UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 6, 2008 (June 3, 2008)
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
(Exact name of registrant as specified in its charter)
         
DELAWARE   001-13958   13-3317783
         
(State of incorporation)   (Commission File   (IRS Employer
    Number)   Identification No.)
     
One Hartford Plaza,    
Hartford, CT   06155
     
(Address of principal executive offices)   (Zip Code)
Registrant’s telephone number, including area code: (860) 547-5000
Not Applicable
Former name or former address, if changes since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 


 

Item 1.01 Entry into a Material Definitive Agreement
     On June 3, 2008, The Hartford Financial Services Group, Inc. (the “Company”) entered into (i) a Pricing Agreement, dated as of June 3, 2008 (the “Pricing Agreement”), with Banc of America Securities LLC, Citigroup Global Markets Inc. and Lehman Brothers Inc., as representatives of the underwriters named therein (the “Underwriters”) and (ii) an Underwriting Agreement General Terms and Conditions, dated as of June 3, 2008 (the “Underwriting Agreement”), with Banc of America Securities LLC, Citigroup Global Markets Inc. and Lehman Brothers Inc., as representatives of the Underwriters, with respect to the offer and sale by the Company of $500,000,000 aggregate principal amount of 8.125% Fixed-to-Floating Rate Junior Subordinated Debentures due 2068 (the “Debentures”), pursuant to the Company’s registration statement on Form S-3 (File No. 333-142044), as amended by post-effective amendment no. 1 thereto. The Pricing Agreement incorporates by reference the terms of the Underwriting Agreement. The Notes were issued pursuant to a Junior Subordinated Indenture, dated as of June 6, 2008, between the Company and The Bank of New York Trust Company, N.A., as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of June 6, 2008, between the Company and the Trustee. The closing of the sale of the Notes occurred on June 6, 2008.
     The Pricing Agreement sets forth the specific terms of the Notes, including the public offering price, coupon rate and interest payment dates and provides, among other things, that the Underwriters will purchase the Notes from the Company at the public offering price, less a discount of 1.00%. The Underwriting Agreement includes customary representations, warranties and covenants by the Company. It also provides for customary indemnification by each of the Company and the Underwriters against certain liabilities arising out of or in connection with sale of the Notes and customary contribution provisions in respect of those liabilities.
     The Underwriters and their affiliates have provided, and in the future may continue to provide, various financial advisory, cash management, investment banking, commercial banking and other financial services, including the provision of credit facilities, to the Company in the ordinary course of business for which they have received and will receive customary compensation.
     The foregoing description of the material terms of the Underwriting Agreement and the Pricing Agreement is qualified in its entirety by reference to the Underwriting Agreement and the Pricing Agreement which are attached hereto as Exhibits 1.1 and 1.2, respectively, to this report.
Item 8.01 Other Events
     In connection with the closing of the transaction described in Item 1.01 above, the Company entered into a replacement capital covenant (the “RCC”), whereby the Company agreed for the benefit of certain of its debtholders named therein that it will not repay, redeem, defease or repurchase and will cause its subsidiaries not to purchase, as applicable, all or any portion of the Debentures at any time prior to June 15, 2048, except to the extent that the principal amount repaid or defeased or the applicable redemption or purchase price does not exceed the applicable percentage set forth in the RCC of the qualifying proceeds from the sale of certain replacement capital securities as set forth in the RCC. The foregoing description of the material terms of the

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RCC is qualified in its entirety by reference to the RCC which is attached hereto as Exhibit 4.4 to this report.
Item 9.01 Financial Statements and Exhibits
     The exhibits to this Current Report on Form 8-K are hereby incorporated by reference into the following registration statement of The Hartford Financial Services Group, Inc., Hartford Capital IV, Hartford Capital V and Hartford Capital VI filed with the Securities and Exchange Commission: Registration Statement on Form S-3 filed on April 11, 2007 (File No. 333-142044), as amended.
     (a) Not applicable.
     (b) Not applicable.
     (c) Not applicable.
     (d) Exhibits
     
Exhibit No.   Description
Exhibit 1.1
  Underwriting Agreement General Terms and Conditions, dated as of June 3, 2008, among The Hartford Financial Services Group, Inc. and Banc of America Securities LLC, Citigroup Global Markets Inc. and Lehman Brothers Inc., as Representatives of the Underwriters.
 
   
Exhibit 1.2
  Pricing Agreement, dated as of June 3, 2008, among The Hartford Financial Services Group, Inc. and Banc of America Securities LLC, Citigroup Global Markets Inc. and Lehman Brothers Inc., as Representatives of the Underwriters.
 
   
Exhibit 4.1
  Junior Subordinated Indenture, dated as of June 6, 2008, between The Hartford Financial Services Group, Inc. and The Bank of New York Trust Company, N.A., as Trustee.
 
   
Exhibit 4.2
  First Supplemental Indenture, dated as of June 6, 2008, between The Hartford Financial Services Group, Inc. and The Bank of New York Trust Company, N.A., as Trustee.
 
   
Exhibit 4.3
  8.125% Fixed-to-Floating Rate Junior Subordinated Debenture due 2068.
 
   
Exhibit 4.4
  Replacement Capital Covenant, dated as of June 6, 2008.
 
   
Exhibit 5.1
  Opinion of Debevoise & Plimpton LLP.
 
   
Exhibit 8.1
  Opinion of Debevoise & Plimpton LLP.
 
   
Exhibit 23.1
  Consent of Debevoise & Plimpton LLP (included in Exhibit 5.1 and Exhibit 8.1).

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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
         
 

THE HARTFORD FINANCIAL SERVICES
GROUP, INC.
 
 
  By:   /s/ Richard G. Costello  
    Name:   Richard G. Costello  
Date: June 6, 2008    Title: Vice President  
 

 


 

EXHIBIT INDEX
     
Exhibit No.   Description
Exhibit 1.1
  Underwriting Agreement General Terms and Conditions, dated as of June 3, 2008, among The Hartford Financial Services Group, Inc. and Banc of America Securities LLC, Citigroup Global Markets Inc. and Lehman Brothers Inc., as Representatives of the Underwriters.
 
   
Exhibit 1.2
  Pricing Agreement, dated as of June 3, 2008, among The Hartford Financial Services Group, Inc. and Banc of America Securities LLC, Citigroup Global Markets Inc. and Lehman Brothers Inc., as Representatives of the Underwriters.
 
   
Exhibit 4.1
  Junior Subordinated Indenture, dated as of June 6, 2008, between The Hartford Financial Services Group, Inc. and The Bank of New York Trust Company, N.A., as Trustee.
 
   
Exhibit 4.2
  First Supplemental Indenture, dated as of June 6, 2008, between The Hartford Financial Services Group, Inc. and The Bank of New York Trust Company, N.A., as Trustee.
 
   
Exhibit 4.3
  8.125% Fixed-to-Floating Rate Junior Subordinated Debenture due 2068.
 
   
Exhibit 4.4
  Replacement Capital Covenant, dated as of June 6, 2008.
 
   
Exhibit 5.1
  Opinion of Debevoise & Plimpton LLP.
 
   
Exhibit 8.1
  Opinion of Debevoise & Plimpton LLP.
 
   
Exhibit 23.1
  Consent of Debevoise & Plimpton LLP (included in Exhibit 5.1 and Exhibit 8.1).

 

Exhibit 1.1
Execution Copy
The Hartford Financial Services Group, Inc.
$500,000,000
8.125% Fixed-To-Floating Rate Junior Subordinated Debentures due 2068
 

Underwriting Agreement
General Terms and Conditions
June 3, 2008
To the Underwriters named in
Schedule I to the applicable Pricing Agreement.
Ladies and Gentlemen:
          From time to time The Hartford Financial Services Group, Inc., a Delaware corporation (the “ Company ”), proposes to enter into one or more Pricing Agreements in the form of Annex I hereto (each, a “ Pricing Agreement ”) which incorporates by reference these Underwriting Agreement General Terms and Conditions (this “ Underwriting Agreement ”), with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the “ Underwriters ” with respect to such Pricing Agreement and the securities specified therein) certain of its debt securities (the “ Securities ”) specified in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, the “ Designated Securities ”).
          The terms and rights of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto and in or pursuant to the indenture (as amended from time to time, the “ Indenture ”) identified in such Pricing Agreement.
          1. Particular sales of Designated Securities may be made from time to time to the Underwriters of such Securities, for whom the firms designated as representatives of the Underwriters of such Securities in the Pricing Agreement relating thereto will act as representatives (the “ Representatives ”). The term “ Representatives ” also refers to a single firm acting as sole representative of the

 


 

Underwriters and to an Underwriter who acts without any firm being designated as its or their representatives. The Underwriting Agreement shall not be construed as an obligation of the Company to sell any of the Securities or as an obligation of the Underwriters to purchase any of the Securities. The obligation of the Company to issue and sell any of the Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify the aggregate principal amount of the Designated Securities, the initial public offering price of such Designated Securities or the manner of determining such price, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters, the principal amount of such Designated Securities to be purchased by each Underwriter and the commission, if any, payable to the Underwriters with respect thereto and shall set forth the date, time and manner of delivery of such Designated Securities, and payment therefor. The Pricing Agreement shall also specify (to the extent not set forth in the Indenture and the registration statement and prospectus with respect thereto) the terms of such Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of telegraphic communications or any other rapid transmission device designed to produce a written record of communications transmitted. The obligations of the Underwriters under any Pricing Agreement shall be several and not joint.
          2. The Company represents and warrants to, and agrees with, each of the Underwriters that:
          (a) A registration statement on Form S-3 (File No. 333-142044), as amended, in respect of the Designated Securities has been filed with the Securities and Exchange Commission (the “ Commission ”). For purposes of this Agreement and the applicable Pricing Agreement, the following terms have the specified meanings:
     “ Base Prospectus ” means the base prospectus filed as part of the Registration Statement, in the form in which it has most recently been filed with the Commission on or prior to the date hereof, relating to the Designated Securities;
     “ Disclosure Package ” means, as of the Applicable Time (as defined in the applicable Pricing Agreement), the Preliminary Prospectus, including all documents incorporated therein by reference, whether any such incorporated document is filed before or after the Preliminary Prospectus, so long as the incorporated document is filed before the Applicable Time, together with each Issuer Free Writing Prospectus filed or used by the

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Company at or before the Applicable Time and identified on Schedule III to the applicable Pricing Agreement;
      “Effective Date” means each effective date of the Registration Statement pursuant to Rule 430B under the Securities Act for purposes of liability under Section 11 of the Securities Act of 1933, as amended (the “ Act ”) of the Company or the Underwriters;
     “ Final Term Sheet ” means each term sheet prepared pursuant to Section 5(a) of this Agreement and substantially in the form attached in Schedule IV of the applicable Pricing Agreement;
     “ Issuer Free Writing Prospectus ” means each “free writing prospectus” (as defined in Rule 405 of the Act) prepared by or on behalf of the Company or used or referred to by the Company in connection with the offering of the Designated Securities, including each Final Term Sheet;
     “ Preliminary Prospectus ” means the Base Prospectus, as supplemented by the preliminary prospectus supplement specifically relating to the Designated Securities, in the form in which it has most recently been filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act and provided to the Representatives for use by the Underwriters;
     “ Prospectus ” means the Base Prospectus, as supplemented by the definitive prospectus supplement specifically relating to the Designated Securities, in the form in which it is filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof, including any documents incorporated by reference therein as of the date of such filing; and
     “ Registration Statement ” means the registration statement, as amended as of the Effective Date, including the Prospectus, all exhibits thereto (excluding the Form T-1, except where otherwise stated), the documents incorporated by reference therein and the information deemed to be a part of such registration statement as of the Effective Date pursuant to Rule 430B under the Act; if the Company has filed an abbreviated registration statement to register additional Securities pursuant to Rule 462(b) under the Act (the “ Rule 462 Registration Statement ”), then any reference herein to the term “ Registration Statement ” shall be deemed to include such Rule 462 Registration Statement.
     Any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the applicable form under the Act, as of the

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date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any report of the Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after the date on which the Registration Statement was originally declared effective by the Commission that is incorporated by reference in the Registration Statement;
          (b) The Registration Statement is an automatic shelf registration statement, as defined under Rule 405 of the Act, that became effective upon filing; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. The Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement;
          (c) The documents incorporated by reference in the Disclosure Package and the Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents at its time of filing contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Disclosure Package or Prospectus when such documents are filed with the Commission will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
          (d) The Registration Statement, as of the Effective Date, conforms, the Preliminary Prospectus, as of the date of the preliminary prospectus supplement comprising a part of such Preliminary Prospectus, conformed, and the Prospectus, as of the date of the prospectus supplement comprising part of such Prospectus, and any further amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus will conform, in all material respects to the

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requirements of the Act and the Trust Indenture Act of 1939, as amended (the “ Trust Indenture Act ”), and the rules and regulations of the Commission thereunder; the Registration Statement as of the Effective Date, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Disclosure Package, as of the Applicable Time, will not, and the Prospectus, as of the date of the prospectus supplement comprising part of such Prospectus and as of the Time of Delivery (as defined below), will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , however , that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives expressly for use in the Disclosure Package or the Prospectus, as applicable;
          (e) The Company is a well-known seasoned issuer (as defined in Rule 405 under the Act) and is not an “ineligible issuer” pursuant to Rule 405 under the Act, in each case within the time periods set forth in Rule 164(h) of the Act and paragraph (2) of the definition of well-known seasoned issuer under Rule 405 of the Act;
          (f) Except as described in or contemplated by the Registration Statement, the Disclosure Package and the Prospectus, there has not been any material adverse change in, or any adverse development which materially affects, the business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole from the dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus; and, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, there has not been any change in the consolidated capital stock (other than (i) issuances of capital stock upon the exercise of options and stock appreciation rights, upon earn outs of performance shares, upon conversions of convertible securities and upon exercises of stock purchase contracts, in each case which were outstanding on the date of the latest balance sheet included or incorporated by reference in the Disclosure Package and the Prospectus or (ii) shares of common stock repurchased by the Company pursuant to the Company’s $2 billion share repurchase program) or any material increase in the consolidated long-term debt of the Company and its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business affairs, management, financial position, and stockholders’ equity or results of operations of the

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Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus;
          (g) The Company and each subsidiary of the Company which meets the definition of a significant subsidiary as defined in Regulation S-X (collectively referred to herein as the “ Significant Subsidiaries ” and individually as a “ Significant Subsidiary ”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with full corporate power and authority to own its properties and conduct its business; to the Company’s knowledge, all of the issued             shares of capital stock of each Significant Subsidiary are owned, directly or indirectly through wholly-owned subsidiaries, by the Company free and clear of all material liens, encumbrances, equities or claims;
          (h) The Company’s authorized share capital is as set forth in the Disclosure Package and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
          (i) The Designated Securities have been duly and validly authorized, and, when the Designated Securities are issued and delivered pursuant to the Pricing Agreement with respect to such Designated Securities against payment therefor, such Designated Securities will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, which is filed as an exhibit to the Registration Statement; the Indenture has been duly authorized and duly qualified under the Trust Indenture Act and, at the Time of Delivery for such Designated Securities (as defined in Section 4 hereof), the Indenture will constitute a valid and legally binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Indenture conforms, and the Designated Securities will conform, to the descriptions thereof contained in the Disclosure Package and the Prospectus;
          (j) The Replacement Capital Covenant has been duly authorized by the Company and the Replacement Capital Covenant will conform to the description thereof contained in each of the Disclosure Package and the Prospectus.
          (k) The issue and sale of the Designated Securities and the compliance by the Company with all the provisions of the Securities, the Indenture, the Replacement Capital Covenant, and any Pricing Agreement

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with respect to the Designated Securities and the consummation of the transactions therein contemplated have not conflicted with or resulted in a breach or violation of any of the terms or provisions of, or constituted a default under, and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, except for such breaches, conflicts, violations or defaults which would not have, individually or in the aggregate with such other breaches, conflicts, violations and defaults, a material adverse effect on the financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as a whole, and which will not affect the validity, performance or consummation of the transactions contemplated by the Indenture, the Replacement Capital Covenant or the Pricing Agreement with respect to the Designated Securities, and have not resulted and will not result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any statute, rule or regulation, or any order or decree of any court or regulatory authority or other governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, license, order, registration or qualification of or with any such court, regulatory authority or other governmental agency or body is required for the issue and sale of the Designated Securities or the consummation by the Company of the transactions contemplated by the Pricing Agreement, the Indenture or the Replacement Capital Covenant with respect to the Designated Securities, except those which have been, or will have been prior to the Time of Delivery, obtained under the Act and the Exchange Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or state insurance securities laws in connection with the purchase and distribution of the Designated Securities by the Underwriters, and except for such consents, approvals, authorizations, licenses, orders, registrations or qualifications which the failure to make, obtain or comply with would not have, individually or in the aggregate with such other failures, a material adverse effect on the financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as a whole, and which will not affect the validity, performance or consummation of the transactions contemplated by the Indenture, the Replacement Capital Covenant or the Pricing Agreement with respect to the Designated Securities;
          (l) Except as described in the Disclosure Package and the Prospectus, there is no action, suit or proceeding pending, nor to the knowledge of the Company, is there any action, suit or proceeding

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threatened, which might reasonably be expected to result in a material adverse change in the financial condition, results of operations or business of the Company and its subsidiaries considered as a whole or which is required to be disclosed in the Registration Statement;
          (m) This Underwriting Agreement and the Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Company;
          (n) The financial statements included in the Disclosure Package, the Registration Statement and the Prospectus present fairly the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Disclosure Package and the Prospectus as amended or supplemented, such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis; any schedules included in the Registration Statement present fairly the information required to be stated therein;
          (o) There are no contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement, the Disclosure Package or the Prospectus which are not filed or described as required;
          (p) The Company and its consolidated subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurances that (1) transactions are executed in accordance with management’s general or specific authorization; (2) transactions are recorded as necessary to permit preparation of financial statements in conformity with accounting principles generally accepted in the United States (“ GAAP ”) and to maintain accountability for assets; (3) access to assets is permitted only in accordance with management’s general or specific authorization; and (4) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness identified by management, or by the Company’s auditors and communicated to management, in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting;

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          (q) The Company and its consolidated subsidiaries employ disclosure controls and other procedures that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure; and
          (r) The Company is not, and after giving affect to the issue and sale of the Designated Securities will not be, required to register as an “investment company” as such term is defined under the Investment Company Act of 1940.
          3. Upon the execution of the Pricing Agreement applicable to the Designated Securities and authorization by the Representatives of the release of the Designated Securities, the several Underwriters propose to offer the Designated Securities for sale upon the terms and conditions set forth in the Disclosure Package and the Prospectus as amended or supplemented.
          4. Designated Securities to be purchased by each Underwriter pursuant to the Pricing Agreement relating thereto, in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours’ prior notice to the Company, shall be delivered by or on behalf of the Company to the Representatives for the account of each such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company to the Representatives at least forty-eight hours in advance as specified in such Pricing Agreement, with respect to the Designated Securities, all in the manner and at the place, time and date specified in such Pricing Agreement or at such other place, time and date as the Representatives and the Company may agree upon in writing, such time and date being herein called the “ Time of Delivery ”.
          5. The Company agrees with each of the Underwriters of the Designated Securities:
          (a) To prepare each Final Term Sheet, substantially in the form of Schedule IV to the applicable Pricing Agreement and approved by the Representatives, and file each Final Term Sheet pursuant to Rule 433(d) of the Act within the time period prescribed by such Rule; to prepare the Prospectus as amended or supplemented in relation to the applicable Designated Securities in a form approved by the Representatives and to file such Prospectus and the Preliminary Prospectus pursuant to Rule 424(b) under the Act within the time period prescribed by such Rule; to

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make no further amendment or any supplement to the Registration Statement or Prospectus as amended or supplemented after the date of the Pricing Agreement relating to such Designated Securities and prior to the Time of Delivery for such Designated Securities which shall be disapproved by the Representatives for such Designated Securities promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required in connection with the offering or sale of such Designated Securities, and during such same period to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Preliminary Prospectus or the Prospectus or any amended Prospectus has been filed with the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Designated Securities or any Issuer Free Writing Prospectus, of the suspension of the qualification of such Designated Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus relating to the Designated Securities or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order;
          (b) To execute and deliver the Junior Subordinated Indenture, the First Supplemental Indenture and the Replacement Capital Covenant in the form and substance to the reasonable satisfaction of the Underwriters;
          (c) Promptly from time to time to take such action as the Representatives may reasonably request to qualify such Designated Securities for offering and sale under the insurance and securities laws of such jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of such Designated Securities, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any

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jurisdiction; and provided further that the Company shall not be required to qualify the Designated Securities in any jurisdiction if such qualification would result in any obligation on the part of the Company to make filings with any governmental entity in such jurisdiction after the completion of the offering;
          (d) Prior to 12:00 p.m. or such reasonable time thereafter, New York City time, on the business day next succeeding the date of the Pricing Agreement applicable to the Designated Securities and from time to time, to furnish the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits other than this Agreement), the Preliminary Prospectus, any Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (including any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request;
          (e) During the period in which the Prospectus relating to the Securities (or in lieu thereof, the notice referred to in Rule 173(a) of the Act) is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions of this Agreement and by the Disclosure Package and the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if during such period it is necessary to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus or file any document to comply with the Act, the Company will promptly notify the Representatives and will, subject to Section 5(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request;

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          (f) To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
          (g) During the period beginning from the date of the Pricing Agreement for the Designated Securities and continuing to and including the date 30 days after the date of the Prospectus Supplement, not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company which are substantially similar to the Designated Securities, without the prior written consent of the Representatives; and
          (h) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall either (i) by the time of filing pay to the Commission the filing fee for the Rule 462(b) Registration Statement or (ii) at the time of filing submit with the 462(b) Registration Statement the certification required under Rule 111(b) under the Act.
          6. Free Writing Prospectuses.
          (a) The Company represents and warrants to, and agrees with, each Underwriter that (i) the Company has not made, and will not, make any offer relating to the Designated Securities that would constitute an Issuer Free Writing Prospectus without the prior consent of the Representatives, such consent not to be unreasonably withheld (which consent being deemed to have been given with respect to (A) each Final Term Sheet prepared and filed pursuant to Section 5(a) hereof and (B) any other Issuer Free Writing Prospectus identified on Schedule III to the applicable Pricing Agreement); (ii) each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Act on the date of first use, and the Company has complied and will comply with any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to Rule 433 under the Act; (iii) each Issuer Free Writing Prospectus will not, as of its issue date and, to the extent not amended or superceded, at all subsequent times through completion of the offering, include any information that conflicts with the information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus; and (iv) each Issuer Free Writing Prospectus, when

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considered together with the information contained in the Preliminary Prospectus and any other Issuer Free Writing Prospectus issued prior thereto or as of its issue date, will not, as of the Applicable Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided , however , that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with written information furnished to the Company by an Underwriter through the Representatives for use therein.
          (b) Each Underwriter represents and warrants to, and agrees with, the Company and each other Underwriter that it has not made, and will not make any offer relating to the Securities that would constitute a “free writing prospectus” (as defined in Rule 405 under the Act), without the prior consent of the Company and the Representatives, provided however , that prior to the preparation of the Final Term Sheet in accordance with Section 5(a) of this Agreement, the Underwriters are authorized to use a free writing prospectus that contains only information (i) describing the preliminary terms of the Designated Securities or their offering or (ii) describing the final terms of the Designated Securities which will not be inconsistent with the Final Term Sheet.
          (c) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Preliminary Prospectus or the Prospectus or would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, untrue statement or omission.
          7. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Designated Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Disclosure Package and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the

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Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, any Pricing Agreement, any Indenture, any Blue Sky or similar investment surveys or memoranda, closing documents (including compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Designated Securities; (iii) all expenses in connection with the qualification of the Designated Securities for offering and sale under state securities laws as provided in Section 5(b) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey(s); (iv) the cost of preparing certificates for the Designated Securities; (v) the fees charged by securities rating services for rating the Securities; (vi) any filing fees incident to any required review by the Financial Industry Regulatory Authority of the terms of the sale of the Designated Securities; (vii) the fees and expenses of any Trustee and any agent of any Trustee and the fees and disbursements of any counsel for any Trustee in connection with any Indenture and the Designated Securities; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Designated Securities by them, and any advertising expenses connected with any offers they may make.
          8. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement applicable to such Designated Securities shall be subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, at and as of the Time of Delivery for such Designated Securities, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
          (a) The Preliminary Prospectus and the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 5(a) hereof; all filings (including, without limitation, the filing of each Final Term Sheet) required by Rule 424(b) or Rule 433 of the Act shall have been made within the time periods prescribed by such rules; the Rule 462(b) Registration Statement, if any, shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any amendment or supplement thereto or preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus shall have been initiated or threatened by the Commission; and

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all requests for additional information on the part of the Commission shall have been complied with;
          (b) No Underwriter shall have been advised by the Company, or shall have discovered and disclosed to the Company, that the Registration Statement, as of the Effective Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Disclosure Package as of the Applicable Time or the Prospectus as of the date of the prospectus supplement comprising part of such Prospectus or as of the Time of Delivery contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact which is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in any case in the judgment of the Representatives after consultation with counsel to the Underwriters;
          (c) Davis Polk & Wardwell, counsel for the Underwriters, shall have furnished to the Representatives such opinions and letters, dated the Time of Delivery for such Designated Securities, with respect to the Pricing Agreement applicable to the Designated Securities, the validity of the Designated Securities being delivered at such Time of Delivery, the Indenture, the Registration Statement, the Disclosure Package, the Prospectus and such other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
          (d) Debevoise & Plimpton LLP, counsel for the Company, shall have furnished to the Company (with a statement authorizing you to rely thereon) their written opinions dated the Time of Delivery for such Designated Securities, in form and substance satisfactory to you, to the effect that:
          (i) The Designated Securities have been duly authorized by the Company, and when executed by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement and the Pricing Agreement, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms against the Company and entitled to the benefits provided by the Indenture, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in

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effect affecting creditors’ rights generally and (b) general principles of equity (regardless of whether enforceability is considered in a proceeding in law or equity);
          (ii) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding instrument of the Company, enforceable in accordance with its terms against the Company, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect affecting creditors’ rights generally and (b) general principles of equity (regardless of whether enforceability is considered in a proceeding in law or equity);
          (iii) The Replacement Capital Covenant has been duly authorized, executed and delivered by the Company;
          (iv) If the Company were to disregard or breach its promise and covenant set forth in Section 2 of the Replacement Capital Covenant, the Replacement Capital Covenant would be enforceable against the Company by any Covered Debtholder (as defined in the Replacement Capital Covenant) that establishes reliance on the Replacement Capital Covenant and damages from such breach, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization and moratorium laws, and other similar laws relating to or affecting enforcement of creditor’s rights or remedies generally, (b) general equitable principles (whether considered in a proceeding in equity or law) and (c) concepts of good faith, reasonableness and fair dealing, and standards of materiality;
          (v) The Indenture has been duly qualified under the Trust Indenture Act;
          (vi) The statements made in the Preliminary Prospectus and the Prospectus under the captions “Description of the Debentures,” “Description of the Junior Subordinated Debt Securities” and “Description of the Replacement Capital Covenant”, together with, in the case of the Preliminary Prospectus, the information in the Final Term Sheet, insofar as such statements purport to summarize certain provisions in the Indenture, the Designated Securities, the Replacement Capital Covenant or legal matters referred to therein, are accurate in all material respects;

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          (vii) Subject to the limitations, qualifications and assumptions set forth in the Preliminary Prospectus and the Prospectus, the statements made in the Preliminary Prospectus and the Prospectus in the discussion under the caption “Material United States Federal Income Tax Considerations”, together with, in the case of the Preliminary Prospectus, the information in the Final Term Sheet, to the extent they constitute matters of United States federal income tax law or legal conclusions with respect thereto, are correct in all material respects;
          (viii) The Company is not, and, on the date hereof after giving effect to the offering and sale of the Designated Securities in the manner contemplated in the Underwriting Agreement and the Prospectus, will not be, required to be registered as an “investment company” (as defined in the Investment Company Act of 1940, as amended (the “ 1940 Act ”)) under the 1940 Act.
          (e) Alan J. Kreczko, Esq., Executive Vice President and General Counsel to the Company, shall have furnished to you his written opinion, dated the Time of Delivery for such Designated Securities, in form and substance satisfactory to you, to the effect that:
          (i) The Company is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate or other) to own its properties and conduct its business as described in the Disclosure Package and the Prospectus as amended or supplemented;
          (ii) The Company’s authorized share capital is as set forth in the Disclosure Package and the Prospectus as amended or supplemented;
          (iii) All of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
          (iv) Except as described in the Disclosure Package and the Prospectus, there is no action, suit or proceeding pending, nor to such counsel’s best knowledge is there any action, suit or proceeding threatened, that (a) might reasonably be expected to result in a material adverse change in the financial condition, results of operations or business of the Company and its subsidiaries, considered as a whole, or (b) is required to be disclosed in the Registration Statement;

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          (v) The Underwriting Agreement and the Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Company;
          (vi) The issue and sale of the Designated Securities and the compliance by the Company with the Pricing Agreement with respect to the Designated Securities, the Indenture and the Replacement Capital Covenant and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Amended and Restated Certificate of Incorporation or Amended By-Laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and
          (vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue or sale of the Designated Securities or the consummation by the Company of the transactions contemplated by the Pricing Agreement, the Replacement Capital Covenant or the Indenture, except such as have been obtained under the Act and the Trust Indenture Act and any such consent, approval, authorization, order, registration or qualification as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters.
          In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction outside the United States and in respect of matters of fact such counsel may rely upon certificates of officers of the Company and its subsidiaries; provided that such counsel shall state he believes that both you and he are justified in relying upon such opinions and certificates and copies of such opinions and certificates are made available to you;
          (f) Alan J. Kreczko, Esq., Executive Vice President and General Counsel to the Company, shall have furnished to you a letter, dated the Time of Delivery for such Designated Securities, to the effect that:

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          (i) Based upon specified participation of such counsel in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus, (a) such counsel has no reason to believe that (i) as of the Effective Date, the Registration Statement (other than the financial statements and related schedules and other financial data therein, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) as of the Applicable Time, the Disclosure Package (other than the financial statements and related schedules and other financial data therein, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) as of the date of the prospectus supplement comprising part of the Prospectus and as of the Time of Delivery, the Prospectus (other than the financial statements and related schedules and other financial data therein, as to which such counsel need express no belief) contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (b) the Registration Statement, as of the Effective Date, the Prospectus, as of the date of the prospectus supplement comprising part of such Prospectus, and each of the documents incorporated by reference into the Prospectus, as of the date it was filed with the Commission (in each case, other than the financial statements and related schedules and other financial data therein, as to which such counsel need express no belief), appeared on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and (c) such counsel does not know of any amendment to the Registration Statement required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Preliminary Prospectus or the Prospectus as amended or supplemented or required to be described in the Registration Statement, the Preliminary Prospectus or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required; it being understood that such counsel may state that he has not independently verified factual statements in the Preliminary

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Prospectus or the Prospectus (or any such amendment or supplement);
          (g) On the date of the Pricing Agreement for the Designated Securities at a time prior to the execution of the Pricing Agreement with respect to such Designated Securities and at each Time of Delivery for such Designated Securities, Deloitte and Touche LLP, independent registered public accounting firm, shall have furnished to the Representatives a letter, dated the date of the Pricing Agreement and a letter dated such Time of Delivery, respectively, as to such matters ordinarily included in accountants’ “comfort letters” to underwriters as the Representatives may reasonably request and in form and substance satisfactory to the Representatives;
          (h) (i) Except as described in or contemplated by the Registration Statement, the Disclosure Package and the Prospectus, there has not been any material adverse change in, or any adverse development which materially affects, the business, properties, financial condition or results of operations of the Company and its subsidiaries, considered as a whole, from the dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus; and (ii) except as contemplated in the Disclosure Package and the Prospectus, since the respective dates as of which information is given in the Disclosure Package and the Prospectus there shall not have been any change in the capital stock (other than (i) issuances of capital stock upon exercise of options and stock appreciation rights, upon earn outs of performance shares and upon conversions of convertible securities, in each case which were outstanding on the date of the latest balance sheet included or incorporated by reference in the Prospectus or (ii) shares of common stock repurchased by the Company pursuant to the Company’s $2 billion share repurchase program) or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the business affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus;
          (i) On or after the date of the Pricing Agreement relating to the Designated Securities (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized

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statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities the effect of which, in any case described in clause (i) or (ii), is in your reasonable judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus;
          (j) On or after the date of the Pricing Agreement relating to the Designated Securities there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange (the “ Exchange ”); (ii) a material suspension or limitation in trading in the Company’s securities on the Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; or (iv) a material adverse change in the financial markets, the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or other calamity or crisis; if the effect of any such event specified in this clause (iv) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus; and
          (k) The Company shall have furnished or caused to be furnished to the Representatives at each Time of Delivery for the Designated Securities a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a), (h) and (i) of this Section and as to such other matters as the Representatives may reasonably request.
          9. (a) The Company will indemnify and hold harmless each Underwriter, its partners, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act, against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or

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alleged untrue statement of a material fact contained in the Registration Statement (including the Form T-1), the Disclosure Package, the Prospectus, or any amendments or supplement thereto, any related preliminary prospectus or preliminary prospectus supplement, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such losses, claims, damages, liabilities or action as such expenses are incurred; provided , however , that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives, if any, specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Schedule II to the Pricing Agreement.
          (b) Each Underwriter of Designated Securities will severally and not jointly indemnify and hold harmless the Company, its directors and officers and each person, if any, who controls the Company within the meaning of Section 15 of the Act, against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package, the Prospectus, or any amendments or supplement thereto, any related preliminary prospectus or preliminary prospectus supplement, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives, if any, specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred, it being understood and agreed that the only such information

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furnished by any Underwriter consists of the information described as such in Schedule II to the Pricing Agreement.
          (c) Promptly after receipt by an indemnified party under this section of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under subsection (a) or (b) above. In the case of parties indemnified pursuant to Section 9(a) above, counsel to the indemnified parties shall be selected by the Representatives. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 9 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
          (d) If the indemnification provided for in this Section is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Designated Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportions as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the

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statements of omissions which resulted in such losses, claims, damages or liabilities as well as any relevant equitable considerations. The relative benefits received by the Company on one hand and the Underwriters on the other hand shall be deemed to be in the same proportions as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
          (e) The obligations of the Company under this Section shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Underwriters and to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director and officer of the

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Company and to each person, if any, who controls the Company within the meaning of the Act.
     10. (a) If any Underwriter shall default in its obligation to purchase the Designated Securities which it has agreed to purchase under the Pricing Agreement relating to such Designated Securities, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Designated Securities, as the case may be, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties reasonably satisfactory to the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that they have so arranged for the purchase of such Designated Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives or the Company shall have the right to postpone a Time of Delivery for such Designated Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Disclosure Package or the Prospectus as amended or supplemented, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement, the Disclosure Package or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “ Underwriter ” as used in the Pricing Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to the Pricing Agreement with respect to such Designated Securities.
          (b) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated Securities to be purchased at the respective Time of Delivery, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated Securities which such Underwriter agreed to purchase under the Pricing Agreement relating to such Designated Securities and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Designated Securities of such defaulting Underwriter or Underwriters

25


 

for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
          (c) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Designated Securities as referred to in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
          11. The respective indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth or incorporated by reference in the Pricing Agreement with respect to the Designated Securities or made by or on behalf of them, respectively, pursuant to such Pricing Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Designated Securities.
          12. If any Pricing Agreement shall be terminated due to the failure of Davis Polk & Wardwell to deliver its opinion to the Representatives pursuant to Section 8(c) or pursuant to Section 10 hereof, the Company shall not then be under any liability to any Underwriter with respect to the Designated Securities governed by such Pricing Agreement except as provided in Sections 7 and 9 hereof; but, if for any other reason Designated Securities are not delivered by or on behalf of the Company as provided herein (other than in respect of a breach of the Pricing Agreement by any Underwriter of Designated Securities covered by such Pricing Agreement), the Company will reimburse the Underwriters through the Representatives for all out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but the Company shall then be under no further liability to any Underwriter with respect to such Designated Securities except as provided in Sections 7 and 9 hereof.

26


 

          The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.
          13. In all dealings under the Pricing Agreement applicable to the Designated Securities, the Representatives of the Underwriters of the Designated Securities shall act on behalf of each of such Underwriters, and the parties thereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any such Underwriter made or given by such Representatives jointly or by such of the Representatives, if any, as may be designated for such purpose in such Pricing Agreement.
          All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the address of the Representatives as set forth in the Pricing Agreement with respect to the Designated Securities; and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement: Attention: General Counsel; provided , however , that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by the Representatives upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
          14. This Agreement and each Pricing Agreement with respect to the Designated Securities shall be binding upon, and inure solely to the benefit of, the Underwriters and the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of such Pricing Agreement. No purchaser of any of

27


 

the Designated Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
          15. Time shall be of the essence of each Pricing Agreement. As used herein, “ business day ” shall mean any day other than a Saturday or Sunday or a day on which banks in the City of New York are authorized or required to close.
          16. These Underwriting Agreement General Terms and Conditions and each Pricing Agreement shall be governed by and construed in accordance with the laws of the State of New York.
          17. The Agreement and each Pricing Agreement may be executed by any one or more of the parties thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.

28


 

          If the foregoing is in accordance with your understanding, please sign and return to us seven counterparts hereof.
         
  Very truly yours,  
 
  THE HARTFORD FINANCIAL SERVICES GROUP, INC.  
 
  By:   /s/ John N. Giamalis    
    Name:   John N. Giamalis   
    Title:   Senior Vice President and Treasurer   

 


 

         
  Accepted as of the date hereof:
  BANC OF AMERICA SECURITIES LLC
  CITIGROUP GLOBAL MARKETS INC.
  LEHMAN BROTHERS INC.
  As Representatives of the Underwriters listed in
  Schedule I to the Pricing Agreement
         
  BANC OF AMERICA SECURITIES LLC
 
 
  By:   /s/ Peter J. Carbone    
    Name:   Peter J. Carbone   
    Title:   Vice President   
 
  CITIGROUP GLOBAL MARKETS INC.
 
 
  By:   /s/ Jack D. McSpadden, Jr.    
    Name:   Jack D. McSpadden, Jr.   
    Title:   Managing Director   
 
  LEHMAN BROTHERS INC.
 
 
  By:   /s/ William Gartland    
    Name:   William Gartland   
    Title:   Managing Director   
 

 

Exhibit 1.2
Pricing Agreement
To the Underwriters named
in Schedule I hereto
June 3, 2008
Ladies and Gentlemen:
          The Hartford Financial Services Group, Inc., a Delaware corporation (the “ Company ”), proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement General Terms and Conditions, dated June 3, 2008, attached hereto, to issue and sell to the Underwriters named in Schedule I hereto (the “ Underwriters ”) the Securities specified in Schedule II hereto (the “ Designated Securities ”). Each of the provisions of the Underwriting Agreement General Terms and Conditions is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement General Terms and Conditions so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement General Terms and Conditions are used herein as therein defined. The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 13 of the Underwriting Agreement General Terms and Conditions and the addresses of the Representatives referred to in such Section 13 are set forth at the end of Schedule II hereto.
          An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission.
          Each Underwriter, severally and not jointly, represents and agrees that:
  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,

A-1


 

      where appropriate, approved in another Relevant Member State and 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.
      For the purposes of this provision, the expression an ‘‘offer of Designated Securities to the public’’ in relation to any Designated Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Designated Securities to be offered so as to enable an investor to decide to purchase or subscribe the Designated Securities, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
 
  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

A-2


 

      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; and
 
  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.
          Subject to the terms and conditions set forth herein and in the Underwriting Agreement General Terms and Conditions incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to such Underwriter set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto.
          If the foregoing is in accordance with your understanding, please sign and return to us five counterparts hereof, and upon acceptance hereof by you, on behalf of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement General Terms and Conditions incorporated herein by reference, shall constitute a binding agreement between each Underwriter, on the one hand, and the Company, on the other.

A-3


 

         
  Very truly yours,

THE HARTFORD FINANCIAL SERVICES GROUP, INC.
 
 
  By:   /s/ John N. Giamalis    
    Name:   John N. Giamalis   
    Title:   Senior Vice President and Treasurer   

 


 

         
 
Accepted as of the date hereof:
 
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
LEHMAN BROTHERS INC.
 
As Representatives of the Underwriters listed in
Schedule I to the Pricing Agreement
         
  BANC OF AMERICA SECURITIES LLC
 
 
  By:   /s/ Peter J. Carbone    
    Name:   Peter J. Carbone   
    Title:   Vice President   
 
  CITIGROUP GLOBAL MARKETS INC.
 
 
  By:   /s/ Jack D. McSpadden, Jr.    
    Name:   Jack D. McSpadden, Jr.   
    Title:   Managing Director   
 
  LEHMAN BROTHERS INC.
 
 
  By:   /s/ William Gartland    
    Name:   William Gartland   
    Title:   Managing Director   
 

 


 

SCHEDULE I
         
    Principal Amount of  
    Securities to Be  
Underwriters   Purchased  
Banc of America Securities LLC.
  $ 133,350,000  
Citigroup Global Markets Inc.
    133,400,000  
Lehman Brothers Inc.
    133,350,000  
 
     
Daiwa Securities America Inc.
    33,300,000  
 
     
SunTrust Robinson Humphrey, Inc.
    33,300,000  
 
     
Wells Fargo Securities, LLC.
    33,300,000  
 
     
Total
  $ 500,000,000  
 
     

 


 

SCHEDULE II
Title of Designated Securities:
          8.125% Fixed-To-Floating Rate Junior Subordinated Debentures due 2068 (the “Debentures”)
Aggregate Principal Amount:
          $500,000,000 of 8.125% Debentures
Initial Offering Price by Underwriter:
          99.921% of the principal amount of the Debentures, plus accrued interest, if any, from June 6, 2008.
Purchase Price by Underwriter:
          98.921% of the principal amount of the Debentures, plus accrued interest, if any, from June 6, 2008.
Form of Designated Securities:
          Book-entry only form represented by one or more global securities deposited with The Depository Trust Company (“ DTC ”) or its designated custodian, to be made available for checking by the Representatives at least twenty-four hours prior to the Time of Delivery at the office of DTC.
Specified Funds for Payment of Purchase Price:
          Federal (same day) funds
Applicable Time:
          3:45p.m. (New York City time) on the date of the Pricing Agreement.
Time of Delivery:
          10:00 a.m. (New York City time) on June 6, 2008, or at such other time and date as the Representatives and the Company may agree upon in writing.
Indenture:
          Junior Subordinated Indenture, to be dated the date of delivery, between the Company and The Bank of New York Trust Company, N.A. (or any of its successors), as Trustee (the “ Trustee ”), as supplemented by the First Supplemental Indenture, to be dated the date of delivery, between the Company and the Trustee.

 


 

Scheduled Maturity Date:
          June 15, 2038
Final Maturity Date:
          June 15, 2068
Interest Rate:
     
Commencing on the issue date to but excluding June 15, 2018 (the “ Fixed Rate Period ”):
   8.125%
 
   
Commencing June 15, 2018 to the Final Maturity Date unless redeemed or repaid earlier (the “ Floating Rate Period ”):
  Three-month LIBOR, reset quarterly, plus 460.25 bps
Interest Payment Dates:
     
Fixed Rate Period:
  Payable semi-annually in arrears on June 15 and December 15, commencing December 15, 2008, to and including June 15, 2018.
 
   
Floating Rate Period:
  Payable quarterly in arrears on March 15, June 15, September 15 and December 15, commencing September 15, 2018 to the Final Maturity Date unless redeemed or repaid earlier.
Redemption Provisions:
          The Designated Securities may be redeemed in whole or in part at any time and from time to time at a price to be determined as set forth in the Prospectus under the caption “Description of the Debentures – Redemption”.
Defeasance
          As set forth in the Prospectus under the caption “Description of the Junior Subordinated Debt Securities – Defeasance and Covenant Defeasance”.

 


 

Replacement Capital Covenant
          The Company will enter into a Replacement Capital Covenant, to be dated June 6, 2008, (the “ Replacement Capital Covenant ”) (as described in the Disclosure Package and the Prospectus), for the benefit of a specified class of Covered Debtholders (as defined in the Replacement Capital Covenant) pursuant to which the Company will covenant (on its own behalf and on behalf of its subsidiaries) not to repay, redeem, defease or repurchase, as applicable, all or part of the Debentures prior to June 15, 2048, unless the Company complies with certain specified conditions.
Closing Location:
          Debevoise & Plimpton LLP, 919 Third Avenue, New York, New York 10022, or at such other place as the Representatives and the Company may agree upon in writing.
Names and Addresses of Representatives:
Banc of America Securities LLC
40 West 57 th Street
NY1-040-27-03
New York, NY 10019
Attention: High Grade Transaction Management/Legal
Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
Attention: General Counsel (Fax: 212-816-7912)
Lehman Brothers Inc.
745 Seventh Avenue
New York, NY 10019
Attention: Debt Capital Markets, Equity-Linked Hybrid Origination
(Fax: 646-834-8133) with a copy to the Office of the General Counsel at the same address.

 


 

Information Provided by the Underwriters:
The Underwriters have furnished to the Company for use in the Prospectus Supplement:
  (a)   The names of the Underwriters in the table of Underwriters under the caption “Underwriting” in the Prospectus Supplement;
 
  (b)   The second paragraph of text following the table of Underwriters under the caption “Underwriting” in the Prospectus Supplement;
 
  (c)   The third sentence of the seventh paragraph of text following the table of Underwriters under the caption “Underwriting” in the Prospectus Supplement; and
 
  (d)   The eighth paragraph of text following the table of Underwriters under the caption “Underwriting” in the Prospectus Supplement.

 


 

SCHEDULE III
    Final Term Sheet, dated June 3, 2008, relating to the Designated Securities, as filed pursuant to Rule 433 under the Act and attached as Schedule IV hereto.

 


 

SCHEDULE IV
(THE HARTFORD LOGO)
$500,000,000 8.125% Fixed-To-Floating Rate Junior Subordinated Debentures due 2068
FINAL TERM SHEET
June 3, 2008
     
Issuer:
  The Hartford Financial Services Group, Inc.
 
   
Securities:
  SEC Registered 8.125% Fixed-To-Floating Rate Junior Subordinated Debentures (the “Debentures”)
 
   
Specified Currency:
  U.S. Dollars
 
   
Principal Amount:
    $500,000,000
 
   
Trade Date:
  June 3, 2008
 
   
Settlement Date (T+3):
  June 6, 2008
 
   
Scheduled Maturity Date:
  June 15, 2038
 
   
Final Maturity Date:
  June 15, 2068
 
   
Interest Rate During Fixed Rate Period:
    8.125%, from the issue date to but excluding June 15,   2018
 
   
Interest Payment Dates During Fixed Rate Period:
  Payable semi-annually in arrears on June 15 and December   15, commencing December 15, 2008 to and including June 15, 2018
 
   
Day Count Convention During Fixed Rate Period:
    30/360
 
   
Interest Rate During Floating Rate Period:
  Three-month LIBOR, reset quarterly, plus 460.25 bps commencing June 15, 2018 to the Final Maturity Date unless redeemed or repaid earlier
 
   
Interest Payment Dates During Floating Rate Period:
  Payable quarterly in arrears on March 15, June 15, September 15 and December 15, commencing September 15, 2018 to the Final Maturity Date unless redeemed or repaid earlier
 
   
Day Count Convention During Floating Rate Period:
  Actual/360
 
   
Benchmark Treasury:
    3.875% UST due May 15, 2018
 
   
Benchmark Treasury Price:
    99-29%
 
   
Benchmark Treasury Yield:
    3.886%

 


 

     
Spread to Treasury:
    +425 bps
 
   
Reoffer Yield:
    8.136%
 
   
Public Offering Price:
    99.921% Per Debenture
 
   
Optional Redemption:
 
    Redeemable in whole at any time or in part from time to time on or after June 15, 2018, at par.
 
   
 
 
    Redeemable in whole at any time or in part from time to time prior to June 15, 2018, in cases not involving a tax event or rating agency event, at a redemption price equal to the greater of par and a make-whole at T + 60 bps.
 
   
Redemption After the Occurrence of a Tax Event or Rating Agency Event:
  Redeemable in whole, but not in part, at any time prior to June 15, 2018, within 180 days of the occurrence of a tax event or rating agency event, at a redemption price equal to the greater of par and a make-whole at T + 75 bps.
 
   
Replacement Capital Covenant:
  A replacement capital covenant will apply until June 15, 2048. The dates referred to in the prospectus supplement on which the “applicable percentage” and the types of securities that constitute “qualifying replacement securities” (as therein defined) will change are June 15, 2018 and June 15, 2038.
 
   
Shares available for issuance threshold:
    86 million shares (or 172 million shares if the Issuer has amended the definition of APM qualifying securities to eliminate common stock)
 
   
Authorized Denominations:
    $5,000 and integral multiples of $1,000 in excess thereof
 
   
CUSIP:
    416515AW4
 
   
Joint Book-Running Managers:
  Banc of America Securities LLC
Citigroup Global Markets Inc.
Lehman Brothers Inc.
 
   
Co-Managers:
  Daiwa Securities America Inc.
SunTrust Robinson Humphrey, Inc.
Wells Fargo Securities, LLC
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Banc of America Securities LLC at 1-800-294-1322 or you may e-mail a request to dg.prospectus_distribution@bofasecurities.com , by calling Citigroup Global Markets Inc. toll-free at 877-858-5407 or by calling Lehman Brothers Inc. toll-free at 1-888-603-5847.

 

Exhibit 4.1
Execution Copy
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
to
THE BANK OF NEW YORK TRUST COMPANY, N.A.
Trustee
JUNIOR SUBORDINATED INDENTURE
Dated as of June 6, 2008

 


 

TABLE OF CONTENTS
         
    Page  
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
 
       
Section 101. Definitions
    1  
Section 102. Compliance Certificates and Opinions
    10  
Section 103. Form of Documents Delivered to Trustee
    10  
Section 104. Acts of Holders; Record Dates
    11  
Section 105. Notices, Etc. to Trustee and Company
    13  
Section 106. Notice to Holders; Waiver
    14  
Section 107. Conflict with Trust Indenture Act
    14  
Section 108. Effect of Headings and Table of Contents
    14  
Section 109. Successors and Assigns
    15  
Section 110. Separability Clause
    15  
Section 111. Benefits of Indenture
    15  
Section 112. Governing Law
    15  
Section 113.Legal Holidays
    15  
Section 114. Computations
    16  
 
       
ARTICLE TWO
SECURITY FORMS
 
       
Section 201. Forms Generally
    16  
Section 202. Form of Legend for Global Securities
    17  
Section 203. Form of Trustee’s Certificate of Authentication
    17  
 
       
ARTICLE THREE
THE SECURITIES
 
       
Section 301. Title; Terms
    18  
Section 302. Denominations
    21  
Section 303. Execution, Authentication, Delivery and Dating
    21  
Section 304. Temporary Securities
    23  
Section 305. Registration, Registration of Transfer and Exchange
    23  
Section 306. Mutilated, Destroyed, Lost and Stolen Securities
    26  
Section 307. Payment of Interest; Interest Rights Preserved
    27  
Section 308. Persons Deemed Owners
    28  
Section 309. Cancellation
    28  
Section 310. Computation of Interest
    29  

i


 

         
    Page  
Section 311. Deferrals of Interest Payment Dates
    29  
 
       
ARTICLE FOUR
SATISFACTION AND DISCHARGE
 
       
Section 401. Satisfaction and Discharge of Indenture
    30  
Section 402. Application of Trust Money
    32  
 
       
ARTICLE FIVE
REMEDIES
 
       
Section 501. Events of Default
    32  
Section 502. Acceleration of Maturity; Rescission and Annulment
    34  
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee
    35  
Section 504. Trustee May File Proofs of Claim
    36  
Section 505. Trustee May Enforce Claims Without Possession of Securities
    37  
Section 506. Application of Money Collected
    37  
Section 507. Limitation on Suits
    38  
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest
    38  
Section 509. Restoration of Rights and Remedies
    39  
Section 510. Rights and Remedies Cumulative
    39  
Section 511. Delay or Omission Not Waiver
    39  
Section 512. Control by Holders
    39  
Section 513. Waiver of Past Defaults
    40  
Section 514. Undertaking for Costs
    40  
Section 515. Waiver of Usury, Stay or Extension Laws
    41  
 
       
ARTICLE SIX
THE TRUSTEE
 
       
Section 601. Certain Duties and Responsibilities
    41  
Section 602. Notice of Defaults
    42  
Section 603. Certain Rights of Trustee
    42  
Section 604. Not Responsible for Recitals or Issuance of Securities
    44  
Section 605. May Hold Securities
    44  
Section 606. Money Held in Trust
    45  
Section 607. Compensation and Reimbursement
    45  
Section 608. Disqualification; Conflicting Interests
    46  
Section 609. Corporate Trustee Required; Eligibility
    46  
Section 610.Resignation and Removal; Appointment of Successor
    46  

ii


 

         
    Page  
Section 611. Acceptance of Appointment by Successor
    48  
Section 612. Merger, Conversion, Consolidation or Succession to Business
    49  
Section 613. Preferential Collection of Claims Against Company
    49  
Section 614. Appointment of Authenticating Agent
    49  
 
       
ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
 
       
Section 701. Company to Furnish Trustee Names and Addresses of Holders
    51  
Section 702. Preservation of Information, Communications to Holders
    52  
Section 703. Reports by Trustee
    52  
Section 704. Reports by Company
    52  
 
       
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
 
       
Section 801. Company May Consolidate, Etc., Only on Certain Terms
    53  
Section 802. Successor Corporation Substituted
    54  
 
       
ARTICLE NINE
SUPPLEMENTAL INDENTURES
 
       
Section 901. Supplemental Indentures Without Consent of Holders
    55  
Section 902. Supplemental Indentures with Consent of Holders
    56  
Section 903. Execution of Supplemental Indentures
    58  
Section 904. Effect of Supplemental Indentures
    58  
Section 905. Conformity with Trust Indenture Act
    58  
Section 906. Reference in Securities to Supplemental Indentures
    58  
 
       
ARTICLE TEN
COVENANTS
 
       
Section 1001. Payment of Principal, Premium and Interest
    58  
Section 1002. Maintenance of Office or Agency
    59  
Section 1003. Money for Security Payments to be Held in Trust
    59  
Section 1004. Statement by Officers as to Default
    61  
Section 1005. Payment of Taxes
    61  
Section 1006. Waiver of Certain Covenants
    61  

iii


 

         
    Page  
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
 
       
Section 1101. Company’s Right of Redemption
    62  
Section 1102. Applicability of Article
    62  
Section 1103. Election to Redeem; Notice to Trustee
    62  
Section 1104. Selection by Trustee of Securities to be Redeemed
    63  
Section 1105. Notice of Redemption
    63  
Section 1106. Deposit of Redemption Price
    64  
Section 1107. Securities Payable on Redemption Date
    64  
Section 1108. Securities Redeemed in Part
    65  
 
       
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
 
       
Section 1201. Securities Subordinate to Senior Indebtedness
    65  
Section 1202. Payment Over of Proceeds Upon Dissolution, Etc
    66  
Section 1203. Prior Payment to Senior Indebtedness Upon Acceleration of Securities
    67  
Section 1204. No Payment When Senior Indebtedness in Default
    68  
Section 1205. Payment Permitted If No Default
    68  
Section 1206. Subrogation to Rights of Holders of Senior Indebtedness
    69  
Section 1207. Provisions Solely to Define Relative Rights
    69  
Section 1208. Trustee to Effectuate Subordination
    70  
Section 1209. No Waiver of Subordination Provisions
    70  
Section 1210. Notice to Trustee
    70  
Section 1211. Reliance on Judicial Order or Certificate of Liquidating Agent or Other Notices
    71  
Section 1212. Trustee Not Fiduciary for Holders of Senior Indebtedness
    71  
Section 1213. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights
    72  
Section 1214. Article Applicable to Paying Agents
    72  
Section 1215. Certain Conversions or Exchanges Deemed Payment
    72  
 
       
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
 
       
Section 1301. Company’s Option to Effect Defeasance or Covenant Defeasance
    72  
Section 1302. Defeasance and Discharge
    73  
Section 1303. Covenant Defeasance
    73  
Section 1304. Conditions to Defeasance or Covenant Defeasance
    74  

iv


 

         
    Page  
Section 1305. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions
    75  
Section 1306. Reinstatement
    76  
Section 1307. Qualifying Trustee
    76  
 
Exhibit A. Specimen Bond
    A-1  

v


 

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


 

     JUNIOR SUBORDINATED INDENTURE, dated as of June 6, 2008, between THE HARTFORD FINANCIAL SERVICES GROUP, INC., a Delaware corporation (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 incorporated and existing under the laws of the United States of America, as Trustee (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 junior subordinated 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 their and 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;

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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.
     “ Additional Interest ” means the interest, if any, that shall accrue on any interest on the Securities of any series that is in arrears or not paid during any Deferral Period, which in either case shall accrue at the rate per annum specified or determined as specified in such Security.
     “ 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 of one or more series.
     “ 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.

2


 

     “ 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, by any other employee of the Company named in an Officers’ Certificate delivered to the Trustee.
     “ Corporate Trust Office ” means the office of the Trustee designated by the Trustee at which at any particular time its corporate trust business shall be 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 1303.
     “ Defaulted Interest ” has the meaning specified in Section 307.
     “ Defeasance ” has the meaning specified in Section 1302.
     “ Deferral Period ” has the meaning specified in Section 311.
     “ Depositary ” means the clearing agency registered under the Exchange Act that is designated by the Company under 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.

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     “ 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.
     “ 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.

4


 

     “ 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.
     “ Junior Subordinated Payment ” has the meaning specified in Section 1202.
     “ 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.
     “ 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.

5


 

     “ 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:
     (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
     (ii) 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
     (iii) 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, (C) the principal amount of a Security denominated in one

6


 

or more foreign currencies or currency units shall be the U.S. dollar equivalent, determined in the manner provided as contemplated by Section 301 on the date of original issuance of such Security of the principal amount (or, in the case of a Security described in clause (A) or (B) above, the amount determined pursuant to such Clause) of such Security and ( D ) 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 premium, if any) and interest on the Securities of such series are payable as specified as contemplated by Section 301 or Section 311.
     “ 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.
     “ Proceeding ” has the meaning specified in Section 1202.
     “ 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

7


 

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.
     “ Senior Indebtedness ” means the principal of (and premium, if any) and interest, if any, on the following, whether outstanding at the date hereof or thereafter incurred or created: (i) all obligations of the Company (other than obligations pursuant to this Indenture and the Securities of any series) for money borrowed, (ii) all obligations of the Company evidenced by notes, debentures, bonds or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses and including all other debt securities issued by the Company to any trust or a trustee of such trust, or to a partnership or other Affiliate that acts as a financing vehicle for the Company, in connection with the issuance of securities by such vehicles, (iii) all obligations of the Company under leases required or permitted to be capitalized under generally accepted accounting principles, (iv) all reimbursement obligations of the Company with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of the Company, (v) all obligations of the Company issued or assumed as the deferred purchase price of property or services, including all obligations under master lease transactions pursuant to which the Company or any Subsidiary has agreed to be treated as owner of the subject property for federal income tax purposes (but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business), (vi) all payment obligations of the Company under interest rate swap or similar agreements or foreign currency hedge, exchange or similar agreements at the time of determination, including any such obligations incurred solely to act as a hedge against increases in interest rates that may occur under the terms of other outstanding variable or floating rate indebtedness of the Company, (vii) all obligations of the types referred to in clauses (i) through (vi) above of another Person and all dividends of another Person the payment of which, in either case, the Company has assumed or guaranteed or for which the Company is responsible or liable, directly or indirectly, jointly or severally, as obligor, guarantor or otherwise, (viii) all compensation, reimbursement and indemnification obligations of the Company to the Trustee pursuant to this Indenture, and (ix) all amendments, modifications, renewals, extensions, refinancings, replacements and refundings of any of the foregoing types of indebtedness; unless in the instrument creating or evidencing the same or pursuant to which the same is outstanding or pursuant to the terms established pursuant to Section 301 hereof, it is provided that such obligations are not superior in right of payment to the Securities or to other obligation which is pari passu with, or subordinated to, the Securities.

8


 

     “ 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 and, in the case of such principal or installment of principal or interest, 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.
     “ 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.
     “ 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.
     “ 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”.

9


 

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

10


 

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 is or 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.

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     (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 declaration of acceleration, or any rescission or annulment of any such declaration, referred to in Section 502, ( ii ) any request to institute proceedings referred to in Section 507(2) or ( iii ) 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

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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.
     The provisions of this Section 104 regarding record date procedures are subject in their entirety to the record date procedures set forth in Sections 502 and 512.
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: Global Corporate Trust, 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,

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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.

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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.

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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

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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
   

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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:
     (1) the title of the Securities of such series, which shall distinguish the Securities of the series from all other Securities;
     (2) 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 of 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;
     (3) the Stated Maturity or Maturities on which the principal of the Securities of such series is payable or the method of determination thereof;
     (4) the rate or rates, if any, at which the Securities of such series shall bear interest, if any, the rate or rates and the extent to which Additional Interest, if any, shall be payable in respect of any Securities of such series, the Interest Payment Dates on which such interest shall be payable, the right, pursuant to Section 311 or as otherwise set forth therein, 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 or the method by which any of the foregoing shall be determined;
     (5) 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

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the place or places where notices and demands to or upon the Company in respect of the Securities of such series may be made;
     (6) 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;
     (7) 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;
     (8) the denominations in which any Securities of such series shall be issuable, if other than denominations of $5,000 and integral multiples of $1,000 thereafter;
     (9) 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 and the manner of determining the equivalent thereof in Dollars for any purpose, including for purposes of the definition of “Outstanding” in Section 101;
     (10) 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;
     (11) if other than the full principal amount thereof, the portion, or method of determining the portion, of the principal amount of Securities of such series that shall be payable upon declaration of acceleration of the Maturity thereof;
     (12) 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;
     (13) whether the amount of principal of (and premium, if any) or interest on the Securities of such series may be determined with reference to any index, formula, or other method, such as one or more currencies, commodities, equity indices or other indices, and, in such case, the manner in which such amounts will be determined, including for purposes of the definition of “Outstanding” in Section 101;
     (14) 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;

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     (15) 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 and the terms and conditions upon which such Global Securities may be exchanged for certificated debt securities if other than as set forth in Section 305;
     (16) the appointment of any Paying Agent or Agents for the Securities of such series;
     (17) 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, including the conversion price and the conversion period, 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;
     (18) the relative degree, if any, to which the Securities of such series shall be senior to or be subordinated to other series of Securities in right of payment, whether such other series of Securities are Outstanding or not;
     (19) whether and under what circumstances any or all of the provisions of this Indenture relating to the subordination of the Securities (including the provisions of Article Twelve), or different subordination provisions, including a different definition of “Senior Indebtedness” will apply or cease to apply to Securities of such series;
     (20) provisions granting special rights to holders of the Securities of such series upon the occurrence of specific events;
     (21) if applicable, that the Securities of such series, in whole or any specified part, shall not be defeasible pursuant to Section 1302 or Section 1303 or either such Sections and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;
     (22) any special tax considerations of the Securities of such series, including any provisions for Original Issue Discount Securities, if offered;
     (23) any change in the right of the Trustee or the requisite Holders of the Securities of such series to declare the principal amount thereof due and payable pursuant to Section 502;
     (24) the provisions of this Indenture, if any, that shall not apply to the Securities of such series; and

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     (25) 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 $5,000 and integral multiples of $1,000 thereafter, 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:

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     (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.

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     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

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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 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

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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.

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     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

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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

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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

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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.
Section 311. Deferrals of Interest Payment Dates.
     If specified as contemplated by Section 301 with respect to the Securities of a particular series, the Company shall have the right, at any time during the term of such series, from time to time to defer the payment of interest otherwise due and payable on such Securities for such period or periods as may be specified as contemplated by Section 301 (each, a “Deferral Period”) during which periods the Company shall have the right to make no or partial payments of interest on any Interest Payment Date, and at the end of such Deferral Period the Company shall pay all interest then accrued and unpaid thereon (together with Additional Interest thereon, if any, at the rate specified for the Securities of such series to the extent permitted by applicable law), provided , however , that, unless otherwise specified with respect to the Securities of such series pursuant to Section 301, during any such Deferral Period, the Company shall not, and shall cause any Subsidiary not to, ( i ) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Company’s capital stock, ( ii ) make any payment of principal, interest or premium, if any, on or repay, repurchase or redeem any debt securities that rank pari passu with or junior in interest to the Securities of such series or make any guarantee payments with respect to the foregoing (other than ( a ) dividends or distributions in common stock of the Company, ( b ) any declaration of a dividend in connection with the implementation of a shareholders’ rights plan, or the issuance of stock under any such plan in the future or the redemption or repurchase of any such rights pursuant thereto, ( c ) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or consultants, and ( d ) solely in the case of a Subsidiary of the Company, any declaration of dividends or distributions on the capital stock of such Subsidiary of the

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Company or one of its Affiliates). Prior to the termination of any such Deferral Period, the Company may further defer the payment of interest, provided that such Deferral Period together with all such previous and further extensions of such Deferral Period shall not exceed the period or periods so specified or extend beyond the Maturity of such Securities. Upon termination of any Deferral Period and upon the payment of all accrued and unpaid interest and any Additional Interest then due, the Company may select a new Deferral Period, subject to the above requirements. No interest shall be due and payable during a Deferral Period, except at the end thereof. The Company shall give the Holders of the Securities of such series and the Trustee notice of its selection of such Deferral Period at least one Business Day prior to the Interest Payment Date.
     The Trustee shall promptly give notice of the Company’s selection of such Deferral Period to the Holders of the Outstanding Securities of such series.
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

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     (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 the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest (including any Additional 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 to 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.

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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 premium, if any) and interest for whose payment such money and Government Obligations have been deposited with the Trustee.
     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 401 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 401(1)(B)), are in excess of the amount thereof which would then be required to be deposited to effect the satisfaction and discharge of the Indenture with respect to the applicable Securities.
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, including any Additional Interest in respect thereof, when it becomes due and payable, and such default continues for a period of 30 days; provided , that a deferral of an interest payment by the Company for such Securities pursuant to Section 311 hereof or in accordance with such other terms as shall be established pursuant to Section 301, shall not constitute a default in the payment of interest for this purpose; or

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     (2) default in the payment of the principal of or premium, if any, on any Security of that series at its Maturity; provided that an extension of the Maturity of such Securities in accordance with the terms of such Securities or any indenture supplemental hereto shall not constitute a default in the payment of principal or premium, if any; or
     (3) 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 in an involuntary case 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
     (4) 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 or 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 and such official is not discharged within 60 days, or the making by it of a general 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; or
     (5) any other Event of Default specified with respect to Securities of that series as contemplated in Section 301.
     The Trustee shall have no right or obligation under this Indenture or otherwise to exercise any remedies on behalf of the Holders of any Securities in connection with any failure by the Company to comply with any covenant or warranty of the Company contained in this Indenture (other than any covenant referred to in Section 501(1), (2) or (5)), unless the Trustee is directed to exercise such remedies pursuant to and subject to the provisions of Section 512. In connection with any such exercise of remedies, the Trustee shall be entitled to the same immunities and protections and remedial rights (other than acceleration) as if such failure to comply were an Event of Default. The Trustee shall not be charged with knowledge or notice of any such failure to comply unless and until it shall have received the foregoing direction under Section 512.

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Section 502. Acceleration of Maturity; Rescission and Annulment.
     If an Event of Default (other than an Event of Default specified in Section 501(3) or 501(4)) 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 and accrued but unpaid interest on 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) and interest shall become immediately due and payable. If an Event of Default specified in Section 501(3) or 501(4) with respect to Securities of a series at the time Outstanding occurs, the principal amount (or specified amount) of and accrued but unpaid interest on (subject to any limitation thereon applicable to such series) all the Securities of such series shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable. The payment of principal and interest (including any Additional Interest) due as a result of the acceleration of the Securities of a series pursuant to this Section shall remain subordinated to the extent provided in Article Twelve.
     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 (including any Additional 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

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     (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.
     Upon receipt by the Trustee of written notice declaring such an acceleration, or rescission and annulment thereof, with respect to Securities of a series all or part of which is represented by a Global Security, a record date shall be established for determining Holders of Outstanding Securities of such series entitled to join in such notice, which record date shall be at the close of business on the day the Trustee receives such notice. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders after such record date; provided , that, unless such declaration of acceleration, or rescission and annulment, as the case may be, shall have become effective by virtue of the requisite percentage having joined in such notice prior to the day which is 90 days after such record date, such notice of declaration of acceleration, or rescission and annulment, as the case may be, shall automatically and without further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new written notice of declaration of acceleration, or rescission and annulment thereof, as the case may be, that is identical to a written notice which has been canceled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 502.
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 (including any Additional 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 of (and 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 any Additional Interest), including, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium if

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any) and on any overdue interest (including any Additional 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, and 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,

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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 (including any Additional 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: Subject to Article Twelve, to the payment of the amounts then due and unpaid upon such series of Securities for principal (and premium, if any) and interest (including any Additional 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 (including any Additional 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.

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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 and Section 311) interest (including any Additional 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.

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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

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     (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
     Upon receipt by the Trustee of any written notice directing the time, method or place of conducting any such proceeding or exercising any such trust or power, with respect to Securities of a series all or part of which is represented by a Global Security, a record date shall be established for determining Holders of Outstanding Securities of such series entitled to join in such notice, which record date shall be at the close of business on the day the Trustee receives such notice. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders after such record date; provided , that, unless the Holders of a majority in principal amount of the Outstanding Securities of such series shall have joined in such notice prior to the day which is 90 days after such record date, such notice shall automatically and without further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new notice identical to a notice which has been canceled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 512.
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 (including any Additional 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

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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 such 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 (including any Additional 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.

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     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 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

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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;

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     (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; and
     (11) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
     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

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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.

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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 under (i) the Indenture dated as of October 20, 1995 between the Company and The Bank of New York Trust Company, N.A. (successor to The Chase Manhattan Bank (National Association)), as Trustee, (ii) the Indenture dated as of March 9, 2004, between the Company and The Bank of New York Trust Company, N.A. (successor to The Chase Manhattan Bank (National Association)), as Trustee or (iii) the Indenture dated as of April 11, 2007 between the Company and The Bank of New York Trust Company, N.A., 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

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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, ( i ) the Company by a Board Resolution may remove the Trustee, or ( ii ) 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 accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a

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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 ( i ) 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, ( ii ) 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 ( iii ) 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

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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 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

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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.

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     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:
     (a) 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
     (b) 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.

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Section 702. Preservation of Information, Communications to Holders.
     (a) 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.
     (b) 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.
     (c) 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 files 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

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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. All reports, information and documents described in this paragraph 704(1) and filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (EDGAR) system or any successor system shall be deemed to be filed with the Trustee; provided, that the Company shall have given the Trustee notice of such filing in accordance with Section 105(1). The Company also shall at all times comply with the provisions of Section 314(a) of the Trust Indenture Act;
     (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 premium, if any) and interest (including Additional 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

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     (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.

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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 provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section 201 or 301; or
     (5) to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of the Securities, as herein set forth; provided that no such indenture supplemental hereto shall apply to Securities that are then Outstanding, except in connection with any change in authorized amount contemplated by the proviso to Section 301(2); or
     (6) 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 to add to the rights of the Holders of any series of Securities; or
     (7) to add any additional Events of Default (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or

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     (8) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities; provided that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such Security Outstanding; or
     (9) to secure the Securities; or
     (10) 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
     (11) 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 (11) shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or
     (12) to conform any provision hereof to the requirements of the Trust Indenture Act or otherwise as necessary to comply with applicable law; or
     (13) to modify the provisions in Article Twelve of this Indenture with respect to the subordination of Outstanding Securities of any series in a manner not materially adverse to the Holders thereof; or
     (14) 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:

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     (1) except to the extent permitted by Section 311 or as otherwise specified as contemplated by Section 301 with respect to the deferral of the interest otherwise due and payable on the Securities of any series, change the Stated Maturity of the principal of, or any installment of interest (including any Additional Interest) payable on, any Outstanding Security, or reduce the principal amount of or the rate of interest thereon or reduce 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);
     (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);
     (3) modify any of the provisions of this Section, Section 513 or Section 1006, 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 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 1006, or the deletion of this proviso, in accordance with the requirements of Sections 611 and 901(10); or
     (4) modify the provisions of Article Twelve of this Indenture with respect to the subordination of Outstanding Securities of any series in a manner materially adverse to the Holders thereof.
     A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that 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.

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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 (and premium, if any) and interest on

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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 Security 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 (and 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 (and premium, if any) and any interest so becoming due until such sums shall be paid to such Persons or

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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 ( i ) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent, ( ii ) 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 ( iii ) 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 (and premium, if any) or interest on any Security and remaining unclaimed for two years after such principal (and 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

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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. 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 1006. 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 301(10) or 901(6) for the benefit of the Holders or in Section 1005, 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.

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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 or 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 $5,000 and integral multiples of $1,000 thereafter.
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

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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

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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

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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
SUBORDINATION OF SECURITIES
Section 1201. Securities Subordinate to Senior Indebtedness.
     The Company covenants and agrees, and each Holder of a Security, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article, the payment of the principal of (and premium, if any) and interest (including any Additional Interest) on each and all of the Securities are hereby expressly made subordinate in right of payment to the prior payment in full of all amounts then due and payable in respect of all Senior Indebtedness. Each Holder, by its acceptance hereof, waives all notice of acceptance of the subordination provisions

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contained herein by each holder of Senior Indebtedness, whether now outstanding or hereafter incurred and waives reliance by each such holder upon said provisions.
Section 1202. Payment Over of Proceeds Upon Dissolution, Etc.
     Upon any payment or distribution of assets to creditors upon any liquidation, dissolution, winding up, reorganization, assignment for the benefit of creditors, marshaling of assets or any bankruptcy, insolvency, debt restructuring or similar proceedings in connection with the Company’s insolvency or bankruptcy (each such event, if any, herein sometimes referred to as a “Proceeding”), the holders of Senior Indebtedness shall be entitled to receive payment in full of principal of (and premium, if any) and interest, if any, on such Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, before the Holders of the Securities are entitled to receive or retain any payment or distribution of any kind or character, whether in cash, property or securities (including any payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company (including any series of the Securities) subordinated to the payment of the Securities, such payment or distribution being hereinafter referred to as a “Junior Subordinated Payment”), on account of principal of (or premium, if any) or interest (including any Additional Interest) on the Securities or on account of the purchase or other acquisition of Securities by the Company or any Subsidiary and to that end the holders of Senior Indebtedness shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, property or securities, including any Junior Subordinated Payment, which may be payable or deliverable in respect of the Securities in any such Proceeding.
     In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, including any Junior Subordinated Payment, before all Senior Indebtedness is paid in full or payment thereof is provided for in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, and if written notice thereof from the Company or any holder of Senior Indebtedness (or any trustee, agent or representative therefor) shall, at least three Business Days prior to the time of such payment or distribution, have been received by a Responsible Officer of the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness.

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     For purposes of this Article only, the words “any payment or distribution of any kind or character, whether in cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which securities are subordinated in right of payment to all then outstanding Senior Indebtedness to substantially the same extent as the Securities are so subordinated as provided in this Article. The consolidation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale of all of its properties and assets or of its properties and assets substantially as an entirety to another Person or the liquidation or dissolution of the Company following the sale of all of its properties and assets or of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Article Eight shall not be deemed a Proceeding for the purposes of this Section if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by sale all such properties and assets or such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, or sale comply with the conditions set forth in Article Eight.
Section 1203. Prior Payment to Senior Indebtedness Upon Acceleration of Securities.
     In the event that any Securities are declared due and payable before their Stated Maturity, then and in such event the holders of the Senior Indebtedness outstanding at the time such Securities so become due and payable shall be entitled to receive payment in full of all amounts due on or in respect of such Senior Indebtedness (including any amounts due upon acceleration), or provision shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, before the Holders of the Securities are entitled to receive any payment or distribution of any kind or character, whether in cash, properties or securities (including any Junior Subordinated Payment) by the Company on account of the principal of (or premium, if any) or interest (including any Additional Interest) on the Securities or on account of the purchase or other acquisition of Securities by the Company or any Subsidiary; provided , however , that nothing in this Section shall prevent the satisfaction of any sinking fund payment in accordance with this Indenture or as otherwise specified as contemplated by Section 301 for the Securities of any series by delivering and crediting as contemplated by Section 301 for the Securities of any series Securities which have been acquired (upon redemption or otherwise) prior to such declaration of acceleration.
     In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and if written notice of such fact from the Company or any holder of Senior Indebtedness (or any trustee, agent or representative therefor) shall, at least three Business Days prior to the time of such payment, have been received by a

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Responsible Officer of the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Company.
     The provisions of this Section shall not apply to any payment with respect to which Section 1202 would be applicable.
Section 1204. No Payment When Senior Indebtedness in Default.
     ( a ) In the event and during the continuation of any default in the payment of principal of (or premium, if any) or interest on any Senior Indebtedness, or in the event that any event of default with respect to any Senior Indebtedness shall have occurred and be continuing and shall have resulted in such Senior Indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, unless and until such event of default shall have been cured or waived or shall have ceased to exist and such acceleration shall have been rescinded or annulled, or ( b ) in the event any judicial proceeding shall be pending with respect to any such default in payment or such event of default, then no payment or distribution of any kind or character, whether in cash, properties or securities (including any Junior Subordinated Payment) shall be made by the Company on account of principal of (or premium, if any) or interest (including any Additional Interest), if any, on the Securities or on account of the purchase or other acquisition of Securities by the Company or any Subsidiary; provided , however , that nothing in this Section shall prevent the satisfaction of any sinking fund payment in accordance with this Indenture or as otherwise specified as contemplated by Section 301 for the Securities of any series by delivering and crediting pursuant to Section 1202 or as otherwise specified as contemplated by Section 301 for the Securities of any series Securities which have been acquired (upon redemption or otherwise) prior to such default in payment or event of default.
     In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and if written notice thereof from the Company or any holder of Senior Indebtedness (or any trustee, agent or representative therefor) shall, at least three Business Days prior to the time of such payment, have been received by the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Company.
     The provisions of this Section shall not apply to any payment with respect to which Section 1202 would be applicable.
Section 1205. Payment Permitted If No Default.
     Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities shall prevent ( a ) the Company, at any time except during the pendency of any

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Proceeding referred to in Section 1202 or under the conditions described in Sections 1203 and 1204, from making payments at any time of principal of (and premium, if any) or interest on the Securities, or ( b ) the application by the Trustee of any money or Government Obligations deposited with it hereunder to the payment of or on account of the principal of (and premium, if any) or interest (including any Additional Interest) on the Securities or the retention of such payment by the Holders, if, at least three Business Days prior to the time of such application by the Trustee, a Responsible Officer of the Trustee did not receive written notice from the Company or any holder of Senior Indebtedness (or any trustee, agent or representative therefor) that such payment would have been prohibited by the provisions of this Article. Notwithstanding anything herein to the contrary, money or Government Obligations held in trust pursuant to Section 402 or 1305 shall not be subject to the claims of the holders of Senior Indebtedness under this Article Twelve.
Section 1206. Subrogation to Rights of Holders of Senior Indebtedness.
     Subject to the payment in full of all Senior Indebtedness, or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Indebtedness pursuant to the provisions of this Article (equally and ratably with the holders of all indebtedness of the Company which by its express terms is subordinated to Senior Indebtedness of the Company to substantially the same extent as the Securities are subordinated to the Senior Indebtedness and is entitled to like rights of subrogation by reason of any payments or distributions made to holders of such Senior Indebtedness) to the rights of the holders of such Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Senior Indebtedness until the principal of (and premium, if any) and interest on the Securities shall be paid in full. For purposes of such subrogation or assignment, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article, and no payments over pursuant to the provisions of this Article to the holders of Senior Indebtedness by Holders of the Securities or the Trustee, shall, as among the Company, its creditors other than holders of Senior Indebtedness, and the Holders of the Securities, be deemed to be a payment or distribution by the Company to or on account of the Senior Indebtedness.
Section 1207. Provisions Solely to Define Relative Rights.
     The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand and the holders of Senior Indebtedness on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall ( a ) impair, as between the Company and the Holders of the Securities, the obligations of the Company,

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which are absolute and unconditional, to pay to the Holders of the Securities the principal of (and premium, if any) and interest (including any Additional Interest) on the Securities as and when the same shall become due and payable in accordance with their terms; or ( b ) affect the relative rights against the Company of the Holders of the Securities and creditors of the Company other than their rights in relation to the holders of Senior Indebtedness; or ( c ) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture including, without limitation, filing and voting claims in any Proceeding, subject to the rights, if any, under this Article of the holders of Senior Indebtedness to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder.
Section 1208. Trustee to Effectuate Subordination.
     Each Holder of a Security by his or her acceptance thereof authorizes and directs the Trustee on his or her behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination provided in this Article and appoints the Trustee his or her attorney-in-fact for any and all such purposes.
Section 1209. No Waiver of Subordination Provisions.
     No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any such holder may have or be otherwise charged with.
Section 1210. Notice to Trustee.
     The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment to or by the Trustee in respect of the Securities. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until a Responsible Officer of the Trustee shall have received written notice thereof from the Company or a holder of Senior Indebtedness or from any trustee, agent or representative therefor (whether or not the facts contained in such notice are true); provided , however , that if the Trustee shall not have received the notice provided for in this Section at least three Business Days prior to the date upon which by the terms hereof any monies may become payable for any purpose (including, without limitation, the payment of the principal of (and premium, if any) or interest (including any Additional Interest) on any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and

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authority to receive such monies and to apply the same to the purpose for which they were received and shall not be affected by any notice to the contrary which may be received by it within three Business Days prior to such date.
Section 1211.   Reliance on Judicial Order or Certificate of Liquidating Agent or Other Notices.
     Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee, subject to the provisions of Article Six, and the Holders of the Securities shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.
     The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or an agent or representative of such holder or a trustee under any indenture under which any instruments evidencing any such Senior Indebtedness may have been issued) to establish that such notice has been given by a holder of such Senior Indebtedness or such agent or representative or trustee on behalf of such holder. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article Twelve, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the right of such Person under this Article Twelve, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment or distribution.
Section 1212. Trustee Not Fiduciary for Holders of Senior Indebtedness.
     The Trustee, in its capacity as trustee under this Indenture, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or to any other Person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.

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Section 1213.   Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights.
     The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.
     Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 607 or the second to last paragraphs of Sections 401 and 1305.
Section 1214. Article Applicable to Paying Agents.
     In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee.
Section 1215. Certain Conversions or Exchanges Deemed Payment.
     For the purposes of this Article only, ( a ) the issuance and delivery of junior securities upon conversion or exchange of Securities shall not be deemed to constitute a payment or distribution on account of the principal of (or premium, if any) or interest (including any Additional Interest) on Securities or on account of the purchase or other acquisition of Securities, and ( b ) the payment, issuance or delivery of cash, property or securities (other than junior securities) upon conversion or exchange of a Security shall be deemed to constitute payment on account of the principal of such Security. For the purposes of this Section, the term “junior securities” means ( i ) shares of any stock of any class of the Company and ( ii ) securities of the Company which are subordinated in right of payment to all Senior Indebtedness which may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company’s Option to Effect Defeasance or Covenant Defeasance.
     The Company may elect, at its option at any time, to have Section 1302 or Section 1303 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.

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Section 1302. 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 1304 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 1303 applied to such Securities.
Section 1303. Covenant Defeasance.
     Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities the Company shall be released from its obligations under Section 801 and Section 1005 and any covenants provided pursuant to 901(6) for the benefit of the Holders of such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 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, 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

73


 

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 401, 607 and 1305.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
     The following shall be the conditions to the application of Section 1302 or Section 1303 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, ( i ) money, or ( ii ) 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 ( iii ) 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 1302 apply to any Securities, the Company shall have delivered to the Trustee an Opinion of Counsel stating that ( i ) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ( ii ) since the date of this instrument, there has been a change in the applicable Federal income tax law, in the case of either (i) or (ii) 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.

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     (3) In the event of an election to have Section 1303 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 1305. 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 1306, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 1304 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

75


 

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 1304 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 1304 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 1304(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 1306. 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 1302 or 1303 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 1305 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 1307. Qualifying Trustee.
     Any trustee appointed pursuant to Section 1304 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

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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.
*       *       *

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     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    

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EXHIBIT A
[SPECIMEN BOND]
(FORM OF FACE OF SECURITY)
     [If the Security is an Original Issue Discount Security, insert — This Security was issued with original issue discount for United States Federal income tax purposes. For further information, please contact [name, title and address or telephone number of a representative of the Company].
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
(Title of Security)
                     
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

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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.]
     The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security by accepting the same, ( a ) agrees to and shall be bound by such provisions, ( b ) authorizes and directs the Trustee on its behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and ( c ) appoints the Trustee its attorney-in-fact for any and all such purposes. Each Holder hereof, by its acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.
     [If applicable, insert- The Company shall have the right at any time during the term of this Security, from time to time, to defer the payment of interest otherwise due and payable on such Security for up to ___ consecutive [months] [quarters] with respect to each deferral period (each a “ Deferral Period ”), during which periods the Company shall have the right to make partial payments of interest on any Interest Payment Date, and at the end of which the Company shall pay all interest then accrued and unpaid (together with Additional Interest thereon to the extent permitted by applicable law); provided that during any such Deferral Period, the Company will not, and will not permit any Subsidiary of the Company to ( i ) declare or pay any dividends or distributions or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Company’s outstanding capital stock or ( ii ) make any payment of principal, interest or premium, if any, on or repay, repurchase or redeem any debt security that ranks pari passu with or junior in interest to this Security or make any guarantee payments with respect to the foregoing (other than ( a ) dividends or distributions in common stock of the Company, ( b ) any declaration of a

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dividend in connection with the implementation of a shareholders’ rights plan, or the issuance of stock under any such plan in the future or the redemption or repurchase of any such rights pursuant thereto, ( c ) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or consultants, and ( d ) solely in the case of a Subsidiary of the Company, any declaration of dividends or distributions on the capital stock of such Subsidiary of the Company or one of its Affiliates). Prior to the termination of any such Deferral Period, the Company may further defer the payment of interest, provided that such Deferral Period together with all such previous and further extensions of such Deferral Period, shall not exceed ___consecutive [months] [quarters] or extend beyond the Maturity of this Security. Upon the termination of any such Deferral Period and upon the payment of all accrued and unpaid interest and any Additional Interest then due, the Company may select a new Deferral Period, subject to the above requirements. No interest shall be due and payable during a Deferral Period except at the end thereof. The Company shall give the Holder of this Security and the Trustee notice of its selection of a Deferral Period at least one Business Day prior to the Interest Payment Date.
     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.

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     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
         
  THE HARTFORD FINANCIAL SERVICES GROUP, INC.
 
 
  By:      
    Name:      
    Title:      

A- 4


 

         
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 a Junior Subordinated Indenture, dated as of June 6, 2008, 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 Trustee, the Company 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 meanings 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 [if applicable, insert—including Additional Interest, if any,] 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.]
     [If applicable, insert — The Securities of this series are not subject to redemption prior to Stated Maturity.]
     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.]

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     [ 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 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

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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.
     [If applicable, insert- The Company and, by its acceptance of this Security or a beneficial interest therein, the Holder of, and any Person that acquires a beneficial interest in, this Security agree that for United States Federal, state and local tax purposes it is intended that this Security constitute indebtedness.]
     THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

A- 7

Exhibit 4.2
Execution Copy
 
8.125% Fixed-To-Floating Rate Junior Subordinated Debentures
due 2068
FIRST SUPPLEMENTAL INDENTURE
between
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
Supplemental to Junior Subordinated Indenture
Dated as of June 6, 2008
 

 


 

Table of Contents
         
ARTICLE 1
       
DEFINITIONS
       
 
       
Section 1.01   Definitions
    1  
 
       
ARTICLE 2
       
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
       
 
       
Section 2.01   Designation, Principal Amount and Authorized Denominations
    22  
Section 2.02   Repayment
    23  
Section 2.03   Form
    26  
Section 2.04   Rate of Interest; Interest Payment Date
    27  
Section 2.05   Interest Deferral
    28  
Section 2.06   Alternative Payment Mechanism
    29  
Section 2.07   Events of Default
    32  
Section 2.08   Securities Registrar; Paying Agent; Delegation of Trustee Duties
    33  
Section 2.09   Limitation on Claims in the Event of Bankruptcy, Insolvency or Receivership
    33  
Section 2.10   Subordination
    34  
Section 2.11   Satisfaction and Discharge
    34  
 
       
ARTICLE 3
       
COVENANTS
       
 
       
Section 3.01   Dividend and Other Payment Stoppages
    34  
Section 3.02   Additional Limitation on Deferral Over One Year
    35  
 
       
ARTICLE 4
       
REDEMPTION OF THE DEBENTURES
       
 
       
Section 4.01   Redemption
    36  
Section 4.02   Redemption Price
    36  
 
       
ARTICLE 5
       
REPAYMENT OF DEBENTURES
       
 
       
Section 5.01   Repayments
    37  
Section 5.02   Selection of the Debentures to be Repaid
    37  
Section 5.03   Notice of Repayment
    37  
Section 5.04   Deposit of Repayment Amount
    38  
Section 5.05   Repayment of Debentures
    38  
 i 

 


 

         
ARTICLE 6
       
ORIGINAL ISSUE OF DEBENTURES
       
 
       
Section 6.01   Calculation of Original Issue Discount
    39  
 
       
ARTICLE 7
       
SUPPLEMENTAL INDENTURES
       
 
       
Section 7.01   Supplemental Indentures Without Consent of Holders
    39  
 
       
ARTICLE 8
       
MISCELLANEOUS
       
 
       
Section 8.01   Effectiveness
    40  
Section 8.02   Effect of Recitals
    40  
Section 8.03   Ratification of Indenture
    40  
Section 8.04   Tax Treatment
    40  
Section 8.05   Governing Law
    40  
Section 8.06   Severability
    40  
 
Exhibit A     Specimen Debenture
  A-1
 ii 

 


 

     FIRST SUPPLEMENTAL INDENTURE, dated as of June 6, 2008 (the “ First Supplemental Indenture ”), between THE HARTFORD FINANCIAL SERVICES GROUP, INC., a Delaware corporation (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 incorporated and existing under the laws of the United States of America, as Trustee (hereinafter called the “ Trustee ”).
RECITALS OF THE COMPANY
     The Company and the Trustee entered into a Junior Subordinated Indenture, dated as of June 6, 2008 (as it may from time to time be supplemented or amended, the “ Indenture ”). Section 901 of the Indenture provides that the Company and the Trustee may, without the consent of any Holder, enter into a supplemental indenture to provide for the issuance of and establish the form and terms of the Securities of any series as provided in Section 201 or 301 thereof.
     Pursuant to Sections 201 and 301 of the Indenture, the Company desires to provide for the issuance and establishment of a series of Securities under the Indenture, and the form and terms thereof, as hereinafter set forth.
     The Company has requested that the Trustee execute and deliver this First Supplemental Indenture. The Company has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate pursuant to Sections 102 and 903 of the Indenture to the effect, among other things, that all conditions precedent provided for in the Indenture to the Trustee’s execution and delivery of this First Supplemental Indenture have been complied with. All acts and things necessary have been done and performed to make this First Supplemental Indenture enforceable in accordance with its terms, and the execution and delivery of this First Supplemental Indenture has been duly authorized in all respects.
     NOW, THEREFORE: For and in consideration of the premises and the purchase of the Debentures (as herein defined) by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE 1
DEFINITIONS
     Section 1.01 Definitions . For all purposes of this First Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 


 

     (a) The terms defined in the Indenture have the same meaning when used in this First Supplemental Indenture unless otherwise defined herein.
     (b) The terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular.
     (c) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this First Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision, and any reference to an Article, Section or other subdivision refers to an Article, Section or other subdivision of this First Supplemental Indenture.
     (d) Any reference herein to “interest” shall include any Additional Interest.
     In addition, the following terms used in this First Supplemental Indenture have the following respective meanings:
     “ Additional Interest ” means the interest, if any, that shall accrue on any interest on the Debentures the payment of which has not been made on the applicable Interest Payment Date.
     “ Alternative Payment Mechanism ” means, with respect to any securities or combination of securities (together in this definition, “ securities ”), provisions in the related transaction documents requiring the Company to issue (or use Commercially Reasonable Efforts to issue) one or more types of APM Qualifying Securities for the purpose of raising eligible proceeds at least equal to the deferred and unpaid Distributions on such securities and apply the net proceeds to pay such Distributions on such securities, commencing on the earlier of (x) the first Distribution Date after commencement of a deferral period on which the Company pays current Distributions on such securities and (y) the fifth anniversary of the commencement of such deferral period if on such date such deferral period has not ended, and that:
     (a) define “ eligible proceeds ” to mean, for purposes of such Alternative Payment Mechanism, the net proceeds (after underwriters’ or placement agents’ fees, commissions or discounts and other expenses relating to the issuance or sale of the relevant securities, and including the fair market value of property received by the Company or any of its Subsidiaries as consideration for such securities) that the Company or any of its Subsidiaries shall have received during the 180 days prior to the relevant Distribution Date from the sale of APM Qualifying Securities, provided that in the case of APM Qualifying Securities that are Qualifying Preferred Stock or Mandatorily Convertible Preferred Stock the amount of net proceeds included in eligible proceeds shall not exceed the Preferred Cap;

2


 

     (b) permit the Company to pay current Distributions on any Distribution Date out of any source of funds but (i) require the Company to pay deferred Distributions only out of eligible proceeds and (ii) prohibit the Company from paying deferred Distributions out of any source of funds other than eligible proceeds unless an event of default with respect to such securities has occurred;
     (c) if deferral of Distributions continues for more than one year (or such shorter period as provided for in the terms of such securities), require the Company and its Subsidiaries not to repay, redeem or purchase any of its securities ranking junior to or equally with any APM Qualifying Securities on the liquidation, dissolution or winding-up of the Company, the proceeds of which were used to pay deferred interest during the relevant deferral period until at least one year after all deferred Distributions have been paid (“ Repurchase Restriction ”), other than the following (none of which shall be restricted or prohibited by a Repurchase Restriction):
     (i) purchases, redemptions or other acquisitions of Common Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or consultants;
     (ii) purchases of Common Stock pursuant to a contractually binding requirement to buy Common Stock entered into prior to the beginning of the related deferral period, including under a contractually binding stock repurchase plan;
     (iii) as a result of any exchange, redemption or conversion of any class or series of the Company’s capital stock (or any capital stock of one of the Company’s Subsidiaries) for any class or series of the Company’s capital stock or of any class or series of the Company’s indebtedness for any class or series of the Company’s capital stock;
     (iv) the purchase of or payment of cash in lieu of fractional interests in the Company’s capital stock in accordance with the conversion or exchange provisions of such capital stock or the security being converted or exchanged; or
     (v) the redemption or repurchase of rights in accordance with any stockholders’ rights plan;
     (d) limit the obligation of the Company to issue (or to use Commercially Reasonable Efforts to issue) APM Qualifying Securities that are Common Stock or Qualifying Warrants, prior to the fifth anniversary of any deferral period, to the extent that the number of shares of Common Stock issued or issuable upon the exercise of such Qualifying Warrants plus the number of shares of Common Stock previously issued or

3


 

issuable on the exercise of Qualifying Warrants previously issued during the applicable deferral period would exceed 2% of the total number of issued and outstanding shares of Common Stock set forth in the Company’s most recent publicly available financial statements
(the “ Common Cap ”);
     (e) limit the right of the Company to issue APM Qualifying Securities that are Qualifying Preferred Stock or Mandatorily Convertible Preferred Stock, to the extent that the net proceeds of any issuance of such Qualifying Preferred Stock or Mandatorily Convertible Preferred Stock applied, together with the net proceeds of all prior issuances of Qualifying Preferred Stock and any still-outstanding Mandatorily Convertible Preferred Stock applied during the current and all prior deferral periods, to pay deferred Distributions on the securities would exceed 25% of the liquidation or principal amount of the securities that are the subject of the related Alternative Payment Mechanism (the “ Preferred Cap ”);
     (f) notwithstanding the Common Cap and the Preferred Cap, permit the Company, at its option, to impose a limitation on the Company’s obligation to issue APM Qualifying Securities consisting of Common Stock and Qualifying Warrants to a maximum issuance cap to be set at the Company’s discretion and otherwise substantially similar to the Share Cap, provided that such limitation will be subject to the Company’s agreement to use Commercially Reasonable Efforts (i) to increase such limitation when reached to enable the Company to simultaneously satisfy its future fixed or contingent obligations under such securities and other securities and derivative instruments that provide for settlement or payment in shares of Common Stock or (ii) if the Company cannot increase such limitation as contemplated in the preceding clause, by requesting its Board of Directors to adopt a resolution for a stockholder vote at the next annual meeting of stockholders of the Company to increase the number of shares of the Company’s authorized Common Stock for purposes of satisfying the Company’s obligations to pay deferred Distributions;
     (g) in the case of securities other than Qualifying Preferred Stock, include a Bankruptcy Claim Limitation Provision; and
     (h) permit the Company, at its option, to provide that if the Company is involved in a merger, consolidation, amalgamation, binding share exchange or conveyance, business combination, recapitalization, transfer or lease of assets substantially as an entirety to any other Person or a similar transaction (a “ Business Combination ”) where immediately after the consummation of the Business Combination more than 50% of the voting stock of the surviving or resulting entity or the Person to whom all or substantially all of the Company’s property or assets are conveyed, transferred or leased in such Business Combination is owned by the stockholders of the other party to the Business Combination or Person to whom all or substantially all of the Company’s property or assets are conveyed, transferred or leased, then clauses (a), (b)

4


 

and (c) above will not apply to any deferral period that is terminated on the next Distribution Date following the date of consummation of the Business Combination;
provided (and it being understood) that:
     (1) the Company shall not be obligated to issue (or to use Commercially Reasonable Efforts to issue) APM Qualifying Securities for so long as a Market Disruption Event has occurred and is continuing;
     (2) if, due to a Market Disruption Event or otherwise, the eligible proceeds are not sufficient to pay all deferred Distributions on any Distribution Date, the Company will apply the eligible proceeds to pay accrued and unpaid deferred Distributions on such Distribution Date in chronological order, subject to the Common Cap, Preferred Cap and Share Cap, as applicable; and
     (3) if the Company has outstanding more than one class or series of securities under which it is obligated to sell a type of APM Qualifying Securities and apply some part of the proceeds to the payment of deferred Distributions, then on any date and for any period the amount of net proceeds received by the Company from those sales and available for payment of deferred Distributions on such securities (in accordance with clauses (d) and (e) of this definition) shall be applied to such securities on a pro rata basis in proportion to the total amounts that are due on such securities.
     “ APM Period ” means, with respect to any Deferral Period, the period commencing on the earlier of ( i ) the first Interest Payment Date during such Deferral Period on which the Company pays any current interest on the Debentures or ( ii ) the fifth anniversary of the commencement of such Deferral Period, if on such date such Deferral Period has not ended, and ending on the next Interest Payment Date on which the Company shall have paid the aggregate amount of accrued and unpaid deferred interest, including Additional Interest, that shall have accrued during such Deferral Period on the Debentures out of Eligible Proceeds.
     “ APM Qualifying Securities ” means Common Stock, Qualifying Preferred Stock, Qualifying Warrants, and/or Mandatorily Convertible Preferred Stock.
     “ Bankruptcy Claim Limitation Provision ” means, with respect to any securities or combination of securities that have an Alternative Payment Mechanism or a Mandatory Trigger Provision (together in this definition, “ securities ”), provisions in the terms thereof or of the related transaction agreements that, upon any liquidation, dissolution, winding-up or reorganization or in connection with any insolvency, receivership or proceeding under any bankruptcy law with respect to the issuer, limit the claim of the holders of such securities to Distributions that accumulate during (i) any deferral period, in the case of securities that have an Alternative Payment Mechanism but no Mandatory

5


 

Trigger provision or (ii) any period in which the issuer fails to satisfy one or more financial tests set forth in the terms of such securities or related transaction agreements, in the case of securities that have a Mandatory Trigger Provision, to:
     (a) in the case of securities having an Alternative Payment Mechanism or Mandatory Trigger Provision with respect to which the APM Qualifying Securities do not include Qualifying Preferred Stock or Mandatorily Convertible Preferred Stock, 25% of the stated or principal amount of such securities then outstanding; and
     (b) in the case of any other securities, the amount of accumulated and deferred Distributions (including compounded amounts) that relate to the earliest two years of the portion of the deferral period for which Distributions have not been paid.
     “ Business Combination ” has the meaning specified in clause (h) of the definition of Alternative Payment Mechanism.
     “ Business Day ” means any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in New York City are authorized or required by law or executive order to remain closed, (iii) a day on which the Corporate Trust Office of the Trustee is closed for business or (iv) on or after June 15, 2018, a day that is not a London Banking Day.
     “ Calculation Agent ” means, with respect to the Debentures, The Bank of New York Trust Company, N.A., or any other successor, acting as calculation agent in respect of the Debentures.
     “ Commercially Reasonable Efforts ” means for purposes of issuing APM Qualifying Securities or Qualifying Replacement Securities, commercially reasonable efforts to complete the offer and sale of APM Qualifying Securities or Qualifying Replacement Securities, as the case may be, to third parties that are not Subsidiaries of the Company in public offerings or private placements. The Company shall not be considered to have made Commercially Reasonable Efforts to issue APM Qualifying Securities or Qualifying Replacement Securities, as the case may be, if it determines not to pursue or complete such issuance solely due to pricing, coupon, dividend rate or dilution considerations.
     “ Common Cap ” has the meaning specified in clause (d) of the definition of Alternative Payment Mechanism.
     “ Common Stock ” means the common stock of the Company (including treasury shares of common stock), common stock issued pursuant to any dividend reinvestment plan or any of the Company’s employee benefit plans, any security of the Company that ranks upon the liquidation, dissolution or winding-up of the Company junior to Qualifying Preferred Stock and equally with the Company’s common stock and that

6


 

tracks the performance of, or relates to the results of, a business, unit or division of the Company, and any shares of common stock or equivalent equity interests of the surviving or resulting entity issued in exchange therefor in connection with a Business Combination.
     “ Common Stock Issuance Cap ” has the meaning specified in Section 2.06(a).
     “ Company ” has the meaning specified in the Recitals.
     “ Debentures ” has the meaning specified in Section 2.01.
     “ Debt Exchangeable for Common Equity ” means a security or combination of securities (together in this definition, “ securities ”) that:
     (a) gives the holder a beneficial interest in (i) debt securities of the Company that are not redeemable prior to the settlement date of the stock purchase contract referred to in subclause (ii) hereof and (ii) a fractional interest in a stock purchase contract obligating the holder to purchase Common Stock that will be settled in three years or less, with the number of shares of Common Stock purchasable pursuant to such stock purchase contract to be within a range established at the time of issuance of such debt securities and subject to customary anti-dilution adjustments;
     (b) provides that the holders directly or indirectly grant to the Company a security interest in such debt securities and their proceeds (including any substitute collateral permitted under the transaction documents) to secure the holders’ direct or indirect obligation to purchase Common Stock pursuant to the stock purchase contract referred to in subclause (a)(ii) hereof;
     (c) includes a remarketing feature pursuant to which such debt securities of the Company are remarketed to new investors not later than the settlement date of the stock purchase contract referred to in subclause (a)(ii) hereof; and
     (d) provides for the proceeds raised in the remarketing to be used to purchase shares of Common Stock under the stock purchase contract referred to in subclause (a)(ii) hereof and, if there has not been a successful remarketing by the settlement date of such stock purchase contract, provides that such stock purchase contract will be settled by the Company exercising its remedies as a secured party with respect to the debt securities or other collateral directly or indirectly pledged by holders of the Debt Exchangeable for Common Equity.
     “ Deferral Period ” means the period commencing on an Interest Payment Date with respect to which the Company elects or is deemed to elect to defer interest pursuant to Section 2.05 and ending on the earlier of ( i ) the tenth anniversary of that Interest Payment Date and ( ii ) the next Interest Payment Date on which the Company has paid all

7


 

deferred and unpaid amounts (including Additional Interest) and all other accrued interest on the Debentures.
     “ Distribution Date ” means, as to any securities or combination of securities, the date(s) on which Distributions on such securities are scheduled to be made.
     “ Distribution Period ” means, as to any securities or combination of securities, each period from and including a Distribution Date for such securities to but not including the next succeeding Distribution Date for such securities.
     “ Distributions ” means, as to a security or combination of securities, dividends, interest or other income distributions to the holders or beneficial owners thereof that are not Subsidiaries of the Company.
     “ Eligible Proceeds ” means, with respect to any Interest Payment Date, the net proceeds (after underwriters’ or placement agents’ fees, commissions or discounts and other expenses relating to the issuance or sale) the Company shall have received since the preceding Interest Payment Date from the sale of APM Qualifying Securities to Persons that are not the Company’s Subsidiaries, provided that, in the case of APM Qualifying Securities that are Mandatorily Convertible Preferred Stock or Qualifying Preferred Stock, the amount of net proceeds included in Eligible Proceeds shall not exceed the Preferred Stock Issuance Cap.
     “ Event of Default ” has the meaning specified in Section 2.07.
     “ Final Maturity Date ” has the meaning specified in Section 2.02(b).
     “ First Supplemental Indenture ” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto.
     “ Floating Rate ” has the meaning specified in Section 2.04(a).
     “ Floating Rate Interest Period ” the period beginning on and including June 15, 2018 and ending on but excluding the next Interest Payment Date and each successive period beginning on and including an Interest Payment Date and ending on but excluding the next Interest Payment Date.
     “ Indenture ” has the meaning specified in the Recitals.
     “ Intent-Based Replacement Disclosure ” means, as to any security or combination of securities, that the issuer has publicly stated its intention, either in the prospectus or other offering document under which such securities have been initially offered for sale or in filings with the Commission made by the issuer under the Exchange Act prior to or contemporaneously with the issuance of such securities, that the issuer and its

8


 

subsidiaries, to the extent such securities provide the issuer with NRSRO equity credit, will redeem, repurchase or defease such securities only with the proceeds of replacement capital securities that have terms and provisions at the time of redemption, repurchase or defeasance that are as or more equity-like than the securities then being redeemed, repurchased or defeased, and which proceeds were raised within 180 days prior to the applicable redemption, purchase or defeasance date.
     “ Interest Payment Date ” shall have the meaning specified in Section 2.04(b).
     “ Interest Period ” means a Semi-Annual Interest Period or a Floating Rate Interest Period, as the case may be.
     “ LIBOR Determination Date ” means, with respect to any Floating Rate Interest Period, the second London Banking Day immediately preceding the first day of such Floating Rate Interest Period.
     “ London Banking Day ” means any day on which commercial banks are open for general business (including dealings in deposits in U.S. dollars) in London.
     “ Make-Whole Redemption Amount ” means, with respect to the principal amount of any Debentures to be redeemed, the sum, as determined by the Premium Calculation Agent, of the present value of (i) the outstanding principal (discounted from June 15, 2018 to but excluding the Redemption Date) and (ii) remaining scheduled payments of interest that would have been payable from the Redemption Date to and including June 15, 2018 on the Debentures to be redeemed (not including any portion of such payments of interest accrued and unpaid to but excluding the Redemption Date), discounted from their respective Interest Payment Dates to but excluding the Redemption Date (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Rate (as determined and provided to the Premium Calculation Agent by the Treasury Dealer) plus a spread of 0.600%.
     “ Mandatorily Convertible Preferred Stock ” means preferred stock with (a) no prepayment obligation on the part of the issuer thereof, whether at the election of the holders or otherwise, and (b) a requirement that the preferred stock converts into common stock of the issuer within three years from the date of its issuance at a conversion ratio within a range established at the time of issuance of the preferred stock, subject to customary anti-dilution adjustments.
     “ Mandatory Trigger Provision ” means, as to any security or combination of securities, provisions in the terms thereof or of the related transaction agreements that:
     (a) if the issuer of such securities fails to satisfy one or more financial tests set forth in the terms of such securities or related transaction agreements and for so long as such failure continues, prohibits the issuer from making payments of

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Distributions on such securities from any source other than from the issuance and sale of APM Qualifying Securities and require the issuer, or in the case of Qualifying Preferred Stock, at the option of the issuer, permit the issuer, of such securities (in this definition, the “ issuer ”) to make payment of Distributions on such securities, within a two year period beginning on the date of such failure, only pursuant to the issuance and sale of APM Qualifying Securities, in an amount such that the net proceeds of such sale are at least equal to the amount of deferred and unpaid Distributions (including without limitation all deferred and accumulated amounts) on such securities or, in the case of Qualifying Preferred Stock, current Distributions, and in either case require the application of the net proceeds of such sale to pay such deferred and unpaid Distributions, or in the case of Qualifying Preferred Stock, permit the application of the net proceeds of such sale to pay current Distributions, on those securities, provided that ( i ) if the Mandatory Trigger Provision does not require such issuance and sale within one year of such failure, the amount of Common Stock or Qualifying Warrants the net proceeds of which the issuer must apply to pay such Distributions pursuant to such provision may not exceed the Common Cap, and ( ii ) the amount of Qualifying Preferred Stock and then still-outstanding Mandatorily Convertible Preferred Stock the net proceeds of which the issuer may apply to pay such Distributions pursuant to such provision may not exceed the Preferred Cap;
     (b) if the provisions described in clause (a) immediately above do not require such issuance and sale within one year of such failure, include a Repurchase Restriction;
     (c) other than in the case of Qualifying Preferred Stock, prohibit the issuer of such securities from redeeming or purchasing any of its securities ranking junior to or equally with any APM Qualifying Securities upon the liquidation, dissolution or winding-up of the Company, the proceeds of which were used to pay deferred Distributions during the relevant deferral period prior to the date six months after the issuer applies the net proceeds of the sales described in clause (a) immediately above to pay such deferred Distributions in full; and
     (d) other than in the case of Qualifying Preferred Stock, include a Bankruptcy Claim Limitation Provision;
     provided (and it being understood) that:
     (i) the issuer will not be obligated to issue (or to use Commercially Reasonable Efforts to issue) APM Qualifying Securities for so long as a Market Disruption Event has occurred and is continuing;
     (ii) if, due to a Market Disruption Event or otherwise, the issuer is able to raise and apply some, but not all, of the eligible proceeds necessary to pay all deferred Distributions on any Distribution Date, the issuer will apply any

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available eligible proceeds to pay accrued and unpaid Distributions on the applicable Distribution Date in chronological order subject to the Common Cap, Preferred Cap and Share Cap, as applicable; and
     (iii) if the issuer has outstanding more than one class or series of securities under which it is obligated to sell a type of APM Qualifying Securities and applies some part of the proceeds to the payment of deferred Distributions, then on any date and for any period the amount of net proceeds received by the issuer from those sales and available for payment of deferred Distributions on such securities (in accordance with the Alternative Payment Mechanism) shall be applied to such securities on a pro rata basis in proportion to the total amounts that are due on such securities.
     No remedy other than Permitted Remedies shall arise by the terms of such securities or related transaction agreements in favor of the holders of such securities as a result of the issuer’s failure to pay Distributions because of the Mandatory Trigger Provision until Distributions have been deferred for one or more Distribution Periods that total together at least ten years.
     “ Market Disruption Event ” means the occurrence or existence of any of the following events or sets of circumstances:
     (a) trading in securities generally, or the securities of the Company specifically, on the New York Stock Exchange or any other national securities exchange or over-the-counter market on which the Common Stock is listed or traded, shall have been suspended or materially disrupted or minimum prices shall have been established on any such exchange or market by the Commission, the relevant exchange or any other regulatory body or governmental authority having jurisdiction, and the establishment of such minimum prices materially disrupts or otherwise has a material adverse effect on trading in, or the issuance and sale of, the Common Stock;
     (b) the Company would be required to obtain the consent or approval of its stockholders or a regulatory body (including, without limitation, any securities exchange) or governmental authority to issue or sell APM Qualifying Securities or Qualifying Replacement Securities, as the case may be, and such consent or approval has not yet been obtained notwithstanding that the Company has used Commercially Reasonable Efforts to obtain the required consent or approval;
     (c) an event occurs and is continuing as a result of which the offering document for the offer and sale of APM Qualifying Securities or Qualifying Replacement Securities, as the case may be, would, in the reasonable judgment of the Company, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements in that offering document, in the light of the circumstances under which they were made, not misleading and either (i) the disclosure of that event at

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such time, in the reasonable judgment of the Company, is not otherwise required by law and would have a material adverse effect on the business of the Company or (ii) the disclosure relates to a previously undisclosed proposed or pending material business transaction, and the Company has a bona fide reason for keeping such transaction confidential or disclosure of such transaction would impede the ability of the Company to consummate such transaction; provided that no single suspension period resulting from the an event described in this clause (c) shall exceed 90 consecutive days and multiple suspension periods resulting from one or more Market Disruption Events described in this clause (c) shall not exceed an aggregate of 180 days in any 360-day period;
     (d) the Company reasonably believes that the offering document for the offer and sale of APM Qualifying Securities or Qualifying Replacement Securities, as the case may be, would not be in compliance with a rule or regulation of the Commission (for reasons other than those described in clause (c) above), and the Company determines that it is unable to comply with such rule or regulation or such compliance is impracticable, provided that no single suspension period resulting from an event described in this clause (d) shall exceed 90 consecutive days and multiple suspension periods resulting from one or more Market Disruption Events described in this clause (d) shall not exceed an aggregate of 180 days in any 360-day period;
     (e) there shall have occurred a material adverse change in general domestic or international economic, political or financial conditions, including without limitation as a result of terrorist activities, or the effect of international conditions on the financial markets in the United States shall be, such that the issuance of or market trading in the APM Qualifying Securities or Qualifying Replacement Securities, as the case may be, has been materially disrupted or has ceased;
     (f) there shall have been an escalation in hostilities involving the United States, there shall have been a declaration of a national emergency or war by the United States or there shall have occurred any other national or international calamity or crisis such that the issuance of or market trading in the APM Qualifying Securities or Qualifying Replacement Securities, as the case may be, has been materially disrupted or has ceased;
     (g) a material disruption shall have occurred in commercial banking or securities settlement or clearing services in the United States such that market trading in the APM Qualifying Securities or Qualifying Replacement Securities, as the case may be, has been materially disrupted or has ceased; or
     (h) a banking moratorium shall have been declared by federal or state authorities of the United States such that market trading in the APM Qualifying Securities or Qualifying Replacement Securities, as the case may be, has been materially disrupted or has ceased.

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     “ Market Value ” means, on any date, the closing sale price per share of Common Stock (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions by the New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange, as reported by the principal U.S. securities exchange on which the Common Stock is listed; if the Common Stock is not listed on any
U.S. securities exchange on the relevant date, the market price will be the average of the mid-point of the bid and ask prices for the Common Stock on the relevant date submitted by at least three nationally recognized independent investment banking firms selected by the Company for this purpose.
     “ No Payment Provision ” means a provision or provisions in the transaction documents for securities (referred to in this definition as “ such securities ”) that:
     (a) include an Alternative Payment Mechanism; and
     (b) permit the issuer of such securities, in its sole discretion, to defer in whole or in part payment of Distributions on such securities for one or more consecutive Distribution Periods of up to five years or, if a Market Disruption Event has occurred and is continuing, ten years, without any remedy other than Permitted Remedies.
     “ Non-Cumulative ” means, with respect to any securities, that the issuer may elect not to make any number of periodic Distributions without any remedy arising under the terms of the securities or related agreements in favor of the holders, other than one or more Permitted Remedies.
     “ NRSRO ” means a nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Exchange Act.
     “ Optional Deferral Provision ” means, as to any securities, provisions in the terms thereof or of the related transaction agreements to the effect of either (a) or (b) below:
     (a) (i) the issuer of such securities may, in its sole discretion, defer in whole or in part payment of Distributions on such securities for one or more consecutive Distribution Periods up to five years or, if a Market Disruption Event has occurred and is continuing, ten years, without any remedy other than Permitted Remedies and (ii) such securities are subject to an Alternative Payment Mechanism (provided that such Alternative Payment Mechanism need not apply during the first five years of any deferral period and need not include a Common Cap, Preferred Cap, Share Cap, Bankruptcy Claim Limitation or Repurchase Restrictions); or
     (b) the issuer of such securities may, in its sole discretion, defer in whole or in part payment of Distributions on such securities for one or more consecutive Distribution Periods up to ten years, without any remedy other than Permitted Remedies.

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     “ Parity Securities ” shall have the meaning specified in Section 3.01(b).
     “ Particular Parity Security ” shall have the meaning specified in Section 2.06(c)(ii).
     “ Permitted Remedies ” means, with respect to any securities, one or more of the following remedies:
     (a) rights in favor of the holders of such securities permitting such holders to elect one or more directors of the issuer (including any such rights required by the listing requirements of any stock or securities exchange on which such securities may be listed or traded); and
     (b) complete or partial prohibitions on the issuer paying Distributions on or purchasing common stock or other securities that rank equally with or junior as to Distributions to such securities for so long as Distributions on such securities, including deferred Distributions, remain unpaid.
     “ Preferred Cap ” has the meaning specified in clause (e) of the definition of Alternative Payment Mechanism.
     “ Preferred Stock Issuance Cap ” has the meaning specified in Section 2.06(a).
     “ Premium Calculation Agent ” means Banc of America Securities LLC or, if that firm is unwilling or unable to calculate the Make-Whole Redemption Amount or the Special Event Make-Whole Redemption Amount, an investment banking institution of national standing, appointed by the Company.
     “ Qualifying Preferred Stock ” means the Company’s Non-Cumulative perpetual preferred stock that ranks equally with or junior to all of the Company’s other preferred stock, other than preferred stock that is issued or issuable pursuant to a stockholders’ rights plan or similar plan or arrangement, is perpetual and (a) is subject to a Qualifying Replacement Capital Covenant, or (b) is subject to both (i) mandatory suspension of dividends in the event the Company breaches financial metrics specified in the transaction documents, and (ii) Intent-Based Replacement Disclosure. In addition, in the case of both (a) and (b) above, the transaction documents shall provide for no remedies as a consequence of non-payment of distributions other than Permitted Remedies.
     “ Qualifying Replacement Capital Covenant ” means (a) a replacement capital covenant that is substantially similar to the Replacement Capital Covenant applicable to the Debentures or (b) a replacement capital covenant, as identified by the Company’s Board of Directors, or a duly authorized committee thereof, acting in good faith and in its reasonable discretion and reasonably construing the definitions and other terms of the Replacement Capital Covenant, (i) entered into by a company that at the time it enters

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into such replacement capital covenant is a reporting company under the Exchange Act and (ii) that restricts the related issuer and its subsidiaries from repaying, redeeming or purchasing identified securities except out of the proceeds from the sale of specified Replacement Capital Securities that have terms and provisions at the time of repayment, redemption or purchase that are as or more equity-like than the securities then being repaid, redeemed or purchased, raised within 180 days prior to the applicable repayment, redemption or purchase date; provided that the term of such Qualifying Replacement Capital Covenant shall be determined at the time of issuance of the related Replacement Capital Securities taking into account the other characteristics of such securities.
     “ Qualifying Replacement Securities ” means securities or a combination of securities (other than Common Stock, rights to acquire Common Stock, Mandatorily Convertible Preferred Stock or Debt Exchangeable for Common Equity) that, in the determination of the Company’s Board of Directors (or a duly authorized committee thereof) reasonably construing the definitions and other terms of this First Supplemental Indenture, meet one of the following criteria:
     (a) in connection with any repayment, redemption, defeasance or purchase of Debentures prior to June 15, 2018:
     (i) securities issued by the Company or any of its Subsidiaries that (1) rank equally with or junior to the Debentures upon the liquidation, dissolution or winding-up of the Company, (2) have no maturity or a maturity of at least 60 years and (3)(A) are Non-Cumulative and are subject to a Qualifying Replacement Capital Covenant or have a No Payment Provision and is subject to a Qualifying Replacement Capital Covenant or (B) have a Mandatory Trigger Provision and have either an Optional Deferral Provision or a No Payment Provision and are subject to Intent-Based Replacement Disclosure; or
     (ii) securities issued by the Company or any of its Subsidiaries that (1) rank equally with or junior to the Debentures upon the liquidation, dissolution or winding-up of the Company, (2) have no maturity or a maturity of at least 40 years, (3) are subject to a Qualifying Replacement Capital Covenant and (4) have a Mandatory Trigger Provision and an Optional Deferral Provision; or
     (iii) shares of preferred stock issued by the Company or any of its Subsidiaries that are (1) Non-Cumulative, (2) have no prepayment obligation on the part of the issuer thereof, whether at the election of the Holders or otherwise, (3) have no maturity or a maturity of at least 60 years and either (A) are subject to a Qualifying Replacement Capital Covenant or (B) have a Mandatory Trigger Provision and are subject to Intent-Based Replacement Disclosure; or
     (b) in connection with any repayment, redemption, defeasance or purchase of Debentures on or after June 15, 2018 and prior to
June 15, 2038:

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     (i) any securities described under clause (a) of this definition that would be Qualifying Replacement Securities prior to June 15, 2018;
     (ii) securities issued by the Company or any of its Subsidiaries that (1) rank equally with or junior to the Debentures upon the liquidation, dissolution or winding-up of the Company, (2) have no maturity or a maturity of at least 60 years, (3) are subject to a Qualifying Replacement Capital Covenant and (4) have an Optional Deferral Provision;
     (iii) securities issued by the Company or any of its Subsidiaries that (1) rank equally with or junior to the Debentures upon a liquidation, dissolution or winding-up of the Company, (2) are Non-Cumulative or have a No Payment Provision, (3) have no maturity or a maturity of at least 60 years and (4) are subject to Intent-Based Replacement Disclosure;
     (iv) securities issued by the Company or any of its Subsidiaries that (1) rank equally with or junior to the Debentures upon the liquidation, dissolution or winding-up of the Company, (2) have no maturity or a maturity of at least 40 years and (3) (A) are Non-Cumulative, or have a No Payment Provision, and subject to a Qualifying Replacement Capital Covenant or (B) have a Mandatory Trigger Provision and an Optional Deferral Provision and are subject to Intent-Based Replacement Disclosure;
     (v) securities issued by the Company or any of its Subsidiaries that (1) upon the liquidation, dissolution or winding-up of the Company, rank junior to all of the senior and subordinated debt of the Company other than the Debentures and securities that rank equally with the Debentures upon the liquidation, dissolution or winding-up of the Company, (2) have a Mandatory Trigger Provision and an Optional Deferral Provision and are subject to Intent-Based Replacement Disclosure and (3) have no maturity or a maturity of at least 60 years;
     (vi) cumulative preferred stock issued by the Company or any of its Subsidiaries that (1) has no prepayment obligation on the part of the issuer thereof, whether at the election of the holders or otherwise, (2) has no maturity or a maturity of at least 60 years and (3) is subject to a Qualifying Replacement Capital Covenant; or
     (vii) other securities issued by the Company or any of its Subsidiaries that (1) rank upon the liquidation, dissolution or winding-up of the Company equally with or junior to the Debentures and (2) have no maturity or a maturity of at least 30 years, are subject to a Qualifying Replacement Capital Covenant and have a Mandatory Trigger Provision and an Optional Deferral Provision; or

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     (c) in connection with any repayment, redemption, defeasance or purchase of Debentures at any time after June 15, 2038:
     (i) any securities described under clause (b) of this definition that would be Qualifying Replacement Securities prior to June 15, 2038;
     (ii) securities issued by the Company or any of its Subsidiaries that (1) rank equally with or junior to the Debentures upon the liquidation, dissolution or winding-up of the Company, (2) either (A) have no maturity or a maturity of at least 60 years and are subject to Intent-Based Replacement Disclosure or (B) have no maturity or a maturity of at least 40 years and are subject to a Qualifying Replacement Capital Covenant and (C) have an Optional Deferral Provision;
     (iii) securities issued by the Company or any of its Subsidiaries that (1) rank junior to all of the senior and subordinated debt of the Company other than the Debentures and any other securities that rank equally with the Debentures upon the liquidation, dissolution or winding-up of the Company, (2) have a Mandatory Trigger Provision, an Optional Deferral Provision and are subject to Intent-Based Replacement Disclosure and (3) have no maturity or a maturity of at least 40 years; or
     (iv) preferred stock issued by the Company or any of its Subsidiaries that either (1) has no maturity or a maturity of at least 60 years and is subject to Intent-Based Replacement Disclosure or (2) has a maturity of at least 40 years and is subject to a Qualifying Replacement Capital Covenant,
provided , however, that if any of the securities described in the foregoing clauses (a), (b) and (c) is structured at the time of issuance with a distribution rate step-up (whether interest or dividend) of more than 25 basis points prior to the 25 th anniversary of such issuance, then such security shall be subject to a replacement capital covenant that will remain in effect until at least the Scheduled Maturity Date and that is otherwise substantially similar to the Replacement Capital Covenant.
     “ Qualifying Warrants ” means any net share settled warrants to purchase the Common Stock that ( a ) have an exercise price greater than the Market Value of the Common Stock on the date of sale, ( b ) the Company is not entitled to redeem for cash and ( c ) the holders of which are not entitled to require the Company to repurchase for cash in any circumstances.
     “ Quarterly Interest Payment Date ” shall have the meaning specified in Section 2.04.
     “ Rating Agency Event ” means, after the date hereof, a change by any NRSRO in its criteria for awarding equity credit to securities such as the Debentures, which change

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results in ( x ) the shortening of the length of time the Debentures are assigned a particular level of equity credit by that NRSRO as compared to the length of time they would have been assigned that level of equity credit by such NRSRO or its predecessor on the date hereof or ( y ) the lowering of the equity credit (including up to a lesser amount) assigned to the Debentures by that NRSRO as compared to the equity credit that such NRSRO or its predecessor assigned to the Debentures on the date hereof.
     “ Regular Record Date ” means, ( i ) with respect to a Semi-Annual Interest Payment Date, the June 1 or December 1, as the case may be, next preceding such Interest Payment Date, and ( ii ) with respect to a Quarterly Interest Payment Date, the March 1, June 1, September 1 or December 1, as the case may be, next preceding such Interest Payment Date, in each case whether or not a Business Day.
     “ Remaining Shares ” means the number of the Company’s authorized and unissued shares of Common Stock less the maximum number of shares of the Company’s authorized and unissued Common Stock that could be issued under options, warrants, convertible securities, any equity-linked contracts and other agreements, in each case existing at the time of determination, that require the Company to issue a determinable number of shares of its Common Stock.
     “ Repayment Date ” means the Scheduled Maturity Date and each Quarterly Interest Payment Date thereafter until the Company shall have repaid or redeemed all of the Debentures.
     “ Replacement Capital Covenant ” means the Replacement Capital Covenant, dated as of June 6, 2008, by the Company, as the same may be amended or supplemented from time to time in accordance with the provisions thereof and Section 2.02(a)(vii) hereof.
     “ Replacement Capital Securities ” means
     (a) Common Stock and rights to acquire Common Stock;
     (b) Mandatorily Convertible Preferred Stock;
     (c) Debt Exchangeable for Common Equity; and
     (d) Qualifying Replacement Securities.
     “ Repurchase Restrictions ” has the meaning specified in clause (c) of the definition of “Alternative Payment Mechanism.”
     “ Reuters Page LIBOR01 ” means the display so designated on the Reuters 3000 Xtra (or such other page as may replace that page on that service, or such other service as may be nominated by the Company as the information vendor, for the purpose of displaying rates or prices comparable to the London Interbank Offered rate for U.S. dollar deposits).

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     “ Scheduled Maturity Date ” has the meaning specified in Section 2.02(a)(i).
     “ Securities Registrar ” means, with respect to the Debentures, The Bank of New York Trust Company, N.A., or any other firm appointed by the Company, acting as securities registrar for the Debentures.
     “ Securities Registrar Office ” means the office of the applicable Securities Registrar at which at any particular time its corporate agency business shall principally be administered, which office at the date hereof in the case of The Bank of New York Trust Company, N.A., in its capacity as Securities Registrar under the Indenture, is located at 2 North Lasalle Street, Suite 1020, Global Corporate Trust, Chicago, Illinois 60602.
     “ Semi-Annual Interest Payment Date ” shall have the meaning specified in Section 2.04.
     “ Semi-Annual Interest Period ” means the period beginning on and including June 6, 2008 and ending on but excluding the first Interest Payment Date and each successive period beginning on and including an Interest Payment Date and ending on but excluding the next Interest Payment Date until June 15, 2018.
     “ Share Cap ” has the meaning specified in Section 2.06(a)(iii).
     “ Shares Available for Issuance ” means the number of Remaining Shares allocated by the Company on a pro rata basis or such other basis as the Company determines is appropriate to the payment of deferred interest on the Debentures in accordance with Section 2.06 and not so allocated to any other similar commitment that is of an indeterminate nature and under which the Company is required at the time of such allocation to issue shares of its Common Stock.
     “ Special Event ” means a Tax Event or a Rating Agency Event.
     “ Special Event Make-Whole Redemption Amount ” means, with respect to the principal amount of any Debentures to be redeemed, the sum, as determined by the Premium Calculation Agent, of the present value of ( i ) the outstanding principal (discounted from June 15, 2018 to but excluding the Redemption Date) and ( ii ) the remaining scheduled payments of interest that would have been payable from the Redemption Date to and including June 15, 2018 on the Debentures to be redeemed (not including any portion of such payments of interest accrued and unpaid to but excluding the Redemption Date), discounted from their respective Interest Payment Dates to but excluding the Redemption Date (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Rate (as determined and provided to the Premium Calculation Agent by the Treasury Dealer) plus a spread of 0.750%.

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     “ Subsidiary ” means, at any time, any Person the shares of stock or other ownership interests of which ordinary have voting power to elect a majority of the board of directors or other managers of such Person are at the time owned or the management and policies of which are otherwise at the time controlled, directly or indirectly through one or more intermediaries (including other Subsidiaries) or both, by another Person.
     “ Tax Event ” means the receipt by the Company of an opinion of counsel, rendered by a law firm of nationally recognized standing that is experienced in such matters, stating that, as a result of any: ( i ) amendment to or change (including any announced proposed or prospective change) in the laws (or any regulations under those laws) of the United States or any political subdivision or taxing authority of or in the United States affecting taxation, ( ii ) official administrative pronouncement (including a private letter ruling, technical advice memorandum or similar pronouncement) or judicial decision or administrative action or other official pronouncement interpreting or applying the laws or regulations enumerated in clause (i) above, by any court, government agency or regulatory authority, or ( iii ) threatened challenge asserted in connection with an audit of the Company or any of its Subsidiaries, or a threatened challenge asserted in writing against any taxpayer that has raised capital through the issuance of securities that are substantially similar to the Debentures, which amendment or change is enacted or effective or which pronouncement or decision is announced or which challenge is asserted against the Company or becomes publicly known on or after the date hereof, there is more than an insubstantial increase in the risk that interest accruable or payable by the Company on the Debentures is not, or will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes.
     “ Three-Month LIBOR ” means, with respect to any Floating Rate Interest Period, the rate (expressed as a percentage per annum) for deposits in U.S. dollars for a three-month period commencing on the first day of such Floating Rate Interest Period that appears on Reuters Page LIBOR01 as of 11:00 a.m., London time, on the LIBOR Determination Date for that Floating Rate Interest Period. If such rate does not appear on Reuters Page LIBOR01, Three-Month LIBOR will be determined on the basis of the rates at which deposits in U.S. dollars for a three-month period commencing on the first day of that Floating Rate Interest Period and in a principal amount of not less than $1,000,000 are offered to prime banks in the London interbank market by four major banks in the London interbank market selected by the Calculation Agent (after consultation with the Company) at approximately 11:00 a.m., London time, on the LIBOR Determination Date for that Floating Rate Interest Period. The Calculation Agent will request the principal London office of each of these banks to provide a quotation of such bank’s rate. If at least two such quotations are provided, Three-Month LIBOR with respect to that Floating Rate Interest Period will be the arithmetic mean (rounded upward if necessary to the nearest whole multiple of 0.00001%) of such quotations. If fewer than two quotations are provided, Three-Month LIBOR with respect to that Floating Rate Interest Period will be the arithmetic mean (rounded upward if necessary to the nearest whole multiple of 0.00001%)

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of the rates quoted by three major banks in New York City selected by the Calculation Agent (after consultation with the Company) at approximately 11:00 a.m., New York City time, on the first day of that Floating Rate Interest Period for loans in U.S. dollars to leading European banks for a three-month period commencing on the first day of that Floating Rate Interest Period and in a principal amount of not less than $1,000,000. However, if fewer than three banks selected by the Calculation Agent to provide quotations are quoting as described above, Three-Month LIBOR for that Floating Rate Interest Period will be the same as Three-Month LIBOR as determined for the previous Floating Rate Interest Period or, in the case of the Floating Rate Interest Period beginning on June 15, 2018, 2.67313%. The establishment of Three-Month LIBOR for each Floating Rate Interest Period by the Calculation Agent shall (in the absence of manifest error) be final and binding.
     “ Trading Day ” means a day on which the Common Stock is traded on the New York Stock Exchange, or if not then listed on the New York Stock Exchange, a day on which the Common Stock is traded or quoted on the principal U.S. securities exchange on which it is listed or quoted, or if not then listed or quoted on a U.S. securities exchange, a day on which the Common Stock is quoted in the over-the-counter market.
     “ Treasury Dealer ” means Banc of America Securities LLC, Citigroup Global Markets Inc. or Lehman Brothers Inc. (or their respective successors) or, if each of Banc of America Securities LLC, Citigroup Global Markets Inc. or Lehman Brothers Inc. (or their respective successors) refuses to act as Treasury Dealer for the purpose of determining the Make-Whole Redemption Amount or the Special Event
Make-Whole Redemption Amount or ceases to be a primary U.S. Government securities dealer, another nationally recognized investment banking firm that is a primary U.S. Government securities dealer specified by the Company for these purposes.
     “ Treasury Price ” means, with respect to a Redemption Date of the Debentures, the bid-side price for the Treasury Security as of the third Trading Day preceding such Redemption Date, as set forth in the daily statistical release (or any successor release) published by The Wall Street Journal on that Trading Day and designated “Treasury Bonds, Notes and Bills,” as determined by the Treasury Dealer, except that: ( i ) if that release (or any successor release) is not published or does not contain that price information on that Trading Day, or ( ii ) if the Treasury Dealer determines that the price information is not reasonably reflective of the actual bid-side price of the Treasury Security prevailing at 3:30 p.m., New York City time, on that Trading Day, then “Treasury Price” will instead mean the bid-side price for the Treasury Security at or around 3:30 p.m., New York City time, on that Trading Day (expressed on a next Trading Day settlement basis) as determined by the Treasury Dealer through such alternative means as the Treasury Dealer considers to be appropriate under the circumstances.
     “ Treasury Rate ” means, with respect to a Redemption Date of the Debentures, the semi-annual equivalent yield to maturity of the Treasury Security that corresponds to the

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Treasury Price (calculated by the Treasury Dealer in accordance with standard market practice and computed as of the second Trading Day preceding such Redemption Date).
     “ Treasury Security ” means the United States Treasury security that the Treasury Dealer determines would be appropriate to use, at the time of determination and in accordance with standard market practice, in pricing the Debentures being redeemed in a tender offer based on a spread to United States Treasury yields.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
Section 2.01 Designation, Principal Amount and Authorized Denominations .
     (a) Designation. Pursuant to Sections 201 and 301 of the Indenture, there is hereby established a series of Securities of the Company designated as the 8.125% Fixed-to-Floating Rate Junior Subordinated Debentures due 2068 (the “ Debentures ”), the principal amount of which to be issued shall be in accordance with Section 2.01(b) hereof and as set forth in any Company Order for the authentication and delivery of Debentures pursuant to the Indenture, and the form and terms of which shall be as set forth hereinafter.
     (b) Principal Amount. Debentures in an initial aggregate principal amount of $500,000,000 shall, upon execution of this First Supplemental Indenture, be executed by the Company and delivered to the Trustee or an Authenticating Agent for authentication, and the Trustee or an Authenticating Agent shall thereupon authenticate and deliver said Debentures in accordance with a Company Order. Additional Debentures may be issued from time to time pursuant to this First Supplemental Indenture on the same terms and conditions as the Debentures issued under this First Supplemental Indenture in all respects, except for any difference in the issue date, issue price and, if applicable, the first payment of interest thereon and the initial interest accrual date. Additional Debentures issued pursuant to this First Supplemental Indenture will be consolidated with, and will form a single series with, the previously outstanding Debentures issued pursuant to this First Supplemental Indenture unless such additional Debentures will not be treated as fungible for U.S. tax purposes with the Debentures issued as of the date of this First Supplemental Indenture. Any additional Debentures issued under this First Supplemental Indenture will rank equally and ratably in right of payment with the Debentures originally issued under this First Supplemental Indenture.
     (c) Authorized Denominations. The denominations in which Debentures shall be issuable is a minimum of $5,000 principal amount and integral multiples of $1,000 thereafter.

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Section 2.02 Repayment .
     (a) Scheduled Maturity Date.
     (i) The principal amount of, and all accrued and unpaid interest on, the Debentures shall be payable in full on June 15, 2038 or, if such day is not a Business Day, the following Business Day and interest will continue to accrue during such postponement (the “ Scheduled Maturity Date ”); provided, however, that in the event the Company has delivered an Officers’ Certificate to the Trustee pursuant to clause (v) of this Section 2.02(a) in connection with the Scheduled Maturity Date, ( x ) the principal amount of Debentures payable on the Scheduled Maturity Date, if any, shall be the principal amount set forth in the notice of repayment, if any, accompanying such Officers’ Certificate, ( y ) such principal amount of Debentures shall be repaid on the Scheduled Maturity Date pursuant to Article 5 hereof, and ( z ) subject to clause (ii) of this Section 2.02(a), the remaining Debentures shall remain Outstanding and shall be payable on the immediately succeeding Quarterly Interest Payment Date or such earlier date on which they are redeemed pursuant to Article 4 hereof, become due and payable pursuant to Section 502 of the Indenture or on the Final Maturity Date; and provided further , that any deferred interest on the Debentures (including Additional Interest) shall be paid in accordance with Section 2.06.
     (ii) In the event the Company has delivered an Officers’ Certificate to the Trustee pursuant to clause (v) of this Section 2.02(a) in connection with any Quarterly Interest Payment Date, the principal amount of the Debentures repayable on such Quarterly Interest Payment Date shall be the principal amount set forth in the notice of repayment, if any, accompanying such Officers’ Certificate, and shall be repaid on such Quarterly Interest Payment Date pursuant to Article 5 hereof, and the remaining Debentures shall remain Outstanding and shall be payable on the immediately succeeding Quarterly Interest Payment Date or such earlier date on which they are redeemed pursuant to Article 4 hereof, become due and payable pursuant to Section 502 of the Indenture or on the Final Maturity Date.
     (iii) The obligation of the Company to repay the Debentures pursuant to this Section 2.02(a) on any date prior to the Final Maturity Date shall be subject to its obligations under Article Twelve of the Indenture to the holders of Senior Indebtedness.
     (iv) Until the Debentures are paid in full:
     (A) the Company shall use Commercially Reasonable Efforts, subject to the occurrence and continuance of a Market Disruption Event, to raise sufficient net cash proceeds from the issuance of Qualifying

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Replacement Securities during a 180-day period ending on the date on which the Company delivers the Officers’ Certificate required by the first sentence of clause (v) of this Section 2.02(a) and/or Section 5.01 (not more than 15 and not less than 10 Business Days prior to the Scheduled Maturity Date) to permit repayment in full of the outstanding principal amount of and accrued and unpaid interest (other than any deferred interest (including Additional Interest), which shall be paid only in accordance with Section 2.06) on the Debentures on the Scheduled Maturity Date pursuant to clause (i) of this Section 2.02(a); and
     (B) if the Company is unable for any reason to raise sufficient net cash proceeds from the issuance of Qualifying Replacement Securities to permit repayment in full of the Debentures on the Scheduled Maturity Date or any subsequent Quarterly Interest Payment Date, the Company shall use Commercially Reasonable Efforts, subject to the occurrence and continuance of a Market Disruption Event, to raise sufficient net cash proceeds from the issuance of Qualifying Replacement Securities during a 90-day period ending on the date on which the Company delivers the Officers’ Certificate required by the first sentence of clause (v) of this Section 2.02(a) and/or Section 5.01 (not more than 15 and not less than 10 Business Days prior to the following Quarterly Interest Payment Date) to permit repayment in full of the outstanding principal amount of and accrued and unpaid interest (other than any deferred interest (including Additional Interest), which shall be paid only in accordance with Section 2.06) on the Debentures in full on such following Quarterly Interest Payment Date pursuant to clause (i)(z) of this Section 2.02(a); and
     (C) the Company shall apply any net cash proceeds from the issuance of Qualifying Replacement Securities to the repayment of the Debentures as provided in clause (vi) of this Section 2.02(a).
     (v) The Company shall, if it has not received sufficient net cash proceeds from the issuance of Qualifying Replacement Securities pursuant to clause (iv) above in connection with any Repayment Date, deliver an Officers’ Certificate to the Trustee no more than 15 and no less than 10 Business Days in advance of such Repayment Date stating the amount of net cash proceeds, if any, received pursuant to clause (iv) above in connection with such Repayment Date. The Company shall be excused from its obligation to sell Qualifying Replacement Securities pursuant to clause (iv) above if it delivers an Officers’ Certificate to the Trustee no more than 15 and no less than 10 Business Days in advance of such Repayment Date certifying that: ( A ) a Market Disruption Event was existing and continuing during the entire 180-day period preceding the date of such Officers’ Certificate or, in the case of any Repayment Date after the Scheduled Maturity

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Date, the entire 90-day period preceding the date of such Officers’ Certificate; or ( B )  the Company was unable after Commercially Reasonable Efforts to raise sufficient net proceeds during such 180-day period or 90-day period preceding the date of such Officers’ Certificate to permit repayment of the Debentures in full. Each Officers’ Certificate delivered pursuant to the first sentence of this clause (v), unless no principal amount of Debentures is to be repaid on the applicable Repayment Date, shall be accompanied by a notice of repayment pursuant to Section 5.01 (which shall be the notice of repayment required to be given to the Holders of the Debentures under Section 5.03) setting forth the principal amount of the Debentures to be repaid on such Repayment Date, if any, which amount shall be determined after giving effect to clause (vi) of this Section 2.02(a).
     (vi) Net cash proceeds of the issuance of any Qualifying Replacement Securities shall be applied to repayment of the Debentures on any Repayment Date in the following order of priority: first, to pay deferred interest (including Additional Interest) to the extent of Eligible Proceeds received pursuant to Section 2.06; second, to pay current interest to the extent not paid from other sources and; third, to repay the Outstanding principal of the Debentures; provided that if the Company is obligated to sell Qualifying Replacement Securities and apply the net proceeds to payments of principal of or interest on any outstanding securities other than the Debentures then ( i ) on any date and for any period the amount of net proceeds received by the Company from those sales and available for such payments shall be applied to the Debentures and such other outstanding securities having the same scheduled maturity date as the Debentures, pro rata in accordance with their respective Outstanding principal amounts and ( ii ) none of such net proceeds shall be applied to any other securities having a later scheduled maturity date than the Debentures until the principal of the Debentures shall have been paid in full. If the Company raises less than $5 million (or, if less than $5 million principal amount of Debentures remains Outstanding, an amount less than the remaining principal amount of such remaining Outstanding Debentures) of net proceeds from the sale of Qualifying Replacement Securities during the relevant 180-day or 90-day period, the Company will not be required to repay any Debentures on the Scheduled Maturity Date or the next Quarterly Interest Payment Date, as applicable, but must use those net proceeds to repay the Debentures on the next Quarterly Interest Payment Date to the extent the Company has raised at least $5 million (or, if less than $5 million principal amount of Debentures remains Outstanding, an amount equal to the remaining Outstanding Debentures) of net proceeds. If the net proceeds allocable to repay the principal of the Debentures shall not be divisible by the authorized denominations of the Debentures into a whole number, the net proceeds so allocable shall be deemed to be equal to the next lower amount divisible by such authorized denominations into a whole

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number. The Company shall deliver to the Trustee, no later than one Business Day prior to a Repayment Date with respect to which the Company has received net cash proceeds of the issuance of Qualifying Replacement Securities, an Officers’ Certificate setting forth the manner in which such net cash proceeds are to be applied in accordance with this Section 2.02(a)(vi).
     (vii) The Company shall not amend the Replacement Capital Covenant to impose additional restrictions on the type or amount of Qualifying Replacement Securities that the Company may include for purposes of determining whether or to what extent repayment, redemption or purchase of the Debentures is permitted, except with the consent of Holders of at least a majority in aggregate Outstanding principal amount of the Debentures. Except as aforesaid, the Company may amend or supplement the Replacement Capital Covenant in accordance with its terms and without the consent of the Holders of the Debentures.
     (b) Final Maturity Date. The principal of, and all accrued and unpaid interest on, all Outstanding Debentures shall be due and payable on June 15, 2068 or, if such date is not a Business Day, the following Business Day (the “ Final Maturity Date ”), from any source of available funds and regardless of the amount of Qualifying Replacement Securities the Company may have issued and sold by that time.
Section 2.03 Form . The Debentures shall be substantially in the form of Exhibit A attached hereto and shall be issued in fully registered definitive form without interest coupons. Principal of and interest on the Debentures issued in definitive form will be payable, the transfer of such Debentures will be registrable and such Debentures will be exchangeable for Debentures bearing identical terms and provisions and notices and demands to or upon the Company in respect of the Debentures and the Indenture may be served at the Corporate Trust Office of the Trustee, and the Company appoints the Trustee as its agent for the foregoing purposes, provided that payment of interest may be made at the option of the Company by check mailed to the Holders at such address as shall appear in the Security Register or by wire transfer in immediately available funds to the bank account number of the Holders specified in writing by the Holders not less than 10 days before the relevant Interest Payment Date and entered in the Security Register by the Securities Registrar. The Debentures may be presented for registration of transfer or exchange at the Securities Registrar Office. The Debentures are initially solely issuable as Global Securities. The Depository Trust Company is hereby designated as Depositary. Registered Debentures shall be physically transferred to all beneficial owners in definitive form in exchange for their beneficial interests in a Global Security if the Depositary with respect to such Global Securities notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or the Depositary ceases to be a clearing agency registered under the Exchange Act, as the case may be, and a successor Depositary is not appointed by the Company within 90 days of such notice.

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     In addition, beneficial interests in the Global Securities may be exchanged for definitive certificated Debentures upon request by or on behalf of the Depositary in accordance with customary procedures following the request of a beneficial owner seeking to exercise or enforce its rights under such Debentures in connection with an Event of Default. If the Company determines at any time that the Debentures shall no longer be represented by a Global Security, the Company shall inform the Depositary of such determination which will, in turn, notify participants of their right to withdraw their beneficial interest from the Global Security. If such participants then elect to withdraw their beneficial interests, the Company shall issue certificates in definitive form in exchange for such beneficial interests in the Global Security. Any Global Security, or portion thereof, that is exchangeable pursuant to this Section 2.03 shall be exchangeable for Debenture certificates registered in the names directed by the Depositary.
Section 2.04 Rate of Interest; Interest Payment Date .
     (a) Rate of Interest. The Debentures shall bear interest from and including June 6, 2008 to but excluding June 15, 2018 or earlier Redemption Date of the Debentures, at the rate of 8.125% per annum, payable as set forth in clause (b) below computed on the basis of a 360-day year comprised of twelve 30-day months. Commencing on June 15, 2018, the Debentures shall bear interest at a floating annual rate, reset quarterly on the first day of each Floating Rate Interest Period by the Calculation Agent, equal to Three-Month LIBOR, determined for each Floating Rate Interest Period as set forth herein, plus 4.6025% (the “ Floating Rate ”), payable as set forth in clause (b) below. The amount of Floating Rate interest payable on the Debentures for any Floating Rate Interest Period will be computed on the basis of a 360-day year and the actual number of days elapsed in the 360-day year. Interest scheduled for payment but not paid upon any Interest Payment Date, including interest not required to be paid due to deferral under the terms of this First Supplemental Indenture, shall bear Additional Interest from the originally scheduled payment date therefor at the rate borne by the Debentures; provided that ( i ) if a scheduled Semi-Annual Interest Payment Date is not a Business Day, interest payable on such Semi-Annual Interest Payment Date shall be paid on the next succeeding day that is a Business Day, and no interest will accrue as a result of any such postponement, and ( ii ) if a scheduled Quarterly Interest Payment Date is not a Business Day, the Quarterly Interest Payment Date shall be postponed to the next succeeding day that is a Business Day, and interest will continue to accrue during such postponement. Interest will accrue from and including the last Interest Payment Date in respect of which interest has been paid or duly provided for to but excluding the following Interest Payment Date with respect to which the interest has been paid or duly provided for.
     (b) Interest Payment Dates. Subject to the other provisions hereof, interest on the Debentures shall be payable ( i ) semi-annually in arrears on June 15 and December 15 of each year, commencing on December 15, 2008, until and including June 15, 2018

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(each such date, a “ Semi-Annual Interest Payment Date ”) and ( ii ) thereafter, quarterly in arrears on March 15, June 15, September 15 and December 15 of each year, commencing on September 15, 2018 (each such date, a “ Quarterly Interest Payment Date ” and, together with Semi-Annual Interest Payment Dates, each, an “ Interest Payment Date ”).
Section 2.05 Interest Deferral .
     (a) Option to Defer Interest Payments.
     (i) So long as no Event of Default with respect to the Debentures has occurred and is continuing, the Company shall have the right on one or more occasions, to defer the payment of interest on the Debentures for one or more Interest Periods up to ten consecutive years, provided that no Deferral Period shall extend beyond the Final Maturity Date, the earlier accelerated maturity date of the Debentures or other repayment or redemption in full of the Debentures. If the Company shall fail to pay interest on the Debentures on any Interest Payment Date, the Company shall be deemed to elect to defer payment of such interest on such Interest Payment Date, unless the Company shall pay such interest in full within five Business Days after any such Interest Payment Date. If the Company shall have paid all deferred interest (including Additional Interest) on the Debentures, the Company shall have the right to elect to begin a new Deferral Period pursuant to this Section 2.05.
     (ii) During a Deferral Period, interest (including Additional Interest) will continue to accrue on the Debentures at the then applicable interest rate, compounded semi-annually or quarterly, as applicable, as of each Interest Payment Date to the extent permitted by applicable law.
     (iii) The Company shall pay all deferred interest, including Additional Interest, in accordance with the provisions of Section 307 of the Indenture applicable to Defaulted Interest.
     (b) Payment of Deferred Interest. The Company will not pay any deferred interest (including Additional Interest) on the Debentures except in accordance with Section 2.06 prior to the Final Maturity Date, except at any time that the principal amount of the Debentures shall have been accelerated and such acceleration has not been rescinded or in the case of a Business Combination to the extent provided below in Section 2.05(c). On the Final Maturity Date or if the principal amount of the Debentures shall have been accelerated and such acceleration has not been rescinded, the Company shall pay all accrued and unpaid interest, including deferred interest (including Additional Interest), from any available funds. Notwithstanding the foregoing, on any Interest Payment Date the Company may pay the current interest accrued during the immediately preceding Interest Period from any available funds.

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     (c) Business Combination Exception. If the Company is involved in a Business Combination where immediately after its consummation more than 50% of the voting stock of the Person that is the surviving entity of such Business Combination, or the Person to whom all or substantially all of the Company’s property or assets are conveyed, transferred or leased in such Business Combination, is owned by the stockholders of the other party to such Business Combination, then Section 2.05(b) and Section 2.06 shall not apply to any payment of interest for a Deferral Period that is terminated on the next Interest Payment Date following the date of consummation of such Business Combination.
     (d) Notice of Deferral. The Company shall provide written notice to the Trustee and the Holders of the Debentures of its election to commence or continue any Deferral Period at least one Business Day and not more than sixty Business Days prior to the applicable Interest Payment Date. Notice of the Company’s election of a Deferral Period shall be given to the Trustee and each Holder of Debentures at such Holder’s address appearing in the Security Register by first-class mail, postage prepaid. Notwithstanding the foregoing, the failure of the Company to provide notice in accordance with this Section 2.05(d) of its election to commence or continue any Deferral Period, including any deemed election as provided in Section 2.05(a)(i), shall not affect the validity of such deferral hereunder.
Section 2.06 Alternative Payment Mechanism .
     (a) Obligation to Issue APM Qualifying Securities. During the APM Period, the Company shall, subject to the limitations set forth in clauses (i), (ii) and (iii) below, the occurrence and continuation of a Market Disruption Event as provided in Section 2.06(b), and Section 2.05(b) and Section 2.06(c), sell APM Qualifying Securities until the Company has raised an amount of Eligible Proceeds at least equal to the aggregate amount of accrued and unpaid deferred interest on the Debentures, including Additional Interest, and apply such Eligible Proceeds as promptly as practicable following receipt thereof to the payment of all accrued and unpaid deferred interest (including Additional Interest) on the Debentures until all such deferred interest (including Additional Interest) has been paid in full. Subject to the limitations set forth in this Section 2.06(a), during an APM Period, the Company may in its discretion select the types of APM Qualifying Securities to sell to satisfy its obligations under this Section 2.06(a):
     (i) Prior to the fifth anniversary of the commencement of a Deferral Period the Company shall not be obligated to issue Common Stock or Qualifying Warrants to the extent that the number of shares of Common Stock issued or issuable upon the exercise of such Qualifying Warrants plus the number of shares of Common Stock previously issued or issuable upon the exercise of Qualifying Warrants previously issued during such Deferral Period would exceed an amount equal to 2% of the total number of issued and outstanding shares of

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Common Stock as of the date of the Company’s then most recent publicly available consolidated financial statements immediately prior to the date of such issuance (the “ Common Stock Issuance Cap ”). If the Company shall have issued Common Stock or Qualifying Warrants during any Deferral Period such that the Common Stock Issuance Cap shall have been reached, notwithstanding any subsequent increase in the number of outstanding shares of Common Stock in accordance with clause (iii) below or otherwise, the Common Stock Issuance Cap applicable during such Deferral Period shall not be increased. On and after the fifth anniversary of the commencement of any Deferral Period, the Common Stock Issuance Cap shall cease to apply and the Company shall pay any deferred interest, regardless of the time at which it was deferred, as provided in this Section 2.06(a) without regard to the Common Stock Issuance Cap, but subject to the other limitations set forth herein. Upon the termination of any Deferral Period, if the Company shall thereafter start a new Deferral Period, the Common Stock Issuance Cap shall apply without regard to the shares of Common Stock and Qualifying Warrants issued in any prior Deferral Period. Notwithstanding the Common Stock Issuance Cap, the Company shall have the right, in its sole discretion, to issue Common Stock or Qualifying Warrants in excess of the Common Stock Issuance Cap for the purpose of paying deferred interest (including Additional Interest) on the Debentures or for any other purpose;
     (ii) The Company shall not issue Qualifying Preferred Stock or Mandatorily Convertible Preferred Stock to the extent that the net proceeds of any issuance of Qualifying Preferred Stock or Mandatorily Convertible Preferred Stock applied, together with the net proceeds of all prior issuances of Qualifying Preferred Stock and any still-outstanding Mandatorily Convertible Preferred Stock applied during the current and all prior Deferral Periods, to pay deferred interest on the Debentures pursuant to this Section 2.06, would exceed 25% of the aggregate principal amount of the Debentures (the “ Preferred Stock Issuance Cap ”);
     (iii) Notwithstanding the Common Stock Issuance Cap and the Preferred Stock Issuance Cap, so long as any Debentures shall remain Outstanding, the Company shall not sell Common Stock, Qualifying Warrants, or Mandatorily Convertible Preferred Stock for the purpose of paying deferred interest (including Additional Interest) on the Debentures in an amount such that the Common Stock to be issued (or which would be issuable upon exercise or conversion thereof) would exceed the Shares Available for Issuance (the “ Share Cap ”). The Company shall use its commercially reasonable efforts to seek stockholder approval to increase the number of authorized shares of the Common Stock if at any date the Shares Available for Issuance falls below the greater of:

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     (A) 86 million shares (or 172 million shares if the Company has amended the Definition of APM Qualifying Securities to eliminate Common Stock) (as adjusted for any stock split, stock dividend, reclassification, recapitalization, split-up, combination, exchange of shares or similar transaction); and
     (B) the number of shares that the Company would be required to issue to raise sufficient Eligible Proceeds (assuming a price per share equal to the average trading price of a share of Common Stock during the ten-Trading Day period preceding the date of determination) equal to the lesser of ( a ) the sum of ( 1 ) three times the amount of the then outstanding deferred interest (including Additional Interest) on the Debentures plus ( 2 ) the amount of interest (including Additional Interest) that would accumulate on the Debentures during the next twelve months assuming no payments of interest thereon are made, and ( b ) the amount of interest (including Additional Interest) that would accumulate on the Debentures during the ten year period beginning on the commencement of the then current Deferral Period. For purposes of determining the amounts accruing subsequent to June 15, 2018, interest will be computed by reference to Three-Month LIBOR for the then current Interest Period plus 4.6025%.
     If the Company issues additional Debentures, the number of shares referred to in (A) above will be increased proportionately to the principal amount of such additional Debentures.
     (b) Market Disruption Event. Section 2.06(a) shall not apply, with respect to any Interest Payment Date, if not less than 10 Business Days prior to such Interest Payment Date the Company shall have provided to the Trustee an Officers’ Certificate (which the Trustee will promptly forward upon receipt to each Holder of Debentures) stating that a Market Disruption Event has occurred and is continuing and identifying the type of Market Disruption Event that has occurred and the date(s) on which that Market Disruption Event occurred or existed. The obligation of the Company to sell APM Qualifying Securities to pay deferred interest (including Additional Interest) on the Debentures shall resume at such time as no Market Disruption Event exists or is continuing.
     (c) Partial Payment of Deferred Interest.
     (i) If the Eligible Proceeds received by the Company from one or more sales of APM Qualifying Securities are not sufficient to satisfy the full amount of accrued and unpaid deferred interest, including Additional Interest, on the Debentures (together with the full amount of deferred interest on Parity Securities in the circumstances described in clause (ii) below) on any Interest

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Payment Date, such Eligible Proceeds shall be allocated to pay accrued and unpaid deferred interest to Holders of the Debentures (and Parity Securities, if applicable) on a pro rata basis based on the total amount of accrued and unpaid deferred interest then due. No less than 10 Business Days prior to any Interest Payment Date with respect to which insufficient Eligible Proceeds have been received by the Company, the Company shall deliver to the Trustee an Officers’ Certificate stating that such insufficient proceeds have been received and stating the amount of such proceeds allocable to pay accrued and unpaid deferred interest on the Debentures in accordance with this clause (i).
     (ii) If on any date or for any period the Company pays interest on any class of Parity Securities in an amount that is less than the full amount of accrued but unpaid interest payable on such class of Parity Securities, including pursuant to an obligation to pay to the holders of such Parity Securities the proceeds of a sale of APM Qualifying Securities, the Company will make payments on all outstanding classes of Parity Securities on the same date or for the same corresponding period as on the Debentures on a pro rata basis based on the total amounts then due, except and to the extent the terms of any such Parity Securities (each a “ Particular Parity Security ”) would prohibit the Company from making such payments on such Particular Parity Security.
Section 2.07 Events of Default .
     Solely for purposes of the Debentures, Section 501 of the Indenture shall be deleted and replaced by the following:
Section 5.01 Events of Default .
     “ Event of Default ”, wherever used herein with respect to the Debentures, 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 interest, including Additional Interest, in full on any Debenture for a period of 30 days after the conclusion of a 10-year period following the commencement of any Deferral Period, or on the Final Maturity Date; or
     (2) default in the payment of principal of, or premium, if any, on any Debenture on the Final Maturity Date or upon redemption; or
     (3) 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

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properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company in an involuntary case 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
     (4) 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 or 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 and such official is not discharged within 60 days, or the making by it of a general 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.
     The Trustee shall have no right or obligation under the Indenture or otherwise to exercise any remedies on behalf of the Holders of the Debentures in connection with any failure by the Company to comply with any covenant or warranty of the Company contained in the Indenture (other than any covenant referred to in Section 501(1) or (2)), unless the Trustee is directed to exercise such remedies pursuant to and subject to the provisions of Section 512 of the Indenture. In connection with any such exercise of remedies, the Trustee shall be entitled to the same immunities and protections and remedial rights (other than acceleration) as if such failure to comply were an Event of Default. The Trustee shall not be charged with knowledge or notice of any such failure to comply unless and until it shall have received the foregoing direction under Section 512 of the Indenture.
Section 2.08 Securities Registrar; Paying Agent; Delegation of Trustee Duties .
     (a) The Company appoints The Bank of New York Trust Company, N.A., as Security Registrar and Paying Agent with respect to the Debentures.
Section 2.09 Limitation on Claims in the Event of Bankruptcy, Insolvency or Receivership . Each Holder, by such Holder’s acceptance of the Debentures, agrees that in the event of the Company’s bankruptcy, insolvency or receivership prior to the redemption or repayment of such Debentures, whether voluntary or not, such Holder of Debentures shall have no claim under the Debentures for, and no right to receive, any deferred and unpaid interest (including Additional Interest) pursuant to Section 2.05 that has not been paid pursuant to Section 2.05 and Section 2.06 to the extent the amount of

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such deferred interest exceeds the amount of deferred interest (including Additional Interest) that relates to the earliest two years of the portion of the Deferral Period for which interest has not been paid.
Section 2.10 Subordination . The subordination provisions of Article Twelve of the Indenture shall apply to the Debentures, provided that, for purposes of such Article Twelve, Senior Indebtedness will not include ( a ) indebtedness incurred for the purchase of goods, materials or property, or for services obtained in the ordinary course of business or for other liabilities arising in the ordinary course of business (i.e., trade accounts payable), ( b ) any indebtedness which by its terms expressly provides that it is not senior to the Debentures, ( c ) any of the Company’s indebtedness owed to a Person who is a Subsidiary or employee of the Company, or ( d ) the Income Capital Obligation Notes due 2067 of the Company issuable pursuant to the Junior Subordinated Indenture, dated as of February 12, 2007, between the Company and LaSalle Bank Nation Association, a national banking association incorporated and existing under the laws of the United States of America, as Trustee, and, in each case, the Debentures shall be pari passu with such indebtedness.
Section 2.11 Satisfaction and Discharge . The provisions of Section 401 and Article 13 of the Indenture shall apply to the Debentures.
ARTICLE 3
COVENANTS
Section 3.01 Dividend and Other Payment Stoppages . So long as any Debentures remain Outstanding, if the Company shall have given notice of its election to defer interest payments on the Debentures but the related Deferral Period has not yet commenced or a Deferral Period is continuing, the Company shall not, and shall not permit any Subsidiary of the Company to:
     (a) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of capital stock of the Company other than:
     (i) any purchase, redemption or other acquisition of shares of Common Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or consultants;
     (ii) purchases of shares of Common Stock pursuant to a contractually binding requirement to buy Common Stock entered into prior to the beginning of such Deferral Period, including under a contractually binding stock repurchase plan;

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     (iii) as a result of any exchange, redemption or conversion of any class or series of the Company’s capital stock, or the capital stock of one of its Subsidiaries, for any class or series of the Company’s capital stock, or of any class or series of the Company’s indebtedness for any class or series of the Company’s capital stock;
     (iv) any purchase of, or payment of cash in lieu of, fractional interests in shares of the Company’s capital stock in accordance with the conversion or exchange provisions of such capital stock or the security being converted or exchanged;
     (v) the redemption or repurchase of rights in accordance with any stockholders’ rights plan; or
     (b) make any payment of principal of, or interest or premium, if any, on or repay, repurchase or redeem any of the Company’s debt securities or guaranties that rank equally with the Debentures (“ Parity Securities ”) or junior to the Debentures other than (i) any payment of current or deferred interest on Parity Securities made pro rata to the amounts due on such Parity Securities (including the Debentures) provided that such payments are made in accordance with Section 2.06(c) to the extent applicable, and any payments of deferred interest on Parity Securities that, if not made, would cause the Company to breach the terms of the instrument governing such Parity Securities; or (ii) any payment of principal on Parity Securities necessary to avoid a breach of the instrument governing such Parity Securities.
Section 3.02 Additional Limitation on Deferral Over One Year .
     (a) Subject to the exceptions specified in Section 3.01 above, if any Deferral Period lasts longer than one year, the Company shall not, and shall not permit any Subsidiary of the Company to, redeem or repurchase any of the Company’s APM Qualifying Securities, the proceeds from the sale of which were used to pay deferred interest on the Debentures during the relevant Deferral Period, or any securities of the Company that rank equally with or junior to such APM Qualifying Securities until the first anniversary of the date on which all deferred interest on the Debentures shall have been paid pursuant to Section 2.06 above.
     (b) If the Company is involved in a Business Combination where immediately after its consummation more than 50% of the voting stock of the Person that is the surviving entity of such Business Combination, or the Person to whom all or substantially all of the Company’s property or assets are conveyed, transferred or leased in such Business Combination, is owned by the stockholders of the other party to the Business Combination, then Section 3.02(a) shall not apply to any redemption or repurchase of the Company’s APM Qualifying Securities if the Deferral Period is terminated on or prior to

35


 

the next Interest Payment Date following the date of consummation of such Business Combination.
ARTICLE 4
REDEMPTION OF THE DEBENTURES
Section 4.01 Redemption . The Debentures shall be redeemable in accordance with Article Eleven of the Indenture, except to the extent otherwise provided in this First Supplemental Indenture:
     (a) in whole at any time or in part from time to time after the date of this First Supplemental Indenture; or
     (b) in whole but not in part, within 180 days after the occurrence of a Special Event;
provided that no partial redemption pursuant to Section 4.01(a) shall be effected ( x ) unless at least $25 million aggregate principal amount of the Debentures shall remain Outstanding after giving effect to such redemption and ( y ) if the principal amount of the Debentures shall have been accelerated and such acceleration has not been rescinded or unless all accrued and unpaid interest, including deferred interest (including Additional Interest), shall have been paid in full on all Outstanding Debentures for all Interest Periods terminating on or before the
Redemption Date.
Section 4.02 Redemption Price . The Redemption Price for any redemption pursuant to Section 4.01 will be equal to ( 1 ) in the case of any redemption pursuant to Section 4.01(a) prior to June 15, 2018, the greater of ( i ) 100% of the principal amount of the Debentures being redeemed, and ( ii ) the Make-Whole Redemption Amount, in each case plus accrued and unpaid interest to but excluding the Redemption Date, ( 2 ) in the case of any redemption pursuant to Section 4.01(b) prior to June 15, 2018, the greater of ( i ) 100% of the principal amount of the Debentures being redeemed, and ( ii ) the Special Event Make-Whole Redemption Amount, in each case plus accrued and unpaid interest to but excluding the Redemption Date, or ( 3 ) in the case of any redemption on or after June 15, 2018, 100% of the principal amount of the Debentures being redeemed plus accrued and unpaid interest to but excluding the Redemption Date. The Company shall give the Trustee prompt notice of the determination of any Redemption Price provided for in this Section and the Trustee shall have no responsibility for determining such Redemption Price.

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ARTICLE 5
REPAYMENT OF DEBENTURES
Section 5.01 Repayments . The Company shall, not more than 15 nor less than 10 Business Days prior to each Repayment Date (unless a shorter notice shall be satisfactory to the Trustee), deliver to the Trustee an Officers’ Certificate notifying it of the principal amount of Debentures to be repaid on such date pursuant to Section 2.02(a).
Section 5.02 Selection of the Debentures to be Repaid . If less than all the Debentures are to be repaid on any Repayment Date (unless such repayment affects only a single Debenture), the particular Debentures to be repaid shall be selected by the Trustee promptly following receipt of the notice specified in Section 5.01, from the Outstanding Debentures not previously repaid or 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 repayment of a portion of the principal amount of any Debenture, provided that the portion of the principal amount of any Debenture not repaid shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Debenture. If less than all the Debentures and of a specified tenor are to be repaid (unless such redemption affects only a single Debenture), the particular Debentures to be repaid shall be selected by the Trustee promptly following receipt of the notice specified in Section 5.01, from the Outstanding Debentures and specified tenor not previously called for repayment in accordance with the preceding sentence.
     The Trustee shall promptly notify the Company in writing of the Debentures selected for partial repayment and the principal amount thereof to be repaid. For all purposes hereof, unless the context otherwise requires, all provisions relating to the repayment of Debentures shall relate, in the case of any Debentures repaid or to be repaid only in part, to the portion of the principal amount of such Debentures which has been or is to be repaid.
Section 5.03 Notice of Repayment . Notice of repayment shall be given by first-class mail, postage prepaid, mailed not earlier than the 15th Business Day, and not later than the 5th Business Day, prior to the Repayment Date, to each Holder of Debentures to be repaid, at the address of such Holder as it appears in the Security Register.
     Each notice of repayment shall identify the Debentures to be repaid (including the Debentures’ CUSIP number, if a CUSIP number has been assigned to the Debentures) and shall state:
     (a) the Repayment Date;

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     (b) if less than all Outstanding Debentures are to be repaid, the identification (and, in the case of partial repayment, the respective principal amounts) of the particular Debentures to be repaid;
     (c) that on the Repayment Date, the principal amount of the Debentures to be repaid will become due and payable upon each such Debenture or portion thereof, and that interest thereon, if any, shall cease to accrue on and after said date; and
     (d) the place or places where such Debentures are to be surrendered for payment of the principal amount thereof.
     Notice of repayment shall be given by the Company or, if the Company timely notifies the Trustee, 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 Holders receive such notice. In any case, a failure to give such notice by mail or any defect in the notice to any Holder of any Debentures designated for repayment as a whole or in part shall not affect the validity of the proceedings for the repayment of any other Debentures.
Section 5.04 Deposit of Repayment Amount . Prior to the Repayment Date specified in the notice of repayment given as provided in Section 5.03, the Company will deposit with the Trustee or with one or more Paying Agents (or if the Company is acting as its own Paying Agent, the Company will segregate and hold in trust as provided in Section 1003 of the Indenture) an amount of money, in immediately available funds, sufficient to pay the principal amount of, and any accrued interest on, all the Debentures which are to be repaid on that date.
Section 5.05 Repayment of Debentures . If any notice of repayment has been given as provided in Section 5.03, the Debentures or portion of the Debentures with respect to which such notice has been given shall become due and payable on the date and at the place or places stated in such notice. On presentation and surrender of such Debentures at a Place of Payment in said notice specified, the said Debentures or the specified portions thereof shall be paid by the Company at their principal amount, together with accrued interest to but excluding the Repayment Date, and any deferred interest (including Additional Interest) shall be paid in accordance with Section 2.06; provided that, except in the case of a repayment in full of all Outstanding Debentures, installments of interest whose Stated Maturity is on or prior to the Repayment Date will be payable to the Holders of such Debentures, registered as such at the close of business on the relevant Regular Record Dates according to their terms and the provisions of Section 1101 of the Indenture. Upon presentation of any Debentures repaid in part only, the Company shall execute and the Trustee shall authenticate and make available for delivery to the Holders thereof, at the expense of the Company, a new Debenture, of authorized denominations, in aggregate principal amount equal to the portion of the Debentures not repaid and so

38


 

presented and having the same Scheduled Maturity Date and other terms. If a Global Security is so surrendered, such new Debentures will also be a new Global Security.
     If any Debentures required to be repaid shall not be so repaid upon surrender thereof, the principal of such Debentures shall, until paid, bear interest from the applicable Repayment Date at the rate prescribed therefor in the Debentures.
ARTICLE 6
ORIGINAL ISSUE OF DEBENTURES
Section 6.01 Calculation of Original Issue Discount . If during any calendar year any original issue discount shall have accrued on the Debentures, the Company shall file with each Paying Agent (including the Trustee if it is a Paying Agent) by January 31 of the following calendar year ( a ) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Debentures as of the end of such year and ( b ) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE 7
SUPPLEMENTAL INDENTURES
Section 7.01 Supplemental Indentures Without Consent of Holders . Notwithstanding Section 901 and Section 902 of the Indenture, without the consent of any Holders of Debentures, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time may amend this First Supplemental Indenture for any of the following purposes:
     (1) to modify the definition of “Shares Available for Issuance” contained in Section 1.01 and the related provisions of this First Supplemental Indenture, provided that ( a ) the Company shall have determined in good faith that such modification is not materially adverse to the Holders of the Debentures, ( b ) the rating agencies then rating the Debentures shall have confirmed the then current ratings of the Debentures after taking into account such modification, and ( c ) the number of Shares Available for Issuance, after giving effect to such modification, will not fall below the threshold set forth in the second sentence of Section 2.06(a)(iii); or
     (2) to modify the definition of “APM Qualifying Securities” contained in Section 1.01 to eliminate ( a ) one, but not both, of Common Stock or Qualifying Warrants, and ( b ) any other security if, after the date hereof, an accounting standard or interpretive guidance of an existing accounting standard issued by an

39


 

organization or regulator that has responsibility for establishing or interpreting accounting standards used to prepare the Company’s financial statements filed with the Commission, becomes effective, which, as a result, causes the Company to believe there is more than an insubstantial risk that failure to so modify the definition of “APM Qualifying Securities” would result in a reduction in the earnings per share of the Company, as calculated for financial reporting purposes.
ARTICLE 8
MISCELLANEOUS
Section 8.01 Effectiveness . This First Supplemental Indenture will become effective upon its execution and delivery.
Section 8.02 Effect of Recitals . The recitals contained herein and in the Debentures, 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 First Supplemental Indenture or of the Debentures. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Debentures or the proceeds thereof.
Section 8.03 Ratification of Indenture . The Indenture as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed, and this First Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.
Section 8.04 Tax Treatment . The Company agrees, and by acceptance of a Debenture or a beneficial interest in a Debenture each Holder of a Debenture and any Person acquiring a beneficial interest in a Debenture agrees, to treat the Debentures as indebtedness for United States federal income tax purposes.
Section 8.05 Governing Law . This First Supplemental Indenture, the Indenture as supplemented hereby and the Debentures shall be governed by and construed in accordance with the laws of the State of New York.
Section 8.06 Severability . In case any provision in this First Supplemental Indenture, the Indenture as supplemented hereby or in the Debentures 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.
* * *

40


 

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.

41


 

     IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental 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   

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Exhibit A
FORM OF DEBENTURE
     [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.] 1
 
1   Insert in Global Securities.

 


 

         
No.   Principal Amount:
Issue Date:   CUSIP:
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
8.125% FIXED-TO-FLOATING RATE
JUNIOR SUBORDINATED DEBENTURE DUE 2068
     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 [Cede & Co.] 2 , or registered assigns, the principal sum of                      Dollars ($                      ), and all accrued and unpaid interest thereof on June 15, 2038 (the “ Scheduled Maturity Date ”), subject to and in accordance with the provisions of Section 2.02 of the First Supplemental Indenture. If that amount is not paid in full on the Scheduled Maturity Date or any subsequent Interest Payment Date, the remaining amount, together with accrued and unpaid interest thereof, will be due and payable on the Final Maturity Date. The Final Maturity Date will be June 15, 2068.
     The Company further promises to pay interest on said principal sum from and including June 6, 2008, or from and including the most recent Interest Payment Date on which interest has been paid or duly provided for (subject to the Company’s right to defer payment of interest as set forth herein and in the Indenture), semi-annually in arrears on June 15 and December 15 of each year, commencing on December 15, 2008 and ending on June 15, 2018, at the rate of 8.125% per annum, on the basis of a 360-day year consisting of twelve 30 day months, and thereafter to pay interest on said outstanding principal sum quarterly in arrears on March 15, June 15, September 15, and December 15 of each year, commencing on September 15, 2018 at a floating annual rate equal to Three-Month LIBOR plus 4.6025% , computed on the basis of a 360-day year and the actual number of days elapsed in the 360 day year, until the principal hereof is paid or duly provided for or made available for payment. Interest scheduled for payment but not paid upon any Interest Payment Date, including interest not required to be paid due to the Company having exercised its right to defer payment of interest set forth herein and in the Indenture, shall bear Additional Interest from the originally scheduled payment date therefor at the rate then applicable to this Security, as provided in the Indenture.
     Except as provided in Section 5.05 of the First Supplemental Indenture, 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
 
2   Insert in Global Securities.

2


 

Regular Record Date for such interest. 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.
     The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security by accepting the same, ( a ) agrees to and shall be bound by such provisions, ( b ) authorizes and directs the Trustee on its behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and ( c ) appoints the Trustee its attorney-in-fact for any and all such purposes. Each Holder hereof, by its acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.
     As provided in the Indenture, so long as no Event of Default has occurred and is continuing, the Company shall have the right on one or more occasions, to defer the payment of interest for one or more Interest Periods up to ten consecutive years, provided that no Deferral Period shall extend beyond the Final Maturity Date, the earlier accelerated maturity date hereof or other repayment or redemption in full hereof. If the Company shall fail to pay interest hereon on any Interest Payment Date, the Company shall be deemed to elect to defer payment of such interest on such Interest Payment Date, unless the Company shall pay such interest in full within five Business Days after any such Interest Payment Date. If the Company shall have paid all deferred interest (including Additional Interest) hereon, the Company shall have the right to elect to begin a new Deferral Period as provided in the Indenture.
     Payment of the principal of (and premium, if any) and 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; 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.

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     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.
     Any additional Securities issued under the same CUSIP as this Security shall be fungible with this Security for U.S. federal income tax purposes.

4


 

     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
         
  THE HARTFORD FINANCIAL
SERVICES GROUP, INC.
 
 
   
  By:      
    Name:      
    Title:      
 
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   
       

5


 

         
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 a Junior Subordinated Indenture, dated as of June 6, 2008 (herein called the “ Base 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), as supplemented and amended by the First Supplemental Indenture, dated as of June 6, 2008, between the Company and the Trustee (the “ First Supplemental Indenture ”, and together with the Base Indenture, 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 Trustee, the Company and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. The terms of the Securities include those stated in the Indenture, and the Securities are subject to all such terms. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $500,000,000.
     All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
     This Security shall be redeemable at the option of the Company in accordance with the terms of the Indenture. In particular, this Security is redeemable:
     (a) in whole at any time or in part from time to time after the date of original issuance of this Security; or
     (b) in whole but not in part, within 180 days after the occurrence of a Special Event;
      provided that no such partial redemption shall be effected ( x ) unless at least $25 million aggregate principal amount of Securities of this series shall remain Outstanding after giving effect to such redemption and ( y ) if the principal amount of the Securities of this series shall have been accelerated and such acceleration has not been rescinded or unless all accrued and unpaid interest, including deferred interest (including Additional Interest), shall have been paid in full on all Outstanding Securities of this series for all Interest Periods terminating on or before the Redemption Date.
     Notice of redemption shall be mailed at least 30 but not more than 60 days before the Redemption Date to each Holder of Securities of this series to be redeemed at its registered address. The notice of redemption for such Securities shall state, among other things, the amount of Securities of this series to be redeemed, the Redemption Date, if not then ascertainable, the manner in which the Redemption Price shall be calculated and the

6


 

place or places that payment shall be made upon presentation and surrender of such Securities to be redeemed. Unless the Company defaults in the payment of the Redemption Price together with accrued interest, interest will cease to accrue on any Securities of this series that have been called for redemption on the Redemption Date.
     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 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.
     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 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.

7


 

     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 $5,000 and any integral multiples of $1,000 thereafter. 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.

8


 

ASSIGNMENT
     FOR VALUE RECEIVED, the undersigned assigns and transfers this Security to:
 
 
 
(Insert assignee’s social security or tax identification number)
 
 
(Insert address and zip code of assignee)
agent to transfer this Security on the books of the Security Registrar. The agent may substitute another to act for him or her.
         
Dated:
  Signature:    
 
       
 
 
 
   
 
       
 
  Signature Guarantee:    
 
       
 
 
 
   
(Sign exactly as your name appears on the other side of this Security)
     Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Securities Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

9

Exhibit 4.3
Execution Copy
     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.


 

         
No. 1
Issue Date: June 6, 2008
  Principal Amount: $500,000,000
CUSIP: 416515AW4
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
8.125% FIXED-TO-FLOATING RATE
JUNIOR SUBORDINATED DEBENTURE DUE 2068
     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 Cede & Co., or registered assigns, the principal sum of five hundred million Dollars ($500,000,000), and all accrued and unpaid interest thereof on June 15, 2038 (the “ Scheduled Maturity Date ”), subject to and in accordance with the provisions of Section 2.02 of the First Supplemental Indenture. If that amount is not paid in full on the Scheduled Maturity Date or any subsequent Interest Payment Date, the remaining amount, together with accrued and unpaid interest thereof, will be due and payable on the Final Maturity Date. The Final Maturity Date will be June 15, 2068.
     The Company further promises to pay interest on said principal sum from and including June 6, 2008, or from and including the most recent Interest Payment Date on which interest has been paid or duly provided for (subject to the Company’s right to defer payment of interest as set forth herein and in the Indenture), semi-annually in arrears on June 15 and December 15 of each year, commencing on December 15, 2008 and ending on June 15, 2018, at the rate of 8.125% per annum, on the basis of a 360-day year consisting of twelve 30 day months, and thereafter to pay interest on said outstanding principal sum quarterly in arrears on March 15, June 15, September 15, and December 15 of each year, commencing on September 15, 2018 at a floating annual rate equal to Three-Month LIBOR plus 4.6025% , computed on the basis of a 360-day year and the actual number of days elapsed in the 360 day year, until the principal hereof is paid or duly provided for or made available for payment. Interest scheduled for payment but not paid upon any Interest Payment Date, including interest not required to be paid due to the Company having exercised its right to defer payment of interest set forth herein and in the Indenture, shall bear Additional Interest from the originally scheduled payment date therefor at the rate then applicable to this Security, as provided in the Indenture.
     Except as provided in Section 5.05 of the First Supplemental Indenture, 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. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record

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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.
     The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security by accepting the same, ( a ) agrees to and shall be bound by such provisions, ( b ) authorizes and directs the Trustee on its behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and ( c ) appoints the Trustee its attorney-in-fact for any and all such purposes. Each Holder hereof, by its acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.
     As provided in the Indenture, so long as no Event of Default has occurred and is continuing, the Company shall have the right on one or more occasions, to defer the payment of interest for one or more Interest Periods up to ten consecutive years, provided that no Deferral Period shall extend beyond the Final Maturity Date, the earlier accelerated maturity date hereof or other repayment or redemption in full hereof. If the Company shall fail to pay interest hereon on any Interest Payment Date, the Company shall be deemed to elect to defer payment of such interest on such Interest Payment Date, unless the Company shall pay such interest in full within five Business Days after any such Interest Payment Date. If the Company shall have paid all deferred interest (including Additional Interest) hereon, the Company shall have the right to elect to begin a new Deferral Period as provided in the Indenture.
     Payment of the principal of (and premium, if any) and 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; 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.

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     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.
     Any additional Securities issued under the same CUSIP as this Security shall be fungible with this Security for U.S. federal income tax purposes.

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     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: June 6, 2008
         
  THE HARTFORD FINANCIAL
SERVICES GROUP, INC.
 
 
   
  By:   /s/ John N. Giamalis    
    Name:   John N. Giamalis   
    Title:   Senior Vice President and Treasurer   
 
Certificate of Authentication
     This is one of the Securities referred to in the within-mentioned Indenture.
Dated: June 6, 2008
         
  The Bank of New York Trust Company,
N.A., as Trustee
 
 
   
  By:   /s/ Richard C. Tarnas    
    Authorized Signatory   
       

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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 a Junior Subordinated Indenture, dated as of June 6, 2008 (herein called the “ Base 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), as supplemented and amended by the First Supplemental Indenture, dated as of June 6, 2008, between the Company and the Trustee (the “ First Supplemental Indenture ”, and together with the Base Indenture, 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 Trustee, the Company and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. The terms of the Securities include those stated in the Indenture, and the Securities are subject to all such terms. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $500,000,000.
     All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
     This Security shall be redeemable at the option of the Company in accordance with the terms of the Indenture. In particular, this Security is redeemable:
     (a) in whole at any time or in part from time to time after the date of original issuance of this Security; or
     (b) in whole but not in part, within 180 days after the occurrence of a Special Event;
      provided that no such partial redemption shall be effected ( x ) unless at least $25 million aggregate principal amount of Securities of this series shall remain Outstanding after giving effect to such redemption and ( y ) if the principal amount of the Securities of this series shall have been accelerated and such acceleration has not been rescinded or unless all accrued and unpaid interest, including deferred interest (including Additional Interest), shall have been paid in full on all Outstanding Securities of this series for all Interest Periods terminating on or before the Redemption Date.
     Notice of redemption shall be mailed at least 30 but not more than 60 days before the Redemption Date to each Holder of Securities of this series to be redeemed at its registered address. The notice of redemption for such Securities shall state, among other things, the amount of Securities of this series to be redeemed, the Redemption Date, if not then ascertainable, the manner in which the Redemption Price shall be calculated and the

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place or places that payment shall be made upon presentation and surrender of such Securities to be redeemed. Unless the Company defaults in the payment of the Redemption Price together with accrued interest, interest will cease to accrue on any Securities of this series that have been called for redemption on the Redemption Date.
     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 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.
     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 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.

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     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 $5,000 and any integral multiples of $1,000 thereafter. 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.

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ASSIGNMENT
     FOR VALUE RECEIVED, the undersigned assigns and transfers this Security to:
 
 
 
(Insert assignee’s social security or tax identification number)
 
 
(Insert address and zip code of assignee)
agent to transfer this Security on the books of the Security Registrar. The agent may substitute another to act for him or her.
         
Dated:
  Signature:    
 
       
 
 
 
   
 
       
 
  Signature Guarantee:    
 
       
 
 
 
   
(Sign exactly as your name appears on the other side of this Security)
     Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Securities Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

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Exhibit 4.4
Execution Copy
     REPLACEMENT CAPITAL COVENANT, dated as of June 6, 2008 (this “ Replacement Capital Covenant ”), by The Hartford Financial Services Group, Inc., a Delaware corporation (together with its successors and assigns, the “ Corporation ”), in favor of and for the benefit of each Covered Debtholder (as defined below).
RECITALS
     A. On the date hereof, the Corporation is issuing $500,000,000 aggregate principal amount of its 8.125% Junior Subordinated Debentures due 2068 (together with any other 8.125% Junior Subordinated Debentures due 2068 issued after the date of this Replacement Capital Covenant pursuant to the related indenture, the “ Debentures ”).
     B. This Replacement Capital Covenant is the “Replacement Capital Covenant” referred to in the Prospectus Supplement, dated June 3, 2008 (the “ Prospectus Supplement ”), to the Corporation’s prospectus, dated June 3, 2008, included in post-effective amendment No. 1 to the Corporation’s registration statement on Form S-3 (File No. 333-142044), relating to the Debentures.
     C. The Corporation is entering into and disclosing the content of this Replacement Capital Covenant in the manner provided below with the intent that the covenants provided for in this Replacement Capital Covenant be enforceable by each Covered Debtholder and that the Corporation be estopped from disregarding the covenants in this Replacement Capital Covenant, in each case to the fullest extent permitted by applicable law.
     D. The Corporation acknowledges that reliance by each Covered Debtholder upon the covenants in this Replacement Capital Covenant is reasonable and foreseeable by the Corporation and that, were the Corporation to disregard its covenants in this Replacement Capital Covenant, each Covered Debtholder would have sustained an injury as a result of its reliance on such covenants.
     NOW, THEREFORE, the Corporation hereby covenants and agrees as follows in favor of and for the benefit of each Covered Debtholder.
     SECTION 1. Definitions . Capitalized terms used in this Replacement Capital Covenant (including the Recitals) have the meanings set forth in Annex I hereto.
     SECTION 2. Limitations on Redemption and Purchase of Debentures . The Corporation hereby promises and covenants to and for the benefit of each Covered Debtholder that the Corporation shall not repay, redeem, defease or repurchase, and shall cause each Subsidiary of the Corporation not to purchase, all or any part of the


 

Debentures prior to June 15, 2048, except to the extent that the principal amount repaid or defeased or the applicable redemption or purchase price does not exceed the sum of the Applicable Percentages of the following amounts:
     (i) the aggregate amount of (a) the net cash proceeds the Corporation and its Subsidiaries shall have received from the sale of Common Stock and rights to acquire Common Stock to Persons other than the Corporation and its Subsidiaries and (b) the Market Value of any Common Stock (determined as of the date of delivery) that the Corporation and its Subsidiaries shall have delivered to Persons other than the Corporation and its Subsidiaries in connection with the conversion of any convertible or exchangeable securities, other than securities for which the Corporation or any of its Subsidiaries shall have received equity credit from any NRSRO, in each case during the relevant Measurement Period (without double counting proceeds received in any prior Measurement Period); plus
     (ii) the aggregate amount of net cash proceeds the Corporation and its Subsidiaries shall have received during the relevant Measurement Period (without double counting proceeds received in any prior Measurement Period) from the sale of Qualifying Replacement Securities, Mandatorily Convertible Preferred Stock and Debt Exchangeable for Common Equity to Persons other than the Corporation and its Subsidiaries,
provided that the limitations in this Section 2 shall not restrict (i) the repayment, redemption or other purchase of any Debentures that the Corporation shall have previously defeased in accordance with this Replacement Capital Covenant or (ii) the exchange of the Debentures for consideration that consists solely of an aggregate principal amount or liquidation preference (or, in the case of Common Stock, Market Value) of Replacement Capital Securities not to exceed 100% (or, in the case of Common Stock, not to exceed 50%) of the aggregate principal amount of Debentures that are exchanged plus an amount in cash equal to accrued but unpaid Distributions thereon, other than any deferred Distributions.
     SECTION 3. Covered Debt . (a) The Corporation represents and warrants that the Initial Covered Debt is Eligible Debt.
     (b) On or during the 30-day period immediately preceding any Redesignation Date with respect to the Covered Debt, the Corporation shall identify the series of Eligible Debt that will become the Covered Debt on and after such Redesignation Date in accordance with the following procedures:
     (i) the Corporation shall identify each series of its then outstanding long-term indebtedness for money borrowed that is Eligible Debt;

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     (ii) if only one series of the Corporation’s then outstanding long-term indebtedness for money borrowed is Eligible Debt, such series shall become the Covered Debt commencing on the related Redesignation Date;
     (iii) if the Corporation has more than one outstanding series of long-term indebtedness for money borrowed that is Eligible Debt, then the Corporation shall identify the series that has the latest stated final maturity date as of the date the Corporation is applying the procedures in this Section 3(b) and such series shall become the Covered Debt on the related Redesignation Date;
     (iv) the series of outstanding long-term indebtedness for money borrowed that is determined to be Covered Debt pursuant to clause (ii) or (iii) above shall be the Covered Debt for purposes of this Replacement Capital Covenant for the period commencing on the related Redesignation Date and continuing to but not including the Redesignation Date as of which a new series of outstanding long-term indebtedness is next determined to be the Covered Debt pursuant to the procedures set forth in this Section 3(b); and
     (v) in connection with such identification of a new series of Covered Debt, the Corporation shall, as provided for in Section 3(c), give a notice and file with the Commission a Current Report on Form 8-K (or any successor form) under the Securities Exchange Act including or incorporating by reference this Replacement Capital Covenant as an exhibit within the time frame provided for in such section.
     (c)  Notice . In order to give effect to the intent of the Corporation described in Recital C, the Corporation covenants that (i) simultaneously with the execution of this Replacement Capital Covenant or as soon as practicable after the date hereof, it shall (x) give notice to the Holders of the Initial Covered Debt, in the manner provided in the indenture relating to the Initial Covered Debt, of its entry into this Replacement Capital Covenant and the rights granted to such Holders hereunder and (y) file a copy of this Replacement Capital Covenant with the Commission as an exhibit to a Current Report on Form 8-K (or any successor form) under the Securities Exchange Act, (ii) so long as the Corporation is a reporting company under the Securities Exchange Act, the Corporation shall include in each Annual Report on Form 10-K (or any successor form) filed with the Commission under the Securities Exchange Act a description of the covenant set forth in Section 2 and identify the Covered Debt as of the date such Form 10-K (or any successor form) is filed with the Commission, (iii) if a series of the Corporation’s
long-term indebtedness for money borrowed (1) becomes Covered Debt or (2) ceases to be Covered Debt, the Corporation shall give notice of such occurrence within 30 days to the holders of such long-term indebtedness for money borrowed in the manner provided for in the indenture, fiscal agency agreement or other instrument under which such long-term indebtedness for money borrowed was issued and report such change in a Current Report on Form 8-K (or any successor form), which must include or incorporate by reference

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this Replacement Capital Covenant, and in the Corporation’s next quarterly report on Form 10-Q (or any successor form) or Annual Report on Form 10-K (or any successor form), as applicable, (iv) if, and only if, the Corporation ceases to be a reporting company under the Securities Exchange Act, the Corporation shall (A) post on its website (or any other similar electronic platform generally available to the public) the information otherwise required to be included in Securities Exchange Act filings pursuant to clauses (ii) and (iii) of this Section 3(c) and (B) cause a notice of the execution of this Replacement Capital Covenant to be posted on the Bloomberg screen for the Covered Debt and each similar third-party vendor’s screen the Corporation reasonably believes is appropriate (each an “ Investor Screen ”) and cause a hyperlink to a definitive copy of this Replacement Capital Covenant to be included on the Investor Screen for the Covered Debt, in each case to the extent permitted by Bloomberg or such similar third-party vendor, as the case may be, and (v) promptly upon request by any Holder of Covered Debt, the Corporation shall provide such Holder with a copy of this Replacement Capital Covenant as executed.
     (d) The Corporation agrees that, if at any time the Covered Debt is held by a trust (for example, where the Covered Debt is part of an issuance of trust preferred securities), a holder of the securities issued by such trust may enforce (including by instituting legal proceedings) this Replacement Capital Covenant directly against the Corporation as though such holder owned Covered Debt directly, and such holder shall be deemed to be a holder of “ Covered Debt ” for purposes of this Replacement Capital Covenant for so long as the indebtedness held by such trust remains Covered Debt hereunder.
     SECTION 4. Termination, Amendment and Waiver . (a) The obligations of the Corporation pursuant to this Replacement Capital Covenant shall remain in full force and effect until the earliest date (the “ Termination Date ”) to occur of (i) June 15, 2048, or, if earlier, the date on which the Debentures are otherwise repaid, redeemed, defeased, satisfied and discharged or purchased in full (in compliance with the terms of this Replacement Capital Covenant), (ii) the date, if any, on which the Holders of at least a majority of the then outstanding principal amount of the Covered Debt consent or agree in writing to the termination of this Replacement Capital Covenant and the obligations of the Corporation hereunder, (iii) the date on which the Corporation ceases to have any series of outstanding Eligible Senior Debt or Eligible Subordinated Debt (in each case without giving effect to the rating requirement in clause (b) of the definition of each such term) and (iv) the date on which the Debentures become accelerated due to the occurrence of an event of default. From and after the Termination Date, the obligations of the Corporation pursuant to this Replacement Capital Covenant shall be of no further force and effect.
     (b) This Replacement Capital Covenant may be amended or supplemented from time to time by a written instrument signed by the Corporation with the consent of

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the Holders of at least a majority of the then outstanding principal amount of the Covered Debt, provided that this Replacement Capital Covenant may be amended or supplemented from time to time by a written instrument signed only by the Corporation (and without the consent of the Holders of the Covered Debt) if any of the following apply (it being understood that any such amendment or supplement may fall into one or more of the following): (i) the effect of such amendment or supplement is solely to impose additional restrictions on, or to eliminate certain of, the types of securities qualifying as Replacement Capital Securities and an officer of the Corporation has delivered to the trustee or agent for such Covered Debt in the manner provided for in the indenture, fiscal agency agreement or other instrument with respect to such Covered Debt a written certificate to that effect, (ii) such amendment or supplement is not adverse to the rights of the Covered Debtholders hereunder and an officer of the Corporation has delivered to the trustee or agent for such Covered Debt in the manner provided for in the indenture, fiscal agency agreement or other instrument with respect to such Covered Debt a written certificate stating that, in his or her determination, such amendment or supplement is not adverse to the Covered Debtholders, or (iii) such amendment or supplement eliminates Common Stock, rights to acquire Common Stock, Debt Exchangeable for Common Equity and/or Mandatorily Convertible Preferred Stock as Replacement Capital Securities if, in the case of this clause (iii), an accounting standard or interpretive guidance of an existing accounting standard issued by an organization or regulator that has responsibility for establishing or interpreting accounting standards used to prepare the Corporation’s financial statements becomes effective, which, as a result, causes the Corporation to believe that there is more than an insubstantial risk that the failure to eliminate Common Stock, rights to acquire Common Stock, Debt Exchangeable for Common Equity and/or Mandatorily Convertible Preferred Stock as Replacement Capital Securities would result in a reduction in the Corporation’s earnings per share as calculated for financial reporting purposes. For the purpose of clause (ii) in the preceding sentence, an amendment or supplement that adds new types of securities qualifying as Replacement Capital Securities or modifies the requirements of securities qualifying as Replacement Capital Securities will not be deemed materially adverse to the Covered Debtholders if, following such amendment or supplement, the replacement capital covenant would constitute a Qualifying Replacement Capital Covenant.
     (c) For purposes of Sections 4(a) and 4(b), the Holders whose consent or agreement is required to terminate, amend or supplement the obligations of the Corporation under this Replacement Capital Covenant shall be the Holders of the Covered Debt as of a record date established by the Corporation that is not more than 30 days prior to the date on which the Corporation proposes that such termination, amendment or supplement becomes effective.

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     SECTION 5. Miscellaneous . (a) This Replacement Capital Covenant shall be governed by and construed in accordance with the laws of the State of New York.
     (b) This Replacement Capital Covenant shall be binding upon the Corporation and its successors and assigns and shall inure to the benefit of the Covered Debtholders as they exist from time-to-time (it being understood and agreed by the Corporation that any Person who is a Covered Debtholder shall retain its status as a Covered Debtholder for so long as the series of long-term indebtedness for borrowed money owned by such Person is Covered Debt and, if such Person initiates an action, claim or proceeding to enforce its rights under this Replacement Capital Covenant after the Corporation has violated its covenants in Section 2 and before the series of long-term indebtedness for money borrowed held by such Person is no longer Covered Debt, such Person’s rights under this Replacement Capital Covenant shall not terminate by reason of such series of long-term indebtedness for money borrowed no longer being Covered Debt). Other than the Covered Debtholders as provided in the previous sentence, no other Person shall have any rights under this Replacement Capital Covenant or be deemed a third party beneficiary of this Replacement Capital Covenant.
     (c) All demands, notices, requests and other communications to the Corporation under this Replacement Capital Covenant shall be deemed to have been duly given and made if in writing and (i) if served by personal delivery upon the Corporation, on the day so delivered (or, if such day is not a Business Day, the next succeeding Business Day) or (ii) if delivered by registered post or certified mail, return receipt requested, or sent to the Corporation by a national or international courier service, on the date of receipt by the Corporation (or, if such date of receipt is not a Business Day, the next succeeding Business Day), and in each case to the Corporation at the address set forth below, or at such other address as the Corporation may thereafter notify to Covered Debtholders or post on its website (or any other similar electronic platform generally available to the public) as the address for notices under this Replacement Capital Covenant:
The Hartford Financial Services Group, Inc.
One Hartford Plaza
Hartford, Connecticut 06155
Attention: General Counsel

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     IN WITNESS WHEREOF, the Corporation has caused this Replacement Capital Covenant to be executed by its duly authorized officer, 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   
 

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Annex I
DEFINITIONS
     “ Alternative Payment Mechanism ” means, with respect to any securities or combination of securities (together in this definition, “ securities ”), provisions in the related transaction documents requiring the Corporation to issue (or use Commercially Reasonable Efforts to issue) one or more types of APM Qualifying Securities for the purpose of raising eligible proceeds at least equal to the deferred and unpaid Distributions on such securities and apply the net proceeds to pay such Distributions on such securities, commencing on the earlier of (x) the first Distribution Date after commencement of a deferral period on which the Corporation pays current Distributions (which the Corporation may pay from any source of funds) on such securities and (y) the fifth anniversary of the commencement of such deferral period if on such date such deferral period has not ended, and that:
     (a) define “ eligible proceeds ” to mean, for purposes of such Alternative Payment Mechanism, the net proceeds (after underwriters’ or placement agents’ fees, commissions or discounts and other expenses relating to the issuance or sale of the relevant securities, and including the fair market value of property received by the Corporation or any of its Subsidiaries as consideration for such securities) that the Corporation or any of its Subsidiaries shall have received during the 180 days prior to the relevant Distribution Date from the sale of APM Qualifying Securities, provided that in the case of APM Qualifying Securities that are Qualifying Preferred Stock or Mandatorily Convertible Preferred Stock the amount of net proceeds included in eligible proceeds shall not exceed the Preferred Cap;
     (b) permit the Corporation to pay current Distributions on any Distribution Date out of any source of funds but (i) require the Corporation to pay deferred Distributions only out of eligible proceeds and (ii) prohibit the Corporation from paying deferred Distributions out of any source of funds other than eligible proceeds unless an event of default with respect to such securities has occurred;
     (c) if deferral of Distributions continues for more than one year (or such shorter period as provided for in the terms of such securities), require the Corporation and its Subsidiaries not to repay, redeem or purchase any of its securities ranking junior to or equally with any APM Qualifying Securities on the liquidation, dissolution or winding-up of the Corporation, the proceeds of which were used to pay deferred interest during the relevant deferral period until at least one year after all deferred Distributions have been paid (“ Repurchase Restriction ”), other than the following (none of which shall be restricted or prohibited by a Repurchase Restriction):

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      (i) purchases, redemptions or other acquisitions of Common Stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or consultants;
      (ii) purchases of Common Stock pursuant to a contractually binding requirement to buy Common Stock entered into prior to the beginning of the related deferral period, including under a contractually binding stock repurchase plan;
      (iii) as a result of any exchange, redemption or conversion of any class or series of the Corporation’s capital stock (or any capital stock of one of the Corporation’s Subsidiaries) for any class or series of the Corporation’s capital stock or of any class or series of the Corporation’s indebtedness for any class or series of the Corporation’s capital stock;
      (iv) the purchase of or payment of cash in lieu of fractional interests in the Corporation’s capital stock in accordance with the conversion or exchange provisions of such capital stock or the security being converted or exchanged; or
      (v) the redemption or repurchase of rights in accordance with any stockholders’ rights plan;
      (d) limit the obligation of the Corporation to issue (or to use Commercially Reasonable Efforts to issue) APM Qualifying Securities that are Common Stock or Qualifying Warrants, prior to the fifth anniversary of any deferral period, to the extent that the number of shares of Common Stock issued or issuable upon the exercise of such Qualifying Warrants plus the number of shares of Common Stock previously issued or issuable on the exercise of Qualifying Warrants previously issued during the applicable deferral period would exceed 2% of the total number of issued and outstanding shares of Common Stock set forth in the Corporation’s most recent publicly available financial statements (the “ Common Cap ”);
      (e) limit the right of the Corporation to issue APM Qualifying Securities that are Qualifying Preferred Stock or Mandatorily Convertible Preferred Stock, to the extent that the net proceeds of any issuance of such Qualifying Preferred Stock or Mandatorily Convertible Preferred Stock applied, together with the net proceeds of all prior issuances of Qualifying Preferred Stock and any still-outstanding Mandatorily Convertible Preferred Stock applied during the current and all prior deferral periods, to pay deferred Distributions on the securities would exceed 25% of the liquidation or principal amount of the

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securities that are the subject of the related Alternative Payment Mechanism (the “ Preferred Cap ”);
     (f) notwithstanding the Common Cap and the Preferred Cap, permit the Corporation, at its option, to impose a limitation on the Corporation’s obligation to issue APM Qualifying Securities consisting of Common Stock and Qualifying Warrants to a maximum issuance cap to be set at the Corporation’s discretion and otherwise substantially similar to the Share Cap, provided that such limitation will be subject to the Corporation’s agreement to use Commercially Reasonable Efforts (i) to increase such limitation when reached to enable the Corporation to simultaneously satisfy its future fixed or contingent obligations under such securities and other securities and derivative instruments that provide for settlement or payment in shares of Common Stock or (ii) if the Corporation cannot increase such limitation as contemplated in the preceding clause, by requesting its board of directors to adopt a resolution for a stockholder vote at the next annual meeting of stockholders of the Corporation to increase the number of shares of the Corporation’s authorized Common Stock for purposes of satisfying the Corporation’s obligations to pay deferred Distributions;
     (g) in the case of securities other than Qualifying Preferred Stock, include a Bankruptcy Claim Limitation Provision; and
     (h) permit the Corporation, at its option, to provide that if the Corporation is involved in a merger, consolidation, amalgamation, binding share exchange or conveyance, business combination, recapitalization, transfer or lease of assets substantially as an entirety to any other Person or a similar transaction (a “ Business Combination ”) where immediately after the consummation of the Business Combination more than 50% of the voting stock of the surviving or resulting entity or the Person to whom all or substantially all of the Corporation’s property or assets are conveyed, transferred or leased in such Business Combination is owned by the stockholders of the other party to the Business Combination or Person to whom all or substantially all of the Corporation’s property or assets are conveyed, transferred or leased, then clauses (a), (b) and (c) above will not apply to any deferral period that is terminated on the next Distribution Date following the date of consummation of the Business Combination;
provided (and it being understood) that:
     (1) the Corporation shall not be obligated to issue (or to use Commercially Reasonable Efforts to issue) APM Qualifying Securities for so long as a Market Disruption Event has occurred and is continuing;

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     (2) if, due to a Market Disruption Event or otherwise, the eligible proceeds are not sufficient to pay all deferred Distributions on any Distribution Date, the Corporation will apply the eligible proceeds to pay accrued and unpaid deferred Distributions on such Distribution Date in chronological order, subject to the Common Cap, Preferred Cap and Share Cap, as applicable; and
     (3) if the Corporation has outstanding more than one class or series of securities under which it is obligated to sell a type of APM Qualifying Securities and apply some part of the proceeds to the payment of deferred Distributions, then on any date and for any period the amount of net proceeds received by the Corporation from those sales and available for payment of deferred Distributions on such securities (in accordance with clauses (d) and (e) of this definition) shall be applied to such securities on a pro rata basis in proportion to the total amounts that are due on such securities.
     “ APM Qualifying Securities ” means, with respect to an Alternative Payment Mechanism or a Mandatory Trigger Provision, one or more of the following (as designated in the transaction documents for the securities that include an Alternative Payment Mechanism or a Mandatory Trigger Provision, as applicable):
(a) Common Stock;
(b) Qualifying Warrants;
(c) Qualifying Preferred Stock; and/or
(d) Mandatorily Convertible Preferred Stock,
provided (and it being understood) that (i) if the APM Qualifying Securities for any Alternative Payment Mechanism or Mandatory Trigger Provision include both Common Stock and Qualifying Warrants, such Alternative Payment Mechanism or Mandatory Trigger Provision may permit, but need not require, the Corporation to issue Qualifying Warrants, (ii) such Alternative Payment Mechanism or Mandatory Trigger Provision may permit, but need not require, the Corporation to issue Mandatorily Convertible Preferred Stock and (iii) the Corporation may, without the consent of the holders of the Qualifying Replacement Securities, amend the definition of APM Qualifying Securities to eliminate Common Stock or Qualifying Warrants, but not both, and any other security from the definition if an accounting standard or interpretive guidance of an existing standard issued by an organization or regulator that has responsibility for establishing or interpreting accounting standards used to prepare the Corporation’s financial statements filed with the Securities and Exchange Commission becomes effective, which, as a result, causes the Corporation to believe there is more than an insubstantial risk that the failure to do so would result in a reduction in the Corporation’s earnings per share as calculated for financial reporting purposes.

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Applicable Percentage ” means:
     (a) in the case of any shares of the Corporation’s Common Stock or rights to acquire Common Stock, (i) 133% with respect to any repayment, redemption, defeasance or purchase prior to June 15, 2018, (ii) 200% with respect to any repayment, redemption, defeasance or purchase on or after June 15, 2018 and prior to June 15, 2038 and (iii) 400% with respect to any repayment, redemption, defeasance or purchase on or after June 15, 2038.
     (b) in the case of any Mandatorily Convertible Preferred Stock, Debt Exchangeable for Common Equity and any Qualifying Replacement Securities described in clause (a) of the definition of such term, (i) 100% with respect to any repayment, redemption, defeasance or purchase prior to June 15, 2038 and (ii) 300% with respect to any repayment, redemption, defeasance or purchase on or after June 15, 2038;
     (c) in the case of any Qualifying Replacement Securities described in clause (b) of the definition of such term, (i) 100% with respect to any repayment, redemption, defeasance or purchase prior to June 15, 2038 and (ii) 200% with respect to any repayment, redemption, defeasance or purchase on or after June 15, 2038; and
     (d) in the case of any Qualifying Replacement Securities described in clause (c) of the definition of such term, 100%.
     “ Bankruptcy Claim Limitation Provision ” means, with respect to any securities or combination of securities that have an Alternative Payment Mechanism or a Mandatory Trigger Provision (together in this definition, “ securities ”), provisions in the terms thereof or of the related transaction agreements that, upon any liquidation, dissolution, winding-up or reorganization or in connection with any insolvency, receivership or proceeding under any bankruptcy law with respect to the issuer, limit the claim of the holders of such securities to Distributions that accumulate during (a) any deferral period, in the case of securities that have an Alternative Payment Mechanism but no Mandatory Trigger Provision or (b) any period in which the issuer fails to satisfy one or more financial tests set forth in the terms of such securities or related transaction agreements, in the case of securities that have a Mandatory Trigger Provision, to:
     (i) in the case of securities having an Alternative Payment Mechanism or Mandatory Trigger Provision with respect to which the APM Qualifying Securities do not include Qualifying Preferred Stock or Mandatorily Convertible Preferred Stock, 25% of the stated or principal amount of such securities then outstanding; and

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     (ii) in the case of any other securities, the amount of accumulated and deferred Distributions (including compounded amounts) that relate to the earliest two years of the portion of the deferral period for which Distributions have not been paid.
     “ Business Combination ” has the meaning specified in clause (h) of the definition of Alternative Payment Mechanism.
     “ Business Day ” means each day other than (a) a Saturday or Sunday or (b) a day on which banking institutions in The City of New York, New York are authorized or required by law or executive order to remain closed or (c) on or after June 15, 2018, a day that is not a London Business Day.
     “ Commercially Reasonable Efforts ” means, for purposes of issuing APM Qualifying Securities, Commercially Reasonable Efforts to complete the offer and sale of APM Qualifying Securities to third parties that are not Subsidiaries of the Corporation in public offerings or private placements. The Corporation shall not be considered to have made Commercially Reasonable Efforts to issue APM Qualifying Securities if it determines not to pursue or complete such issuance solely due to pricing, coupon, dividend rate or dilution considerations.
     “ Commission ” means the United States Securities and Exchange Commission or any successor agency.
     “ Common Cap ” has the meaning specified in clause (d) of the definition of Alternative Payment Mechanism.
     “ Common Stock ” means the common stock of the Corporation (including treasury shares of common stock), common stock issued pursuant to any dividend reinvestment plan or any of the Corporation’s employee benefit plans, any security of the Corporation that ranks upon the liquidation, dissolution or winding-up of the Corporation junior to the Qualifying Preferred Stock and equally with the Corporation’s common stock and that tracks the performance of, or relates to the results of, a business, unit or division of the Corporation, and any shares of common stock or equivalent equity interests of the surviving or resulting entity issued in exchange therefor in connection with a Business Combination.
     “ Corporation ” has the meaning specified in the introduction to this Replacement Capital Covenant.
     “ Covered Debt ” means (a) at the date of this Replacement Capital Covenant and continuing to but not including the first Redesignation Date, the Initial Covered Debt and (b) thereafter, commencing with each Redesignation Date and continuing to but not

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including the next succeeding Redesignation Date, the Eligible Debt identified pursuant to Section 3(b) as the Covered Debt for such period.
     “ Covered Debtholder ” means each Person (whether as a Holder or a beneficial owner holding through a participant in a clearing agency) to the extent that Person holds Covered Debt, provided that, except as provided in Section 5(b), a Person who has sold all of its right, title and interest in Covered Debt shall cease to be a Covered Debtholder at the time of such sale if, at such time, the Corporation has not breached or repudiated, or threatened to breach or repudiate, its obligations hereunder.
     “ Debentures ” has the meaning specified in Recital A.
     “ Debt Exchangeable for Common Equity ” means a security or combination of securities (together in this definition, “ securities ”) that:
     (a) gives the holder a beneficial interest in (i) debt securities of the Corporation that are not redeemable prior to the settlement date of the stock purchase contract referred to in subclause (ii) hereof and (ii) a fractional interest in a stock purchase contract obligating the holder to purchase Common Stock of the Corporation that will be settled in three years or less, with the number of shares of Common Stock purchasable pursuant to such stock purchase contract to be within a range established at the time of issuance of such debt securities and subject to customary anti-dilution adjustments;
     (b) provides that the holders directly or indirectly grant to the Corporation a security interest in such debt securities and their proceeds (including any substitute collateral permitted under the transaction documents) to secure the holders’ direct or indirect obligation to purchase Common Stock of the Corporation pursuant to the stock purchase contract referred to in subclause (a)(ii) hereof;
     (c) includes a remarketing feature pursuant to which such debt securities of the Corporation are remarketed to new investors not later than the settlement date of the stock purchase contract referred to in subclause (a)(ii) hereof; and
     (d) provides for the proceeds raised in the remarketing to be used to purchase shares of Common Stock of the Corporation under the stock purchase contract referred to in subclause (a)(ii) hereof and, if there has not been a successful remarketing by the settlement date of such stock purchase contract, provides that such stock purchase contract will be settled by the Corporation exercising its remedies as a secured party with respect to the debt securities or other collateral directly or indirectly pledged by holders of the Debt Exchangeable for Common Equity.

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     “ Distribution Date ” means, as to any securities or combination of securities, the date(s) on which Distributions on such securities are scheduled to be made.
     “ Distribution Period ” means, as to any securities or combination of securities, each period from and including a Distribution Date for such securities to but not including the next succeeding Distribution Date for such securities.
     “ Distributions ” means, as to a security or combination of securities, dividends, interest or other income distributions to the holders or beneficial owners thereof that are not Subsidiaries of the Corporation.
     “ Eligible Debt ” means, at any time, Eligible Subordinated Debt or, if no Eligible Subordinated Debt is then outstanding, Eligible Senior Debt.
     “ Eligible Senior Debt ” means, at any time in respect of any issuer, each series of outstanding unsecured long-term indebtedness for money borrowed of such issuer that ranks senior to the Debentures and (a) upon a bankruptcy, liquidation, dissolution or winding-up of the issuer, ranks most senior among the issuer’s then outstanding classes of unsecured indebtedness for money borrowed, (b) is then assigned a rating by at least one NRSRO ( provided that this clause (b) shall apply on a Redesignation Date only if on such date the issuer has outstanding senior long-term indebtedness for money borrowed that satisfies the requirements of clauses (a), (c) and (d) that is then assigned a rating by at least one NRSRO), (c) has an outstanding principal amount of not less than $100,000,000, and (d) was issued through or with the assistance of a commercial or investment banking firm or firms acting as underwriters, initial purchasers or placement or distribution agents. For purposes of this definition as applied to securities with a CUSIP number, each issuance of long-term indebtedness for money borrowed that has (or, if such indebtedness is held by a trust or other intermediate entity established directly or indirectly by the issuer, the securities of such intermediate entity that have) a separate CUSIP number shall be deemed to be a series of the issuer’s long-term indebtedness for money borrowed that is separate from each other series of such indebtedness.
     “ Eligible Subordinated Debt ” means, at any time in respect of any issuer, each series of the issuer’s then-outstanding unsecured long-term indebtedness for money borrowed that that ranks senior to the Debentures and (a) upon a bankruptcy, liquidation, dissolution or winding-up of the issuer, ranks subordinate to the issuer’s then outstanding series of unsecured indebtedness for money borrowed that ranks most senior upon the issuer’s liquidation, dissolution or winding-up, (b) is then assigned a rating by at least one NRSRO ( provided that this clause (b) shall apply on a Redesignation Date only if on such date the issuer has outstanding subordinated long-term indebtedness for money borrowed that satisfies the requirements in clauses (a), (c) and (d) that is then assigned a rating by at least one NRSRO), (c) has an outstanding principal amount of not less than $100,000,000, and (d) was issued through or with the assistance of a commercial or investment banking firm or firms acting as underwriters, initial purchasers or placement or distribution agents.

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For purposes of this definition as applied to securities with a CUSIP number, each issuance of long-term indebtedness for money borrowed that has (or, if such indebtedness is held by a trust or other intermediate entity established directly or indirectly by the issuer, the securities of such intermediate entity that have) a separate CUSIP number shall be deemed to be a series of the issuer’s long-term indebtedness for money borrowed that is separate from each other series of such indebtedness.
     “ Holder ” means, as to the Covered Debt then in effect, each holder of such Covered Debt as reflected on the securities register maintained by or on behalf of the Corporation with respect to such Covered Debt and each beneficial owner holding through a participant in a clearing agency.
     “ Initial Covered Debt ” means the Corporation’s 6.1% senior notes due 2041 (CUSIP No. 416515AP9).
     “ Intent-Based Replacement Disclosure ” means, as to any security or combination of securities, that the issuer has publicly stated its intention, either in the prospectus or other offering document under which such securities were initially offered for sale or in filings with the Commission made by the issuer under the Securities Exchange Act prior to or contemporaneously with the issuance of such securities, that the issuer and its subsidiaries, to the extent such securities provide the issuer with NRSRO equity credit, will redeem, repurchase or defease such securities only with the proceeds of replacement capital securities that have terms and provisions at the time of redemption, repurchase or defeasance that are as or more equity-like than the securities then being redeemed, repurchased or defeased, and which proceeds were raised within 180 days prior to the applicable redemption, purchase or defeasance date.
     “ London Business Day ” means a day on which dealings in U.S. dollars are transacted in the London interbank market.
     “ Mandatorily Convertible Preferred Stock ” means preferred stock with (a) no prepayment obligation on the part of the issuer thereof, whether at the election of the holders or otherwise, and (b) a requirement that the preferred stock converts into common stock of the Corporation within three years from the date of its issuance at a conversion ratio within a range established at the time of issuance of the preferred stock, subject to customary anti-dilution adjustments.
     “ Mandatory Trigger Provision ” means, as to any security or combination of securities, provisions in the terms thereof or of the related transaction agreements that:
     (a) if the issuer of such securities fails to satisfy one or more financial tests set forth in the terms of such securities or related transaction agreements and for so long as such failure continues, prohibits the issuer from making payments of Distributions on such securities from any source other than from the issuance

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and sale of APM Qualifying Securities and require the issuer, or in the case of Qualifying Preferred Stock, at the option of the issuer, permit the issuer, of such securities (in this definition, the “ issuer ”) to make payment of Distributions on such securities, within a two year period beginning on the date of such failure, only pursuant to the issuance and sale of APM Qualifying Securities, in an amount such that the net proceeds of such sale are at least equal to the amount of deferred and unpaid Distributions (including without limitation all deferred and accumulated amounts) on such securities or, in the case of Qualifying Preferred Stock, current Distributions, and in either case require the application of the net proceeds of such sale to pay such deferred and unpaid Distributions, or in the case of Qualifying Preferred Stock, permit the application of the net proceeds of such sale to pay current Distributions, on those securities, provided that (i) if the Mandatory Trigger Provision does not require such issuance and sale within one year of such failure, the amount of Common Stock or Qualifying Warrants the net proceeds of which the issuer must apply to pay such Distributions pursuant to such provision may not exceed the Common Cap, and (ii) the amount of Qualifying Preferred Stock and then still-outstanding Mandatorily Convertible Preferred Stock the net proceeds of which the issuer may apply to pay such Distributions pursuant to such provision may not exceed the Preferred Cap;
     (b) if the provisions described in clause (a) immediately above do not require such issuance and sale within one year of such failure, include a Repurchase Restriction;
     (c) other than in the case of Qualifying Preferred Stock, prohibit the issuer of such securities from redeeming or purchasing any of its securities ranking junior to or equally with any APM Qualifying Securities upon the liquidation, dissolution or winding-up of the Corporation, the proceeds of which were used to pay deferred Distributions during the relevant deferral period prior to the date six months after the issuer applies the net proceeds of the sales described in clause (a) immediately above to pay such deferred Distributions in full; and
     (d) other than in the case of Qualifying Preferred Stock, include a Bankruptcy Claim Limitation Provision;
provided (and it being understood) that:
     (1) the issuer will not be obligated to issue (or to use Commercially Reasonable Efforts to issue) APM Qualifying Securities for so long as a Market Disruption Event has occurred and is continuing;
     (2) if, due to a Market Disruption Event or otherwise, the issuer is able to raise and apply some, but not all, of the eligible proceeds necessary to pay all deferred Distributions on any Distribution Date, the issuer will apply any

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available eligible proceeds to pay accrued and unpaid Distributions on the applicable Distribution Date in chronological order subject to the Common Cap, Preferred Cap and Share Cap, as applicable; and
     (3) if the issuer has outstanding more than one class or series of securities under which it is obligated to sell a type of APM Qualifying Securities and applies some part of the proceeds to the payment of deferred Distributions, then on any date and for any period the amount of net proceeds received by the issuer from those sales and available for payment of deferred Distributions on such securities (in accordance with the Alternative Payment Mechanism) shall be applied to such securities on a pro rata basis in proportion to the total amounts that are due on such securities.
     No remedy other than Permitted Remedies shall arise by the terms of such securities or related transaction agreements in favor of the holders of such securities as a result of the issuer’s failure to pay Distributions because of the Mandatory Trigger Provision until Distributions have been deferred for one or more Distribution Periods that total together at least ten years.
     “ Market Disruption Events ” means the occurrence or existence of any of the following events or sets of circumstances:
     (a) trading in securities generally, or the securities of the Corporation specifically, on the New York Stock Exchange or any other national securities exchange or over-the-counter market on which the Corporation’s Common Stock is listed or traded, shall have been suspended or materially disrupted or minimum prices shall have been established on any such exchange or market by the Commission, the relevant exchange or any other regulatory body or governmental authority having jurisdiction, and the establishment of such minimum prices materially disrupts or otherwise has a material adverse effect on trading in, or the issuance and sale of, the Corporation’s Common Stock;
     (b) the Corporation would be required to obtain the consent or approval of its stockholders or a regulatory body (including, without limitation, any securities exchange) or governmental authority to issue or sell APM Qualifying Securities pursuant to the Alternative Payment Mechanism and such consent or approval has not yet been obtained notwithstanding that the Corporation has used Commercially Reasonable Efforts to obtain the required consent or approval;
     (c) an event occurs and is continuing as a result of which the offering document for the offer and sale of APM Qualifying Securities would, in the reasonable judgment of the Corporation, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements in

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that offering document, in the light of the circumstances under which they were made, not misleading and either (i) the disclosure of that event at such time, in the reasonable judgment of the Corporation, is not otherwise required by law and would have a material adverse effect on the business of the Corporation or (ii) the disclosure relates to a previously undisclosed proposed or pending material business transaction, and the Corporation has a bona fide reason for keeping such transaction confidential or disclosure of such transaction would impede the ability of the Corporation to consummate such transaction; provided that no single suspension period resulting from an event described in this clause (c) shall exceed 90 consecutive days and multiple suspension periods resulting from one or more market disruption events described in this clause (c) shall not exceed an aggregate of 180 days in any 360-day period;
     (d) the Corporation reasonably believes that the offering document for the offer and sale of APM Qualifying Securities would not be in compliance with a rule or regulation of the Commission (for reasons other than those described in clause (c) above), and the Corporation determines that it is unable to comply with such rule or regulation or such compliance is impractical, provided that no single suspension period resulting from an event described in this clause (d) shall exceed 90 consecutive days and multiple suspension periods resulting from one or more market disruption events described in this clause (d) shall not exceed an aggregate of 180 days in any 360-day period;
     (e) there shall have occurred a material adverse change in general domestic or international economic, political or financial conditions, including without limitation as a result of terrorist activities, or the effect of international conditions on the financial markets in the United States shall be, such that the issuance of or market trading in the APM Qualifying Securities has been materially disrupted or has ceased;
     (f) there shall have been an escalation in hostilities involving the United States, there shall have been a declaration of a national emergency or war by the United States or there shall have occurred any other national or international calamity or crisis such that the issuance of or market trading in the APM Qualifying Securities has been materially disrupted or has ceased;
     (g) a material disruption shall have occurred in commercial banking or securities settlement or clearing services in the United States such that market trading in the APM Qualifying Securities has been materially disrupted or has ceased; or
     (h) a banking moratorium shall have been declared by federal or state authorities of the United States such that market trading in the APM Qualifying Securities has been materially disrupted or has ceased.

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     “ Market Value ” means, on any date, the closing sale price per share of Common Stock (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions by the New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange, as reported by the principal U.S. securities exchange on which the Common Stock is listed; if the Common Stock is not listed on any U.S. securities exchange on the relevant date, the market price will be the average of the mid-point of the bid and ask prices for the Common Stock on the relevant date submitted by at least three nationally recognized independent investment banking firms selected by the Corporation for this purpose.
     “ Measurement Date ” means, with respect to any repayment, redemption, defeasance or purchase of the Debentures (a) on or prior to the Scheduled Maturity Date, the date that is 180 days prior to delivery of notice of such repayment, defeasance or redemption or the date of such purchase and (b) after the Scheduled Maturity Date, the date that is 90 days prior to the delivery of notice of such repayment, redemption or defeasance or the date of such purchase, except that, if during the 90 day (or any shorter) period preceding such date, proceeds were received by the Corporation or any of its Subsidiaries from the sale of Replacement Capital Securities to Persons other than the Corporation and its Subsidiaries but no repayment, redemption, defeasance or purchase of the Debentures was made in connection therewith, the measurement date shall be the date upon which such preceding 90-day (or shorter) period began.
     “ Measurement Period ” with respect to any notice date or purchase date means the period (i) beginning on the Measurement Date with respect to such notice date or purchase date and (ii) ending on such notice date or purchase date, as applicable. Measurement Periods cannot run concurrently.
     “ No Payment Provision ” means a provision or provisions in the transaction documents for securities (referred to in this definition as “such securities”) that:
     (a) include an Alternative Payment Mechanism; and
     (b) permit the issuer of such securities, in its sole discretion, to defer in whole or in part payment of Distributions on such securities for one or more consecutive Distribution Periods of up to five years or, if a Market Disruption Event has occurred and is continuing, ten years, without any remedy other than Permitted Remedies.
     “ Non-Cumulative ” means, with respect to any securities, that the issuer may elect not to make any number of periodic Distributions without any remedy arising under the terms of the securities or related agreements in favor of the holders, other than one or more Permitted Remedies.

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     “ NRSRO ” means a nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Securities Exchange Act.
     “ Optional Deferral Provision ” means, as to any securities, provisions in the terms thereof or of the related transaction agreements to the effect of either (a) or (b) below:
     (a) (i) the issuer of such securities may, in its sole discretion, defer in whole or in part payment of Distributions on such securities for one or more consecutive Distribution Periods up to five years or, if a Market Disruption Event has occurred and is continuing, ten years, without any remedy other than Permitted Remedies and (ii) such securities are subject to an Alternative Payment Mechanism ( provided that such Alternative Payment Mechanism need not apply during the first five years of any deferral period and need not include a Common Cap, Preferred Cap, Share Cap, Bankruptcy Claim Limitation or Repurchase Restrictions); or
     (b) the issuer of such securities may, in its sole discretion, defer in whole or in part payment of Distributions on such securities for one or more consecutive Distribution Periods up to ten years, without any remedy other than Permitted Remedies.
     “ Permitted Remedies ” means, with respect to any securities, one or more of the following remedies:
     (a) rights in favor of the holders of such securities permitting such holders to elect one or more directors of the issuer (including any such rights required by the listing requirements of any stock or securities exchange on which such securities may be listed or traded); and
     (b) complete or partial prohibitions on the issuer paying Distributions on or purchasing common stock or other securities that rank equally with or junior as to Distributions to such securities for so long as Distributions on such securities, including deferred Distributions, remain unpaid.
     “ Person ” means any individual, corporation, partnership, joint venture, trust, limited liability company, corporation or other entity, unincorporated organization or government or any agency or political subdivision thereof.
     “ Preferred Cap ” has the meaning specified in the definition of Alternative Payment Mechanism.
     “ Prospectus Supplement ” has the meaning specified in Recital B.

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     “ Qualifying Preferred Stock ” means Non-Cumulative perpetual preferred stock issued by the Corporation or any of its Subsidiaries that (a) ranks equally with or junior to all other outstanding preferred stock of the issuer, other than a preferred stock that is issued or issuable pursuant to a stockholders’ rights plan or similar plan or arrangement, and (b) contains no remedies other than Permitted Remedies and either (i) is subject to Intent-Based Replacement Disclosure and has a provision that prohibits the issuer from making any Distributions thereon upon the Corporation’s failure to satisfy one or more financial tests set forth therein or (ii) is subject to a Qualifying Replacement Capital Covenant; provided , however , that if such Qualifying Preferred Stock includes Intent-Based Replacement Disclosure and are structured at the time of issuance with a distribution rate step-up of more than 25 basis points prior to the 25 th anniversary of such issuance, then such Qualifying Preferred Stock shall, in lieu of Intent-Based Replacement Disclosure, be subject to a replacement capital covenant that will remain in effect until at least the Scheduled Maturity Date and that is substantially similar to this Replacement Capital Covenant.
     “ Qualifying Replacement Capital Covenant ” means (a) a replacement capital covenant that is substantially similar to this Replacement Capital Covenant applicable to the Debentures or (b) a replacement capital covenant, as identified by the Corporation’s Board of Directors, or a duly authorized committee thereof, acting in good faith and in its reasonable discretion and reasonably construing the definitions and other terms of this Replacement Capital Covenant, (i) entered into by a company that at the time it enters into such replacement capital covenant is a reporting company under the Securities Exchange Act and (ii) that restricts the related issuer and its subsidiaries from repaying, redeeming or purchasing identified securities except out of the proceeds from the sale of specified Replacement Capital Securities that have terms and provisions at the time of repayment, redemption or purchase that are as or more equity-like than the securities then being repaid, redeemed or purchased, raised within 180 days prior to the applicable repayment, redemption or purchase date; provided that the term of such Qualifying Replacement Capital Covenant shall be determined at the time of issuance of the related Replacement Capital Securities taking into account the other characteristics of such securities.
     “ Qualifying Replacement Securities ” means securities or a combination of securities (other than Common Stock, rights to acquire Common Stock, Mandatorily Convertible Preferred Stock or Debt Exchangeable for Common Equity) that, in the determination of the Corporation’s Board of Directors (or a duly authorized committee thereof) reasonably construing the definitions and other terms of this Replacement Capital Covenant, meet one of the following criteria:
     (a) in connection with any repayment, redemption, defeasance or purchase of Debentures prior to June 15, 2018:

I-15


 

     (i) securities issued by the Corporation or any of its Subsidiaries that (1) rank equally with or junior to the Debentures upon the liquidation, dissolution or winding-up of the Corporation, (2) have no maturity or a maturity of at least 60 years and (3)(A) are Non-Cumulative and are subject to a Qualifying Replacement Capital Covenant or have a No Payment Provision and is subject to a Qualifying Replacement Capital Covenant or (B) have a Mandatory Trigger Provision and have either an Optional Deferral Provision or a No Payment Provision and are subject to Intent-Based Replacement Disclosure; or
     (ii) securities issued by the Corporation or any of its Subsidiaries that (1) rank equally with or junior to the Debentures upon the liquidation, dissolution or winding-up of the Corporation, (2) have no maturity or a maturity of at least 40 years, (3) are subject to a Qualifying Replacement Capital Covenant and (4) have a Mandatory Trigger Provision and an Optional Deferral Provision; or
     (iii) shares of preferred stock issued by the Corporation or any of its Subsidiaries that are (1) Non-Cumulative, (2) have no prepayment obligation on the part of the issuer thereof, whether at the election of the Holders or otherwise, (3) have no maturity or a maturity of at least 60 years and either (A) are subject to a Qualifying Replacement Capital Covenant or (B) have a Mandatory Trigger Provision and are subject to Intent-Based Replacement Disclosure; or
     (b) in connection with any repayment, redemption, defeasance or purchase of Debentures on or after June 15, 2018 and prior to
June 15, 2038:
     (i) any securities described under clause (a) of this definition that would be Qualifying Replacement Securities prior to June 15, 2018;
     (ii) securities issued by the Corporation or any of its Subsidiaries that (1) rank equally with or junior to the Debentures upon the liquidation, dissolution or winding-up of the Corporation, (2) have no maturity or a maturity of at least 60 years, (3) are subject to a Qualifying Replacement Capital Covenant and (4) have an Optional Deferral Provision;
     (iii) securities issued by the Corporation or any of its Subsidiaries that (1) rank equally with or junior to the Debentures upon a liquidation, dissolution or winding-up of the Corporation, (2) are Non-Cumulative or have a No Payment Provision, (3) have no maturity or a maturity of at least 60 years and (4) are subject to Intent-Based Replacement Disclosure;

I-16


 

     (iv) securities issued by the Corporation or any of its Subsidiaries that (1) rank equally with or junior to the Debentures upon the liquidation, dissolution or winding-up of the Corporation, (2) have no maturity or a maturity of at least 40 years and (3) (A) are Non-Cumulative, or have a No Payment Provision, and subject to a Qualifying Replacement Capital Covenant or (B) have a Mandatory Trigger Provision and an Optional Deferral Provision and are subject to Intent-Based Replacement Disclosure;
     (v) securities issued by the Corporation or any of its Subsidiaries that (1) upon the liquidation, dissolution or winding-up of the Corporation, rank junior to all of the senior and subordinated debt of the Corporation other than the Debentures and securities that rank equally with the Debentures upon the liquidation, dissolution or winding up of the Corporation, (2) have a Mandatory Trigger Provision and an Optional Deferral Provision and are subject to Intent-Based Replacement Disclosure and (3) have no maturity or a maturity of at least 60 years;
     (vi) cumulative preferred stock issued by the Corporation or any of its Subsidiaries that (1) has no prepayment obligation on the part of the issuer thereof, whether at the election of the holders or otherwise, (2) has no maturity or a maturity of at least 60 years and (3) is subject to a Qualifying Replacement Capital Covenant; or
     (vii) other securities issued by the Corporation or any of its Subsidiaries that (1) rank upon the liquidation, dissolution or winding-up of the Corporation equally with or junior to the Debentures and (2) have no maturity or a maturity of at least 30 years, are subject to a Qualifying Replacement Capital Covenant and have a Mandatory Trigger Provision and an Optional Deferral Provision; or
     (c) in connection with any repayment, redemption, defeasance or purchase of Debentures at any time after June 15, 2038:
     (i) any securities described under clause (b) of this definition that would be Qualifying Replacement Securities prior to June 15, 2038;
     (ii) securities issued by the Corporation or any of its Subsidiaries that (1) rank equally with or junior to the Debentures upon the liquidation, dissolution or winding-up of the Corporation, (2) either (A) have no maturity or a maturity of at least 60 years and are subject to Intent-Based Replacement Disclosure or (B) have no maturity or a maturity of at least 40 years and are subject to a Qualifying Replacement Capital Covenant and (C) have an Optional Deferral Provision;

I-17


 

     (iii) securities issued by the Corporation or any of its Subsidiaries that (1) rank junior to all of the senior and subordinated debt of the Corporation other than the Debentures and any other securities that rank equally with the Debentures upon the liquidation, dissolution or winding-up of the Corporation, (2) have a Mandatory Trigger Provision, an Optional Deferral Provision and are subject to Intent-Based Replacement Disclosure and (3) have no maturity or a maturity of at least 40 years; or
     (iv) preferred stock issued by the Corporation or any of its Subsidiaries that either (1) has no maturity or a maturity of at least 60 years and is subject to Intent-Based Replacement Disclosure or (2) has a maturity of at least 40 years and is subject to a Qualifying Replacement Capital Covenant,
provided , however, that if any of the securities described in the foregoing clauses (a), (b) and (c) is structured at the time of issuance with a distribution rate step-up (whether interest or dividend) of more than 25 basis points prior to the 25 th anniversary of such issuance, then such security shall be subject to a replacement capital covenant that will remain in effect until at least the Scheduled Maturity Date of the Debentures and that is otherwise substantially similar to this Replacement Capital Covenant.
     “ Qualifying Warrants ” means any net share settled warrants to purchase the Common Stock of the Corporation that (a) have an exercise price greater than the Market Value of the Common Stock of the Corporation on the date of sale, (b) the Corporation is not entitled to redeem for cash and (c) the holders of which are not entitled to require the Corporation to repurchase for cash in any circumstances.
     “ Redesignation Date ” means, as to the Covered Debt in effect at any time, the earliest of (a) the date that is two years prior to the final maturity date of such Covered Debt, (b) if the Corporation elects to redeem, or the Corporation or a Subsidiary of the Corporation elects to purchase, such Covered Debt either in whole or in part with the consequence that after giving effect to such redemption or purchase the outstanding principal amount of such Covered Debt is less than $100,000,000, the applicable redemption or purchase date and (c) if such Covered Debt is not Eligible Subordinated Debt of the Corporation, the date on which the Corporation issues long-term indebtedness for money borrowed that is Eligible Subordinated Debt.
     “ Replacement Capital Covenant ” has the meaning specified in the introduction to this instrument.
     “ Replacement Capital Securities ” means
     (a) Common Stock and rights to acquire Common Stock;

I-18


 

     (b) Mandatorily Convertible Preferred Stock;
     (c) Debt Exchangeable for Common Equity; and
     (d) Qualifying Replacement Securities.
     “ Repurchase Restrictions ” has the meaning specified in clause (c) of the definition of “Alternative Payment Mechanism.”
     “ Scheduled Maturity Date ” means June 15, 2038.
     “ Securities Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, including any successor statute.
     “ Share Cap ” means, with respect to any securities or combination of securities, a provision limiting the total number of shares of Common Stock, Qualifying Warrants and Mandatorily Convertible Preferred Stock that may be issued by the Corporation pursuant to the Alternative Payment Mechanism applicable to such securities such that the number of shares of Common Stock issued or issuable on the exercise or conversion of all Qualifying Warrants and Mandatorily Convertible Preferred Shares issued by the Corporation pursuant to such Alternative Payment Mechanism shall not exceed a specified number of shares of Common Stock, provided that the product of such Share Cap and the Market Value of the Common Shares as of the date of issuance of such Qualifying Replacement Securities shall not represent a lower proportion of the aggregate principal or liquidation amount, as applicable, of such securities than the product of the Share Cap applicable to the Debentures and the Current Stock Market Price of the Common Stock as of the date of issuance of such Debentures represents of the aggregate principal amount of such Debentures at the time of issuance.
     “ Subordinated Indenture ” means the Junior Subordinated Debt Indenture, dated as of June 6, 2008, between the Corporation and The Bank of New York Trust Company, N.A., as trustee, as amended and supplemented by the Supplemental Indenture and as further amended and supplemented from time to time in accordance with its terms.
     “ Supplemental Indenture ” means the First Supplemental Indenture, dated as of June 6, 2008, between the Corporation and The Bank of New York Trust Company, N.A., as trustee, as amended and supplemented from time to time in accordance with its terms.
     “ Subsidiary ” means, at any time, any Person the shares of stock or other ownership interests of which ordinary have voting power to elect a majority of the board of directors or other managers of such Person are at the time owned or the management and policies of which are otherwise at the time controlled, directly or indirectly through one or more intermediaries (including other Subsidiaries) or both, by another Person.

I-19


 

     “ Termination Date ” has the meaning specified in Section 4(a).

I-20

Exhibit 5.1
[Letterhead of Debevoise & Plimpton LLP]
June 6, 2008
The Hartford Financial Services Group, Inc.
Hartford Plaza
Hartford, Connecticut 06115
Ladies and Gentlemen:
     This opinion is furnished to you in connection with the Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 (File No. 333-142044), as amended (the “Registration Statement”), and the Prospectus Supplement, dated June 3, 2008 (the “Prospectus Supplement”), to the Prospectus dated June 3, 2008, of The Hartford Financial Services Group, Inc., a Delaware corporation (the “Company”), filed with the Securities and Exchange Commission (the “Commission”), relating to the issuance and sale by the Company of $500,000,000 aggregate principal amount of the Company’s 8.125% Fixed-to-Floating Rate Junior Subordinated Debentures due 2068 (the “Debentures”) issued pursuant to the Junior Subordinated Indenture, dated as of June 6, 2008 (the “Base Indenture”), between the Company and The Bank of New York Trust Company, N.A., as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of June 6, 2008 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and the Trustee.
     In rendering the opinion expressed below, (a) we have examined and relied on the originals, or copies certified or otherwise identified to our satisfaction, of such agreements, documents and records of the Company and its subsidiaries and such other instruments and certificates of public officials, officers and representatives of the Company and its subsidiaries and others as we have deemed necessary or appropriate for the purposes of such opinion, (b) we have examined and relied as to factual matters upon, and have assumed the accuracy of, the statements made in the certificates of public officials, officers and representatives of the Company and its subsidiaries and others delivered to us and the representations and warranties contained in or made pursuant to the underwriting agreement and the pricing agreement pursuant to which the Debentures were sold and (c) we have made such investigations of law as we have deemed necessary or appropriate as a basis for such opinion. In rendering the opinion expressed below, we have assumed without independent investigation or inquiry, (i) the authenticity and completeness of all documents submitted to us as originals, (ii) the genuineness of all signatures on all documents that we examined, (iii) the conformity to authentic originals and completeness of documents submitted to us as certified, conformed or reproduction copies, (iv) the legal capacity of all natural persons executing documents, (v) that the Trustee has the power and authority to execute and deliver, and to perform its

 


 

obligations under, the Base Indenture and the Supplemental Indenture, (vi) the due authorization, execution and delivery of the Base Indenture and the Supplemental Indenture by the Trustee, (vii) the enforceability of the Base Indenture and the Supplemental Indenture against the Trustee and (vii) the due authentication and delivery of the Debentures on behalf of the Trustee in the manner provided in the Indenture.
     Based on and subject to the foregoing, we are of the opinion that the Debentures have been validly issued and constitute valid and binding obligations of the Company entitled to the benefits provided by the Indenture.
     The opinion set forth above is subject to the following limitations and qualifications:
     (a) Our opinion is subject to the effects of (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in law or equity), (iii) an implied covenant of good faith, reasonableness and fair dealing, and standards of materiality and (iv) limitations with respect to enforceability of provisions providing for indemnification or contribution arising under applicable law (including court decisions) or public policy.
     (b) We express no opinion as to the priority status under the Bankruptcy Code (11 U.S.C. §§ 101 – 1330, as amended) of the Debentures.
     (c) Without limiting the foregoing, we express no opinion as to the validity, binding effect or enforceability of any provision of the Indenture or the Debentures that purports to (i) waive, release or vary any defense, right or privilege of, or any duties owing to, any party to the extent that such waiver, release or variation may be limited by applicable law, (ii) constitute a waiver of inconvenient forum or improper venue or (iii) relate to the subject matter jurisdiction of a court to adjudicate any controversy. In addition, the enforceability of any provision in the Indenture or the Debentures to the effect that ( x ) the terms thereof may not be waived or modified except in writing, ( y ) the express terms thereof supersede any inconsistent course of dealing, performance or usage or ( z ) certain determinations made by one party shall have conclusive effect, may be limited under certain circumstances.
     (d) We express no opinion as to whether a United States Federal court would accept jurisdiction in any dispute, action, suit or proceeding arising out of or relating to either the Indenture or the Debentures or the transactions contemplated thereby.

2


 

     The opinion expressed herein is limited to the laws of the State of New York as currently in effect and we do not express any opinion herein concerning any other laws.
     We hereby consent to the filing of this opinion as an exhibit to the Company’s Form 8-K filed on June 6, 2008, incorporated by reference in the Registration Statement, and to the reference to our firm under the caption “Validity of the Debentures” in the Prospectus Supplement. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Debevoise & Plimpton LLP

3

Exhibit 8.1
[Letterhead of Debevoise & Plimpton LLP]
June 6, 2008
The Hartford Financial Services Group, Inc.
Hartford Plaza
Hartford, Connecticut 06115
The Hartford Financial Services Group, Inc.
$500,000,000 8.125% Fixed-to-Floating Rate
Junior Subordinated Debentures due 2068
Ladies and Gentlemen:
     We have acted as special United States tax counsel to The Hartford Financial Services Group, Inc., a Delaware corporation (“the Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), by the Company, of ( i ) a Registration Statement on Form S-3 (File No. 333-142044) filed with the Commission on April 11, 2007, as amended by Post Effective Amendment No. 1 filed with the Commission on June 3, 2008 (the “Registration Statement”), ( ii ) a prospectus, dated June 3, 2008 (the “Prospectus”), relating to junior subordinated debt securities, included in Post Effective Amendment No. 1 to the Registration Statement, ( iii ) a prospectus supplement, dated June 3, 2008, as filed with the Commission pursuant to Rule 424(b)(2) of the Act (the “Prospectus Supplement”) and relating to the issuance and sale of $500,000,000 aggregate principal amount of the Company’s 8.125% Fixed-to-Floating Rate Junior Subordinated Debentures due 2068 (the “Debentures”), pursuant to the Junior Subordinated Indenture, dated as of June 6, 2008 (the “Base Indenture”), between the Company and The Bank of New York Trust Company, N.A., as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of June 6, 2008 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and the Trustee.
     In rendering this opinion, ( i ) we have examined the Registration Statement, the Prospectus, the Prospectus Supplement, the Indenture and the Debentures (all of the foregoing, the “Transaction Documents”) and such other agreements, instruments, documents and records of the Company as we have deemed necessary or appropriate for the purposes of this opinion and ( ii ) we have assumed, without independent investigation or inquiry, and relied upon ( a ) the authenticity of, and the genuineness of all signatures on, all documents; the conformity to original or certified documents of all copies submitted to us as conformed or reproduction copies; the legal capacity of all natural persons executing documents; and the due authorization, execution, delivery and enforceability of the Transaction Documents, ( b ) the performance of all covenants and other undertakings by all parties to, and the consummation of all transactions

 


 

The Hartford Financial
Services Group, Inc.
  2   June 6, 2008
contemplated by, the Transaction Documents, in accordance with their terms, that none of the material terms and conditions of the Transaction Documents have been or will be waived or modified, the valid existence and good standing of all parties to the Transaction Documents and that there are no documents or understandings between the parties that would alter, or are inconsistent with, the terms set forth in the Transaction Documents and ( c ) the accuracy of all statements regarding factual matters, representations and warranties contained in the Transaction Documents and the statements made in the certificates of public officials, officers and representatives of the Company and others delivered to us.
     Based on the foregoing, and subject to the limitations, qualifications and assumptions set forth herein and in the Prospectus Supplement, the statements of law and legal conclusions under the heading “Material United States Federal Income Tax Considerations” in the Prospectus Supplement represent our opinion.
     Our opinion is based upon the Internal Revenue Code of 1986, as amended, Treasury regulations (including proposed Treasury regulations) issued thereunder, Internal Revenue Service rulings and pronouncements and judicial decisions now in effect, all of which are subject to change, possibly with retroactive effect. Our opinion is limited to the matters expressly stated herein, and no opinion is implied or may be inferred beyond such matters. Our opinion is rendered only as of the date hereof, and we assume no responsibility to advise you or any other person of facts, circumstances, changes in law, or other events or developments that hereafter may occur or be brought to our attention and that may affect the conclusion(s) expressed in our opinion.
     We consent to the filing of this opinion letter as an exhibit to the Company’s Form 8-K to be filed in connection with the issuance and sale of the Notes, incorporated by reference in the Registration Statement and to the use of our name under the headings “Material United States Federal Income Tax Considerations” and “Legal Matters” in the Prospectus Supplement. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Debevoise & Plimpton LLP