The Hartford Financial Services Group, Inc. (Exact name of registrant as specified in its charter) |
Hartford Capital IV
Hartford Capital V Hartford Capital VI (Exact name of registrant as specified in its charter) |
|
Delaware
(State or other jurisdiction of incorporation or organization) 13-3317783 (I.R.S. Employer Identification Number) |
Delaware
(State or other jurisdiction of incorporation or organization of each registrant) (Hartford Capital IV) 06-6431736 (Hartford Capital V) 33-6318394 (Hartford Capital VI) 82-6097264 (I.R.S. Employer Identification Numbers) |
|
One Hartford Plaza | c/o The Hartford Financial Services Group, Inc. | |
Hartford, Connecticut 06155
(860) 547-5000 (Address, including zip code, and telephone number, including area code, of registrants principal executive offices) |
One Hartford Plaza
Hartford, Connecticut 06155 (860) 547-5000 (Address, including zip code, and telephone number, including area code, of registrants principal executive offices) |
Neal S. Wolin
Executive Vice President and General Counsel The Hartford Financial Services Group, Inc. One Hartford Plaza Hartford, Connecticut 06155 (860) 547-5000 (Name, address, including zip code, and telephone number, including area code, of agent for service of each registrant) |
Alan H. Paley
Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 (212) 909-6000 |
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Amount to be registered/
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Proposed maximum offering
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price per unit/
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Proposed maximum aggregate
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Title of each class of
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offering price/Amount
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securities to be registered | of registration fee(1) | |||
Common Stock of The Hartford
Financial Services Group, Inc., par value $.01 per share
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Debt Securities of The Hartford
Financial Services Group, Inc.
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Preferred Stock of The Hartford
Financial Services Group, Inc., par value $.01 per share
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Depositary Shares of The Hartford
Financial Services Group, Inc.(2)
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Warrants of The Hartford Financial
Services Group, Inc.
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Stock Purchase Contracts of The
Hartford Financial Services Group, Inc.(3)
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Stock Purchase Units of The
Hartford Financial Services Group, Inc.(4)
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Junior Subordinated Debentures of
The Hartford Financial Services Group, Inc.
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Preferred Securities of Hartford
Capital IV
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Preferred Securities of Hartford
Capital V
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Preferred Securities of Hartford
Capital VI
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Guarantees with respect to
Preferred Securities of Hartford Capital IV, Hartford Capital V
and Hartford Capital VI or securities of other issuers by The
Hartford Financial Services Group, Inc.(5)
|
(1) | An unspecified aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at unspecified prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are issued in units or represented by depositary shares. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The registrants are relying on Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended (the Securities Act), to defer payment of all of the registration fee, except for $72,805 that has already been paid with respect to securities that were previously registered under the registration statement of the registrants on Form S-3 filed on August 19, 2003 (No. 333-108067) and were not sold thereunder. Pursuant to Rule 457(p) under the Securities Act, such unutilized registration fee may be applied to the registration fee payable pursuant to this registration statement. | |
(2) | The Depositary Shares issued hereunder will be evidenced by Depositary Receipts issued pursuant to a Deposit Agreement. In the event The Hartford Financial Services Group, Inc. elects to offer to the public fractional interests in Debt Securities or shares of the Preferred Stock registered hereunder, Depositary Receipts will be distributed to those persons purchasing such fractional interests and Debt Securities or shares of Preferred Stock, as the case may be, will be issued to the Depositary under the Deposit Agreement. No separate consideration will be received for the Depositary Shares. | |
(3) | Representing rights or obligations to purchase Preferred Stock, Common Stock or other securities, property or assets. | |
(4) | Representing ownership of Stock Purchase Contracts and Debt Securities, undivided beneficial ownership interests in Debt Securities, Depositary Shares representing fractional interests in Debt Securities or shares of Preferred Stock or debt obligations of third parties, including U.S. Treasury Securities, or Preferred Securities of Hartford Capital IV, Hartford Capital V or Hartford Capital VI. | |
(5) | This Registration Statement is deemed to include the obligations of The Hartford Financial Services Group, Inc. under the Junior Subordinated Debentures, the related Indenture, the Trust Agreements, the Preferred Securities, the Guarantees and the Expense Agreements as described in the Registration Statement. Pursuant to Rule 457(n) under the Securities Act, no separate registration fee will be paid in respect of any such obligations. |
| the difficulty in predicting our potential exposure for asbestos and environmental claims; | |
| the possible occurrence of terrorist attacks; | |
| the response of reinsurance companies under reinsurance contracts and the availability, pricing and adequacy of reinsurance to protect us against losses; | |
| changes in the stock markets, interest rates or other financial markets, including the potential effect on our statutory capital levels; | |
| the inability to effectively mitigate the impact of equity market volatility on our financial position and results of operations arising from obligations under annuity product guarantees; | |
| our potential exposure arising out of regulatory proceedings or private claims relating to incentive compensation or payments made to brokers or other producers and alleged anti-competitive conduct; | |
| the uncertain effect on us of regulatory and market-driven changes in practices relating to the payment of incentive compensation to brokers and other producers, including changes that have been announced and those which may occur in the future; | |
| the possibility of more unfavorable loss development; | |
| the incidence and severity of catastrophes, both natural and man-made; | |
| stronger than anticipated competitive activity; | |
| unfavorable judicial or legislative developments; | |
| the potential effect of domestic and foreign regulatory developments, including those which could increase our business costs and required capital levels; | |
| the possibility of general economic and business conditions that are less favorable than anticipated; |
ii
| our ability to distribute products through distribution channels, both current and future; | |
| the uncertain effects of emerging claim and coverage issues; | |
| a downgrade in our financial strength or credit ratings; | |
| the ability of our subsidiaries to pay dividends to us; | |
| our ability to adequately price our property and casualty policies; | |
| our ability to recover our systems and information in the event of a disaster or other unanticipated event; | |
| potential difficulties arising from outsourcing relationships; | |
| potential changes in federal or state tax laws; and | |
| other factors described in such forward-looking statements. |
iii
| 10% of the insurers policyholder surplus as of December 31 of the preceding year, and | |
| net income, or net gain from operations if the subsidiary is a life insurance company, for the previous calendar year, in each case determined under statutory insurance accounting principles. |
1
| issuing and selling to the public preferred securities, representing undivided beneficial interests in the assets of the trust, | |
| issuing and selling to us common securities, representing undivided beneficial interests in the assets of the trust, | |
| using the proceeds from the sale of the preferred securities and common securities to acquire a corresponding series of junior subordinated deferrable interest debentures, which we refer to in this prospectus as the corresponding junior subordinated debentures, | |
| distributing the cash payments it receives from the corresponding junior subordinated debentures it owns to you and the other holders of preferred securities and us, as the holder of common securities, and | |
| engaging in the other activities that are necessary, convenient or incidental to these purposes. |
| Wilmington Trust Company, which will act as property trustee and as Delaware trustee, and | |
| Two of our employees or officers or those of our affiliates, who will act as administrative trustees. |
2
3
| title of the debt securities, | |
| any limit upon the aggregate principal amount of the series, | |
| maturity date(s) or the method of determining the maturity date(s), | |
| interest rate(s) or the method of determining the interest rate(s), | |
| dates on which interest will be payable and circumstances, if any, in which interest may be deferred, | |
| dates from which interest will accrue and the method of determining those dates, | |
| place or places where we may pay principal, premium, if any, and interest and where you may present the debt securities for registration or transfer or exchange, | |
| place or places where notices and demands relating to the debt securities and the indentures may be made, | |
| redemption or early payment provisions, | |
| sinking fund or similar provisions, | |
| authorized denominations if other than denominations of $1,000, | |
| currency, currencies, or currency units, if other than in U.S. dollars, in which the principal of, premium, if any, and interest on the debt securities is payable, or in which the debt securities are denominated, | |
| any additions, modifications or deletions, in the events of default or covenants of The Hartford Financial Services Group, Inc. specified in the indenture relating to the debt securities, | |
| if other than the principal amount of the debt securities, the portion of the principal amount of the debt securities that is payable upon declaration of acceleration of maturity, | |
| any additions or changes to the indenture relating to a series of debt securities necessary to permit or facilitate issuing the series in bearer form, registrable or not registrable as to principal, and with or without interest coupons, | |
| any index or indices used to determine the amount of payments of principal of and premium, if any, on the debt securities and the method of determining these amounts, | |
| whether a temporary global security will be issued and the terms upon which these temporary debt securities may be exchanged for definitive debt securities, | |
| whether the debt securities will be issued in whole or in part in the form of one or more global securities, | |
| identity of the depositary for global securities, | |
| appointment of any paying agent(s), | |
| the terms and conditions of any obligation or right we would have or any option you would have to convert or exchange the debt securities into other securities or cash or property of The Hartford or any other person and any changes to the indenture to permit or facilitate such conversion or exchange, | |
| in the case of the subordinated indenture, any provisions regarding subordination, and | |
| additional terms not inconsistent with the provisions of the indentures. |
4
| by the depositary to its nominee, | |
| by a nominee of the depositary to the depositary or another nominee, or | |
| by the depositary or any nominee to a successor of the depositary, or a nominee of the successor. |
5
will not be entitled to have any of the individual debt
securities represented by the global security registered in your
name,
will not receive or be entitled to receive physical delivery of
any debt securities in definitive form, and
will not be considered the owner or holder of the debt
securities under the indenture.
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we will be the surviving company in any merger or consolidation,
if we consolidate with or merge into another person or convey or
transfer our assets substantially as an entirety to any person,
the successor person is an entity organized and validly existing
under the laws of the United States of America or any state
thereof or the District of Columbia, and the successor entity
expressly assumes our obligations relating to the debt
securities,
immediately after giving effect to the consolidation, merger,
conveyance or transfer, there exists no event of default, and no
event which, after notice or lapse of time or both, would become
an event of default, and
other conditions described in the relevant indenture are met.
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liens on any property or asset hereafter acquired, constructed
or improved by us or any of our restricted subsidiaries which
are created or assumed to secure or provide for the payment of
any part of the purchase price of such property or asset or the
cost of such construction or improvement, or any mortgage,
pledge or other lien on any lien on any such property or asset
existing at the time of acquisition thereof; provided, however,
that such lien shall not extend to any other property owned by
us or any of our restricted subsidiaries;
liens existing upon any property or asset of a company which is
merged with or into or is consolidated into, or substantially
all the assets or shares of capital stock of which are acquired
by, us or any of our restricted subsidiaries, at the time of
such merger, consolidation or acquisition; provided that such
lien does not extend to any other property or asset, other than
improvements to the property or asset subject to such lien;
any pledge or deposit to secure payment of workers
compensation or insurance premiums, or in connection with
tenders, bids, contracts (other than contracts for the payment
of money) or leases;
any pledge of, or other lien upon, any assets as security for
the payment of any tax, assessment or other similar charge by
any governmental authority or public body, or as security
required by law or governmental regulation as a condition to the
transaction of any business or the exercise of any privilege or
right;
liens necessary to secure a stay of any legal or equitable
process in a proceeding to enforce a liability or obligation
contested in good faith by us or any of our restricted
subsidiaries or required in connection with the institution by
us or any of our restricted subsidiaries of any legal or
equitable proceeding to enforce a right or to obtain a remedy
claimed in good faith by us or any of our restricted
subsidiaries, or required in connection with any order or decree
in any such proceeding or in connection with any contest of any
tax or other governmental charge; or the making of any deposit
with or the giving of any form of security to any governmental
agency or any body created or approved by law or governmental
regulation in order to entitle us or any of our restricted
subsidiaries to maintain self-insurance or to participate in any
fund in connection with workers compensation, unemployment
insurance, old age pensions or other social security or to share
in any provisions or other benefits provided for companies
participating in any such arrangement or for liability on
insurance of credits or other risks;
mechanics, carriers, workmens,
repairmens, or other like liens, if arising in the
ordinary course of business, in respect of obligations which are
not overdue or liability for which is being contested in good
faith by appropriate proceedings;
liens on property in favor of the United States, or of any
agency, department or other instrumentality thereof, to secure
partial, progress or advance payments pursuant to the provisions
of any contract;
liens securing indebtedness of any of our restricted
subsidiaries to us or to another restricted subsidiary; provided
that in the case of any sale or other disposition of such
indebtedness by us or such restricted subsidiary, such sale or
other disposition shall be deemed to constitute the creation of
another lien not permitted by this clause;
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liens affecting our or any of our restricted subsidiaries
property securing indebtedness of the United States or a state
thereof (or any instrumentality or agency of either thereof)
issued in connection with a pollution control or abatement
program required in our opinion to meet environmental criteria
with respect to our or any of our restricted subsidiaries
operations and the proceeds of which indebtedness have financed
the cost of acquisition of such program or;
the renewal, extension, replacement or refunding of any
mortgage, pledge, lien, deposit, charge or other encumbrance,
permitted as specified above; provided that in each case such
amount outstanding at that time shall not be increased.
the book amount of all segregated intangible assets, including
such items as good will, trademarks, trademark rights, trade
names, trade name rights, copyrights, patents, patent rights and
licenses and unamortized debt discount and expense less
unamortized debt premium;
all depreciation, valuation and other reserves;
current liabilities;
any minority interest in the shares of stock (other than
preferred stock) and surplus of our restricted subsidiaries;
investments by us or any of our restricted subsidiaries in any
of our subsidiaries that is not a restricted subsidiary;
our and our restricted subsidiaries total indebtedness
incurred in any manner to finance or recover the cost to us or
any restricted subsidiary of any physical property, real or
personal, which prior to or simultaneously with the creation of
such indebtedness shall have been leased by us or a restricted
subsidiary to the United States or a department or agency
thereof at an aggregate rental, payable during that portion of
the initial term of such lease (without giving effect to any
options of renewal or extension) which shall be unexpired at the
date of the creation of such indebtedness, sufficient (taken
together with any amounts required to be paid by the lessee to
the lessor upon any termination of such lease) to pay in full at
the stated maturity date or dates thereof the principal of and
the interest on such indebtedness;
deferred income and deferred liabilities; and
other items deductible under generally accepted accounting
principles.
if the total assets of that subsidiary are less than 10% of our
total assets and the total assets of our consolidated
subsidiaries, including that subsidiary, in each case as set
forth on the most recent fiscal year-
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end balance sheets of the subsidiary and us and our consolidated
subsidiaries, respectively, and computed in accordance with
generally accepted accounting principles, or
if in the judgment of our board of directors, as evidenced by a
board resolution, the subsidiary is not material to the
financial condition of us and our subsidiaries taken as a whole.
change the stated maturity of the principal of, or any
installment of interest payable on, any outstanding debt
security,
reduce the principal amount of, or the rate of interest on or
any premium payable upon the redemption of, or the amount of
principal of an original issue discount security that would be
due and payable upon a redemption or would be provable in
bankruptcy, or adversely affect any right of repayment of the
holder of, any outstanding debt security,
change the place of payment, or the coin or currency in which
any outstanding debt security or the interest on any outstanding
debt security is payable,
impair your right to institute suit for the enforcement of any
payment on any outstanding debt security after the stated
maturity or redemption date,
reduce the percentage of the holders of outstanding debt
securities necessary to modify or amend the applicable
indenture, to waive compliance with certain provisions of the
applicable indenture or certain defaults and consequences of
such defaults or to reduce the quorum or voting requirements set
forth in the applicable indenture,
modify any of these provisions or any of the provisions relating
to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action
or to provide that certain other provisions may not be modified
or waived without the consent of all of the holders of the debt
securities affected, or
modify the provisions with respect to the subordination of
outstanding subordinated debt securities in a manner materially
adverse to the holders of such outstanding subordinated debt
securities.
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default for 30 days in the payment of any interest when due,
default in the payment of principal, or premium, if any, when
due,
default in the performance, or breach, of any covenant or
warranty in the indenture for 90 days after written notice,
certain events of bankruptcy, insolvency or reorganization,
any other event of default described in the applicable board
resolution or supplemental indenture under which the series of
debt securities is issued.
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have become due and payable,
will become due and payable at their stated maturity within one
year, or
are to be called for redemption within one year under
arrangements satisfactory to the trustee for the giving of
notice of redemption by the trustee in our name and at our
expense,
we irrevocably deposit with the trustee money or United States
government obligations or a combination thereof, as trust funds
in an amount certified to be sufficient to pay on the respective
stated maturities, the principal of and any premium and interest
on, all outstanding debt securities of that series,
we deliver to the trustee an opinion of counsel to the effect
that:
-
the holders of the debt securities of that series will not
recognize gain or loss for United States federal income tax
purposes as a result of the deposit, defeasance and discharge or
as a result of the deposit and covenant defeasance, and
-
the deposit, defeasance and discharge or the deposit and
covenant defeasance will not otherwise alter those holders
United States federal income tax treatment of principal and
interest payments on the debt securities of that series,
no event of default under the indenture has occurred and is
continuing,
such defeasance or covenant defeasance does not result in a
breach or violation of, or constitute a default under, any
indenture or other agreement or instrument for borrowed money to
which we are a party or by which we are bound,
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such defeasance or covenant defeasance does not result in the
trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of 1940
unless such trust shall be registered under the Investment
Company Act of 1940 or exempt from registration thereunder,
we deliver to the trustee an officers certificate and an
opinion of counsel, each stating that all conditions precedent
with respect to such defeasance or covenant defeasance have been
complied with, and
other conditions specified in the indentures are met.
a default in any payment on senior debt then exists,
an event of default on any senior debt resulting in the
acceleration of its maturity then exists, or
any judicial proceeding is pending in connection with default.
every obligation of, or any obligation guaranteed by, that
person for money borrowed,
every obligation of, or any obligation guaranteed by, that
person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with
the acquisition of property, assets or businesses but excluding
the obligation to pay the deferred purchase price of any such
property, assets or business if payable in full within
90 days from the date such debt was created,
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every capital lease obligation of that person,
leases of property or assets made as part of any sale and
lease-back transaction to which that person is a party, and
any amendments, renewals, extensions, modifications and
refundings of any such debt.
any debt of The Hartford Financial Services Group, Inc. which
when incurred and without regard to any election under
Section 1111(b) of the Bankruptcy Code, was without
recourse to The Hartford Financial Services Group, Inc.,
any debt of The Hartford Financial Services Group, Inc. to any
of its subsidiaries,
debt to any employee of The Hartford Financial Services Group,
Inc. or any of its subsidiaries,
any liability for taxes,
indebtedness or other monetary obligations to trade creditors or
assumed by The Hartford Financial Services Group, Inc. or any of
its subsidiaries in the ordinary course of business in
connection with the obtaining of goods, materials or
services, and
the subordinated debt securities.
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the title and any limit upon the aggregate principal amount,
the date(s) on which the principal is payable or the method of
determining those date(s),
the interest rate(s) or the method of determining these interest
rate(s),
the date(s) on which interest will be payable or the method of
determining these date(s),
the circumstances in which interest may be deferred, if any,
the regular record date or the method of determining this date,
the place or places where we may pay principal, premium, if any,
and interest,
conversion or exchange provisions, if any,
the redemption or early payment provisions,
the authorized denominations,
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the currency, currencies or currency units in which we may pay
the purchase price for, the principal of, premium, if any, and
interest on the junior subordinated debentures,
additions to or changes in the events of default or any changes
in any of our covenants specified in the junior subordinated
indenture,
any index or indices used to determine the amount of payments of
principal and premium, if any, or the method of determining
these amounts,
whether a temporary global security will be issued and the terms
upon which you may exchange a temporary global security for
definitive junior subordinated debt securities,
whether we will issue the junior subordinated debt securities,
in whole or in part, in the form of one or more global
securities,
the terms and conditions of any obligation or right we would
have to convert or exchange the junior subordinated debentures
into preferred securities or other securities, and
additional terms not inconsistent with the provisions of the
junior subordinated indenture.
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issue, register the transfer of, or exchange junior subordinated
debentures during a period beginning at the opening of business
15 days before the day of selection for redemption of the
junior subordinated debentures and ending at the close of
business on the day of mailing of the relevant notice of
redemption, or
transfer or exchange any junior subordinated debentures selected
for redemption, except for any portion not redeemed of any
junior subordinated debenture that is being redeemed in part.
by the depositary to its nominee,
by a nominee of the depositary to the depositary or another
nominee, or
by the depositary or any nominee to a successor depositary, or
any nominee of the successor.
will not be entitled to have any of the individual junior
subordinated debentures represented by the global junior
subordinated debenture registered in your name,
will not receive or be entitled to receive physical delivery of
any junior subordinated debentures in definitive form, and
will not be considered the owner or holder of the junior
subordinated debenture under the junior subordinated indenture.
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the principal amount, and
an amount equal to:
-
for junior subordinated debentures bearing interest at a fixed
rate, the discounted remaining fixed amount payments, calculated
as described below, or
-
for junior subordinated debentures bearing interest determined
by reference to a floating rate, the discounted swap equivalent
payments, calculated as described below.
the current value of the amount of principal that would have
been payable by us pursuant to the terms of the junior
subordinated debenture at the stated maturity of the final
payment of the principal of the junior subordinated debentures.
This calculation will take into account any required sinking
fund payments but will otherwise assume that we had not redeemed
the junior subordinated debenture prior to the stated
maturity, and
the sum of the current values of the fixed rate payments that
leading interest rate swap dealers would require to be paid by
an assumed fixed rate payer having the same credit standing as
ours against floating rate payments to be made by these leading
dealers equal to the interest payments on the junior
subordinated debentures being redeemed, taking into account any
required sinking fund payment, but otherwise assuming we had not
redeemed the junior subordinated debenture prior to the stated
maturity, under a standard interest rate swap agreement having a
notional principal amount equal to the principal amount of the
junior subordinated debentures, a termination date set at the
stated maturity of the junior subordinated debentures and
payment dates for both fixed and floating rate payers set at
each interest payment date of the junior subordinated
debentures. The amount of the fixed rate payments will be based
on quotations received by the
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trustee, or an agent appointed for that purpose, from four
leading interest rate swap dealers or, if quotations from four
leading interest rate swap dealers are not obtainable, three
leading interest rate swap dealers.
the trust is, or will be within 90 days of that date,
subject to United States federal income tax with respect to
income received or accrued on the corresponding series of junior
subordinated debentures;
interest payable by us on the series of junior subordinated
debentures is not, or within 90 days of that date, will not
be, deductible, in whole or in part, for United States federal
income tax purposes; or
the trust is, or will be within 90 days of that date,
subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment on, any of our
capital stock, or
make any payment of principal, premium, if any, or interest on
or repay, repurchase or redeem any debt securities that rank
equally with or junior in interest to the junior subordinated
debentures or make any related guarantee payments,
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dividends or distributions on our common stock,
redemptions or purchases of any rights pursuant to our rights
plan, or any successor to our rights plan, and the declaration
of a dividend of these rights in the future, and
payments under any guarantee.
change the stated maturity of the junior subordinated debentures,
reduce the principal amount of the junior subordinated
debentures,
reduce the rate or, except as permitted by the junior
subordinated indenture and the terms of the series of junior
subordinated debentures, extend the time of payment of interest
on the junior subordinated debentures, or
reduce the percentage of principal amount of the junior
subordinated debentures, the holders of which are required to
consent to the modification of the junior subordinated indenture.
no such modification may be made that adversely affects the
holders of the preferred securities,
no termination of the junior subordinated indenture may
occur, and
no waiver of any debenture event of default or compliance with
any covenant under the junior subordinated indenture may be
effective,
failure for 30 days to pay any interest on the series of
junior subordinated debentures when due, subject to the deferral
of any due date in the case of an extension period,
failure to pay any principal or premium, if any, on the series
of junior subordinated debentures when due, including at
maturity, upon redemption or by declaration,
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failure to observe or perform in any material respect specified
other covenants contained in the junior subordinated indenture
for 90 days after written notice from the debenture trustee
or the holders of at least 25% in principal amount of the
relevant series of outstanding junior subordinated debentures,
our bankruptcy, insolvency or reorganization, or
any other event of default described in the applicable board
resolution or supplemental indenture under which the series of
debt securities is issued.
the event of default is other than our non-payment of the
principal of the junior subordinated debentures which has become
due solely by such acceleration and all other events of default
have been cured or waived, and
we have paid or deposited with the debenture trustee a sum
sufficient to pay:
-
all overdue installments of interest (including interest on
overdue installments of interest) and principal (and premium, if
any) due other than by acceleration, and
-
certain amounts owing to the debenture trustee, its agents and
counsel.
a default in the payment of principal (or premium, if any) or
interest, and
a default relating to a covenant or provision which under the
junior subordinated indenture cannot be modified or amended
without the consent of the holder of each outstanding junior
subordinated debenture.
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if we consolidate with or merge into another corporation or
convey or transfer our properties and assets substantially as an
entirety to any person, the successor corporation is organized
under the laws of the United States or any state or the District
of Columbia, and the successor corporation expressly assumes our
obligations relating to the junior subordinated debentures,
immediately after giving effect to the consolidation, merger,
conveyance or transfer, there exists no debenture event of
default, and no event which, after notice or lapse of time or
both, would become a debenture event of default,
in the case of corresponding junior subordinated debentures, the
transaction is permitted under the related trust agreement or
guarantee and does not give rise to any breach or violation of
the related trust agreement or guarantee, and
other conditions described in the junior subordinated indenture
are met.
have become due and payable, or
will become due and payable at their stated maturity within one
year,
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a default in any payment on senior debt then exists,
an event of default on any senior debt resulting in the
acceleration of its maturity then exists, or
any judicial proceeding is pending in connection with a default.
every obligation of that person for money borrowed,
every obligation of that person evidenced by bonds, debentures,
notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets
or businesses,
every reimbursement obligation of that person with respect to
letters of credit, bankers acceptances or similar
facilities issued for the account of the person,
every obligation of that person issued or assumed as the
deferred purchase price of property or services, but excluding
trade accounts payable or accrued liabilities arising in the
ordinary course of business,
every capital lease obligation of that person, and
every obligation of the type referred to in the prior five
clauses of another person and all dividends of another person
the payment of which the person has guaranteed or is responsible
or liable for, directly or indirectly, including as obligor.
any debt of The Hartford Financial Services Group, Inc. which
when incurred and without regard to any election under
Section 1111(b) of the Bankruptcy Code, was without
recourse to The Hartford Financial Services Group, Inc.,
any debt of The Hartford Financial Services Group, Inc. to any
of its subsidiaries,
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debt to any employee of The Hartford Financial Services Group,
Inc.,
any liability for taxes,
indebtedness or monetary obligations to trade creditors or
assumed by The Hartford Financial Services Group, Inc. or any of
its subsidiaries in the ordinary course of business in
connection with the obtaining of materials or services, and
any other junior subordinated debentures issued pursuant to the
Junior Subordinated Indenture, dated as of February 28,
1996, and the Junior Subordinated Indenture, dated as of
October 30, 1996.
50,000,000 shares of preferred stock, par value
$.01 per share, of which 300,000 shares have been
designated as Series A Participating Cumulative Preferred
Stock; and
750,000,000 shares of common stock, par value $.01 per
share.
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26
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the availability of capital stock for issuance from time to time
at the discretion of our board of directors (see
Authorized and Outstanding Capital Stock
and Preferred Stock),
prohibitions against stockholders calling a special meeting of
stockholders or acting by written consent instead of at a
meeting,
requirements for advance notice for raising business or making
nominations at stockholders meetings, and
the ability of our board of directors to increase the size of
the board and to appoint directors to fill newly created
directorships.
27
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the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated,
a representation that the stockholder is a holder of record of
stock entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to nominate the person or
persons specified in the notice,
a description of all arrangements or understandings relating to
the nomination between the stockholder and each nominee and any
other person or persons, naming those persons,
all other information regarding each nominee proposed by the
stockholder that would have been required to be included in a
proxy statement filed under the proxy rules of the Securities
and Exchange Commission had each nominee been nominated, or
intended to be nominated, by our board of directors,
the consent of each nominee to serve as a director if so
elected, and
if applicable, a representation that the stockholder intends to
solicit proxies in support of each nominee.
the transaction or the business combination that results in a
person becoming an interested stockholder is approved by the
board of directors of the corporation before the person becomes
an interested stockholder,
upon consummation of the transaction which results in the
stockholder becoming an interested stockholder, the interested
stockholder owns 85% or more of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding, for purposes of determining the voting stock
outstanding, shares owned by persons who are directors and also
officers and shares owned by certain employee stock
plans, or
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on or after the date the person becomes an interested
stockholder, the business combination is approved by the
corporations board of directors and by holders of at least
two-thirds of the corporations outstanding voting stock,
excluding shares owned by the interested stockholder, at a
meeting of stockholders.
the owner of 15% or more of the outstanding voting stock of the
corporation, or
an affiliate or associate of the corporation and was the owner
of 15% or more of the outstanding voting stock of the
corporation at any time within the three-year period immediately
prior to the date on which it is sought to be determined whether
the person is an interested stockholder.
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all outstanding depositary shares have been redeemed, or
there has been a complete repayment or redemption of the debt
securities or a final distribution in respect of the preferred
stock, including in connection with our liquidation, dissolution
or winding up, and the repayment, redemption or distribution
proceeds, as the case may be, have been distributed to you.
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the title of the debt warrants,
the debt securities for which the debt warrants are exercisable,
the aggregate number of the debt warrants,
the price or prices at which we will issue the debt warrants,
the principal amount of debt securities that you may purchase
upon exercise of each debt warrant and the price or prices at
which such principal amount may be purchased upon exercise,
currency, currencies, or currency units, if other than in
U.S. dollars, in which such debt warrants are to be issued
or for which the debt warrants may be exercised,
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the procedures and conditions relating to the exercise of the
debt warrants,
the designation and terms of any related debt securities issued
with the debt warrants, and the number of debt warrants issued
with each debt security,
the date, if any, from which you may separately transfer the
debt warrants and the related securities,
the date on which your right to exercise the debt warrants
commences, and the date on which your right expires,
the maximum or minimum number of the debt warrants which you may
exercise at any time,
if applicable, a discussion of material United States federal
income tax considerations,
any other terms of the debt warrants and terms, procedures and
limitations relating to your exercise of the debt
warrants, and
the terms of the securities you may purchase upon exercise of
the debt warrants.
the title of the warrants,
the securities, which may include preferred stock, common stock
or other securities, property or assets (including rights to
receive payment in cash or securities based on the value, rate
or price of one or more specified commodities, currencies,
securities or indices), for which you may exercise the warrants,
the aggregate number of the warrants,
the price or prices at which we will issue the warrants, the
number of securities or amount of other property or assets that
you may purchase upon exercise of each warrant and the price or
prices at which such securities, property or assets may be
purchased,
currency, currencies, or currency units, if other than in
U.S. dollars, in which such debt warrants are to be issued
or for which the debt warrants may be exercised,
the procedures and conditions relating to the exercise of the
warrants,
the designation and terms of any related securities issued with
the warrants, and the number of warrants issued with each
security,
the date, if any, from which you may separately transfer the
warrants and the related securities,
the date on which your right to exercise the warrants commences,
and the date on which your right expires,
the maximum or minimum number of warrants which you may exercise
at any time,
if applicable, a discussion of material United States federal
income tax considerations, and
any other terms of the warrants, including terms, procedures and
limitations relating to your exchange and exercise of the
warrants.
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declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment on, any of our
capital stock, or
make any payment of principal, premium, if any, or interest on
or repay, repurchase or redeem any debt securities that rank
equally with or junior in interest to the corresponding junior
subordinated debentures or make any related guarantee payments,
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dividends or distributions on our common stock,
redemptions or purchases of any rights pursuant to our rights
plan, or any successor to our rights plan, and the declaration
of a dividend of these rights in the future, and
payments under any guarantee.
in whole or in part, subject to the conditions we describe under
Description of Corresponding Junior Subordinated
Debentures Optional Redemption,
at any time, in whole, but not in part, upon the occurrence of a
tax event or an investment company event, each as defined below,
and subject to the further conditions we describe under
Description of Corresponding Junior Subordinated
Debentures Optional Redemption, or
as we may otherwise specify in the applicable prospectus
supplement.
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redeem the corresponding junior subordinated debentures in
whole, but not in part, and cause a mandatory redemption of the
preferred securities and common securities in whole, but not in
part, within 90 days following the occurrence of the tax
event or an investment company event, or
terminate the related trust and cause the corresponding junior
subordinated debentures to be distributed to the holders of the
preferred securities and common securities in liquidation of the
trust.
the trust is, or will be within 90 days of the date of the
opinion, subject to United States federal income tax with
respect to income received or accrued on the corresponding
series of corresponding junior subordinated debentures,
interest payable by us on the series of corresponding junior
subordinated debentures is not, or within 90 days of the
date of the opinion, will not be, deductible, in whole or in
part, for United States federal income tax purposes, or
the trust is, or will be within 90 days of the date of the
opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
with respect to a redemption of any series of preferred
securities, preferred securities having a liquidation amount
equal to that portion of the principal amount of corresponding
junior subordinated debentures to be contemporaneously redeemed,
the proceeds of which will be used to pay the redemption price
of the preferred securities, and
with respect to a distribution of corresponding junior
subordinated debentures to you, as a holder of preferred
securities in connection with a dissolution or liquidation of
the related trust, corresponding junior subordinated debentures
having a principal amount equal to the liquidation amount of
your preferred securities.
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the series of preferred securities will no longer be deemed to
be outstanding,
The Depository Trust Company, which we refer to in this
prospectus as DTC, or its nominee, as the record
holder of the series of preferred securities, will receive a
registered global certificate or certificates representing the
corresponding junior subordinated debentures to be delivered
upon that distribution, and
any certificates representing the series of preferred securities
not held by DTC or its nominee will be deemed to represent the
corresponding junior subordinated debentures having a principal
amount equal to the stated liquidation preference of the series
of preferred securities, and bearing accrued and unpaid interest
in an amount equal to the accrued and unpaid distributions on
the series of preferred securities until you present the
certificates to the administrative trustees or their agent for
transfer or reissuance.
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our bankruptcy, dissolution or liquidation,
the distribution of a like amount of corresponding junior
subordinated debentures to the holders of its preferred
securities and common securities,
the redemption of all of the preferred securities, and
the entry of an order for the dissolution of the trust by a
court of competent jurisdiction.
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the occurrence of a debenture event of default under the junior
subordinated indenture (see Description of Junior
Subordinated Debentures Debenture Events of
Default),
default by the property trustee in the payment of any
distribution when it becomes due and payable, and continuation
of that default for a period of 30 days,
default by the property trustee in the payment of any redemption
price of the preferred securities or common securities when it
becomes due and payable,
default in the performance, or breach, in any material respect,
of any covenant or warranty of the trustees in the trust
agreement, other than a covenant or warranty a default in the
performance of which or the breach of which is dealt with in the
second and third clauses above, and continuation of the default
or breach for a period of 60 days after there has been
given to the defaulting trustee or trustees by the holders of at
least 10% in aggregate liquidation amount of the outstanding
preferred securities, a written notice specifying the default or
breach and requiring it to be remedied and stating that the
notice is a notice of default under such trust agreement, or
the bankruptcy or insolvency of the property trustee and our
failure to appoint a successor property trustee within
60 days of that event.
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the successor entity must either:
-
expressly assume all of the obligations of the trust relating to
the preferred securities, or
-
substitute for the preferred securities other securities having
substantially the same terms and the same ranking as the
preferred securities,
we must expressly appoint a trustee of the successor entity
possessing the same powers and duties as the property trustee as
the holder of the corresponding junior subordinated debentures,
the successor securities must be listed, or any successor
securities must be listed upon notification of issuance, on any
national securities exchange or other organization on which the
preferred securities are then listed,
the merger, consolidation, amalgamation or replacement must not
cause the preferred securities, including any successor
securities, to be downgraded by any nationally recognized
statistical rating organization,
the merger, consolidation, amalgamation or replacement must not
adversely affect the rights, preferences and privileges of
holders of the preferred securities, including any successor
securities, in any material respect,
the successor entity must have a purpose identical to that of
the trust,
prior to the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease we must have received an opinion
of counsel to the trust to the effect that:
-
the merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of
holders of the preferred securities, including any successor
securities, in any material respect, and
-
following the merger, consolidation, amalgamation or replacement
neither the trust nor the successor entity will be required to
register as an investment company under the Investment Company
Act, and
we or any permitted successor or assignee must own all of the
common securities of the successor entity and guarantee the
obligations of such successor entity under the successor
securities at least to the extent provided by the guarantee.
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to cure any ambiguity, correct or supplement any provisions in
the trust agreement which may be inconsistent with any other
provision, or to make any other provisions with respect to
matters or questions arising under the trust agreement, which
are not inconsistent with the other provisions of the trust
agreement, or
to modify, eliminate or add to any provisions of the trust
agreement to the extent necessary to ensure that the trust will
be classified for United States federal income tax purposes as a
grantor trust at all times that any preferred securities and
common securities are outstanding, or to ensure that the trust
will not be required to register as an investment company under
the Investment Company Act.
the consent of holders representing not less than a majority,
based upon liquidation amounts, of the outstanding preferred
securities and common securities, and
receipt by the trustees of an opinion of counsel to the effect
that the amendment or the exercise of any power granted to the
trustees under the amendment will not affect the status of the
trust as a grantor trust for United States federal income tax
purposes or its exemption from the status of an investment
company under the Investment Company Act.
change the amount or timing of any distribution on the preferred
securities and common securities or otherwise adversely affect
the amount of any distribution of the preferred securities and
common securities as of a specified date, or
restrict your or our right to institute suit for the enforcement
of any payment on or after that date.
direct the time, method and place of conducting any proceeding
for any remedy available to the debenture trustee, or for
executing any trust or power conferred on the debenture trustee
with respect to the corresponding junior subordinated debentures,
waive any past default that is waiveable under specified
sections of the junior subordinated indenture,
exercise any right to rescind or annul a declaration that the
principal of all the junior subordinated debentures is due and
payable, or
consent to any amendment, modification or termination of the
junior subordinated indenture or the corresponding junior
subordinated debentures, where that consent is required,
41
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by the depositary to its nominee,
by a nominee of the depositary to the depositary or another
nominee, or
by the depositary or any nominee to a successor depositary, or
any nominee of the successor.
42
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will not be entitled to have any of the individual preferred
securities represented by the global preferred security
registered in your name,
will not receive or be entitled to receive physical delivery of
any preferred securities in definitive form, and
will not be considered the owner or holder of the preferred
security under the trust agreement.
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44
| any accrued and unpaid distributions required to be paid to you on the related preferred securities, to the extent that the trust has funds available for the payments, | |
| the redemption price for any preferred securities called for redemption, to the extent that the trust has funds available for the payments, or | |
| upon a voluntary or involuntary dissolution, winding up or liquidation of the trust, unless the corresponding junior subordinated debentures are distributed to you, the lesser of: |
- | the liquidation distribution, and | |
- | the amount of assets of the trust remaining available for distribution to you. |
45
| upon full payment of the redemption price of the related preferred securities, | |
| upon full payment of the amounts payable upon liquidation of the related trust, or | |
| upon distribution of corresponding junior subordinated debentures to the holders of the preferred securities. |
46
| the principal amount of the debentures, and | |
| an amount equal to: |
- | for junior subordinated debentures bearing interest at a fixed rate, the discounted remaining fixed amount payments. See Description of Junior Subordinated Debentures Redemption, or | |
- | for junior subordinated debentures bearing interest determined by reference to a floating rate, the discounted swap equivalent payments. See Description of Junior Subordinated Debentures Redemption. |
47
| the trust that has issued the corresponding series of preferred securities and common securities is the holder of all of the corresponding junior subordinated debentures, | |
| a tax event exists, and | |
| we have not redeemed the corresponding junior subordinated debentures or terminated the trust. |
| declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment on any of our capital stock, or | |
| make any payment of principal of, interest or premium, if any, on or repay or repurchase or redeem any debt securities, including other corresponding junior subordinated debentures, that rank equally with or junior in interest to the corresponding junior subordinated debentures or make any related guarantee payments, |
| dividends or distributions in our common stock, | |
| redemptions or purchases of any rights pursuant to our rights plan, or any successor to our rights plan, and the declaration of a dividend of these rights in the future, and | |
| payments under any guarantee of preferred securities, |
| there has occurred any event of which we have actual knowledge that with the giving of notice or the lapse of time, or both, would constitute an event of default under the junior subordinated indenture for that series of corresponding junior subordinated debentures which we have not taken reasonable steps to cure, | |
| we are in default on our payment of any obligations under the related guarantee, or | |
| we have given notice of our selection of an extension period as provided in the junior subordinated indenture for that series of corresponding junior subordinated debentures and have not rescinded that notice, or the extension period, or any extension, is continuing. |
| to maintain, by ourselves or our permitted successors, directly or indirectly, 100% ownership of the common securities of the trust to which corresponding junior subordinated debentures have been issued, | |
| not to voluntarily terminate, wind-up or liquidate any trust, except in connection with a distribution of corresponding junior subordinated debentures to you in liquidation of the trust, or in connection with mergers, consolidations or amalgamations permitted by the related trust agreement, and | |
| to use our reasonable efforts, consistent with the terms and provisions of the related trust agreement, to cause the trust to remain a statutory trust and not to be classified as an association taxable as a corporation for United States federal income tax purposes. |
48
| the aggregate principal amount of each series of corresponding junior subordinated debentures will be equal to the sum of the aggregate stated liquidation amount of the corresponding preferred securities and corresponding common securities, | |
| the interest rate and interest and other payment dates on each series of corresponding junior subordinated debentures will match the distribution rate and distribution and other payment dates for the corresponding preferred securities, | |
| we will pay for all and any costs, expenses and liabilities of the trust except the obligations of the trust to holders of its preferred securities under the preferred securities, and | |
| each trust agreement further provides that the trust will not engage in any activity that is not consistent with the limited purposes of the trust. |
49
| We or the trusts will name any agent involved in offering or selling securities, and disclose any commissions that we or the trusts will pay to the agent, in the applicable prospectus supplement. | |
| Unless we or the trusts indicate otherwise in the applicable prospectus supplement, agents will act on a best efforts basis for the period of their appointment. | |
| Agents may be deemed to be underwriters under the Securities Act of 1933, as amended, of any of the securities that they offer or sell. |
| If we or the trusts use an underwriter or underwriters, we or the trusts will execute an underwriting agreement with the underwriter or underwriters at the time that we or the trusts reach an agreement for the sale of the securities. | |
| We or the trusts will include the names of the specific managing underwriter or underwriters, as well as the names of any other underwriters, and the terms of the transactions, including the compensation the underwriters and dealers will receive, in the applicable prospectus supplement. | |
| The underwriters will use the applicable prospectus supplement to sell the securities. |
| If we or the trusts use a dealer, we or the trusts, as principal, will sell the securities to the dealer. | |
| The dealer will then sell the securities to the public at varying prices that the dealer will determine at the time it sells the securities. | |
| We or the trusts will include the name of the dealer and the terms of the transactions with the dealer in the applicable prospectus supplement. |
50
| If we or the trusts use delayed delivery contracts, we or the trusts will disclose that we or the trusts are using them in the prospectus supplement and will tell you when we or the trusts will demand payment and delivery of the securities under the delayed delivery contracts. | |
| These delayed delivery contracts will be subject only to the conditions that we or the trusts describe in the prospectus supplement. | |
| We or the trusts will describe in the applicable prospectus supplement the commission that underwriters and agents soliciting purchases of the securities under delayed contracts will be entitled to receive. |
51
52
| our Annual Report on Form 10-K for the year ended December 31, 2006; | |
| description of our common stock and the rights associated with our common stock contained in our registration statement on Form 8-A, dated September 18, 1995 (as amended by the Form 8-A/A filed on November 13, 1995); | |
| our Current Reports on Form 8-K filed on February 16, 2007 and March 12, 2007; and | |
| all documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this prospectus. |
53
Item 14.
Other
Expenses of Issuance and Distribution
$
0
*
$
25,000
$
25,000
$
35,000
$
100,000
$
65,000
$
250,000
*
The registrants are relying on Rule 456(b) and
Rule 457(r) under the Securities Act to defer payment of
all of the registration fee, except for $72,805 that has already
been paid with respect to securities that were previously
registered under the registration statement of the registrants
on
Form S-3
filed on August 19, 2003
(No. 333-108067)
and were not sold thereunder. Pursuant to Rule 457(p) under
the Securities Act, such unused filing fees may be applied to
the filing fees payable pursuant to this Registration Statement.
Item 15.
Indemnification
of Directors and Officers
II-1
Table of Contents
II-2
Table of Contents
II-3
Table of Contents
II-4
Table of Contents
II-5
Table of Contents
II-6
Table of Contents
II-7
Table of Contents
Item 16.
Exhibits
Item 17.
Undertakings
II-8
Table of Contents
II-9
Table of Contents
II-10
Table of Contents
By:
II-11
Table of Contents
Director
April 11, 2007
Director
April 11, 2007
Director
April 11, 2007
Director
April 11, 2007
*By:
II-12
Table of Contents
By:
The Hartford Financial
Services Group, Inc.,
as Depositor
By:
II-13
Table of Contents
By:
The Hartford Financial
Services Group, Inc.,
as Depositor
By:
II-14
Table of Contents
By:
The Hartford Financial
Services Group, Inc.,
as Depositor
By:
II-15
Table of Contents
Exhibit
1
.01
Form of Underwriting Agreement
(Debt).
1
.02
Form of Underwriting Agreement
(Equity).*
1
.03
Form of Underwriting Agreement
(Preferred Securities).*
1
.04
Form of Underwriting Agreement
(Stock Purchase Contracts).*
1
.05
Form of Underwriting Agreement
(Stock Purchase Units).*
1
.06
Form of Underwriting Agreement
(Warrants).*
4
.01
Corrected Amended and Restated
Certificate of Incorporation of The Hartford, effective
May 21, 1998, as amended by Amendment No. 1, effective
May 1, 2002 (incorporated herein by reference to
Exhibit 3.01 to The Hartfords
Form 10-K
for the fiscal year ended December 31, 2004).
4
.02
Amended and Restated By-Laws of
The Hartford, amended effective May 19, 2005 (incorporated
herein by reference to Exhibit 3.1 to The Hartfords
Report on
Form 8-K,
filed May 24, 2005).
4
.03
Senior Indenture, dated as of
April 11, 2007, between The Hartford and The Bank of New
York Trust Company, N.A., as Trustee.
4
.04
Form of Subordinated Indenture
(incorporated herein by reference to Exhibit 4.04 to the
Registration Statement on
Form S-3
(Registration
No. 333-108067)
of The Hartford, Hartford Capital IV, Hartford Capital V and
Hartford Capital VI).
4
.05
Form of Junior Subordinated
Indenture to be entered into between The Hartford and Wilmington
Trust Company, as Trustee (incorporated herein by reference to
Exhibit 4.05 to the Registration Statement on
Form S-3
(Registration
No. 333-108067)
of The Hartford, Hartford Capital IV, Hartford Capital V and
Hartford Capital VI).
4
.06
Certificate of Trust of Hartford
Capital IV (incorporated herein by reference to
Exhibit 4.15 to the Registration Statement on
Form S-3
(Registration
No. 33-98014)
of ITT Hartford, Hartford Capital I, Hartford
Capital II, Hartford Capital III and Hartford Capital
IV).
4
.07
Trust Agreement of Hartford
Capital IV (incorporated herein by reference to
Exhibit 4.16 to the Registration Statement on
Form S-3
(Registration
No. 33-98014)
of ITT Hartford, Hartford Capital I, Hartford
Capital II, Hartford Capital III and Hartford Capital IV).
4
.08
Certificate of Trust of Hartford
Capital V (incorporated herein by reference to Exhibit 4.10
to the Registration Statement on
Form S-3
(Registration
No. 333-49666)
of The Hartford, Hartford Capital III, Hartford
Capital IV and Hartford Capital V).
4
.09
Trust Agreement of Hartford
Capital V (incorporated herein by reference to Exhibit 4.11
to the Registration Statement on
Form S-3
(Registration
No. 333-49666)
of The Hartford, Hartford Capital III, Hartford
Capital IV and Hartford Capital V).
4
.10
Certificate of Trust of Hartford
Capital VI (incorporated herein by reference to
Exhibit 4.10 to the Registration Statement on
Form S-3
(Registration
No. 333-88762)
of The Hartford, Hartford Capital IV, Hartford Capital V and
Hartford Capital VI).
4
.11
Trust Agreement of Hartford
Capital VI (incorporated herein by reference to
Exhibit 4.11 to the Registration Statement on
Form S-3
(Registration
No. 333-88762)
of The Hartford, Hartford Capital IV, Hartford Capital V and
Hartford Capital VI).
4
.12
Form of Amended and Restated
Trust Agreement for Hartford Capital IV (incorporated
herein by reference to Exhibit 4.18 to the Registration
Statement on
Form S-3
(Registration
No. 333-12617)
of The Hartford, Hartford Capital II, Hartford
Capital III and Hartford Capital IV).
4
.13
Form of Preferred Security
Certificate for Hartford Capital IV (included as Exhibit E
of Exhibit 4.12).
4
.14
Form of Agreement as to Expenses
and Liabilities for Hartford Capital IV (included as
Exhibit D of Exhibit 4.12).
4
.15
Form of Guarantee Agreement in
respect of Hartford Capital IV (incorporated herein by reference
to Exhibit 4.20 to the Registration Statement on
Form S-3
(Registration
No. 333-12617)
of The Hartford, Hartford Capital II, Hartford
Capital III and Hartford Capital IV).
4
.16
Form of Amended and Restated
Trust Agreement for Hartford Capital V (incorporated herein
by reference to Exhibit 4.18 to the Registration Statement
on
Form S-3
(Registration
No. 333-49666)
of The Hartford, Hartford Capital III, Hartford
Capital IV and Hartford Capital V).
Table of Contents
Exhibit
4
.17
Form of Preferred Security
Certificate for Hartford Capital V (included as Exhibit E
of Exhibit 4.16).
4
.18
Form of Agreement as to Expenses
and Liabilities for Hartford Capital V (included as
Exhibit D of Exhibit 4.16).
4
.19
Form of Guarantee Agreement in
respect of Hartford Capital V (incorporated herein by reference
to Exhibit 4.20 to the Registration Statement on
Form S-3
(Registration
No. 333-49666)
of The Hartford, Hartford Capital III, Hartford
Capital IV and Hartford Capital V).
4
.20
Form of Amended and Restated
Trust Agreement for Hartford Capital VI (incorporated
herein by reference to Exhibit 4.20 to the Registration
Statement on
Form S-3
(Registration
No. 333-88762)
of The Hartford, Hartford Capital IV, Hartford Capital V and
Hartford Capital VI).
4
.21
Form of Preferred Security
Certificate for Hartford Capital VI (included as Exhibit E
of Exhibit 4.20).
4
.22
Form of Agreement as to Expenses
and Liabilities for Hartford Capital VI (included as
Exhibit D of Exhibit 4.20).
4
.23
Form of Guarantee Agreement in
respect of Hartford Capital VI (incorporated herein by reference
to Exhibit 4.23 to the Registration Statement on
Form S-3
(Registration
No. 333-88762)
of The Hartford, Hartford Capital IV, Hartford Capital V and
Hartford Capital VI).
4
.24
Form of Depositary Receipt.*
4
.25
Form of Deposit Agreement.*
4
.26
Form(s) of Warrant Agreement(s),
including form of Warrant.*
4
.27
Specimen Common Share Certificate
(incorporated herein by reference to Exhibit 4.1 to The
Hartfords Registration Statement on
Form 8-A,
dated September 18, 1995, as amended by the
Form 8-A/A,
filed on November 13, 1995).
4
.28
Form of Purchase Contract
Agreement.*
4
.29
Form of Pledge Agreement.*
4
.30
Form of Global Security (Senior
Debt) (included in Exhibit 4.03).
4
.31
Form of Global Security
(Subordinated Debt) (included in Exhibit 4.04).
4
.32
Form of Global Security (Junior
Subordinated Debt) (included in Exhibit 4.05).
5
.01
Opinion of Debevoise &
Plimpton LLP.
5
.02
Opinion of Richards,
Layton & Finger, P.A. special Delaware counsel,
relating to the legality of the Preferred Securities of Hartford
Capital IV.
5
.03
Opinion of Richards,
Layton & Finger, P.A. special Delaware counsel,
relating to the legality of the Preferred Securities of Hartford
Capital V.
5
.04
Opinion of Richards,
Layton & Finger, P.A. special Delaware counsel,
relating to the legality of the Preferred Securities of Hartford
Capital VI.
12
.01
Statement Re: Computation of Ratio
of Earnings to Fixed Charges and Earnings to Combined Fixed
Charges and Preferred Stock Dividends (incorporated herein by
reference to Exhibit 12.01 to The Hartfords
Form 10-K
for the fiscal year ended December 31, 2006).
23
.01
Consent of Deloitte &
Touche LLP.
23
.02
Consent of Debevoise &
Plimpton LLP (included in Exhibit 5.01).
23
.03
Consent of Richards,
Layton & Finger, P.A. special Delaware counsel
(included in Exhibits 5.02, 5.03 and 5.04).
24
.01
Power of Attorney of certain
officers and directors of The Hartford.
25
.01
Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington Trust Company, as
Trustee for the Junior Subordinated Indenture.
25
.02
Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington Trust Company, as
Property Trustee for the Amended and Restated
Trust Agreement of Hartford Capital Trust IV.
25
.03
Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington Trust Company, as
Guarantee Trustee for the Guarantee for Hartford Capital
Trust IV.
25
.04
Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington Trust Company, as
Property Trustee for the Amended and Restated
Trust Agreement of Hartford Capital Trust V.
Table of Contents
Exhibit
25
.05
Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington Trust Company, as
Guarantee Trustee for the Guarantee for Hartford Capital
Trust V.
25
.06
Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington Trust Company, as
Property Trustee for the Amended and Restated
Trust Agreement of Hartford Capital Trust VI.
25
.07
Statement of Eligibility under the
Trust Indenture Act of 1939 of Wilmington Trust Company, as
Guarantee Trustee for the Guarantee for Hartford Capital
Trust VI.
25
.08
Statement of Eligibility under the
Trust Indenture Act of 1939 of The Bank of New York Trust
Company, N.A., as Trustee for the Senior Debt Securities.
25
.09
Statement of Eligibility under the
Trust Indenture Act of 1939 of the Subordinated Trustee, as
Trustee for the Subordinated Debt
Securities.
*
To be filed by amendment or by a report on
Form 8-K
pursuant to Item 601 of
Regulation S-K.
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3
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5
6
7
8
9
10
11
12
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Very truly yours,
THE HARTFORD FINANCIAL SERVICES GROUP, INC. |
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Title: |
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i. | in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a Relevant Member State), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the Relevant Implementation Date), it has not made and will not make an offer of Designated Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and |
1
notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Designated Securities to the public in that Relevant Member State at any time: |
a. | to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; | ||
b. | to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than 43,000,000 and (3) an annual net turnover of more than 50,000,000, as shown in its last annual or consolidated accounts; or | ||
c. | in any other circumstances which do not require the publication by the company of a prospectus pursuant to Article 3 of the Prospectus Directive. |
ii. | it has not offered or sold and, prior to the expiry of a period of six months from the closing date, will not offer or sell any Designated Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; | ||
iii. | it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (FSMA)) received by it in connection with the issue or sale of any Designated Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; |
2
iv. | it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Designated Securities in, from or otherwise involving the United Kingdom. |
3
4
Very truly yours,
THE HARTFORD FINANCIAL SERVICES GROUP, INC. |
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Name: | ||||
Title: |
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By:
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Name:
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Principal Amount | ||||
of Notes | ||||
Underwriters | to Be Purchased | |||
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I-1
EXHIBIT 4.03
The Hartford Financial Services Group, Inc.
TO
The Bank of New York Trust Company, N.A.
Trustee
SENIOR INDENTURE
Dated as of April 11, 2007
TABLE OF CONTENTS
Page ---- ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...................................................... 1 SECTION 101. Definitions................................................................ 1 Act................................................................................................ 2 Affiliate.......................................................................................... 2 Authenticating Agent............................................................................... 2 Board of Directors................................................................................. 2 Board Resolution................................................................................... 2 Business Day....................................................................................... 2 Commission......................................................................................... 2 Company............................................................................................ 2 Company Request and Company Order.................................................................. 2 Consolidated Net Tangible Assets................................................................... 3 Corporate Trust Office............................................................................. 3 corporation........................................................................................ 3 Covenant Defeasance................................................................................ 4 Defaulted Interest................................................................................. 4 Defeasance......................................................................................... 4 Depositary......................................................................................... 4 Dollar............................................................................................. 4 Event of Default................................................................................... 4 Exchange Act....................................................................................... 4 Expiration Date.................................................................................... 4 Foreign Currency................................................................................... 4 Global Security.................................................................................... 4 Governmental Authority............................................................................. 4 Government Obligations............................................................................. 4 Holder............................................................................................. 5 Indebtedness....................................................................................... 5 Indenture.......................................................................................... 5 Interest Payment Date.............................................................................. 5 Interest Rate...................................................................................... 5 Investment Company Act............................................................................. 5 Lien............................................................................................... 5 Maturity........................................................................................... 5 Notice of Default.................................................................................. 6 Officers' Certificate.............................................................................. 6 Opinion of Counsel................................................................................. 6 Original Issue Date................................................................................ 6 Original Issue Discount Security................................................................... 6 |
Outstanding........................................................................................ 6 Paying Agent....................................................................................... 7 Person............................................................................................. 7 Place of Payment................................................................................... 7 Predecessor Security............................................................................... 7 Preferred Stock.................................................................................... 7 Redemption Date.................................................................................... 7 Redemption Price................................................................................... 7 Regular Record Date................................................................................ 7 Responsible Officer................................................................................ 8 Restricted Subsidiary.............................................................................. 8 Securities or Security............................................................................. 8 Securities Act..................................................................................... 8 Security Register and Security Registrar........................................................... 8 Special Record Date................................................................................ 8 Stated Maturity.................................................................................... 8 Subsidiary......................................................................................... 8 Trust Indenture Act................................................................................ 8 Trustee............................................................................................ 9 Vice President..................................................................................... 9 SECTION 102. Compliance Certificates and Opinions....................................... 9 SECTION 103. Form of Documents Delivered to Trustee..................................... 10 SECTION 104. Acts of Holders; Record Dates.............................................. 10 SECTION 105. Notices, Etc., to Trustee and Company...................................... 12 SECTION 106. Notice to Holders; Waiver.................................................. 13 SECTION 107. Conflict with Trust Indenture Act.......................................... 13 SECTION 108. Effect of Headings and Table of Contents................................... 13 SECTION 109. Successors and Assigns..................................................... 13 SECTION 110. Separability Clause........................................................ 14 SECTION 111. Benefits of Indenture...................................................... 14 SECTION 112. Governing Law.............................................................. 14 SECTION 113. Legal Holidays............................................................. 14 SECTION 114. Computations............................................................... 14 ARTICLE TWO SECURITY FORMS........................................................... 15 SECTION 201. Forms Generally............................................................ 15 SECTION 202. Form of Legend for Global Securities....................................... 15 SECTION 203. Form of Trustee's Certificate of Authentication............................ 16 ARTICLE THREE THE SECURITIES........................................................... 16 SECTION 301. Title; Terms............................................................... 16 SECTION 302. Denominations.............................................................. 19 SECTION 303. Execution, Authentication, Delivery and Dating............................. 19 SECTION 304. Temporary Securities....................................................... 20 SECTION 305. Registration, Registration of Transfer and Exchange........................ 21 SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities........................... 23 |
SECTION 307. Payment of Interest; Interest Rights Preserved............................. 24 SECTION 308. Persons Deemed Owners...................................................... 25 SECTION 309. Cancellation............................................................... 25 SECTION 310. Computation of Interest.................................................... 26 ARTICLE FOUR SATISFACTION AND DISCHARGE............................................... 26 SECTION 401. Satisfaction and Discharge of Indenture.................................... 26 SECTION 402. Application of Trust Money................................................. 27 ARTICLE FIVE REMEDIES................................................................. 28 SECTION 501. Events of Default.......................................................... 28 SECTION 502. Acceleration of Maturity; Rescission and Annulment......................... 29 SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.............................................................. 30 SECTION 504. Trustee May File Proofs of Claim........................................... 30 SECTION 505. Trustee May Enforce Claims Without Possession of Securities........................................................... 31 SECTION 506. Application of Money Collected............................................. 31 SECTION 507. Limitation on Suits........................................................ 32 SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest................................................. 33 SECTION 509. Restoration of Rights and Remedies......................................... 33 SECTION 510. Rights and Remedies Cumulative............................................. 33 SECTION 511. Delay or Omission Not Waiver............................................... 33 SECTION 512. Control by Holders......................................................... 33 SECTION 513. Waiver of Past Defaults.................................................... 34 SECTION 514. Undertaking for Costs...................................................... 34 SECTION 515. Waiver of Usury, Stay or Extension Laws.................................... 35 ARTICLE SIX THE TRUSTEE.............................................................. 35 SECTION 601. Certain Duties and Responsibilities........................................ 35 SECTION 602. Notice of Defaults......................................................... 35 SECTION 603. Certain Rights of Trustee.................................................. 36 SECTION 604. Not Responsible for Recitals or Issuance of Securities..................... 37 SECTION 605. May Hold Securities........................................................ 37 SECTION 606. Money Held in Trust........................................................ 38 SECTION 607. Compensation and Reimbursement............................................. 38 SECTION 608. Disqualification; Conflicting Interests.................................... 39 SECTION 609. Corporate Trustee Required; Eligibility.................................... 39 SECTION 610. Resignation and Removal; Appointment of Successor.......................... 39 SECTION 611. Acceptance of Appointment by Successor..................................... 41 SECTION 612. Merger, Conversion, Consolidation or Succession to Business............................................................. 42 SECTION 613. Preferential Collection of Claims Against Company.......................... 42 SECTION 614. Appointment of Authenticating Agent........................................ 42 |
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.............................................................. 44 SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.................. 44 SECTION 702. Preservation of Information; Communications to Holders..................... 44 SECTION 703. Reports by Trustee......................................................... 45 SECTION 704. Reports by Company......................................................... 45 ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE........................................................ 46 SECTION 801. Company May Consolidate, Etc., Only on Certain Terms....................... 46 SECTION 802. Successor Corporation Substituted.......................................... 47 ARTICLE NINE SUPPLEMENTAL INDENTURES.................................................. 47 SECTION 901. Supplemental Indentures Without Consent of Holders......................... 47 SECTION 902. Supplemental Indentures With Consent of Holders............................ 48 SECTION 903. Execution of Supplemental Indentures....................................... 49 SECTION 904. Effect of Supplemental Indentures.......................................... 49 SECTION 905. Conformity with Trust Indenture Act........................................ 49 SECTION 906. Reference in Securities to Supplemental Indentures......................... 50 ARTICLE TEN COVENANTS................................................................ 50 SECTION 1001. Payment of Principal, Premium and Interest................................. 50 SECTION 1002. Maintenance of Office or Agency............................................ 50 SECTION 1003. Money for Securities Payments to Be Held in Trust.......................... 51 SECTION 1004. Statement by Officers as to Default........................................ 52 SECTION 1005. Existence.................................................................. 52 SECTION 1006. Maintenance of Properties.................................................. 52 SECTION 1007. Payment of Taxes........................................................... 53 SECTION 1008. Limitation on Liens........................................................ 53 SECTION 1009. Waiver of Certain Covenants................................................ 55 ARTICLE ELEVEN REDEMPTION OF SECURITIES................................................. 55 SECTION 1101. Company's Right of Redemption.............................................. 55 SECTION 1102. Applicability of Article................................................... 55 SECTION 1103. Election to Redeem; Notice to Trustee...................................... 56 SECTION 1104. Selection by Trustee of Securities to Be Redeemed.......................... 56 SECTION 1105. Notice of Redemption....................................................... 57 SECTION 1106. Deposit of Redemption Price................................................ 57 SECTION 1107. Securities Payable on Redemption Date...................................... 58 SECTION 1108. Securities Redeemed in Part................................................ 58 |
ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE....................................... 58 SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance........................................................... 58 SECTION 1202. Defeasance and Discharge................................................... 58 SECTION 1203. Covenant Defeasance........................................................ 59 SECTION 1204. Conditions to Defeasance or Covenant Defeasance............................ 59 SECTION 1205. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions...................................... 61 SECTION 1206. Reinstatement.............................................................. 61 SECTION 1207. Qualifying Trustee......................................................... 62 |
CERTAIN SECTIONS OF THIS INDENTURE RELATING
TO SECTIONS 310 THROUGH 318,
INCLUSIVE OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE ACT SECTION INDENTURE SECTION SECTION 310(a)(1)......................................................... 609, 610 (a)(2).................................................................... 609 (a)(3).................................................................... NOT APPLICABLE (a)(4).................................................................... NOT APPLICABLE (a)(5) ................................................................... 609 (b)....................................................................... 608, 610 SECTION 311(a)............................................................ 613 (b)....................................................................... 613 SECTION 312(a)............................................................ 701, 702 (b)....................................................................... 702 (c)....................................................................... 702 SECTION 313(a)............................................................ 703 (b)....................................................................... 703 (c)....................................................................... 703 (d)....................................................................... 703 SECTION 314(a)............................................................ 704 (a)(4).................................................................... 101, 1004 (b)....................................................................... NOT APPLICABLE (c)(1).................................................................... 102 (c)(2).................................................................... 102 (c)(3).................................................................... NOT APPLICABLE (d)....................................................................... NOT APPLICABLE (e)....................................................................... 102 SECTION 315(a)............................................................ 601 (b)....................................................................... 602 (c)....................................................................... 601 (d)....................................................................... 601 (e)....................................................................... 514 SECTION 316(a)............................................................ 101 (a)(1)(a)................................................................. 502, 512 (a)(1)(b)................................................................. 513 (a)(2).................................................................... NOT APPLICABLE (b)....................................................................... 508 (c)....................................................................... 104 SECTION 317(a)(1)......................................................... 503 (a)(2).................................................................... 504 (b)....................................................................... 1003 SECTION 318(a)............................................................ 107 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. vi
SENIOR INDENTURE, dated as of April 11, 2007, between The Hartford Financial Services Group, Inc., a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Company"), having its principal office at One Hartford Plaza, Hartford, Connecticut 06155, and The Bank of New York Trust Company, N.A., a national banking association, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured senior debt securities in one or more series (the "Securities") of substantially the tenor hereinafter provided, and to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered; and
all things necessary to make the Securities, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid obligations of the Company, and to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the time of such computation; provided, that when two or more principles are so generally accepted, it shall mean that set of principles consistent with those in use by the Company;
(4) unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Indenture; and
(5) the words "herein", "hereinafter", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means the board of directors of the Company, any duly authorized committee of that board or any officer of the Company delegated the power of either the board of directors of the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors, and to be in full force and effect on the date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York, New York, Hartford, Connecticut, the Corporate Trust Office or any Place of Payment are authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written request or order signed in the name of the Company by (i) its Chairman of the Board of Directors, Chief Executive Officer, President or any Vice President, and (ii) its Treasurer, any Associate Treasurer, any Assistant Treasurer, its Controller, its Secretary or any
Assistant Secretary, and delivered to the Trustee or, with respect to Sections 303, 304, 305 and 603, any other employee of the Company named in an Officers' Certificate delivered to the Trustee.
"Consolidated Net Tangible Assets" shall mean the total of all assets appearing on a consolidated balance sheet of the Company and its Restricted Subsidiaries, prepared in accordance with GAAP (and as of a date not more than 90 days prior to the date as of which Consolidated Net Tangible Assets are to be determined), less the sum of the following items as shown on said consolidated balance sheet:
(i) the book amount of all segregated intangible assets, including such items as good will, trademarks, trademark rights, trade names, trade name rights, copyrights, patents, patent rights and licenses and unamortized debt discount and expense less unamortized debt premium;
(ii) all depreciation, valuation and other reserves;
(iii) current liabilities;
(iv) any minority interest in the shares of stock (other than Preferred Stock) and surplus of Restricted Subsidiaries of the Company;
(v) the investment of the Company and its Restricted Subsidiaries in any Subsidiary of the Company that is not a Restricted Subsidiary;
(vi) the total indebtedness of the Company and its Restricted Subsidiaries incurred in any manner to finance or recover the cost to the Company or any Restricted Subsidiary of any physical property, real or personal, which prior to or simultaneously with the creation of such indebtedness shall have been leased by the Company or a Restricted Subsidiary to the United States of America or a department or agency thereof at an aggregate rental, payable during that portion of the initial term of such lease (without giving effect to any options of renewal or extension) which shall be unexpired at the date of the creation of such indebtedness, sufficient (taken together with any amounts required to be paid by the lessee to the lessor upon any termination of such lease) to pay in full at the stated maturity date or dates thereof the principal of and the interest on such indebtedness;
(vii) deferred income and deferred liabilities; and
(viii) other items deductible under GAAP.
"Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at 2 North LaSalle Street, Suite 1020, Chicago, Illinois 60602.
"corporation" means a corporation, association, company, joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1203.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1202.
"Depositary" means the clearing agency registered under the Exchange Act that is designated by the Company in Section 301 to act as depositary for any series of Securities with respect to such series (or any successor to such clearing agency).
"Dollar" means the currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
"Event of Default," unless otherwise specified with respect to
Securities of a series pursuant to Section 301, has the meaning specified in
Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Foreign Currency" means any currency issued by the government of one or more countries other than the United States of America or by any recognized confederation or association of such governments.
"Global Security" means a Security that evidences all or part of a series of Securities issued to the Depositary or its nominee for such series, and registered in the name of such Depositary or its nominee and bearing the legend set forth in Section 202.
"Governmental Authority" means any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.
"Government Obligations" means, with respect to the Securities of any
series, securities which are (i) direct obligations of the United States of
America or (ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed by the United States of America and which,
in either case, are full faith and credit obligations of the United States of
America and are not callable or redeemable at the option of the issuer thereof
and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any such
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by such depository receipt.
"Holder" means a Person in whose name a Security is registered in the Security Register.
"Indebtedness" of any person means the principal of and premium, if any, and interest due on indebtedness of such Person, whether outstanding on the date of this Indenture or thereafter created, incurred or assumed, whether recourse is to all or a portion of the assets of such Person and whether or not contingent which is (a) indebtedness for money borrowed, and (b) any amendments, renewals, extensions, modifications and refundings of any such indebtedness. For the purposes of this definition, "indebtedness for money borrowed" means (i) any obligation of, or any obligation guaranteed by, such Person for the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments, (ii) any obligation of, or any such obligation guaranteed by, such Person evidenced by bonds, debentures, notes or similar written instruments, including obligations assumed or incurred in connection with the acquisition of property, assets or businesses (provided, however, that the deferred purchase price of any property, assets or business shall not be considered Indebtedness if the purchase price thereof is payable in full within 90 days from the date on which such indebtedness was created), and (iii) any obligations of such Person as lessee under leases required to be capitalized on the balance sheet of the lessee under generally accepted accounting principles and leases of property or assets made as part of any sale and lease-back transaction to which such Person is a party. Indebtedness does not include trade accounts payable or accrued liability arising in the ordinary course of business.
"Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of each particular series of Securities established as contemplated by Section 301, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.
"Interest Payment Date" means as to each series of Securities the Stated Maturity of an installment of interest on such Securities.
"Interest Rate" means the rate of interest specified or determined as specified in each Security as being the rate of interest payable on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
"Lien" means any mortgage, pledge, lien, security interest or other encumbrance.
"Maturity" when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as provided in the Securities or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(3).
"Officers' Certificate" means a certificate signed by (i) the Chairman of the Board of Directors, Chief Executive Officer, President or any Vice President, and (ii) the Treasurer, any Associate Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers' Certificate given pursuant to Section 1004 shall be the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel for (and an employee of) the Company, and who shall be reasonably acceptable to the Trustee.
"Original Issue Date" means the date of issuance specified as such in each Security.
"Original Issue Discount Security" means any security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding" when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(3) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by Holders in whose hands such Securities are valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to
Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, and (C) Securities beneficially owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means the Trustee or any other Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture, association, limited liability or joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
"Place of Payment" means, with respect to the Securities of any series, the place or places where the principal of and any premium and interest on the Securities of such series are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" shall mean any capital stock entitled by its terms to a preference (a) as to dividends or (b) upon a distribution of assets.
"Redemption Date" when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of a series means, unless otherwise provided pursuant to
Section 301 with respect to Securities of a series, the date which is fifteen
days next preceding such Interest Payment Date (whether or not a Business Day).
"Responsible Officer," when used with respect to the Trustee, means any officer of the Trustee located at the Corporate Trust Office and assigned by the Trustee from time to time to administer its corporate trust matters.
"Restricted Subsidiary" means Hartford Fire Insurance Company and any other Subsidiary which is incorporated in any State of the United States or in the District of Columbia and which is a regulated insurance company principally engaged in one or more of the property, casualty and life insurance businesses, provided that no such Subsidiary, other than Hartford Fire Insurance Company, shall be a Restricted Subsidiary if (i) the total assets of such Subsidiary are less than 10% of the total assets of the Company and its consolidated Subsidiaries (including such Subsidiary), in each case as set forth on the most recent fiscal year-end balance sheets of such Subsidiary and the Company and its consolidated Subsidiaries, respectively, and computed in accordance with generally accepted accounting principles, or (ii) in the judgment of the Board of Directors, as evidenced by a Board Resolution, such Subsidiary is not material to the financial condition of the Company and its consolidated Subsidiaries taken as a whole.
"Securities" or "Security" means any debt securities or debt security, as the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable, in the case of such principal or installment of principal, as such date may be extended or shortened as provided pursuant to the terms of such Security.
"Subsidiary" means a corporation, partnership or other entity of which, at the time of determination, more than 50% of the outstanding voting stock or equivalent interest is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and, if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to the Securities of that series.
"Vice President" when used with respect to the Company or the Trustee, means any officer with a title of "Vice President", "Senior Vice President" or "Executive Vice President".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers' Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture. In the case of an application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than the certificates provided pursuant to Section 1004) shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers, or other management employee of the Company or any Subsidiary stating that the information with respect to such factual matters is in the possession of the Company or such Subsidiary, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive and may be relied upon by the Trustee, the Company, and any agent of the Trustee or the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a Person acting in a capacity
other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(f) The Company may, but shall not be obligated to, set any day as a record date for the purpose of determining the Holders of Outstanding Securities entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date (as defined below) by Holders of the requisite principal amount of Outstanding Securities on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration, or
any recission or annulment of any such declaration, referred to in Section 502,
(iii) any request to institute proceedings referred to in Section 507(2) or (iv)
any direction referred to in Section 512. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities on such record date, and
no other Holders, shall be entitled to join in such notice, declaration, request
or direction, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company's expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the "Expiration Date" and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed to or with the Trustee in writing at its Corporate Trust Office, Attention: Corporate Finance, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class, postage prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company, Attention: General Counsel.
Neither the Company nor the Trustee shall be deemed to have received any such request, demand, authorization, direction, notice, consent, waiver or Act of Holders unless given, furnished or filed as provided in this Section 105.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the address of such Holder as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the written approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto, any Paying Agent and their successors and assigns, and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Maturity or Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Maturity or Stated Maturity and no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Maturity or Stated Maturity, as the case may be, if such payment is made or duly provided for on the next succeeding Business Day, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day.
SECTION 114. Computations.
Unless otherwise specifically provided, the certificate or opinion of any independent firm of public accountants of recognized standing selected by the Board of Directors shall be conclusive evidence of the correctness of any computation made under the provisions of this Indenture. The Company shall furnish to the Trustee upon its request a copy of any such certificate or opinion.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be substantially in the form attached as Exhibit A, or in such other form or forms as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate provisions as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 with respect to the authentication and delivery of such Securities.
The Trustee's certificate of authentication shall be substantially in the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on a steel engraved border or on steel engraved borders or produced by any combination of these methods, if required by any securities exchange on which the Securities may be listed, or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
The Securities of each series will initially be issued in the form of one or more Global Securities. Each such Global Security shall represent such of the Outstanding Securities of such series as shall be specified therein and each shall provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amounts of Outstanding Securities of such series represented thereby may from time to time be reduced or increased, as appropriate. The Global Security or Securities evidencing the Securities of a series (and all Securities issued in exchange therefore) shall bear the legend indicated in Section 202.
SECTION 202. Form of Legend for Global Securities.
Every Global Security authenticated and delivered hereunder shall, in addition to the provisions contained in Exhibit A, bear a legend in substantially the following form:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 203. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the following form:
Certificate of Authentication
This is one of the Securities referred to in the within-mentioned Indenture.
Dated:
The Bank of New York Trust Company, N.A., as Trustee
By:_____________________________ Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. Title; Terms.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of a series:
(a) the title of the securities of such series, which shall distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the Securities of such series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Securities of the same series pursuant to Section 304, 305, 306, 906 or 1108 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder); provided, however, that the authorized aggregate principal amount of such series may be increased above such amount by a Board Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the Securities of such series is payable or the method of determination thereof;
(d) the rate or rates, if any, at which the Securities of such series shall bear interest or the method of determining such rate or rates, the Interest Payment Dates on which such interest shall be payable, the right, if any, of the Company to defer or extend an Interest Payment Date, the Regular Record Date (if other than as defined in this Indenture) for the interest payable on any Interest Payment Date and the dates from which interest shall accrue and the method of determining these dates;
(e) the place or places where the principal of (and premium, if any) and interest on the Securities of such series shall be payable, the place or places where the Securities of such series may be presented for registration of transfer or exchange, and the place or places where notices and demands to or upon the Company in respect of the Securities of such series may be made;
(f) the period or periods within or the date or dates on which, if any, the price or prices at which and the terms and conditions upon which the Securities of such series may be redeemed or prepaid, in whole or in part, at the option of the Company;
(g) the obligation or the right, if any, of the Company to redeem, repay or purchase the Securities of such series pursuant to any sinking fund, amortization or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(h) the denominations in which any Securities of such series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof;
(i) if other than Dollars, the currency or currencies (including currency unit or units) in which the principal of (and premium, if any) and interest, if any, on the Securities of the series shall be payable, or in which the Securities of the series shall be denominated;
(j) the additions, modifications or deletions, if any, in the Events of Default or covenants of the Company set forth herein with respect to the Securities of such series;
(k) if other than the principal amount thereof, the portion of the principal amount of Securities of such series that shall be payable upon declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect to the Securities of such series as shall be necessary to permit or facilitate the issuance of the Securities of such series in bearer form, registrable or not registrable as to principal, and with or without interest coupons;
(m) any index or indices used to determine the amount of payments of principal of and premium, if any, on the Securities of such series or the manner in which such amounts will be determined;
(n) the issuance of a temporary Global Security representing all of the Securities of such series and the terms upon which such temporary Global Security may be exchanged for definitive Securities of such series;
(o) whether the Securities of the series shall be issued in whole or in part in the form of one or more Global Securities and, in such case, the identity of the Depositary for such Global Securities;
(p) the appointment of any Paying Agent or Agents for the Securities of such series;
(q) the terms and conditions of any right or obligation on the part of the Company, or any option on the part of the Holders, to convert or exchange Securities of such series into cash or any other securities or property of the Company or any other Person, and the additions or changes, if any, to this Indenture with respect to the Securities of such series to permit or facilitate such conversion or exchange; and
(r) any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided herein or in or pursuant to such Board Resolution and set forth in such Officers' Certificate or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be in registered form without coupons and shall be issuable in denominations of $1,000 and any integral multiples thereof, unless otherwise specified as contemplated by Section 301.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board of Directors, Chief Executive Officer, President or any Vice President. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signature of an individual who was at any time a proper officer of the Company shall bind the Company, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Securities or did not hold such office at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities.
If the form or forms or terms of the Securities of a series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) that such form or forms have been established in conformity with the provisions of this Indenture;
(2) that such terms have been established in conformity with the provisions of this Indenture; and
(3) that such Securities have been duly executed and, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
If such form or forms or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Company Order or Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such Company Order or Opinion of Counsel is delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Minor typographical and other minor errors in the text of any Security shall not affect the validity and enforceability of such Security if it has been duly authenticated and delivered by the Trustee.
The Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities with respect to each series of Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the initially issued Securities of such series, (ii) shall be registered in the name of the Depositary or the nominee of the Depositary, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary's instruction and (iv) shall bear a legend substantially in the form required in Section 202.
The Depositary must, at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act, and any other applicable statute or regulation.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities of any series in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the Company in a Place of Payment without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and having the same Original Issue Date and Stated Maturity and having the same terms as such temporary Securities. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office or in any other office or agency of the Company in a Place of Payment being herein sometimes referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers and exchanges of Securities. The Trustee is hereby appointed "Security Registrar" for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the office or agency of the Company in a Place of Payment, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series of any authorized denominations and of a like tenor and aggregate principal amount, of the same original Issue Date and Stated Maturity and having the same terms.
Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for the individual Securities represented thereby, a Global Security representing all or a portion of the Securities may not be transferred except as a whole by the Depositary to a nominee of such Depositary, or by a nominee of such Depositary to such Depositary or another nominee of such Depositary, or by such Depositary or any such nominee to a successor Depositary or nominee of such successor Depositary.
At the option of the Holder, Securities may be exchanged for other Securities, of the same series of any authorized denominations, of like tenor and aggregate principal amount, of the same Original Issue Date and Stated Maturity and having the same terms, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary notifies the Company that it is unwilling or unable to continue as Depositary or if at any time the Depositary shall cease to be a clearing agency
registered under the Exchange Act as provided in Section 303, the Company shall appoint a successor Depositary. If a successor Depositary is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities, will authenticate and make available for delivery, individual Securities in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing the Securities in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion (subject to the procedures of the Depositary) determine that individual Securities issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities, will authenticate and make available for delivery, individual Securities in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing the Securities in exchange for such Global Security or Securities.
The Depositary may surrender a Global Security in exchange in whole or in part for individual Securities on such terms as are acceptable to the Company, the Trustee and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and make available for delivery, without service charge:
(1) to each Person specified by such Depositary a new individual Security or Securities of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and
(2) to such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of individual Securities delivered to Holders thereof.
Upon the exchange of a Global Security for individual Securities in an aggregate principal amount equal to the principal amount of such Global Security, such Global Security shall be canceled by the Trustee. Individual Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall make available for delivery such individual Securities to the Persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1108 not involving any transfer.
Neither the Company nor the Trustee shall be required, pursuant to the provisions of this Section: (i) to issue, register the transfer of or exchange any Security of any series during a period beginning at the opening of business 15 calendar days before the day of the mailing of a notice of redemption of any such Securities selected for redemption of Securities pursuant to Article Eleven and ending at the close of business on the day of such mailing of notice of redemption; or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except, in the case of any Security to be redeemed in part, any portion thereof that is not redeemed.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such security or indemnity as may be required by the Company or the Trustee to save each of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same issue and series, of like tenor and principal amount, having the same Original Issue Date and Stated Maturity and bearing the same Interest Rate as such mutilated Security, and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the issuing Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same issue and series of like tenor and principal amount, having the same Original Issue Date and Stated Maturity and bearing the same Interest Rate as such destroyed, lost or stolen Security, and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest in respect of Securities of such series. The initial payment of interest on any Security of any series which is issued between a Regular Record Date and the related Interest Payment Date shall be payable as provided in such Security or in the Board Resolution pursuant to Section 301 with respect to the related series of Securities.
Any interest on any Security which is payable, but is not timely paid or duly provided for, on any Interest Payment Date for Securities of such series (herein called "Defaulted Interest"), shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series in respect of which interest is in default (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class, postage prepaid, to each Holder of a Security of such series at the address of such Holder as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of the series in respect of which interest is in default may be listed, and upon such notice as may be required by such exchange (or by the Trustee if the Securities are not listed), if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 307) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and Securities surrendered directly to the Trustee for any such purpose shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by a Company Order, and the Trustee shall deliver to the Company a certificate evidencing the disposition of the cancelled Securities. Acquisition by the Company of any Security shall not operate as a redemption or satisfaction of the indebtedness represented by such Security unless and until the same is delivered to the Trustee for cancellation.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect with respect to Securities of a series (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for) and the Trustee at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when:
(1) either
(A) all such Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds: (A) money; (B) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money; or (C) a combination thereof, in each case in an amount sufficient to pay and discharge, and which shall be applied by the Trustee, to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; provided, that the Trustee shall have the right (but not the obligation) to require the Company to deliver to the Trustee an opinion of a nationally recognized firm of independent public accountants expressed in a written certification, or other evidence satisfactory to the Trustee, as to the sufficiency of deposits made by the Company pursuant to this Section;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to such Securities; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect such Securities have been complied with.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 401 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and the preceding
paragraph, the obligations of the Company to any Authenticating Agent under
Section 614 and, if money and/or Government Obligations shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations deposited with the Trustee pursuant to Section 401 and all proceeds of such Government Obligations and the interest thereon, shall be held in trust and applied by it, in accordance with the provisions of the Securities of the applicable series and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal and any premium and interest for whose payment such money and Government Obligations have been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to the Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it becomes due and payable, and such default continues for a period of 30 days; or
(2) default in the payment of the principal of or premium, if any, on any Security of that series at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in the performance of which or the breach of which is specifically dealt with elsewhere in this Section), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(4) the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer of consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability
to pay its debts generally as they become due and its willingness to be adjudicated a bankrupt, or the taking of corporate action by the Company in furtherance of any such action; or
(6) any other Event of Default specified with respect to Securities of that series as contemplated in Section 301.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(4) or 501(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of the Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(4)
or 501(5) with respect to Securities of a series at the time Outstanding occurs,
the principal amount of all the Securities of such series (or specified amount)
shall automatically, and without any declaration or other action on the part of
the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of, and premium, if any, on, any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates borne by such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue installments of interest at the rate or rates borne by or prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal (or a specified portion of the principal) of and interest on Securities of that series which has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal or premium, if any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal, including any sinking fund payment or analogous obligations (and premium, if any) and interest, including, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal or premium, if any, and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors:
(a) the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding, and
(ii) in particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same in accordance with Section 506; and
(b) any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee for distribution in accordance with Section 506, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors' or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with respect to a series of Securities pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property on account of principal or premium, if any, or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid upon such series of Securities for principal (and premium, if any) and interest in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such series of Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company, its successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
SECTION 507. Limitation on Suits.
No Holder of any Securities of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
SECTION 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
SECTION 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture, involve the Trustee in personal liability or be unduly prejudicial to the Holders of the Securities not joining in the action; and
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may, on behalf of the Holders of all the Securities of such series, waive any past default hereunder with respect to such series and its consequences, except a default:
(1) in the payment of the principal of, or premium, if any, or interest on, any Security of such series; or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, any party litigant in such suit to file an undertaking to pay the costs of such suit, and that court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any such party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided, that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the respective Stated Maturities expressed in such Security (or in the case of redemption, on the Redemption Date).
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties, responsibilities, protections, privileges, and immunities of the Trustee shall be as provided by the Trust Indenture Act, particularly Sections 315 and 316 thereof, unless expressly excluded as provided in this Article Six. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to the Securities of a series, the Trustee within 90 days of such default shall give the Holders of such Securities notice of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of the character specified in Section 501(3) with respect to such Securities, no such notice to Holders shall be given until at least 30 days after the occurrence thereof; and provided, further, that the Trustee may withhold notice to the Holders, of any default with respect to Securities of a series (except any default of the character specified in Section 501(1) and (2)), if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determine that the withholding of the notice is in the interest of the Holders of such Securities. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to the Securities of a series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate and may at its discretion secure such further evidence deemed necessary or advisable, but shall in no case be bound to secure the same;
(4) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;
(6) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(7) the Trustee's immunities and protections from liability and its rights to compensation and indemnification in connection with the performance of its duties under this Indenture shall extend to the Trustee's officers, directors, agents and employees and its services as Paying Agent, Security Registrar or any other role assumed by the Trustee hereunder or to which it has been appointed with respect to the Securities issued hereunder. Such immunities and protections and right to indemnification, together with the Trustee's right to compensation, shall survive the Trustee's resignation or removal and final payment of the Securities;
(8) the Trustee is not required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture;
(9) the Trustee shall not be deemed to have knowledge of any "default"
or Event of Default hereunder except (i) during any period it is serving as
Paying Agent for the Securities of a series, any Event of Default pursuant to
Section 501(1) or (2), or (ii) any default or Event of Default of which a
Responsible Officer shall have received written notification from the Company or
the Holders of at least 25% in aggregate principal amount of the Securities of
the series with respect to which such default or Event of Default has occurred
and is continuing or obtained "actual knowledge." The term "actual knowledge" as
used herein shall mean the actual fact or statement of knowing by a Responsible
Officer without independent investigation with respect thereto. The term
"default" as used in this Section 603 shall mean any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of a series; and
(10) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture (other than the payment of debt service on the Securities from moneys furnished to it pursuant hereto), whether at the request or direction of the Holders or any other Person, pursuant to this Indenture or otherwise, unless it shall have been offered reasonable indemnity or security against the fees, advances, costs, expenses and liabilities which might be incurred by it in connection with the exercise of any such rights or powers.
Notwithstanding anything else herein contained, (i) the Trustee shall not be liable for any error of judgment made in good faith by any officer of the Trustee unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts and (ii) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it believes the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise
deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as agreed with the Company herein or otherwise.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its agents or attorneys), except any such expense, disbursement or advance as may be attributable to the negligence, willful misconduct or bad faith of it or of its agents or attorneys;
(3) to indemnify, defend and to hold the Trustee harmless against, any loss, liability or expense (including the reasonable compensation and the reasonable expenses and disbursements of its agents or attorneys) incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim or liability in connection therewith or with the exercise or performance of any of its powers or duties hereunder;
(4) that the Trustee shall have a lien prior to the Securities upon all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 607, except with respect to funds held in trust for the benefit of the Holders of particular Securities; and
(5) without limiting any rights available to the Trustee under applicable law, that when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(4) or Section 501(5), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a Trustee under this Indenture with respect to Securities of more than one series or, by virtue of being a Trustee under this Indenture and the Indenture dated as of October 20, 1995 between the Company and The Bank of New York Trust Company, N.A. (successor to JPMorgan Chase Bank (successor to The Chase Manhattan Bank (National Association))), as Trustee or the Indenture dated as of March 9, 2004 between the Company and The Bank of New York Trust Company, N.A. (successor to JPMorgan Chase Bank), as Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall (i) be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, (ii) be authorized under such laws to exercise corporate trust powers, (iii) have a combined capital and surplus of at least $50,000,000, and (iv) be subject to supervision or examination by Federal or State authority. If such corporation files reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so filed. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article Six. Neither the Company nor any Person directly or indirectly controlling, controlled by or under common control with the Company shall serve as Trustee for the Securities of any series issued hereunder.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
The Trustee may resign as Trustee at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Trustee may be removed as Trustee hereunder at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months; or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder; or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the Trustee, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and shall have accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security for at
least six months may, subject to Section 514, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Securities of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State, Territory or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent files reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so filed.
If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of an Authenticating Agent, shall be the successor Authenticating Agent hereunder, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities referred to in the within-mentioned Indenture.
The Bank of New York Trust Company, N.A., as Trustee
By: ____________________________ As Authenticating Agent
By: ____________________________ Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not more than 15 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date; and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, that no such list need be provided in any case to the extent it would include names and addresses received by the Trustee in its capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15 following the date of this Indenture, deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee whenever any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail, to all Holders, as their names and addresses appear in the Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to Clauses (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
(a) Subject to Section 801(c), the Company shall not consolidate with or merge with or into any other Person or convey, transfer or lease its assets substantially as an entirety to any Person, and the Company shall not permit any Person to consolidate with or merge with or into the Company, unless:
(1) the Company is the surviving corporation in a merger or consolidation; or
(2) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the assets of the Company substantially as an entirety shall be a corporation, partnership, trust or limited liability company, organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed; and
(3) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and
(4) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
(b) Subject to Section 801(c), any indebtedness which becomes an obligation of the Company or any Subsidiary as a result of any such transaction shall be treated as having been incurred by the Company or such Subsidiary at the time of such transaction.
(c) The provisions of Section 801(a) and (b) shall not be applicable to:
(1) the direct or indirect conveyance, transfer or lease of all or any portion of the stock, assets or liabilities of any of the Company's wholly owned Subsidiaries to the Company or to other wholly owned Subsidiaries of the Company; or
(2) any recapitalization transaction, a change of control of the Company or a highly leveraged transaction unless such transaction or change of control is structured to
include a merger or consolidation by the Company or the conveyance, transfer or lease of the Company's assets substantially as an entirety.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the assets of the Company substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of any lease, the Company shall be relieved of all obligations and covenants under this Indenture and the Securities and may be dissolved and liquidated.
In case of any such consolidation, merger, conveyance, transfer or lease, such changes in phraseology and form may be made in the Securities thereafter to be issued as may be appropriate.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or
(2) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee or to surrender any right or power herein conferred upon the Company; or
(3) to provide for the issuance under this Indenture of Securities in bearer form (including securities registrable as to principal only) and to provide for exchangeability of such Securities for Securities issued hereunder in fully registered form, and to make all appropriate changes for such purpose; or
(4) to establish the form or terms of Securities of any series as permitted by Sections 201 or 301; or
(5) to add to the covenants of the Company for the benefit of the Holders of all Securities or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or
(6) to add any additional Events of Default; or
(7) to secure the Securities; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture as the Company and the Trustee may deem necessary and desirable, provided that such action pursuant to this Clause (9) shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or
(10) to conform any provision hereof to the requirements of the Trust Indenture Act or otherwise as necessary to comply with applicable law; or
(11) to make any change that does not adversely affect the rights of any Holder in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of interest payable on, any Outstanding Security, or reduce the principal amount of or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of principal of an Original Issue Discount Security that would be due and payable upon redemption or would be provable in bankruptcy, or adversely affect any right of repayment of the Holder of any Security or change the Place of Payment or the coin or currency in which, any Outstanding Security or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences or reduce the quorum or voting requirements provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1009, or the deletion of this
proviso, in accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Officers' Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture, and that all conditions precedent have been complied with. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties, protections, privileges, indemnities, liabilities or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of, premium, if any, and interest on the Securities of that series in accordance with the terms of such Securities and this Indenture.
Unless otherwise specified as contemplated by Section 301, the Company shall pay interest on overdue amounts at the rate set forth in the first paragraph of the Securities, and it shall pay interest on overdue interest at the same rate (to the extent that the payment of such interest shall be legally enforceable), which interest on overdue interest shall accrue from the date such amounts became overdue.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New York and each other Place of Payment for any series, an office or agency where Securities of that series may be presented or surrendered for payment, and an office or agency where Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company initially appoints the Trustee, acting through its corporate trust office in the Borough of Manhattan, The City of New York, as its agent for said purposes. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City of New York and each other Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or premium, if any, or interest on any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal, premium, if any, and any interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior to each due date of the principal of or interest on any Securities, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent, (2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities) in the making of any payment of principal (and premium, if any) or interest, and (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by the Company or any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money or U.S. Government Obligation (including the proceeds thereof and the interest thereon) deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest on any Security and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company at its option on Company Request (unless otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed property law) or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed property law) be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers' Certificate covering the preceding fiscal year, stating whether or not, to the best knowledge of the signers thereof, the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its legal existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all material properties of the Company used or
useful in the conduct of its business or the business of any Restricted
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the Company and
each Restricted Subsidiary may properly and advantageously conduct their
respective businesses at all times; provided, however, that nothing in this
Section shall prevent the Company from selling, abandoning or otherwise
disposing of, or discontinuing the operation or maintenance of, any of such
properties if such action is, in the judgment of the Company, desirable in the
conduct of its business or the business of any Restricted Subsidiary.
SECTION 1007. Payment of Taxes.
The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all taxes, assessments and governmental charges levied or imposed upon the Company or any Restricted Subsidiary or upon the income, profits or property of the Company or any Restricted Subsidiary, and lawful claims for labor, materials and supplies, which, if unpaid, might by law become a Lien upon the property of the Company or any Restricted Subsidiary; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment or governmental charge whose amount, applicability or validity is being contested in good faith by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Securities.
SECTION 1008. Limitation on Liens.
The Company will not, nor will it permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Lien, except Liens incurred, assumed or existing prior to the date of this Indenture, on any property or assets (including the capital stock of any Restricted Subsidiary) now owned or hereafter acquired by it, or sell or transfer or create any Lien on any income or revenues or rights in respect thereof; provided, however, that this covenant shall not apply to any of the following:
(a) any Lien on any property or asset hereafter acquired, constructed or improved by the Company or any Restricted Subsidiary which is created or assumed to secure or provide for the payment of any part of the purchase price of such property or asset or the cost of such construction or improvement, or any Lien on any property or asset existing at the time of acquisition thereof; provided, however, that such Lien shall not extend to any other property owned by the Company or any Restricted Subsidiary;
(b) any Lien existing upon any property or asset of a company which is merged with or into or is consolidated into, or substantially all the assets or shares of capital stock of which are acquired by, the Company or a Restricted Subsidiary, at the time of such merger, consolidation or acquisition; provided that such Lien does not extend to any other property or asset, other than improvements to the property or asset subject to such Lien;
(c) any pledge or deposit to secure payment of workers' compensation or insurance premiums, or in connection with tenders, bids, contracts (other than contracts for the payment of money) or leases;
(d) any pledge of, or other Lien upon, any assets as security for the payment of any tax, assessment or other similar charge by any Governmental Authority or public body, or as security required by law or governmental regulation as a condition to the transaction of any business or the exercise of any privilege or right;
(e) any Lien necessary to secure a stay of any legal or equitable process in a proceeding to enforce a liability or obligation contested in good faith by the Company or a Restricted Subsidiary or required in connection with the institution by the Company or a Restricted Subsidiary of any legal or equitable proceeding to enforce a right or to obtain
a remedy claimed in good faith by the Company or a Restricted Subsidiary, or required in connection with any order or decree in any such proceeding or in connection with any contest of any tax or other governmental charge; or the making of any deposit with or the giving of any form of security to any governmental agency or any body created or approved by law or governmental regulation in order to entitle the Company or a Restricted Subsidiary to maintain self-insurance or to participate in any fund in connection with workers' compensation, unemployment insurance, old age pensions or other social security or to share in any provisions or other benefits provided for companies participating in any such arrangement or for liability on insurance of credits or other risks;
(f) any mechanics', carriers', workmen's, repairmen's, or other like Liens, if arising in the ordinary course of business, in respect of obligations which are not overdue or liability for which is being contested in good faith by appropriate proceedings;
(g) any Lien on property in favor of the United States of America, or of any agency, department or other instrumentality thereof, to secure partial, progress or advance payments pursuant to the provisions of any contract;
(h) any Lien securing indebtedness of a Restricted Subsidiary to the Company or a Restricted Subsidiary; provided that in the case of any sale or other disposition of such indebtedness by the Company or such Restricted Subsidiary, such sale or other disposition shall be deemed to constitute the creation of another Lien not permitted by this clause (h);
(i) any Lien affecting property of the Company or any Restricted Subsidiary securing indebtedness of the United States of America or a State thereof (or any instrumentality or agency of either thereof) issued in connection with a pollution control or abatement program required in the opinion of the Company to meet environmental criteria with respect to operations of the Company or any Restricted Subsidiary and the proceeds of which indebtedness have financed the cost of acquisition of such program;
(j) the renewal, extension, replacement or refunding of any mortgage, pledge, lien, deposit, charge or other encumbrance permitted by the foregoing provisions of this covenant upon the same property theretofore subject thereto, or the renewal, extension, replacement or refunding of the amount secured thereby; provided that in each case such amount outstanding at that time shall not be increased; or
(k) any other Lien; provided that immediately after the creation or assumption of such Lien, the total of the aggregate principal amount of Indebtedness of the Company and all Restricted Subsidiaries (not including Indebtedness permitted under clauses (a) through (j) above) secured by all Liens created or assumed under the provisions of this clause (k), shall not exceed an amount equal to 10% of Consolidated Net Tangible Assets.
SECTION 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision, covenant or condition set forth in any covenant provided pursuant to Section 901(5) for the benefit of the Holders or in any of Sections 1006 to 1008, inclusive, with respect to the Securities of any series if before or after the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Company's Right of Redemption.
Unless otherwise specified as contemplated by Section 301 with respect
to the Securities of a particular series, and notwithstanding any additional
redemption rights that may be so specified, the Company may, at its option,
redeem the Securities of any series after their date of issuance in whole or in
part at any time and from time to time, subject to the provisions of this
Section 1101 and the other provisions of this Article Eleven. Unless otherwise
specified as contemplated by Section 301 with respect to the Securities of a
particular series, the redemption price for any Security so redeemed shall be
equal to 100% of the principal amount of such Securities then Outstanding plus
accrued and unpaid interest up to, but excluding, the date fixed for redemption;
provided, however, that installments of accrued and unpaid interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Regular Record Dates according to their
terms and the provisions of Section 307, unless otherwise so specified.
SECTION 1102. Applicability of Article.
Redemption of Securities, as permitted or required by any form of Security issued pursuant to this Indenture or the documentation providing therefor, shall be made in accordance with such form of Security or documentation and this Article Eleven; provided, however, that if any provision of any such form of Security or documentation shall conflict with any provision of this Article, the provision of such form of Security or documentation shall govern. Except as otherwise set forth in the form of Security for such series or such documentation, each Security shall be subject to partial redemption only in the amount of $1,000 or integral multiples of $1,000.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of the Securities of a series, the Company shall, at least 45 days but not more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or (b) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers' Certificate and an Opinion of Counsel evidencing compliance with such restriction or condition.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding Securities not previously called for redemption, by such method as the Trustee in its sole discretion shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding Securities and specified tenor not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in the case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. If the Company shall so direct, Securities registered in the name of the Company, any Affiliate or any Subsidiary thereof shall not be included in the Securities selected for redemption.
SECTION 1105. Notice of Redemption.
Unless otherwise specified as contemplated by Section 301 with respect to the Securities of a particular series, notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at its address appearing in the Security Register. Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest shall cease to accrue on the Securities.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, or if not then ascertainable, the manner of calculation thereof;
(3) if less than all the Outstanding Securities consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date; and
(5) the place or places where each such Security is to be surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company and shall be irrevocable. The notice if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice In any case, a failure to give such notice by mail or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given pursuant to Section 1105, the Securities to be so redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear or accrue any interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with any accrued but unpaid interest to, but excluding, the Redemption Date; provided, however, that installments of accrued and unpaid interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Dates according to their terms and the provisions of Section 307, unless, in connection with a Redemption Date falling on an Interest Payment Date, the Securities of the particular series provide that interest payable on an Interest Payment Date that is a Redemption Date shall be paid to the Person to whom principal is payable.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1202 or Section 1203 applied to any Securities upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section applied to any Securities, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1204 are satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company and upon Company Request, shall execute proper
instruments acknowledging the same), subject to the following, which shall
survive until otherwise terminated or discharged hereunder: (1) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003; (2) the rights, powers, trusts, duties and immunities of the Trustee
hereunder; and (3) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1203 applied to such Securities.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities (1) the Company shall be released from its obligations
under Sections 801, Section 1006 to 1008, inclusive, and any covenants provided
pursuant to 901(5) for the benefit of the Holders of such Securities; and (2)
the occurrence of any event specified in Sections 501(3) (with respect to any of
Section 801, Sections 1006 to 1008, and any such covenants provided pursuant to
Section 901(5)) shall be deemed not to be or result in an Event of Default, in
each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1204 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 501(3)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Notwithstanding any Covenant Defeasance with respect to Section 801, any Person that would otherwise have been required to assume the obligations of the Company pursuant to said Section shall be required, as a condition to any merger, consolidation, conveyance, transfer or lease contemplated thereby, to assume the obligations of the Company to the Trustee under Sections 607 and 1205.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1202 or Section 1203 to any Securities:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (A)
money, or (B) Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money, or
(C) a combination thereof, in each case in an amount sufficient to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium and
interest on such Securities due on or before the respective Stated Maturities or
the Redemption Date, in accordance with the terms of this Indenture and such
Securities; provided that the Trustee shall have the right (but not the
obligation) to require the Company to deliver to the Trustee an opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification, or other evidence satisfactory to the Trustee, as to the
sufficiency of deposits made by the Company pursuant to this Section.
(2) In the event of an election to have Section 1202 apply to any Securities, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable Federal income tax law, in the case of either (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1203 apply to any Securities, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
(4) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 501(4) and (5), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(5) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any indenture or other agreement or instrument for borrowed money to which the Company is a party or by which it is bound.
(6) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under the Investment Company Act or exempt from registration thereunder.
(7) If such Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption
shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made.
(8) The Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
SECTION 1205. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (including the proceeds thereof and the interest thereon) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 1206, the Trustee and any such other trustee are referred to collectively as the "Trustee") pursuant to Section 1204 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1204 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations held by it as provided in Section 1204 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee or in the opinion of such other Persons delivered to the Trustee as shall be reasonably satisfactory to the Trustee (which may be the same opinion delivered to the Trustee under Section 1204(1)), are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
SECTION 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 1202 or 1203 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1205 with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment
of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
SECTION 1207. Qualifying Trustee.
Any trustee appointed pursuant to Section 1204 for the purpose of holding trust funds deposited pursuant to that Section shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein to the related Defeasance or Covenant Defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee.
* * *
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
By: /s/ John N. Giamalis ------------------------------------ Name: John N. Giamalis Title: Senior Vice President and Treasurer |
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
By: /s/ Richard C. Tarnas ------------------------------------ Name: Richard C. Tarnas Title: Vice President |
EXHIBIT A
[SPECIMEN BOND]
(FORM OF FACE OF SECURITY)
[If the Security is an Original Issue Discount Security, insert--For purposes of
Section 1271 of the United States Internal Revenue Code of 1986, as amended, the
issue price of this security is __ % of its principal amount and the Issue Date
is ______________, 20__]
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
[Title of Security]
CUSIP: _______________
No. _______ $ ______________
THE HARTFORD FINANCIAL SERVICES GROUP, INC., a corporation organized and existing under the laws of Delaware (hereinafter called the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to [Insert if Global Security-Cede & Co.], or registered assigns, the principal sum of ___________ Dollars on _____________ [If the Security is to bear interest prior to Maturity, insert -- , and to pay interest thereon from _____________ or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on __________ and __________ in each year, commencing __________, at the rate of __ % per annum, on the basis of a 360-day year consisting of twelve 30-day months, until the principal hereof is paid or duly provided for or made available for payment] [(If applicable insert - , and (to the extent that the payment of such interest shall be legally enforceable) at the rate of __% per annum on any overdue principal and premium and on any overdue installment of interest)].
[If the Security is to bear interest prior to Maturity, insert -- The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the date which is fifteen days (whether or not a Business Day) next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall bear interest at the rate of ___% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of __% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable, insert - any interest] on this Security will be made at the office or agency of the Company maintained for that purpose in The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [if applicable, insert -; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
THE HARTFORD FINANCIAL SERVICES
GROUP, INC.
By:_____________________________
Name:
Title:
FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of April 11, 2007 as supplemented and amended from time to time (herein called the "Indenture"), between the Company and The Bank of New York Trust Company, N.A., as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable insert --, limited in aggregate principal amount to $___________].
All terms used in this Security that are defined in the Indenture shall have the meaning assigned to them in the Indenture.
[If applicable, insert - The Securities of this series are subject to redemption upon not less than 30 nor more than 60 days' notice by mail, at any time [on or after ____________, 20__], as a whole or in part, at the election of the Company. The Redemption Price for any Security so redeemed shall be equal to 100% of the principal amount of such Securities then Outstanding plus accrued and unpaid interest up to but not including the date fixed for redemption. In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[Installments of accrued and unpaid interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of the Securities of this series, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Dates according to their terms.]
The Indenture contains provisions for satisfaction, discharge and defeasance of the entire indebtedness on this security, upon compliance by the Company with certain conditions set forth therein.
[If the Security is not an Original Issue Discount Security, - If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.] [If the security is an Original Issue Discount Security, - If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to - insert formula for determining the amount.
Upon payment of the amount of principal so declared due and payable [if applicable insert-- and of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable)], all of
the Company's obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any) and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $______ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
1. | When ( i ) the terms of the Senior Debt Securities have been duly authorized and approved by all necessary action of the Board of Directors of the Company or a duly authorized committee thereof (the Board of Directors ), ( ii ) the terms of the Senior Debt Securities have been duly established in accordance with the Senior Indenture and so as not to violate any applicable law, rule or regulation or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and ( iii ) the Senior Debt Securities have been duly executed, authenticated, issued and delivered as contemplated by the Registration Statement and any prospectus supplement relating thereto and in accordance with the Senior Indenture and any underwriting agreement, Warrants or Warrant Agreements relating to such issuance, against payment of the consideration fixed therefor by the Board of Directors, the Senior Debt Securities will be validly issued and will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms. | ||
2. | When ( i ) the terms, and the execution and delivery, of the Subordinated Indenture have been duly authorized and approved by all necessary action of the Board of Directors, ( ii ) the Subordinated Indenture has been duly executed and delivered by the Company and the Subordinated Trustee, ( iii ) ( a ) the terms of the Subordinated Debt Securities and their issuance and sale have been duly authorized and approved by all necessary action of the Board of Directors and ( b ) the terms of the Subordinated Debt Securities have been established in accordance with the Subordinated Indenture and so as not to violate any applicable law, rule or regulation or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and ( iv ) the Subordinated Debt Securities have been duly executed, authenticated, issued and delivered as contemplated by the Registration Statement and any prospectus supplement relating thereto and in accordance with the |
2
Subordinated Indenture and any underwriting agreement, Warrants or Warrant Agreements relating to such issuance, against payment of the consideration fixed therefor by the Board of Directors, the Subordinated Debt Securities will be validly issued and will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms. | |||
3. | When ( i ) the terms, and the execution and delivery, of the Junior Subordinated Indenture have been duly authorized and approved by all necessary action of the Board of Directors, ( ii ) the Junior Subordinated Indenture has been duly executed and delivered by the Company and the Debenture Trustee, ( iii ) ( a ) the terms of the Junior Subordinated Debt Securities and their issuance and sale have been duly authorized and approved by all necessary action of the Board of Directors and ( b ) the terms of the Junior Subordinated Debt Securities have been established in accordance with the Junior Subordinated Indenture and so as not to violate any applicable law, rule or regulation or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and ( iv ) the Junior Subordinated Debt Securities have been duly executed, authenticated, issued and delivered as contemplated by the Registration Statement and any prospectus supplement relating thereto and in accordance with the Junior Subordinated Indenture and any underwriting agreement relating to such issuance, against payment of the consideration fixed therefor by the Board of Directors, the Junior Subordinated Debt Securities will be validly issued and will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms. | ||
4. | When ( i ) the terms of the Preferred Stock and of its issuance and sale have been duly established in conformity with the Companys Amended and Restated Certificate of Incorporation, as amended, and authorized and approved by all necessary action of the Board of Directors, so as not to violate any applicable law, rule or regulation or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, ( ii ) a Certificate of Designations fixing and determining the terms of the Preferred Stock has been duly filed with the Secretary of State of the State of Delaware and ( iii ) certificates for the shares of the Preferred Stock have been duly executed, authenticated, issued and delivered as contemplated by the Registration Statement and any prospectus supplement relating thereto and in accordance with any underwriting agreement, Warrants or Warrant Agreements or Stock Purchase Contracts relating to such issuance, against payment of the consideration fixed therefor by the Board of Directors, the Preferred Stock will be validly issued, fully paid and non-assessable. | ||
5. | When ( i ) the terms, and the execution and delivery, of the Deposit Agreement relating to the Depositary Shares and the terms of the Depositary Shares and of their issuance and sale have been duly authorized and approved by all necessary action of the Board of Directors, ( ii ) the Deposit Agreement and the depositary |
3
receipts evidencing the Depositary Shares (the Depositary Receipts ) have been duly authorized, executed and delivered by the Company and such depositary as shall have been duly appointed by the Company (the Depositary ), ( iii ) the terms of the Depositary Shares and the Depositary Receipts have been established in accordance with the applicable Deposit Agreement so as not to violate any applicable law, rule or regulation or result in a default under or breach of any agreement or instrument binding upon the Company, and so as to comply with any applicable requirement or restriction imposed by any court or governmental authority having jurisdiction over the Company, ( iv ) ( a ) ( 1 ) the Subordinated Indenture has been duly authorized, executed and delivered by the Company and the Subordinated Trustee, as contemplated in paragraph 2 above, and ( 2 ) the Debt Securities relating to the Depositary Shares have been duly authorized, executed, authenticated, issued and delivered as contemplated in paragraph 1 or 2 above, as the case may be, or ( b ) the shares of Preferred Stock relating to the Depositary Shares have been duly authorized and validly issued and are fully paid and non-assessable as contemplated in paragraph 4 above and, in the case of either ( a ) or ( b ), have been deposited with the Depositary under the applicable Deposit Agreement and ( v ) the Depositary Receipts have been duly executed, countersigned, registered and delivered, as contemplated by the Registration Statement and any prospectus supplement related thereto, and in accordance with the terms of the Deposit Agreement and any underwriting agreement, Warrants or Warrant Agreements or Stock Purchase Contracts relating to such issuance, against payment of the consideration fixed therefor by the Board of Directors, the Depositary Receipts will be validly issued. |
6. | When ( i ) the terms of the issuance and sale of the Common Stock have been duly authorized and approved by all necessary action of the Board of Directors so as not to violate any applicable law, rule or regulation or result in a default under or a breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and ( ii ) certificates for the shares of Common Stock have been duly executed, authenticated, issued and delivered as contemplated by the Registration Statement and any prospectus supplement relating thereto, and in accordance with any underwriting agreement, Warrants or Warrant Agreements or Stock Purchase Contracts relating to such issuance, against payment of the consideration fixed therefor by the Board of Directors, the Common Stock will be validly issued, fully paid and non-assessable. |
7. | When ( i ) the terms, and the execution and delivery, of the Warrants and any Warrant Agreement or Warrant Agreements relating to the Warrants and the terms of the issuance and sale of the Warrants and related matters have been duly authorized and approved by all necessary action of the Board of Directors, ( ii ) the Warrant Agreement or Warrant Agreements relating to the Warrants have been duly executed and delivered by the Company and such warrant agent as shall have been duly appointed by the Company, ( iii ) the terms of the Warrants have been established in accordance with the applicable Warrant Agreement and so as not to violate any applicable law, rule or regulation or result in a default under or a |
4
breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and ( iv ) the Warrants or certificates representing the Warrants have been duly executed, authenticated, issued and delivered as contemplated by the Registration Statement and any prospectus supplement relating thereto, and in accordance with the terms of any Warrant Agreement and underwriting agreement relating to such issuance, against payment of the consideration fixed therefor by the Board of Directors, the Warrants will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms. |
8. | When ( i ) the terms, and the execution and delivery, of the Stock Purchase Contracts and the terms of the issuance and sale thereof and related matters have been duly authorized and approved by all necessary action of the Board of Directors, ( ii ) the terms of the Stock Purchase Contracts have been established so as not to violate any applicable law, rule or regulation or result in a default under or a breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and ( iii ) the Stock Purchase Contracts have been duly executed and delivered by the Company and such contract agent as shall have been duly appointed by the Company and any certificates representing Stock Purchase Contracts have been duly executed, authenticated, if required, issued and delivered, in each case, as contemplated by the Registration Statement and any prospectus supplement relating thereto, and in accordance with any Stock Purchase Contract and underwriting agreement related to such issuance, against payment of the consideration fixed therefor by the Board of Directors, the Stock Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms. |
9. | When ( i ) the terms of the Stock Purchase Units and the terms of the issuance and sale thereof and related matters have been duly authorized and approved by all necessary action of the Board of Directors, ( ii ) the terms of the Stock Purchase Units have been established so as not to violate any applicable law, rule or regulation or result in a default under or a breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, ( iii ) the Stock Purchase Contracts that form a part of the Stock Purchase Units have been duly authorized, executed, authenticated (if required), issued and delivered as contemplated in paragraph 8 above, ( iv ) ( a ) ( 1 ) the Subordinated Indenture relating to the Subordinated Debt Securities (or undivided beneficial interests therein) that form a part of the Stock Purchase Units has been duly authorized, executed and delivered by the Company and the Subordinated Trustee, as contemplated in paragraph above and ( 2 ) the Debt Securities (or undivided beneficial interests therein) that form a part of the Stock Purchase Units have been duly authorized, executed, authenticated, issued and delivered as contemplated in paragraph 1 or 2 above, as the case may be, ( b ) the Preferred |
5
Stock that form a part of the Stock Purchase Units have been duly authorized, executed, authenticated, issued and delivered as contemplated in paragraph 4 above, ( c ) ( 1 ) the Deposit Agreement relating to the Depositary Shares that form a part of the Stock Purchase Units, the related Depositary Shares and the Depositary Receipts evidencing such Depositary Shares have been duly authorized, executed, authenticated, if required, and delivered as contemplated by paragraph 5 above, ( d ) the debt obligations of third parties, including U.S. Treasury Securities, that form a part of the Stock Purchase Units have been duly authorized, issued and delivered in accordance with their terms or ( e ) the Preferred Securities that form part of the Stock Purchase Units have been duly authorized, issued and delivered in accordance with their terms, and ( v ) the certificates representing the Stock Purchase Units have been duly executed, authenticated, if required, issued and delivered as contemplated by the Registration Statement and any prospectus supplement relating thereto, and in accordance with any stock Purchase Contract and underwriting agreement relating to such issuance, against payment of the consideration fixed therefor by the Board of Directors, the Stock Purchase Units will be validly issued. |
10. | When ( i ) a Guarantee has been duly authorized and approved by the Board of Directors and ( ii ) such Guarantee has been validly executed and delivered by the Company, such Guarantee will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms. |
11. | If the Debt Securities are exchangeable or convertible into Common Stock, when ( i ) the terms of the issuance of the Common Stock have been duly authorized and approved by all necessary action of the Board of Directors, and ( ii ) the shares of Common Stock have been issued in exchange for or upon conversion of such Debt Securities as contemplated by the Registration Statement and any prospectus supplement relating thereto, in accordance with the terms of the Debt Securities and the applicable Senior Indenture or Subordinated Indenture, as the case may be, so as not to violate any applicable law, rule or regulation or result in a default under or a violation of any agreement or instrument binding upon the Company, and so as to comply with any applicable requirement or restriction imposed by any court or governmental authority having jurisdiction over the Company, the shares of Common Stock so issued will be validly issued, fully paid and non-assessable. |
6
7
Re: | Hartford Capital IV |
Very truly yours,
|
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/s/ Richards, Layton & Finger, P.A. | ||||
Very truly yours,
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/s/ Richards, Layton & Finger, P.A. | ||||
Very truly yours,
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/s/ Richards, Layton & Finger, P.A. | ||||
/s/ Ramani Ayer
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/s/ Edward J. Kelly, III
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/s/ Thomas M. Marra
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/s/ Paul G. Kirk, Jr.
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/s/ David K. Zwiener
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/s/ Gail J. McGovern
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/s/ David M. Johnson
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/s/ Michael G. Morris
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/s/ Robert J. Price
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/s/ Robert W. Selander
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/s/ Ramon de Oliveira
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/s/ Charles B. Strauss
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/s/ Trevor Fetter
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/s/ H. Patrick Swygert
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2
Delaware | 51-0055023 | |
(Jurisdiction of incorporation of
organization if not a U.S.
national bank) |
(I.R.S. Employer Identification No.) |
Delaware | 13-3317783 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
Federal Deposit Insurance Corp.
|
State Bank Commissioner | |
20 Exchange Place, Room 6014
|
555 East Loockerman Street, Suite 210 | |
New York, New York 10005
|
Dover, Delaware 19901 |
| A copy of the Charter of Wilmington Trust Company (Exhibit 1), which includes the certificate of authority of Wilmington Trust Company to commence business (Exhibit 2) and the authorization of Wilmington Trust Company to exercise corporate trust powers (Exhibit 3). | ||
| A copy of the existing By-Laws of Wilmington Trust Company (Exhibit 4). | ||
| Consent of Wilmington Trust Company required by Section 321(b) of the Trust Indenture Act (Exhibit 6). | ||
| A copy of the latest Report of Condition of Wilmington Trust Company (Exhibit 7). |
[SEAL] | WILMINGTON TRUST COMPANY | ||||||||
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Attest:
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/s/ Michele C. Harra | By: | /s/ Donald G. MacKelcan | ||||||
|
Assistant Secretary |
Name:
Title: |
Donald G. MacKelcan
Vice President |
* | Exhibit 1 also constitutes Exhibits 2 and 3. |
(1) | To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. |
(2) | To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. | ||
(3) | To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. | ||
(4) | To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. | ||
(5) | To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. | ||
(6) | To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. | ||
(7) | To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. | ||
(8) | To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. | ||
(9) | To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in |
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bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. | |||
(10) | And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. | ||
(11) | To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. |
(1) | To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. | ||
(2) | To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of |
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any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. | |||
(3) | To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. | ||
(4) | To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. | ||
(5) | To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. | ||
(6) | It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. |
(1) | One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as Preferred Stock); and | ||
(2) | Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as Common Stock). |
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(1) | The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; | ||
(2) | The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative; | ||
(3) | The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; | ||
(4) | Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. | ||
(5) | The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. | ||
(6) | The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and | ||
(7) | The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. | ||
(c) (1) | After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article Fourth ), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article Fourth ), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article Fourth , then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. |
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(2) | After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article Fourth ), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. | ||
(3) | Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article Fourth , each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. |
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(A) | any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or | ||
(B) | any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or | ||
(C) | the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or | ||
(D) | the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or | ||
(E) | any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, |
(2) | The term business combination as used in this Article Fifteenth shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of |
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paragraph 1 of the section (a). |
(1) | A person shall mean any individual, firm, corporation or other entity. | ||
(2) | Interested Stockholder shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such business combination, or immediately prior to the consummation of any such transaction: |
(A) | is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or | ||
(B) | is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or | ||
(C) | is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. |
(3) | A person shall be the beneficial owner of any Voting Shares: |
(A) | which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or | ||
(B) | which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or | ||
(C) | which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of |
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capital stock of the Corporation. |
(4) | The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. | ||
(5) | Affiliate and Associate shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. | ||
(6) | Subsidiary shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term Subsidiary shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. |
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WILMINGTON TRUST COMPANY
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Dated: April 9, 2007 | By: | /s/ Donald G. MacKelcan | ||
Name: | Donald G. MacKelcan | |||
Title: | Vice President |
WILMINGTON TRUST COMPANY
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of | WILMINGTON | ||||
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Name of Bank
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City |
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Delaware | 51-0055023 | |
(Jurisdiction of incorporation of
organization if not a U.S.
national bank) |
(I.R.S. Employer Identification No.) |
Delaware
(State or other jurisdiction of incorporation or organization) |
06-6431736
(I.R.S. Employer Identification No.) |
Furnish the following information as to the trustee: | ||||
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(a) Name and address of each examining or supervising authority to which it is subject. | ||||
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Federal Deposit Insurance Corp. | State Bank Commissioner | ||
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20 Exchange Place, Room 6014 | 555 East Loockerman Street, Suite 210 | ||
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New York, New York 10005 | Dover, Delaware 19901 | ||
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(b) Whether it is authorized to exercise corporate trust powers. | ||||
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The trustee is authorized to exercise corporate trust powers. |
| A copy of the Charter of Wilmington Trust Company (Exhibit 1), which includes the certificate of authority of Wilmington Trust Company to commence business (Exhibit 2) and the authorization of Wilmington Trust Company to exercise corporate trust powers (Exhibit 3). | ||
| A copy of the existing By-Laws of Wilmington Trust Company (Exhibit 4). | ||
| Consent of Wilmington Trust Company required by Section 321(b) of the Trust Indenture Act (Exhibit 6). | ||
| A copy of the latest Report of Condition of Wilmington Trust Company (Exhibit 7). |
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[SEAL] | WILMINGTON TRUST COMPANY | |||||||||||
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Attest: | /s/ Michele C. Harra | By: | /s/ Donald G. MacKelcan | |||||||||
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Assistant Secretary | Name: | Donald G. MacKelcan | |||||||||
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Title: | Vice President |
* | Exhibit 1 also constitutes Exhibits 2 and 3. |
(1) | To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. |
(2) | To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. | ||
(3) | To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. | ||
(4) | To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. | ||
(5) | To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. | ||
(6) | To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. | ||
(7) | To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. | ||
(8) | To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. | ||
(9) | To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in |
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bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. | |||
(10) | And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. | ||
(11) | To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. |
(1) | To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. | ||
(2) | To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of |
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any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. | |||
(3) | To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. | ||
(4) | To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. | ||
(5) | To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. | ||
(6) | It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. |
(1) | One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as Preferred Stock); and | ||
(2) | Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as Common Stock). |
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(1) | The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; | ||
(2) | The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative; | ||
(3) | The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; | ||
(4) | Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. | ||
(5) | The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. | ||
(6) | The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and | ||
(7) | The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. | ||
(c) (1) | After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article Fourth ), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article Fourth ), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article Fourth , then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. |
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(2) | After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article Fourth ), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. | ||
(3) | Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article Fourth , each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. |
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(A) | any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or | ||
(B) | any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or | ||
(C) | the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or | ||
(D) | the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or | ||
(E) | any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, |
(2) | The term business combination as used in this Article Fifteenth shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of |
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paragraph 1 of the section (a). |
(1) | A person shall mean any individual, firm, corporation or other entity. | ||
(2) | Interested Stockholder shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such business combination, or immediately prior to the consummation of any such transaction: |
(A) | is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or | ||
(B) | is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or | ||
(C) | is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. |
(3) | A person shall be the beneficial owner of any Voting Shares: |
(A) | which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or | ||
(B) | which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or | ||
(C) | which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of |
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capital stock of the Corporation. |
(4) | The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. | ||
(5) | Affiliate and Associate shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. | ||
(6) | Subsidiary shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term Subsidiary shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. |
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WILMINGTON TRUST COMPANY
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||||
Dated: April 9, 2007 | By: | /s/ Donald G. MacKelcan | ||
Name: | Donald G. MacKelcan | |||
Title: | Vice President |
WILMINGTON TRUST COMPANY
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of | WILMINGTON | ||||
|
||||||
Name of Bank
|
City |
2
3
Delaware
(Jurisdiction of incorporation of organization if not a U.S. national bank) |
51-0055023
(I.R.S. Employer Identification No.) |
Delaware
(State or other jurisdiction of incorporation or organization) |
13-3317783
(I.R.S. Employer Identification No.) |
Federal Deposit Insurance Corp.
|
State Bank Commissioner | |
20 Exchange Place, Room 6014
|
555 East Loockerman Street, Suite 210 | |
New York, New York 10005
|
Dover, Delaware 19901 |
[SEAL] | WILMINGTON TRUST COMPANY | ||||||||||||
Attest:
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/s/ Michele C. Harra
|
By: |
/s/ Donald G. MacKelcan
|
||||||||||
|
Assistant Secretary | Name: | Donald G. MacKelcan | ||||||||||
Title: | Vice President |
* | Exhibit 1 also constitutes Exhibits 2 and 3. |
(1) | To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. |
(2) | To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. | ||
(3) | To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. | ||
(4) | To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. | ||
(5) | To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. | ||
(6) | To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. | ||
(7) | To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. | ||
(8) | To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. | ||
(9) | To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in |
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bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. |
(10) | And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. | ||
(11) | To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. |
(1) | To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. | ||
(2) | To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of |
3
any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. |
(3) | To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. | ||
(4) | To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. | ||
(5) | To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. | ||
(6) | It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. |
(1) | One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as Preferred Stock); and | ||
(2) | Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as Common Stock). |
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(1) | The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; | ||
(2) | The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative; | ||
(3) | The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; | ||
(4) | Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. | ||
(5) | The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. | ||
(6) | The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and | ||
(7) | The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. | ||
(c) (1) | After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article Fourth ), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article Fourth ), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article Fourth , then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. |
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(2) | After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article Fourth ), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. | ||
(3) | Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article Fourth , each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. |
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(A) | any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or | ||
(B) | any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or | ||
(C) | the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or | ||
(D) | the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or | ||
(E) | any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, |
(2) | The term business combination as used in this Article Fifteenth shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of |
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paragraph 1 of the section (a). |
(1) | A person shall mean any individual, firm, corporation or other entity. | ||
(2) | Interested Stockholder shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such business combination, or immediately prior to the consummation of any such transaction: |
(A) | is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or | ||
(B) | is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or | ||
(C) | is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. |
(3) | A person shall be the beneficial owner of any Voting Shares: |
(A) | which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or | ||
(B) | which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or | ||
(C) | which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of |
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capital stock of the Corporation. |
(4) | The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. | ||
(5) | Affiliate and Associate shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. | ||
(6) | Subsidiary shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term Subsidiary shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. |
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WILMINGTON TRUST COMPANY
|
||||
Dated: April 9, 2007 | By: | /s/ Donald G. MacKelcan | ||
Name: | Donald G. MacKelcan | |||
Title: | Vice President |
WILMINGTON TRUST COMPANY
|
of | WILMINGTON | ||||
|
||||||
Name of Bank
|
City |
2
3
Delaware | 51-0055023 | |
(Jurisdiction of incorporation of organization if not a U.S.
national bank) |
(I.R.S. Employer Identification No.) |
Delaware
(State or other jurisdiction of incorporation or organization) |
33-6318394
(I.R.S. Employer Identification No.) |
|
Federal Deposit Insurance Corp. | State Bank Commissioner | ||
|
20 Exchange Place, Room 6014 | 555 East Loockerman Street, Suite 210 | ||
|
New York, New York 10005 | Dover, Delaware 19901 |
| A copy of the Charter of Wilmington Trust Company (Exhibit 1), which includes the certificate of authority of Wilmington Trust Company to commence business (Exhibit 2) and the authorization of Wilmington Trust Company to exercise corporate trust powers (Exhibit 3). | ||
| A copy of the existing By-Laws of Wilmington Trust Company (Exhibit 4). | ||
| Consent of Wilmington Trust Company required by Section 321(b) of the Trust Indenture Act (Exhibit 6). | ||
| A copy of the latest Report of Condition of Wilmington Trust Company (Exhibit 7). |
[SEAL] | WILMINGTON TRUST COMPANY | |||||||||
|
||||||||||
Attest:
|
/s/ Michele C. Harra | By: | /s/ Donald G. MacKelcan | |||||||
|
Assistant Secretary | Name: | Donald G. MacKelcan | |||||||
|
Title: | Vice President |
* | Exhibit 1 also constitutes Exhibits 2 and 3. |
(1) | To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. |
(2) | To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. | ||
(3) | To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. | ||
(4) | To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. | ||
(5) | To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. | ||
(6) | To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. | ||
(7) | To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. | ||
(8) | To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. | ||
(9) | To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in |
2
bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. |
(10) | And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. | ||
(11) | To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. |
(1) | To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. | ||
(2) | To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of |
3
any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. |
(3) | To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. | ||
(4) | To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. | ||
(5) | To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. | ||
(6) | It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. |
(1) | One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as Preferred Stock); and | ||
(2) | Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as Common Stock). |
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(1) | The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; | ||
(2) | The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative; | ||
(3) | The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; | ||
(4) | Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. | ||
(5) | The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. | ||
(6) | The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and | ||
(7) | The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. |
(c) (1) | After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article Fourth ), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article Fourth ), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article Fourth , then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. |
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(2) | After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article Fourth ), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. | ||
(3) | Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article Fourth , each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. |
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(A) | any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or | ||
(B) | any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or | ||
(C) | the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or | ||
(D) | the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or | ||
(E) | any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, |
(2) | The term business combination as used in this Article Fifteenth shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of |
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paragraph 1 of the section (a). |
(1) | A person shall mean any individual, firm, corporation or other entity. | ||
(2) | Interested Stockholder shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such business combination, or immediately prior to the consummation of any such transaction: |
(A) | is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or | ||
(B) | is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or | ||
(C) | is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. |
(3) | A person shall be the beneficial owner of any Voting Shares: |
(A) | which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or | ||
(B) | which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or | ||
(C) | which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of |
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capital stock of the Corporation. |
(4) | The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. | ||
(5) | Affiliate and Associate shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. | ||
(6) | Subsidiary shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term Subsidiary shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. |
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WILMINGTON TRUST COMPANY
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Dated: April 9, 2007 | By: | /s/ Donald G. MacKelcan | ||
Name: | Donald G. MacKelcan | |||
Title: | Vice President |
WILMINGTON TRUST COMPANY
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of | WILMINGTON | ||||
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||||||
Name of Bank
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City |
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Delaware
(Jurisdiction of incorporation of organization if not a U.S. national bank) |
51-0055023
(I.R.S. Employer Identification No.) |
Delaware
(State or other jurisdiction of incorporation or organization) |
13-3317783
(I.R.S. Employer Identification No.) |
ITEM 1. GENERAL INFORMATION. |
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Federal Deposit Insurance Corp. | State Bank Commissioner | ||
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20 Exchange Place, Room 6014 | 555 East Loockerman Street, Suite 210 | ||
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New York, New York 10005 | Dover, Delaware 19901 |
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. |
ITEM 16. LIST OF EXHIBITS. |
| A copy of the Charter of Wilmington Trust Company (Exhibit 1), which includes the certificate of authority of Wilmington Trust Company to commence business (Exhibit 2) and the authorization of Wilmington Trust Company to exercise corporate trust powers (Exhibit 3). | ||
| A copy of the existing By-Laws of Wilmington Trust Company (Exhibit 4). | ||
| Consent of Wilmington Trust Company required by Section 321(b) of the Trust Indenture Act (Exhibit 6). | ||
| A copy of the latest Report of Condition of Wilmington Trust Company (Exhibit 7). |
[SEAL]
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WILMINGTON TRUST COMPANY | |||||||
Attest:
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/s/ Michele C. Harra | By: | /s/ Donald G. MacKelcan | |||||
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||||||||
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Assistant Secretary | Name: | Donald G. MacKelcan | |||||
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Title: | Vice President |
(1) | To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. |
(2) | To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. | ||
(3) | To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. | ||
(4) | To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. | ||
(5) | To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. | ||
(6) | To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. | ||
(7) | To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. | ||
(8) | To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. | ||
(9) | To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in |
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bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. | |||
(10) | And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. | ||
(11) | To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. |
(1) | To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. | ||
(2) | To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of |
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any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. | |||
(3) | To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. | ||
(4) | To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. | ||
(5) | To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. | ||
(6) | It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. |
(1) | One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as Preferred Stock); and | ||
(2) | Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as Common Stock). |
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(1) | The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; | ||
(2) | The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative; | ||
(3) | The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; | ||
(4) | Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. | ||
(5) | The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. | ||
(6) | The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and | ||
(7) | The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. | ||
(c) (1) | After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article Fourth ), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article Fourth ), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article Fourth , then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. |
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(2) | After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article Fourth ), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. | ||
(3) | Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article Fourth , each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. |
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(A) | any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or | ||
(B) | any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or | ||
(C) | the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or | ||
(D) | the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or | ||
(E) | any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, |
(2) | The term business combination as used in this Article Fifteenth shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of |
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paragraph 1 of the section (a). |
(1) | A person shall mean any individual, firm, corporation or other entity. | ||
(2) | Interested Stockholder shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such business combination, or immediately prior to the consummation of any such transaction: |
(A) | is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or | ||
(B) | is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or | ||
(C) | is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. |
(3) | A person shall be the beneficial owner of any Voting Shares: |
(A) | which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or | ||
(B) | which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or | ||
(C) | which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of |
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capital stock of the Corporation. | |||
(4) | The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. | ||
(5) | Affiliate and Associate shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. | ||
(6) | Subsidiary shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term Subsidiary shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. |
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WILMINGTON TRUST COMPANY
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||||
Dated: April 9, 2007 | By: | /s/ Donald G. MacKelcan | ||
Name: | Donald G. MacKelcan | |||
Title: | Vice President |
WILMINGTON TRUST COMPANY
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of | WILMINGTON | ||||
|
||||||
Name of Bank
|
City |
2
3
Delaware
(Jurisdiction of incorporation of organization if not a U.S. national bank) |
51-0055023
(I.R.S. Employer Identification No.) |
Delaware
(State or other jurisdiction of incorporation or organization) |
82-6097264
(I.R.S. Employer Identification No.) |
Federal Deposit Insurance Corp.
20 Exchange Place, Room 6014 New York, New York 10005 |
State Bank Commissioner
555 East Loockerman Street, Suite 210 Dover, Delaware 19901 |
| A copy of the Charter of Wilmington Trust Company (Exhibit 1), which includes the certificate of authority of Wilmington Trust Company to commence business (Exhibit 2) and the authorization of Wilmington Trust Company to exercise corporate trust powers (Exhibit 3). | ||
| A copy of the existing By-Laws of Wilmington Trust Company (Exhibit 4). | ||
| Consent of Wilmington Trust Company required by Section 321(b) of the Trust Indenture Act (Exhibit 6). | ||
| A copy of the latest Report of Condition of Wilmington Trust Company (Exhibit 7). |
[SEAL] | WILMINGTON TRUST COMPANY | |||||
|
||||||
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||||||
Attest:
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/s/ Michele C. Harra | By: | /s/ Donald G. MacKelcan | |||
|
||||||
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Assistant Secretary |
Name: Donald G. MacKelcan
Title: Vice President |
* | Exhibit 1 also constitutes Exhibits 2 and 3. |
(1) | To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. |
(2) | To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. | ||
(3) | To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. | ||
(4) | To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. | ||
(5) | To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. | ||
(6) | To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. | ||
(7) | To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. | ||
(8) | To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. | ||
(9) | To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in |
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bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. | |||
(10) | And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. | ||
(11) | To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. |
(1) | To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. | ||
(2) | To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of |
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any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. | |||
(3) | To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. | ||
(4) | To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. | ||
(5) | To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. | ||
(6) | It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. |
(1) | One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as Preferred Stock); and | ||
(2) | Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as Common Stock). |
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(1) | The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; | ||
(2) | The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative; | ||
(3) | The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; | ||
(4) | Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. | ||
(5) | The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. | ||
(6) | The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and | ||
(7) | The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. | ||
(c)(1) | After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article Fourth ), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article Fourth ), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article Fourth , then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. |
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(2) | After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article Fourth ), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. | ||
(3) | Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article Fourth , each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. |
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(A) | any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or | ||
(B) | any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or | ||
(C) | the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or | ||
(D) | the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or | ||
(E) | any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, |
(2) | The term business combination as used in this Article Fifteenth shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of |
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paragraph 1 of the section (a). |
(1) | A person shall mean any individual, firm, corporation or other entity. | ||
(2) | Interested Stockholder shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such business combination, or immediately prior to the consummation of any such transaction: |
(A) | is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or | ||
(B) | is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or | ||
(C) | is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. |
(3) | A person shall be the beneficial owner of any Voting Shares: |
(A) | which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or | ||
(B) | which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or | ||
(C) | which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of |
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capital stock of the Corporation. |
(4) | The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. | ||
(5) | Affiliate and Associate shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. | ||
(6) | Subsidiary shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term Subsidiary shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. |
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WILMINGTON TRUST COMPANY
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Dated: April 9, 2007 | By: | /s/ Donald G. MacKelcan | ||
Name: | Donald G. MacKelcan | |||
Title: | Vice President |
WILMINGTON TRUST COMPANY
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of | WILMINGTON | ||||
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||||||
Name of Bank
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City |
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Delaware | 51-0055023 | |
(Jurisdiction of incorporation of
organization if not a U.S.
national bank) |
(I.R.S. Employer Identification No.) |
Delaware | 13-3317783 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
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Federal Deposit Insurance Corp. | State Bank Commissioner | ||
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20 Exchange Place, Room 6014 | 555 East Loockerman Street, Suite 210 | ||
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New York, New York 10005 | Dover, Delaware 19901 |
| A copy of the Charter of Wilmington Trust Company (Exhibit 1), which includes the certificate of authority of Wilmington Trust Company to commence business (Exhibit 2) and the authorization of Wilmington Trust Company to exercise corporate trust powers (Exhibit 3). | ||
| A copy of the existing By-Laws of Wilmington Trust Company (Exhibit 4). | ||
| Consent of Wilmington Trust Company required by Section 321(b) of the Trust Indenture Act (Exhibit 6). | ||
| A copy of the latest Report of Condition of Wilmington Trust Company (Exhibit 7). |
[SEAL] | WILMINGTON TRUST COMPANY | |||||||||
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Attest:
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/s/ Michele C. Harra | By: | /s/ Donald G. MacKelcan | |||||||
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||||||||||
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Assistant Secretary | Name: | Donald G. MacKelcan | |||||||
|
Title: | Vice President |
* | Exhibit 1 also constitutes Exhibits 2 and 3. |
(1) | To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. |
(2) | To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. | ||
(3) | To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. | ||
(4) | To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. | ||
(5) | To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. | ||
(6) | To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. | ||
(7) | To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. | ||
(8) | To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. | ||
(9) | To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in |
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bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. |
(10) | And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. | ||
(11) | To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. |
(1) | To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. | ||
(2) | To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of |
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any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. |
(3) | To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. | ||
(4) | To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. | ||
(5) | To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. | ||
(6) | It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. |
(1) | One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as Preferred Stock); and | ||
(2) | Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as Common Stock). |
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(1) | The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; | ||
(2) | The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative; | ||
(3) | The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; | ||
(4) | Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. | ||
(5) | The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. | ||
(6) | The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and | ||
(7) | The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. | ||
(c) (1) | After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article Fourth ), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article Fourth ), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article Fourth , then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. |
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(2) | After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article Fourth ), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. | ||
(3) | Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article Fourth , each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. |
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(A) | any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or | ||
(B) | any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or | ||
(C) | the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or | ||
(D) | the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or | ||
(E) | any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, |
(2) | The term business combination as used in this Article Fifteenth shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of |
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paragraph 1 of the section (a). |
(1) | A person shall mean any individual, firm, corporation or other entity. | ||
(2) | Interested Stockholder shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such business combination, or immediately prior to the consummation of any such transaction: |
(A) | is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or | ||
(B) | is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or | ||
(C) | is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. |
(3) | A person shall be the beneficial owner of any Voting Shares: |
(A) | which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or | ||
(B) | which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or | ||
(C) | which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of |
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capital stock of the Corporation. |
(4) | The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. | ||
(5) | Affiliate and Associate shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. | ||
(6) | Subsidiary shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term Subsidiary shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. |
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WILMINGTON TRUST COMPANY
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||||
Dated: April 9, 2007 | By: | /s/ Donald G. MacKelcan | ||
Name: | Donald G. MacKelcan | |||
Title: | Vice President |
WILMINGTON TRUST COMPANY
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of | WILMINGTON | ||||
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||||||
Name of Bank
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City |
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3
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95-3571558 | |
(State of incorporation
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(I.R.S. employer | |
if not a U.S. national bank)
|
identification no.) | |
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700 South Flower Street
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Suite 500
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Los Angeles, California
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90017 | |
(Address of principal executive offices)
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(Zip code) |
Delaware
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13-3317783 | |
(State or other jurisdiction of
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(I.R.S. employer | |
incorporation or organization)
|
identification no.) | |
|
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One Hartford Plaza
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Hartford, Connecticut
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06155 | |
(Address of principal executive offices)
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(Zip code) |
1. | General information. Furnish the following information as to the trustee: |
(a) | Name and address of each examining or supervising authority to which it is subject. |
Name | Address | |
Comptroller of the Currency
United States Department of the Treasury |
Washington, D.C. 20219 | |
Federal Reserve Bank
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San Francisco, California 94105 | |
Federal Deposit Insurance Corporation
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Washington, D.C. 20429 |
(b) | Whether it is authorized to exercise corporate trust powers. | ||
Yes. |
2. | Affiliations with Obligor. | |
If the obligor is an affiliate of the trustee, describe each such affiliation. | ||
None. | ||
16. | List of Exhibits. | |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229. 10(d) . |
1. | A copy of the articles of association of The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948). | ||
2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948). | ||
3. | A copy of the authorization of the trustee to exercise corporate trust powers. (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-121948). | ||
4. | A copy of the existing by-laws of the trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-121948). |
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6. | The consent of the trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-121948). | ||
7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
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THE BANK OF NEW YORK TRUST COMPANY, N.A.
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By: | /S/ BENITA A. VAUGHN | |||
Name: | BENITA A. VAUGHN | |||
Title: | VICE PRESIDENT | |||
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Michael K. Klugman, President | ) | ||||||
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Michael F. McFadden, MD | ) | Directors (Trustees) | |||||
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Frank P. Sulzberger, Vice President | ) |
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