Exhibit 4.9
May __, 2003
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
Ladies and Gentlemen:
This Agreement is dated as of May __, 2003 (the "AGREEMENT") by and
between The Hartford Financial Services Group, Inc., a Delaware corporation (the
"COMPANY"), Xxxxxxx, Xxxxx & Co., as the remarketing agent (the "REMARKETING
AGENT"), and JPMorgan Chase Bank, a New York banking corporation, not
individually but solely as Purchase Contract Agent (the "PURCHASE CONTRACT
AGENT") and as attorney-in-fact of the holders of Purchase Contracts (as defined
in the Purchase Contract Agreement referred to below).
Section 1. Definitions.
(a) Capitalized terms used and not defined in this Agreement shall
have the meanings set forth in the Purchase Contract Agreement, dated as
of May __, 2003, between the Company and JPMorgan Chase Bank, as Purchase
Contract Agent, as amended from time to time (the "PURCHASE CONTRACT
AGREEMENT").
(b) As used in this Agreement, the following terms have the
following meanings:
"PRELIMINARY PROSPECTUS" means any preliminary prospectus relating to the
Remarketed Senior Notes included in the Registration Statement, including the
documents incorporated by reference therein as of the date of such Preliminary
Prospectus; and any reference to any amendment or supplement to such Preliminary
Prospectus shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus, under the Exchange Act, and incorporated by
reference in such Preliminary Prospectus.
"PROSPECTUS" means the prospectus relating to the Remarketed Senior Notes,
in the form in which first filed, or transmitted for filing, with the Commission
after the effective date of the Registration Statement pursuant to Rule 424(b),
including the documents incorporated by reference therein as of the date of such
Prospectus; and any reference to any amendment or
supplement to such Prospectus shall be deemed to refer to and include any
documents filed after the date of such Prospectus, under the Exchange Act, and
incorporated by reference in such Prospectus.
"REGISTRATION STATEMENT" means a registration statement under the
Securities Act prepared by the Company covering, inter alia, the Remarketing of
the Remarketed Senior Notes pursuant to Section 5(a) hereunder, including all
exhibits thereto and the documents incorporated by reference in the prospectus
contained in such registration statement, and any post-effective amendments
thereto.
"REMARKETED SENIOR NOTES" means the Pledged Senior Notes and the Separate
Senior Notes, if any, subject to Remarketing as identified to the Remarketing
Agent by the Purchase Contract Agent and the Custodial Agent, respectively,
after 11:00 a.m., New York City time, on the Business Day immediately preceding
the applicable Remarketing Date, and shall include: (a) (i) in the case of the
Initial Remarketing, the Second Remarketing and the Third Remarketing, the
Pledged Senior Notes and (ii) in the case of the Final Remarketing, the Senior
Notes of the Holders of Normal Units who have not notified the Purchase Contract
Agent prior to 5:00 p.m. on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date of their intention to effect a Cash Settlement
of the related Purchase Contracts pursuant to the terms of the Purchase Contract
Agreement or who have so notified the Purchase Contract Agent but failed to make
the required cash payment on the fourth Business Day immediately preceding the
Purchase Contract Settlement Date pursuant to the terms of the Purchase Contract
Agreement, and (b) the Separate Senior Notes of the holders of Separate Senior
Notes, if any, who have elected to have their Separate Senior Notes be
remarketed in such Remarketing pursuant to the terms of the Purchase Contract
Agreement.
"REMARKETING" means the remarketing of the Remarketed Senior Notes
pursuant to this .
"REMARKETING FEE" has the meaning set forth in Section 4.
"REMARKETING MATERIALS" means the Preliminary Prospectus, the Prospectus
or any other information furnished by the Company to the Remarketing Agent for
distribution to investors in connection with the Remarketing.
"SENIOR NOTES" means the senior notes due August 16, 2008 of the Company.
"TRANSACTION DOCUMENTS" means this Agreement, the Purchase Contract
Agreement, the Pledge Agreement and the Indenture, in each case as amended or
supplemented from time to time.
Section 2. Appointment and Obligations of the Remarketing Agent.
(a) The Company hereby appoints Xxxxxxx, Xxxxx & Co. as the
exclusive Remarketing Agent, and, subject to the terms and conditions set
forth herein, Xxxxxxx, Sachs & Co. hereby accepts appointment as
Remarketing Agent, for the purpose of (i) remarketing the Remarketed
Senior Notes on behalf of the holders thereof, (ii) determining, in
consultation with the Company, in the manner provided for herein and in
the Purchase Contract Agreement and the Indenture, the Reset Rate for the
Senior Notes, and (iii) performing such other duties as are assigned to
the Remarketing Agent in the Transaction Documents.
2
(b) Unless a Special Event Redemption has occurred prior to such
date, on the third Business Day immediately preceding May 16, 2006 (the
"INITIAL REMARKETING DATE"), the Remarketing Agent shall use its
reasonable efforts to remarket ("INITIAL REMARKETING") the Remarketed
Senior Notes, at a price (the "REMARKETING PRICE"), based on the Reset
Rate, equal to approximately 100.50% (or, if the Remarketing Agent is
unable to remarket the Remarketed Senior Notes at such rate, at a rate
below 100.50% in the discretion of the Remarketing Agent, but in no event
less than 100.25%, net of any Remarketing Fee and any other fees and
commissions) of the sum of the Treasury Portfolio Purchase Price and the
Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial Remarketing and unless a
Special Event Redemption has occurred prior to such date, on the third
Business Day immediately preceding June 16, 2006 (the "SECOND REMARKETING
DATE"), the Remarketing Agent shall use its reasonable efforts to remarket
(the "SECOND REMARKETING") the Remarketed Senior Notes at the Remarketing
Price. In the case of a Failed Second Remarketing and unless a Special
Event Redemption has occurred prior to such date, on the third Business
Day immediately preceding July 16, 2006 (the "THIRD REMARKETING DATE"),
the Remarketing Agent shall use its reasonable efforts to remarket (the
"THIRD REMARKETING") the Remarketed Senior Notes at the Remarketing Price.
In the case of a Failed Third Remarketing and unless a Special Event
Redemption has occurred prior to such date, on the third Business Day
immediately preceding the Purchase Contract Settlement Date (the "FINAL
REMARKETING DATE"), the Remarketing Agent shall use its reasonable efforts
to remarket (the "FINAL REMARKETING") the Remarketed Senior Notes at a
price (the "FINAL REMARKETING PRICE"), based on the Reset Rate, equal to
approximately 100.50% (or, if the Remarketing Agent is unable to remarket
the Remarketed Senior Notes at such rate, at a rate below 100.50% in the
discretion of the Remarketing Agent, but in no event less than 100.25%,
net of any Remarketing Fee and any other fees and commissions) of the
aggregate principal amount of the Remarketed Senior Notes being remarketed
in such Final Remarketing. It is understood and agreed that the
Remarketing on any Remarketing Date will be considered successful and no
further attempts will be made if the resulting proceeds are at least
100.25% (net of any Remarketing Fee and any other fees and commissions) of
the sum of the Treasury Portfolio Purchase Price and the Separate Senior
Notes Purchase Price, in the case of a Remarketing other than the Final
Remarketing, or 100.25% (net of any Remarketing Fee and any other fees and
commissions) of the aggregate principal amount of the Remarketed Senior
Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent
shall determine, in consultation with the Company, the rate per annum,
rounded to the nearest one-thousandth (0.001) of one percent per annum,
that the Senior Notes should bear (the "RESET RATE") in order for the
Senior Notes of the Normal Unit holders to have an aggregate market value
equal to the Remarketing Price or the Final Remarketing Price, as the case
may be, and that in the sole reasonable discretion of the Remarketing
Agent will enable it to remarket all of the Remarketed Senior Notes at the
Remarketing Price or Final Remarketing Price, as the case may be, in such
Remarketing, provided that such rate shall not exceed the maximum interest
rate permitted by law.
3
(e) In the event of a Failed Remarketing or if no Senior Notes are
included in Normal Units, and if none of the holders of the Separate
Senior Notes elect to have Senior Notes be remarketed in such Remarketing,
the applicable interest rate on the Senior Notes will not be reset and
will continue to be the Coupon Rate set forth in the Indenture as
supplemented from time to time.
(f) If, by 4:00 p.m. (New York City time) on the applicable
Remarketing Date, the Remarketing Agent is unable to remarket all of the
Remarketed Senior Notes at the Remarketing Price or the Final Remarketing
Price, as the case may be, pursuant to the terms and conditions hereof, a
Failed Remarketing shall be deemed to have occurred, and the Remarketing
Agent shall advise, by telephone, the Depositary, the Purchase Contract
Agent and the Company, and return the Remarketed Senior Notes to the
Collateral Agent or the Custodial Agent, as the case may be. Whether or
not there has been a Failed Remarketing will be determined in the sole
reasonable discretion of the Remarketing Agent.
(g) In the event of a Successful Remarketing, by approximately
4:30 p.m. (New York City time) on the applicable Remarketing Date, the
Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent, the
Indenture Trustee and the Company of the Reset Rate determined by
the Remarketing Agent in such Remarketing and the number of
Remarketed Senior Notes sold in such Remarketing;
(ii) each purchaser (or the Depositary Participant thereof)
of Remarketed Senior Notes of the Reset Rate and the number of
Remarketed Senior Notes such purchaser is to purchase; and
(iii) each such purchaser to give instructions to its
Depositary Participant to pay the purchase price on the third
business day immediately following the date of such Successful
Remarketing in same day funds against delivery of the Remarketed
Senior Notes purchased through the facilities of the Depositary.
The Remarketing Agent shall also, if required by the Securities Act or the
rules and regulations promulgated thereunder, deliver to each purchaser a
Prospectus in connection with the Remarketing.
(h) After deducting any fees specified in Section 4 below, the
proceeds from a Successful Remarketing (i) with respect to the Pledged
Senior Notes underlying the Applicable Ownership Interests in Senior Notes
that are components of the Normal Units, shall be paid to the Collateral
Agent in accordance with Sections 5.07 and 7.06 of the Pledge Agreement,
as the case may be, and Section 5.02 of the Purchase Contract Agreement
and (ii) with respect to the Separate Senior Notes, shall be paid to the
Custodial Agent for payment to the holders of such Separate Senior Notes
in accordance
4
with Section 5.02 of the Purchase Contract Agreement and Section 7.06 of
the Pledge Agreement.
(i) The right of each holder of Separate Senior Notes or Normal
Units to have Remarketed Senior Notes remarketed and sold on any
Remarketing Date shall be subject to the conditions that (i) the
Remarketing Agent conducts an (A) Initial Remarketing, (B) a Second
Remarketing in the event of a Failed Initial Remarketing, (C) a Third
Remarketing in the event of a Failed Second Remarketing and (D) a Final
Remarketing in the event of a Failed Third Remarketing, each pursuant to
the terms of this Agreement, (ii) a Special Event Redemption has not
occurred prior to such Remarketing Date, (iii) the Remarketing Agent is
able to find a purchaser or purchasers for Remarketed Senior Notes at the
Remarketing Price or the Final Remarketing Price, as the case may be,
based on the Reset Rate, and (iv) such purchaser or purchasers deliver the
purchase price therefor to the Remarketing Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall
not have any obligation whatsoever to purchase any Remarketed Senior
Notes, whether in the Remarketing or otherwise, and shall in no way be
obligated to provide funds to make payment upon tender of Remarketed
Senior Notes for Remarketing or to otherwise expend or risk its own funds
or incur or to be exposed to financial liability in the performance of its
duties under this Agreement, and without limitation of the foregoing, the
Remarketing Agent shall not be deemed an underwriter of the Remarketed
Senior Notes. Neither the Company nor the Remarketing Agent shall be
obligated in any case to provide funds to make payment upon tender of the
Remarketed Senior Notes for Remarketing.
Section 3. Representations and Warranties of the Company.
The Company represents and warrants (i) on and as of the date any
Remarketing Materials are first distributed in connection with the Remarketing
(the "COMMENCEMENT DATE"), (ii) on and as of the applicable Remarketing Date and
(iii) on and as of the settlement date relating to such Remarketing Date, that:
(a) Each of the representations and warranties of the Company as
set forth in Sections 2(e) through 2(r) of the Underwriting Agreement
dated as of May 19, 2003 (the "UNDERWRITING AGREEMENT") among the Company
and the Underwriters identified in Schedule I to the related Pricing
Agreement dated as of May 19, 2003 among the Company and Xxxxxxx, Xxxxx &
Co., Xxxxxx Xxxxxxx & Co. Incorporated and UBS Warburg LLC, is true and
correct as if made on each of the dates specified above; provided that for
purposes of this Section 3(a), (A) any reference in such sections of the
Underwriting Agreement to (i) the "Registration Statement", the
"Prospectus" or the "Preliminary Prospectus" shall be deemed to refer to
such terms as defined herein and (ii) the "Time of Delivery" shall be
deemed to refer to the applicable Remarketing Date and (B) the term
"Significant Subsidiary" as used in Section 2(e) of the Underwriting
Agreement shall be deemed to include any subsidiaries of the Company that
are, on each of the dates specified above, "significant subsidiaries" of
the Company within the meaning of Regulation S-X.
5
(b) The Registration Statement, if any, in the form heretofore
delivered or to be delivered to the Remarketing Agent, has been declared
effective by the Commission in such form; and no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission.
(c) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated
by reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, will conform
in all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and will not contain
an 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,
in light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information relating to the Remarketing Agent furnished in writing to
the Company by the Remarketing Agent or its counsel expressly for use in
the Prospectus.
(d) The Registration Statement, if any, conforms (and the
Prospectus, if any, and any further amendments or supplements to the
Registration Statement or the Prospectus, when they become effective or
are filed with the Commission, as the case may be, will conform) in all
material respects to the requirements of the Securities Act and the rules
and regulations promulgated thereunder, and the Registration Statement and
the Remarketing Materials (and any amendment or supplement thereto) as of
their respective effective or filing dates and as of the Commencement
Date, applicable Remarketing Date and Purchase Contract Settlement Date do
not and 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; provided that no
representation and warranty is made as to any statement of eligibility on
Form T-1 filed or incorporated by reference as part of the Registration
Statement, the Prospectus or the Remarketing Materials, or as to
information relating to the Remarketing Agent contained in or omitted from
the Registration Statement, the Prospectus or the Remarketing Materials in
reliance upon and in conformity with written information furnished to the
Company by the Remarketing Agent.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
Section 4. Fees.
(a) In the event of a Successful Remarketing of the Remarketed
Senior Notes prior to the Final Remarketing Date, the Remarketing Agent
may retain as a remarketing
6
fee (the "INITIAL REMARKETING FEE") an amount equal to the lesser of (i)
25 basis points (0.25%) of the sum of the Treasury Portfolio Purchase
Price and the Separate Senior Note Purchase Price and (ii) the amount of
the proceeds of such Remarketing in excess of the sum of the Treasury
Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(b) In the event of a Successful Final Remarketing, the
Remarketing Agent may retain as the remarketing fee an amount equal to the
lesser of (i) 25 basis points (0.25%), of the principal amount of the
Remarketed Senior Notes and (ii) the amount of the proceeds of such
Remarketing on the Final Remarketing Date in excess of the aggregate
principal amount of such Remarketed Senior Notes (the "FINAL REMARKETING
FEE" and together with the Initial Remarketing Fee, the "REMARKETING
FEE").
Section 5. Covenants of the Company.
The Company covenants and agrees as follows:
(a) If and to the extent the Remarketed Senior Notes are required
(in the view of counsel, which need not be in the form of a written
opinion, for either the Remarketing Agent or the Company) to be registered
under the Securities Act as in effect at the time of the Remarketing,
(i) to prepare the Registration Statement and the
Prospectus, in a form approved by the Remarketing Agent, to file any
such Prospectus pursuant to the Securities Act within the period
required by the Securities Act and the rules and regulations
thereunder and to use commercially reasonable efforts to cause the
Registration Statement to be declared effective by the Commission
prior to the second Business Day immediately preceding the
applicable Remarketing Date;
(ii) to file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to
the Prospectus that may, in the reasonable judgment of the Company
or the Remarketing Agent, be required by the Securities Act or
requested by the Commission;
(iii) to advise the Remarketing Agent, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Remarketing Agent with copies thereof;
(iv) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a Prospectus is required in connection with
the offering or sale of the Remarketed Senior Notes;
7
(v) to advise the Remarketing Agent, promptly after it
receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of the
Prospectus, of the suspension of the qualification of any of the
Remarketed Senior Notes for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information, and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any
Prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(vi) to furnish promptly to the Remarketing Agent such
copies of the following documents as the Remarketing Agent shall
reasonably request: (A) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment
thereto (in each case excluding exhibits); (B) the Preliminary
Prospectus and any amended or supplemented Preliminary Prospectus,
(C) the Prospectus and any amended or supplemented Prospectus; and
(D) any document incorporated by reference in the Prospectus
(excluding exhibits thereto); and, if at any time when delivery of a
prospectus is required in connection with the Remarketing, any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Securities Act or the
Exchange Act, to notify the Remarketing Agent and, upon its request,
to file such document and to prepare and furnish without charge to
the Remarketing Agent and to any dealer in securities as many copies
as the Remarketing Agent may from time to time reasonably request of
an amended or supplemented Prospectus that will correct such
statement or omission or effect such compliance;
(vii) prior to filing with the Commission (A) any amendment
to the Registration Statement or supplement to the Prospectus or (B)
any Prospectus pursuant to Rule 424 under the Securities Act, to
furnish a copy thereof to the Remarketing Agent and counsel to the
Remarketing Agent; and not to file any such amendment or supplement
that shall be reasonably disapproved by the Remarketing Agent
promptly after reasonable notice;
(viii) as soon as practicable, but in any event not later than
eighteen months, after the effective date of the Registration
Statement, to make "generally available to its security holders" an
"earnings statement" of the Company and its subsidiaries complying
with (which need not be audited) Section 11(a) of the Securities Act
and the rules and regulations thereunder (including, at the option
of the Company, Rule 158). The terms "GENERALLY AVAILABLE TO ITS
SECURITY
8
HOLDERS" and "EARNINGS STATEMENT" shall have the meanings set forth
in Rule 158; and
(ix) to take such action as the Remarketing Agent may
reasonably request in order to qualify the Remarketed Senior Notes
for offer and sale under the securities or "blue sky" laws of such
jurisdictions as the Remarketing Agent may reasonably request;
provided that in no event shall the Company be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction.
(b) To pay: (1) the costs incident to the preparation and printing
of the Registration Statement, if any, any Prospectus and any other
Remarketing Materials and any amendments or supplements thereto; (2) the
costs of distributing the Registration Statement, if any, any Prospectus
and any other Remarketing Materials and any amendments or supplements
thereto; (3) any fees and expenses of qualifying the Remarketed Senior
Notes under the securities laws of the several jurisdictions as provided
in Section 5(a)(ix) and of preparing, printing and distributing a Blue Sky
Memorandum, if any (including any related fees and expenses of counsel to
the Remarketing Agent); (4) all other costs and expenses incident to the
performance of the obligations of the Company hereunder and the
Remarketing Agent hereunder; and (5) the reasonable fees and expenses of
counsel to the Remarketing Agent in connection with their duties
hereunder.
(c) To furnish the Remarketing Agent with such information and
documents as the Remarketing Agent may reasonably request in connection
with the transactions contemplated hereby, and to make reasonably
available to the Remarketing Agent and any accountant, attorney or other
advisor retained by the Remarketing Agent such information that parties
would customarily require in connection with a due diligence investigation
conducted in accordance with applicable securities laws and to cause the
Company's officers, directors, employees and accountants to participate in
all such discussions and to supply all such information reasonably
requested by any such Person in connection with such investigation.
Section 6. Conditions to the Remarketing Agent's Obligations.
The obligations of the Remarketing Agent hereunder shall be subject to the
following conditions:
(a) The Prospectus, if any, shall have been timely filed with the
Commission; no stop order suspending the effectiveness of the Registration
Statement, if any, or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise
shall have been complied with.
(b) (1) Trading generally shall not have been suspended or
materially limited on the New York Stock Exchange or the Nasdaq National
Market, (2) trading of any
9
securities of the Company shall not have been materially suspended or
limited on the New York Stock Exchange or any other exchange or
over-the-counter market, (3) a material disruption in securities
settlement, payment or clearance services in the United States shall not
have occurred, (4) a general moratorium on commercial banking activities
in New York shall not have been declared by either Federal or New York
State authorities, or (5) there shall not have occurred a material adverse
change in the financial markets, any outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war or other calamity or crisis, if the effect of
any such event specified in this clause (5) in the judgment of the
Remarketing Agent makes it impracticable or inadvisable to proceed with
the Remarketing or the delivery of the Remarketed Senior Notes on the
terms and in the manner contemplated in the Transaction Documents.
(c) The representations and warranties of the Company contained
herein shall be true and correct in all material respects on and as of the
applicable Remarketing Date, and the Company, the Purchase Contract Agent
and the Collateral Agent shall have performed in all material respects all
covenants and agreements contained herein or in the Purchase Contract
Agreement or Pledge Agreement to be performed on their part at or prior to
such Remarketing Date.
(d) The Company shall have furnished to the Remarketing Agent a
certificate, dated the applicable Remarketing Date, of the Chief Executive
Officer and the Treasurer satisfactory to the Remarketing Agent stating
that: (1) no order suspending the effectiveness of the Registration
Statement, if any, or prohibiting the sale of the Remarketed Senior Notes
is in effect, and no proceedings for such purpose are pending before or,
to the knowledge of such officers, threatened by the Commission; (2) the
representations and warranties of the Company in Section 3 are true and
correct on and as of the applicable Remarketing Date and the Company has
performed in all material respects all covenants and agreements contained
herein to be performed on its part at or prior to such Remarketing Date;
and (3) the Registration Statement, as of its effective date, and the
Remarketing Materials, as of their respective dates, did not contain any
untrue statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading and the Prospectus did not contain any untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(e) On the applicable Remarketing Date, the Remarketing Agent
shall have received a letter addressed to the Remarketing Agent and dated
such date, in form and substance satisfactory to the Remarketing Agent, of
Deloitte & Touche LLP, the independent accountants of the Company,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to certain financial
information contained in the Remarketing Materials, if any.
(f) Each of (1) counsel for the Company and (2) General Counsel to
the Company, shall have furnished to the applicable Remarketing Agent its
opinion, addressed to the Remarketing Agent and dated the Remarketing
Date, in form and
10
substance reasonably satisfactory to the Remarketing Agent addressing such
matters as are set forth in such counsel's opinion furnished pursuant to
Sections 7(c) and 7(d) of the Underwriting Agreement, adapted as necessary
to relate to the securities being remarketed hereunder and to the
Remarketing Materials, if any, or to any changed circumstances or events
occurring subsequent to the date of this Agreement, such adaptations being
reasonably acceptable to counsel to the Remarketing Agent.
(g) Counsel for the Remarketing Agent, shall have furnished to the
Remarketing Agent its opinion, addressed to the Remarketing Agent and
dated the applicable Remarketing Date, in form and substance satisfactory
to the Remarketing Agent.
(h) Subsequent to the execution and delivery of this Agreement and
prior to the applicable Remarketing Date, there shall not have occurred
any downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does not
indicate an improvement, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
Section 7. Indemnification.
(a) The Company will indemnify and hold harmless the Remarketing
Agent, its partners, directors and officers and each person, if any, who
controls the Remarketing Agent within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which the Remarketing Agent may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, or any amendments
or supplement thereto, or any related Preliminary Prospectus or
preliminary prospectus supplement, or any other Remarketing Materials, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Remarketing
Agent for any legal or other expenses reasonably incurred by the
Remarketing Agent in connection with investigating or defending any such
losses, claims, damages, liabilities or action as such expenses are
incurred; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by the Remarketing Agent specifically for use therein.
(b) The Remarketing Agent will indemnify and hold harmless the
Company, its directors and officers and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of
11
a material fact contained in the Registration Statement, the Prospectus or
any amendment or supplement thereto, or any related Preliminary Prospectus
or Preliminary Prospectus supplement, or any other Remarketing Materials,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the
Remarketing Agent specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
section of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In the case of parties indemnified pursuant
to subsection (a) above, counsel to the indemnified parties shall be
selected by the Remarketing Agent. An indemnifying party may participate
at its own expense in the defense of any such action; provided, however,
that counsel to the indemnifying party shall not (except 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, 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 or Section 8 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) 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.
Section 8. Contribution.
(a) 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, then each indemnifying party, in lieu of such
indemnification, shall contribute to the aggregate amount of such losses,
liabilities, claims, damages or expenses as incurred (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Remarketing Agent on the other hand
from the offering of the
12
Remarketed Senior Notes or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportions as is appropriate
to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and the
Remarketing Agent on the other hand in connection with the statements of
omissions which resulted in such losses, claims, damages or liabilities as
well as any relevant equitable considerations. The relative benefits
received by the Company on one hand and the Remarketing Agent on the other
hand in connection with the Remarketing shall be deemed to be in the same
proportions as the aggregate principal amount of the Remarketed Senior
Notes less the fee paid to the Remarketing Agent on the one hand and the
fee paid to the Remarketing Agent on the other hand bear to the aggregate
principal amount of the Remarketed Senior Notes. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or the Remarketing Agent on the other hand and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (a) were determined by pro rata allocation or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (a). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (a) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (a), the Remarketing Agent shall not be
required to contribute any amount in excess of the amount by which the
fees received by it under Section 4 exceeds the amount of any damages
which the Remarketing Agent has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(b) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Remarketing Agent and to each person, if any, who controls
the Remarketing Agent within the meaning of the Securities Act; and the
obligations of the Remarketing Agent under this Section 8 shall be in
addition to any liability which the Remarketing Agent may otherwise have
and shall extend, upon the same terms and conditions, to each director of
the Company, to each officer of the Company who signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Securities Act.
(c) The indemnity and contribution provisions contained in Section
7 and this Section 8 and the representations, warranties and other
statements of the Company contained in this Agreement shall remain in full
force and effect, regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of the
13
Remarketing Agent or any person controlling the Remarketing Agent, or the
Company, its officers or director or any controlling person of the
Company, and the completion of the Remarketing.
Section 9. Resignation and Removal of the Remarketing Agent.
The Remarketing Agent may resign and be discharged from its duties and
obligations hereunder, and the Company may remove the Remarketing Agent, by
giving 30 days' prior written notice, in the case of a resignation, to the
Company, the Purchase Contract Agent and the Depositary and, in the case of a
removal, to the removed Remarketing Agent, the Purchase Contract Agent and the
Depositary; provided, however, that no such resignation nor any such removal
shall become effective until the Company shall have appointed at least one
nationally recognized broker-dealer as successor Remarketing Agent and such
successor Remarketing Agent shall have entered into a with
the Company and the Purchase Contract Agent, in which it shall have agreed to
conduct the Remarketing in accordance with the Transaction Documents in all
material respects.
In any such case, the Company will use commercially reasonable efforts to
appoint a successor Remarketing Agent and enter into such a with such person as soon as reasonably practicable. The provisions of
Sections 7 and 8 shall survive the resignation or removal of any Remarketing
Agent pursuant to this Agreement.
Section 10. Dealing in Securities.
The Remarketing Agent, when acting as a Remarketing Agent or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the Remarketed Senior Notes, Normal Units,
Stripped Units or any of the securities of the Company (together, the
"SECURITIES"). The Remarketing Agent may exercise any vote or join in any action
which any beneficial owner of such Securities may be entitled to exercise or
take pursuant to the Indenture with like effect as if it did not act in any
capacity hereunder. The Remarketing Agent, in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in any
capacity hereunder.
Section 11. Remarketing Agent's Performance; Duty of Care.
The duties and obligations of the Remarketing Agent shall be determined
solely by the express provisions of this Agreement and the Transaction
Documents. No implied covenants or obligations of or against the Remarketing
Agent shall be read into this Agreement or any of the Transaction Documents. In
the absence of bad faith on the part of the Remarketing Agent, the Remarketing
Agent may conclusively rely upon any document furnished to it, as to the truth
of the statements expressed in any of such documents. The Remarketing Agent
shall be protected in acting upon any document or communication reasonably
believed by it to have been signed, presented or made by the proper party or
parties except as otherwise set forth herein. The Remarketing Agent, acting
under this Agreement, shall incur no liability to the Company or to any holder
of Remarketed Senior Notes in its individual capacity or as Remarketing Agent
for any action or failure to act, on its part in connection with a Remarketing
or otherwise, except if
14
such liability is judicially determined to have resulted from its failure to
comply with the material terms of this Agreement or the gross negligence or
willful misconduct on its part. The provisions of this Section 11 shall survive
the termination of this Agreement and shall survive the resignation or removal
of any Remarketing Agent pursuant to this Agreement.
Section 12. Termination.
This Agreement shall automatically terminate (i) as to the Remarketing
Agent on the effective date of the resignation or removal of the Remarketing
Agent pursuant to Section 9 and (ii) on the earlier of (x) any Special Event
Redemption Date and (y) the Purchase Contract Settlement Date. If this Agreement
is terminated pursuant to any of the other provisions hereof, except as
otherwise provided herein, the Company shall not be under any liability to the
Remarketing Agent and the Remarketing Agent shall not be under any liability to
the Company, except that if this Agreement is terminated by the Remarketing
Agent because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, the
Company will reimburse the Remarketing Agent for all of its out-of-pocket
expenses (including the fees and disbursements of its counsel) reasonably
incurred by it. Sections 7, 8 and 11 hereof shall survive the termination of
this Agreement or the resignation or removal of the Remarketing Agent.
Section 13. Notices.
All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxx Xxxxxx (Fax:
000-000-0000);
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to The Hartford Financial Services Group, Inc.,
Hartford Plaza, Hartford, Connecticut 06115-1900, Attention: General
Counsel (Fax: 000-000-0000); and
(c) if to the Purchase Contract Agent, shall be delivered or sent
by mail, telex or facsimile transmission to JPMorgan Chase Bank, 4 New
Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Institutional
Trust Services (Fax: 000-000-0000).
Any such statements, requests, notices or agreements shall take effect at
the time of receipt thereof.
Section 14. Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon each
party hereto and its respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(x) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
Remarketing Agent and the person or persons, if any, who control the Remarketing
Agent within the meaning of Section 15 of the Securities Act and (y) the
indemnity agreement of
15
the Remarketing Agent contained in Section 7(b) of this Agreement shall be
deemed to be for the benefit of the Company's directors and officers who sign
the Registration Statement, if any, and any person controlling the Company
within the meaning of Section 15 of the Securities Act. Nothing contained in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to herein, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
Section 15. Survival.
The respective indemnities, representations, warranties and agreements of
the Company and the Remarketing Agent contained in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall survive any
Remarketing and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
Section 16. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the
laws of New York, without regard to conflicts of laws principles.
Section 17. Judicial Proceedings.
(a) Each party hereto expressly accepts and irrevocably submits to
the non-exclusive jurisdiction of the United States Federal or New York
State court sitting in the Borough of Manhattan, The City of New York, New
York, over any suit, action or proceeding arising out of or relating to
this Agreement or the Remarketed Senior Notes. To the fullest extent it
may effectively do so under applicable law, each party hereto irrevocably
waives and agrees not to assert, by way of motion, as a defense or
otherwise, any claim that it is not subject to the jurisdiction of any
such court, any objection that it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding brought in any such
court and any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum.
(b) Each party hereto agrees, to the fullest extent that it may
effectively do so under applicable law, that a judgment in any suit,
action or proceeding of the nature referred to in Section 17(a) brought in
any such court shall be conclusive and binding upon such party, subject to
rights of appeal and may be enforced in the courts of the United States of
America or the State of New York (or any other court the jurisdiction to
which the Company is or may be subject) by a suit upon such judgment.
Section 18. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original but all such counterparts shall together constitute one
and the same instrument.
16
Section 19. Headings.
The headings herein are inserted for convenience of reference only and are
not intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
Section 20. Severability.
If any provision of this Agreement shall be held or deemed to be or shall,
in fact, be invalid, inoperative or unenforceable as applied in any particular
case in any or all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule or public policy or for any other reason, then, to
the extent permitted by law, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstance or jurisdiction, or of rendering any other provision or
provisions of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 21. Amendments.
This Agreement may be amended by an instrument in writing signed by the
parties hereto. Each of the Company and the Purchase Contract Agent agrees that
it will not enter into, cause or permit any amendment or modification of the
Transaction Documents or any other instruments or agreements relating to the
Senior Notes or the Normal Units that would in any way adversely affect the
rights, duties and obligations of the Remarketing Agent, without the prior
written consent of the Remarketing Agent.
Section 22. Successors and Assigns.
The rights and obligations of the Company hereunder may not be assigned or
delegated to any other Person without the prior written consent of the
Remarketing Agent. The rights and obligations of the Remarketing Agent hereunder
may not be assigned or delegated to any other Person (other than an affiliate of
the Remarketing Agent) without the prior written consent of the Company.
If the foregoing correctly sets forth the agreement by and between the
Company, the Remarketing Agent and the Purchase Contract Agent, please indicate
your acceptance in the space provided for that purpose below.
[SIGNATURES ON THE FOLLOWING PAGE]
17
Very truly yours,
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
By: _______________________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX, XXXXX & CO.,
as Remarketing Agent
By: _____________________________________
Name:
Title:
JPMORGAN CHASE BANK,
not individually but solely as Purchase Contract Agent
and as attorney-in-fact for the Holders of the Purchase Contracts
By: _____________________________________
Name:
Title:
