Exhibit 4.9
September 13, 2002
[Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Name of the Purchase Contract Agent]
[Address]
Ladies and Gentlemen:
This Agreement is dated as of September 13, 2002 (the "Agreement") by and
between The Hartford Financial Services Group, Inc., a Delaware corporation (the
"Company"), [Xxxxxx Xxxxxxx & Co. Incorporated], as the remarketing agent (the
"Remarketing Agent"), and [__________________], not individually but solely as
Purchase Contract Agent (the "Purchase Contract Agent") under 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 September 13,
2002 (the "Purchase Contract Agreement"), between the Company and ____________,
as Purchase Contract Agent.
(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 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, 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 Senior Notes of the Corporate
Unit holders and (ii) in the case of the Final Remarketing, the Senior Notes of
the Corporate Unit holders who have not notified the Purchase Contract Agent 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 Separate Senior Note holders 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 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 November 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 [Xxxxxx Xxxxxxx & Co. Incorporated] as the
exclusive Remarketing Agent, and, subject to the terms and conditions set forth
herein, [Xxxxxx Xxxxxxx & Co. Incorporated] 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, the Indenture and the Supplemental 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.
(b) Unless a Special Event Redemption has occurred prior to such date, on
the third Business Day immediately preceding August 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") equal to approximately 100.50% (but not less than 100%) of
the sum of the Treasury Portfolio Purchase Price and the Separate Note Purchase
Price.
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(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 September 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
October 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") equal to approximately 100.50% (but not
less than 100%) of the aggregate principal amount of the Remarketed Senior Notes
being remarketed in such Final Remarketing. It is understood and agreed that
Remarketing on any Remarketing Date will be considered successful and no further
attempts will be made if the resulting proceeds (net of any fees and
commissions) are at least 100% of the sum of the Treasury Portfolio Purchase
Price and the Separate Note Purchase Price, in the caser of a Remarketing other
than the Final Remarketing, or 100% 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 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 Corporate 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.
(e) In the event of a Failed Remarketing or a Failed Final Remarketing, or
if none of the holders of the Separate Senior Notes or the holders of the
Corporate Units elect to have Senior Notes be remarketed in such Remarketing,
the applicable interest rate on the Senior Notes will not be reset and continue
to be the Coupon Rate.
(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 or Failed
Final Remarketing, as the case may be, 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 or a Failed Final Remarketing will be
determined in the sole reasonable discretion of the Remarketing Agent.
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(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:
(1) the Depositary, the Purchase Contract Agent 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;
(2) 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
(3) 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 the Fees specified in Section 4 below, the proceeds
from a Successful Remarketing (i) with respect to the Senior Notes which are
components of the Corporate 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 Notes, shall be paid to the Custodial Agent for payment to the
holders of such Separate Notes in accordance 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 Notes or Corporate Units to have
Remarketed Senior Notes remarketed on any Remarketing Date shall be subject to
the conditions that (i) the Remarketing Agent conducts an Initial Remarketing, a
Second Remarketing in the event of a Failed Initial Remarketing, a Third
Remarketing in the event of a Failed Second Remarketing and 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, 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
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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
September 9, 2002 (the "Underwriting Agreement") among the Company and the
Underwriters identified in Schedule I thereto, 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 "Closing
Date" or the "Additional Closing Date" 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.
(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
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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 shall retain as a
remarketing fee (the "Remarketing Fee") an amount equal to 25 basis points
(0.25%) of the sum of the Treasury Portfolio Purchase Price and the Separate
Senior Note Purchase Price from the proceeds of such Remarketing in excess of
the sum of the Treasury Portfolio Purchase Price and the Separate Debentures
Purchase Price.
(b) In the event of a Successful Final Remarketing, the Remarketing Agent
shall retain as the Remarketing Fee an amount equal to 25 basis points (0.25%),
of the principal amount of the Remarketed Senior Notes from the proceeds of such
Remarketing on the Final Remarketing Date in excess of the aggregate principal
amount of such Remarketed Senior Notes.
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,
(1) 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;
(2) 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;
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(3) 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;
(4) 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;
(5) 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;
(6) 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;
(7) 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;
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(8) 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
(9) 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)(9) 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 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, (2) trading of any securities of the
Company shall not have been materially suspended or limited on the New York
Stock Exchange, (3) a general moratorium on
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commercial banking activities in New York shall not have been declared by either
Federal or New York State authorities, or (4) 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 (4) 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) Debevoise & Xxxxxxxx, counsel for the Company, and (2)
General Counsel to the Company, shall have furnished to the Remarketing Agent
its opinion, addressed to the Remarketing Agent and dated the Remarketing Date,
in form and substance reasonably satisfactory to the applicable 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
9
to the date of this Agreement, such adaptations being reasonably acceptable to
counsel to the Remarketing Agent.
(g) Xxxxx Xxxx & Xxxxxxxx, 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 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
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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 (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 is unavailable to or
insufficient to hold harmless an indemnified party under Sections 7(a) or 7(b),
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (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 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 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
11
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.
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 60 days' prior written notice, in the case of a resignation, to the
Company and the Depositary and, in the case of a removal, to the removed
Remarketing Agent and the Depositary; provided, however, that:
(a) the Remarketing Agent may not resign without reasonable cause; and
(b) 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
12
Remarketing Agent and such successor Remarketing Agent shall have entered into a
with the Company, 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
Section 7 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, Corporate Units,
Treasury 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.
Section 12. Termination.
This Agreement shall automatically terminate as to the Remarketing Agent on
the effective date of the resignation or removal of the Remarketing Agent
pursuant to Section 9. 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
13
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. Section 7, Section 8 and Section 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 Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: [________] (Fax: 212-[_______]);
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to The Hartford Financial Services Group, Inc., Xxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000, Attention: [General Counsel] (Fax:
_________); and
(c) if to the Purchase Contract Agent, shall be delivered or sent by mail,
telex or facsimile transmission to [______________], Attention: [________] (Fax:
212-[_______]).
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 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.
14
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
Securities. 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.
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
15
instruments or agreements relating to the Senior Notes or the Corporate 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]
16
Very truly yours,
THE HARTFORD FINANCIAL SERVICES
GROUP, INC.
By:
------------------------------
Name:
Title:
Accepted:
XXXXXX XXXXXXX & CO. INCORPORATED,
as Remarketing Agent
By:
------------------------------------
Name:
Title:
Accepted:
Accepted:
[ ]
--------------------------------- ,
not individually but solely as Purchase Contract Agent
By:
------------------------------------
Name:
Title:
