EXHIBIT 4.4
September 13, 2002
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
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"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, 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 September
13, 2002, 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 Corporate 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 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated as
the exclusive Remarketing Agent, and, subject to the terms and conditions set
forth herein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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 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.
(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
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Remarketed Senior Notes, at a price (the "REMARKETING PRICE"), based on the
Reset Rate, equal to approximately 100.50% (or, if the Remarketing Agent is
unable to remarket the Remarketed Senior Notes at such rate, at a rate below
100.50% in the discretion of the Remarketing Agent, but in no event less than
100%, 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 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"), based on the Reset Rate, equal to
approximately 100.50% (or, if the Remarketing Agent is unable to remarket the
Remarketed Senior Notes at such rate, at a rate below 100.50% in the discretion
of the Remarketing Agent, but in no event less than 100%, 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 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 if no Senior Notes are
included in Corporate Units, and if none of the holders of the Separate Senior
Notes elect to have Senior Notes be remarketed in such Remarketing, the
applicable interest rate on the Senior Notes will not be reset and will continue
to be the Coupon Rate set forth in the Indenture, as supplemented from time to
time.
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(f) If, by 4:00 p.m. (New York City time) on the applicable Remarketing
Date, the Remarketing Agent is unable to remarket all of the Remarketed Senior
Notes at the Remarketing Price or the Final Remarketing Price, as the case may
be, pursuant to the terms and conditions hereof, a Failed Remarketing shall be
deemed to have occurred, and the Remarketing Agent shall advise, by telephone
the Depositary, the Purchase Contract Agent and the Company, and return the
Remarketed Senior Notes to the Collateral Agent or the Custodial Agent, as the
case may be. Whether or not there has been a Failed Remarketing will be
determined in the sole reasonable discretion of the Remarketing Agent.
(g) In the event of a Successful Remarketing, by approximately 4:30
p.m. (New York City time) on the applicable Remarketing Date, the Remarketing
Agent shall advise, by telephone:
(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 any fees specified in Section 4 below, the proceeds
from a Successful Remarketing (i) with respect to the Senior Notes that 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 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.
(i) The right of each holder of Separate Senior Notes or Corporate
Units to have Remarketed Senior Notes remarketed and sold on any Remarketing
Date shall be subject to the conditions that (i) the Remarketing Agent conducts
an (A) Initial Remarketing, (B) a Second Remarketing in the event of a Failed
Initial Remarketing, (C) a Third Remarketing in the event of a Failed Second
Remarketing and (D) a Final Remarketing in the event of a Failed Third
Remarketing, each pursuant to the terms of this Agreement, (ii) a Special Event
Redemption has not occurred prior to such Remarketing Date, (iii) the
Remarketing Agent is able to find a purchaser or purchasers for Remarketed
Senior Notes at the Remarketing Price or the Final Remarketing Price, as the
case may be, based on the Reset Rate, and (iv) such purchaser or purchasers
deliver the purchase price therefor to the Remarketing Agent as and when
required.
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(j) It is understood and agreed that the Remarketing Agent shall not
have any obligation whatsoever to purchase any Remarketed Senior Notes, whether
in the Remarketing or otherwise, and shall in no way be obligated to provide
funds to make payment upon tender of Remarketed Senior Notes for Remarketing or
to otherwise expend or risk its own funds or incur or to be exposed to financial
liability in the performance of its duties under this Agreement, and without
limitation of the foregoing, the Remarketing Agent shall not be deemed an
underwriter of the Remarketed Senior Notes. Neither the Company nor the
Remarketing Agent shall be obligated in any case to provide funds to make
payment upon tender of the Remarketed Senior Notes for Remarketing.
Section 3. Representations and Warranties of the Company.
The Company represents and warrants (i) on and as of the date any
Remarketing Materials are first distributed in connection with the Remarketing
(the "COMMENCEMENT DATE"), (ii) on and as of the applicable Remarketing Date and
(iii) on and as of the settlement date relating to such Remarketing Date, that:
(a) Each of the representations and warranties of the Company as set
forth in Sections 2(e) through 2(r) of the Underwriting Agreement dated as of
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 "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.
(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
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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 "REMARKETING FEE") an amount equal to the lesser of (i) 25
basis points (0.25%) of the sum of the Treasury Portfolio Purchase Price and the
Separate Senior Note Purchase Price and (ii) the amount of the proceeds of such
Remarketing in excess of the sum of the Treasury Portfolio Purchase Price and
the Separate Senior Notes Purchase Price.
(b) In the event of a Successful Final Remarketing, the Remarketing
Agent may retain as the Remarketing Fee an amount equal to the lesser of (i) 25
basis points (0.25%), of the principal amount of the Remarketed Senior Notes and
(ii) the amount of the proceeds of such Remarketing on the Final Remarketing
Date in excess of the aggregate principal amount of such Remarketed Senior
Notes.
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
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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;
(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
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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;
(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 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:
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(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 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.
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(f) Each of (1) Debevoise & ▇▇▇▇▇▇▇▇, 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 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
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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 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
11
connection with the statements of omissions which resulted in such losses,
claims, damages or liabilities as well as any relevant equitable considerations.
The relative benefits received by the Company on one hand and the Remarketing
Agent on the other hand in connection with the Remarketing shall be deemed to be
in the same proportions as the aggregate principal amount of the Remarketed
Senior Notes less the fee paid to the Remarketing Agent on the one hand and the
fee paid to the Remarketing Agent on the other hand bear to the aggregate
principal amount of the Remarketed Senior Notes. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Remarketing Agent on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (a) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
subsection (a). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (a) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (a), the Remarketing Agent shall not be required
to contribute any amount in excess of the amount by which the fees received by
it under Section 4 exceeds the amount of any damages which the Remarketing Agent
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(b) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the
Remarketing Agent and to each person, if any, who controls the Remarketing Agent
within the meaning of the Securities Act; and the obligations of the Remarketing
Agent under this Section 8 shall be in addition to any liability which the
Remarketing Agent may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
signed the Registration Statement and to each person, if any, who controls the
Company within the meaning of the Securities Act.
(c) The indemnity and contribution provisions contained in Section 7
and this Section 8 and the representations, warranties and other statements of
the Company contained in this Agreement shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of the Remarketing Agent or any person controlling the
Remarketing Agent, or the Company, its officers or director or any controlling
person of the Company, and the completion of the Remarketing.
Section 9. Resignation and Removal of the Remarketing Agent.
The Remarketing Agent may resign and be discharged from its duties and
obligations hereunder, and the Company may remove the Remarketing Agent, by
giving 30 days' prior
12
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 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 and Section 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, 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.
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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. 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Fax:
▇▇▇-▇▇▇-▇▇▇▇);
(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:
▇▇▇-▇▇▇-▇▇▇▇); and
(c) if to the Purchase Contract Agent, shall be delivered or sent by
mail, telex or facsimile transmission to JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Institutional Trust
Services (Fax: ▇▇▇-▇▇▇-▇▇▇▇).
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.
14
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
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
15
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 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: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
and Treasurer
CONFIRMED AND ACCEPTED:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
as Remarketing Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
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/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President