Exhibit 4.4
May 23, 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 23, 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 23, 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.
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(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 price, at a
price below 100.50% in the discretion of the Remarketing Agent, but in
no event less than 100%, 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 price, at a price below
100.50% in the discretion of the Remarketing Agent, but in no event
less than 100%, 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% (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% (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.
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(e) 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.
(f) 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
date on which such Remarketing is to be settled, which shall
be no later than 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.
(g) After deducting any fees specified in Section 4 below,
the proceeds from a Successful Remarketing (i) with respect to the
Pledged Senior Notes, 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 with Section 5.02 of the Purchase Contract
Agreement and Section 7.06 of the Pledge Agreement.
(h) 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
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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, (iv) such purchaser or purchasers deliver the purchase
price therefor to the Remarketing Agent as and when required and (v)
the Remarketing is settled in accordance with this Agreement.
(i) 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.
(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.
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(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 fee (the "INITIAL
REMARKETING FEE") an amount up 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.
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(b) In the event of a Successful Final Remarketing, the
Remarketing Agent may retain as the remarketing fee an amount up 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;
(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,
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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 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
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in any jurisdiction; and provided further that the Company
shall not be required to qualify the Units in any jurisdiction
if such qualification would result in any obligation on the
part of the Company to make filings with any governmental
entity in such jurisdiction after the completion of the
offering.
(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 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
9
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 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
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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 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
11
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 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
12
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
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.
13
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 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.
14
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 York Plaza, 15th Floor, New York, New York 10004, 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 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
15
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.
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.
16
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: /s/ Xxxx X. Xxxxxxxx
__________________________
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
and Treasurer
CONFIRMED AND ACCEPTED:
XXXXXXX, XXXXX & CO.
as Remarketing Agent
By: /s/ Xxxxxxx, Sachs & Co.
_________________________
(XXXXXXX, XXXXX & CO.)
JPMORGAN CHASE BANK,
not individually but solely as Purchase Contract Agent
and as attorney-in-fact for the Holders of the Purchase Contracts
By: /s/ Xxxxxx Xxxxxx
_________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
