except for
any Final Term Sheet or as identified to the Agents in the relevant Distribution
Agreement; provided that to the extent that no Agent is involved in an offer and
sale of any Series of Notes, no such prior consent shall be required.
4.4 DISTRIBUTION OF FREE WRITING PROSPECTUSES. Each Agent covenants and
agrees that it will not distribute any Free Writing Prospectus used or referred
to by such Agent in a manner reasonably designed to lead to its broad
unrestricted dissemination; provided, that such covenant and agreement shall not
apply to any such Free Writing Prospectus forming part of the Time of Sale
Prospectus or any such Free Writing Prospectus approved by the Company for broad
unrestricted dissemination (such consent not to be unreasonably withheld).
4.5 NO CONFLICTING INFORMATION. In connection with the offer and sale of
the Notes, any Free Writing Prospectus (i) that is required to be filed pursuant
to Rule 433(d) of the 1933 Act Regulations (including any Final Term Sheet),
(ii) that is or will be a part of the Time of Sale Prospectus relating to or to
be used in connection with such offer and sale of the Notes or (iii) the use of
which has been consented to by the applicable Agent(s) pursuant to Section 4.3
hereof is referred to herein as a "PERMITTED FREE WRITING PROSPECTUS". Each of
the Company and the Trust represents, warrants, covenants and agrees that each
Permitted Free Writing Prospectus, as of its first date of use and at all
subsequent times through the completion of the public offer and sale of the
Notes or until any earlier date that the issuer of such Permitted Free Writing
Prospectus notified or gives notice to the Agent(s) in accordance with Section
4.6 hereof, did not and does not include any information that conflicted or
conflicts with the information contained in the Registration Statement, the
applicable Time of Sale Prospectus or the Prospectus; provided, however, that no
representation, warranty, covenant or agreement is made with respect to
information contained in 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. Each Agent
represents, warrants, covenants and agrees that it shall not prepare and
disseminate any Free Writing Prospectus that contains information that conflicts
with the information contained in the Registration Statement, the applicable
Time of Sale Prospectus or the applicable Prospectus.
22
4.6 FURTHER ASSURANCES. Each of the Company and the Trust covenants and
agrees that if at any time following issuance of a Permitted Free Writing
Prospectus any event or development occurred or occurs as a result of which such
Permitted Free Writing Prospectus conflicted or conflicts with the information
in the Registration Statement, any applicable Time of Sale Prospectus or the
Prospectus or included or includes an untrue statement of a material fact or
omitted or omits to state any 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 give prompt notice thereof to the
Agent(s) and, if requested by the Agent(s), will prepare and furnish without
charge to each Agent a Permitted Free Writing Prospectus or other document that
will correct such conflict, statement or omission. In the event that such
conflict, misstatement or omission is 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.
4.7 COPIES. The Company will deliver to each Agent, without charge, such
number of copies of each Free Writing Prospectus prepared by or on behalf of or
used or referred to by the Company as each such Agent may reasonably request. To
the extent applicable, each such document furnished to the Agent(s) will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
SECTION 5.
CONDITIONS OF AGENT'S OBLIGATIONS
Each Agent's obligations hereunder are subject to the following
conditions:
5.1 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):
5.1.1 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;
23
5.1.2 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;
5.1.3 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;
5.1.4 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;
5.1.5 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;
5.1.6 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;
5.1.7 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 reasonably request; PROVIDED, that this memorandum shall only be
issued on September 9, 2004;
5.1.8 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 on September 9,
2004;
5.1.9 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;
24
5.1.10 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;
5.1.11 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;
5.1.12 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;
5.1.13 OPINION OF COUNSEL FOR THE INDENTURE TRUSTEE. The opinion of
Cravath, Swaine & ▇▇▇▇▇ 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.
5.2 NEGATIVE ASSURANCES. On the Initial Settlement Date, on each date
preceding the Settlement Date specified in Section 6.3 hereof, if applicable,
or, in the case of an issuance of Institutional Notes, upon the request of the
Agent(s) (which shall be the bookrunning lead manager(s) in the case of a
syndicated issue) on the Settlement Date, unless otherwise agreed, the Agent(s)
shall have received the following negative assurances, dated as of the date
thereof and in form and substance satisfactory to the Agent(s) (which shall be
the bookrunning lead manager(s) in the case of a syndicated issue and the
Purchasing Agent in the case of an issue of Retail Notes):
5.2.1 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
5.2.2 NEGATIVE ASSURANCE OF AGENT APPROVED COUNSEL. The negative
assurance letter of Agent Approved Counsel to the effect set forth in
Exhibit P hereto.
25
5.3 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 Time of Sale 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.
5.4 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 Time of Sale 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.
5.5 COMFORT LETTER. On the Initial Settlement Date, on each date preceding
the Settlement Date specified in Section 6.4 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.
5.6 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
26
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).
5.7 NECESSARY DOCUMENTS. Each time the Registration Statement, the
Prospectus, the Institutional Prospectus or the IncomeNotessm 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.
5.8 FAILURE TO SATISFY CONDITIONS. If any condition specified in this
Section 5 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 12 hereof and except that Section 7, Section 8.2, Section 10 and Section
11 hereof shall survive any such termination and remain in full force and
effect.
SECTION 6.
REGISTRATION STATEMENT AMENDMENTS; COMPANY PERIODIC REPORTS
6.1 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
27
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,
the Prospectus and the Time of Sale Prospectus as amended and supplemented to
each such time).
6.2 SUBSEQUENT DELIVERY OF COMPANY CERTIFICATE AND TRUST CERTIFICATE. In
the event that:
6.2.1 the Registration Statement, the Institutional Prospectus or
the IncomeNotessm 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
6.2.2 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 5.2 and Section 5.3 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 substantially the same tenor as the
certificates referred to in Section 5.2 and Section 5.3 hereof, modified
as necessary to relate to the Registration Statement Amendment or Company
Periodic Report to the date of delivery of such certificate.
6.3 SUBSEQUENT DELIVERY OF NEGATIVE ASSURANCES. In the event of:
6.3.1 a Registration Statement Amendment, or
6.3.2 a Company Periodic Report,
28
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 5.2.1 and Section 5.2.2 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).
6.4 SUBSEQUENT DELIVERY OF COMFORT LETTER. In the event of:
6.4.1 a Registration Statement Amendment, or
6.4.2 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 5.5 hereof but modified to relate to the Registration
Statement and Prospectus as amended and supplemented to the date of such letter;
PROVIDED HOWEVER, that if the Registration Statement or Prospectus is amended or
supplemented solely to include unaudited financial information as of and for a
fiscal quarter, the Accountants may limit the scope of such letter to the
unaudited financial statements included in such amendment or supplement.
29
SECTION 7.
INDEMNIFICATION AND CONTRIBUTION
7.1 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, the Time of Sale Prospectus, 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, the Time of Sale
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.
7.2 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 7.1 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,
the Time of Sale 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 such Preliminary
Prospectus, such Time of Sale Prospectus or the Prospectus (or any amendment or
supplement thereto) or any such Permitted Free Writing Prospectus.
30
7.3 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 7.1 hereof, counsel to the indemnified parties shall be
selected by the Company and, in the case of parties indemnified pursuant to
Section 7.2 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 7 (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.
7.4 If the indemnification provided for in Section 7 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 the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
31
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 7.4 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 7.4. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 7.4 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 7.4, (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 7.4 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 7.4, 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 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.
32
SECTION 8.
TERMINATION
8.1 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 Time of Sale
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 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.
33
8.2 GENERAL. In the event of any termination under Section 8.1 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 7 hereof, the provisions of Section 10 and
Section 11 hereof and the provisions of Section 12 hereof shall remain in
effect.
SECTION 9.
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:
Hartford Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Or, if by U.S. Mail, to:
34
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
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: (▇▇▇) ▇▇▇-▇▇▇▇
35
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 9.
SECTION 10.
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 11.
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.
36
SECTION 12.
FEES AND EXPENSES
12.1 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.;
(viii) the fees and expenses incurred in connection with any listing
of Notes on a securities exchange; and
(ix) any costs and expenses (including, without limitation, any
damages or other amounts payable in connection with legal or contractual
liability) resulting directly from the reforming of any contracts for any
sale of Notes made by an Agent caused by a breach of the representation
contained in the sixth sentence of Section 1.3.2 hereof (including the
application of clause (B) of the seventh sentence of Section 1.3.2
hereof).
37
12.2 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.
12.3 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.
12.4 REIMBURSEMENT AFTER TERMINATION. In the event that the proposed
offering of Notes is not completed pursuant to Section 8.1, 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 13.
MISCELLANEOUS
13.1 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.
13.2 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.
13.3 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).
13.4 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,
38
(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.
39
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
---------
Schedule 1 Discount Determination for Purchasing Agent (Retail Notes)
Schedule 2 Discount Determination for Agents (Institutional Notes)
ANNEX
-----
Annex I Notice Information of Agents